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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Same-Sex Marriage and Family Law


In 2017 the Australian Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017, making same-sex marriage legal across the country. This ensures that same-sex married couples are recognised by the Family Law Act 1975, thereby affording greater access to legal protections to same-sex couples in relation to parenting and financial matters. This article explores the implications of this change to the law, particularly in terms of the right to marry, parent, and divorce for same-sex married couples in Australia.

Background

Until recently, marriage in Australia was restricted to heterosexual couples. The restriction was codified in 2004 with the Marriage Amendment Act 2004. The Howard government introduced this legislation expressly to prohibit same-sex marriage in Australia, by defining the institution as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

It was not until 2017, when the Marriage Law Postal Survey indicated strong public support for marriage equality, that the Marriage Act 1961 was amended to allow for same-sex marriage. The new legal definition of marriage in Australia is the union of two people to the exclusion of all others, voluntarily entered into for life. This allows lesbian, gay, bisexual, transgender and intersex people to marry irrespective of their sexual orientation or gender.

The first legally recognised same-sex wedding in Australia was officiated on 15 December 2017. According to the Australian Bureau of Statistics (ABS) there were a total of 5,507 same-sex marriages in 2019.

Religious Exceptions

Australian legislation allows exceptions for certain entities to refuse to provide services to same-sex couples. Religious celebrants and ministers of religion may decline to solemnise a same-sex marriage on the grounds that their personal religious beliefs prohibit them from involvement. In addition, entities that were established for a religious purpose are allowed to refuse to provide goods, services and facilities to same-sex couples, as long as the denial conforms to the religious doctrines of the entity, and is necessary to prevent injury to the religious susceptibilities of people of that faith. For example, in the 2009 NSW case of Members of the Board of the Wesley Mission Council v OW & OV, the Wesley Mission was found to have acted legally in refusing to grant a same-sex couple access to the foster care agency. The court found that the organisation was established as a religious entity and that its members would find homosexual foster carers to be unacceptable.

A religious exception to anti-discrimination law is not easily obtained, as was demonstrated in a 2010 case in Victoria, where a Christian Youth Camp refused to let an LGBTI youth suicide prevention group enter a campsite. In this case, the camp was not able to establish itself as a religious body and was also unable to prove that opposition to homosexuality was a fundamental doctrine of Christianity accepted by all people of the Christian faith.

The right to refuse service, goods or amenities does not include the average person unless they work for a body as outlined above. Both the Sex Discrimination Act 1984 (Cth) and the Explanatory Memorandum to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 clearly state that unless someone represents an established religious entity, they cannot discriminate based on gender identity or sexual orientation.

International Same-Sex Marriages

The passing of the 2017 Act immediately recognised earlier same-sex marriages that were legally performed overseas. An overseas marriage can be evidenced in Australia through an original or certified copy of a marriage certificate, or a record or entry of marriage that was issued by a proper authority in the relevant country. Same-sex couples that married overseas may, understandably, wish to marry in Australia now that it is possible, but family law does not allow already married couples to marry again. However, an already married couple can hold another type of ceremony to celebrate their marriage, such as a confirmation of vows or recommitment ceremony.

Parenting

Same-sex biological parenting is usually facilitated through reproductive technology such as intrauterine insemination or in vitro fertilisation. According to the Family Law Act, if a child is conceived using a sperm donor in an IVF procedure, and the woman’s marital spouse gives their consent, then the marital partner is lawfully a parent of the child. In the event that the partners are not married, then the non-biological parent would have to prove that they were in a de facto relationship when the IVF procedure occurred, to establish that they are a legal parent of the child. As such, prior to the marriage equality amendment, same-sex couples were not able to easily establish shared parentage for an IVF child and had to rely on the provisions relating to de facto partners in the Family Law Act. This presumption of parentage established by marriage does not currently extend to surrogacy agreements. However, the Act does allow any interested party, including a male same-sex spouse, to apply for parenting orders. Depending on the specific circumstances of the child, this may afford parenting rights to a same-sex spouse over a child born under a surrogacy arrangement.

An alternative for same-sex parents without the capacity or desire for biological children is foster care and adoption. In Australia, same-sex couples are legally allowed to adopt and foster children. Each parent is assessed against strict requirements to ensure that the best interests of the child will be met.

Same-Sex Marriage and Divorce

As the number of same-sex marriages rises, there is an inevitable concomitant rise in same-sex divorce. The ABS found that 104 same-sex couples divorced in 2019. Couples who have married since the 2017 amendment, or whose overseas marriage was recognised by the change in law, are able to obtain a divorce under the provisions of the Family Law Act.

Australia follows a “no-fault” divorce system where in order to get a divorce the couple must establish only that the marriage has irretrievably broken down. The couple must live apart for at least 12 months before they can apply for a divorce in Australia. Both parties can continue to live in the marital home, but they need to live separate lives to meet the requirement of separation. One spouse must be either an Australian citizen, live here and intend to do so for the indefinite future, or have resided in Australia for at least a year. Newly married couples must also attempt to reconcile their differences through marriage counselling. This applies to all couples that have been married for less than two years, except in cases where there is a history of domestic violence, in which case the applicant can ask the court to waive the counselling requirement.

Armstrong Legal can help if you need further advice about how same-sex marriage is treated under family law in Australia. Please call us on 1300 038 223 or send an email to make an appointment with one of our friendly, professional family lawyers.

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