Waking Up Married Years After Separation: A Hidden Consequence of Same-Sex Marriage

same sex marriage divorceAs my colleague Courtney pointed out some time ago, many same sex couples are traveled overseas to get married during the years it was unlawful for them to do so in Australia. You can check out Courtney’s blog post here .

In the olden days, when foreign same-sex marriages were not yet recognised under Australian law, these couples were unable to get divorced in Australia. In many circumstances they also faced jurisdictional barriers to applying for a divorce in the country where they were married. The UN Human Rights Commission recently ruled that this was a violation of article 26 of the International Covenant on Civil and Political Rights because it prevented married same-sex couples from accessing the same legal protections as married opposite sex couples.

Same sex couples who married overseas before the legalisation of same sex marriage in Australia might well have wondered whether there was any point in getting divorced in those days because:

  1. Their marriage wasn’t recognised in Australia anyway;
  2. Divorce proceedings can be long and expensive; and
  3. They already had access to the parenting and de facto property provisions of the Family Law Act in Australia.

But divorce also brings the benefit of finality and closure to a relationship and this is more than just symbolic.

In the 2017 amendments to the Marriage Act, the automatic recognition of same sex marriages conducted overseas meant that many people woke up on the morning of 9 December 2017 and realised that they were married to their ex. Either because they couldn’t get divorced previously or because they didn’t see the need to.

Some of these couples may have separated very many years ago and may no longer be in contact. Others may have repartnered or even remarried without seeing the utility in first divorcing in the jurisdiction in which they were originally married.

All of this presents some interesting legal questions like:

  1. If they had previously settled property matters on a final basis under the de facto provisions of the Family Law Act, can they make a fresh application for property orders from the Court under the marriage provisions of the Act when they do get divorced?
  2. Has a person committed bigamy if they married their same sex partner overseas, but never divorced and subsequently remarried an opposite sex partner in Australia or a same sex partner in another friendly jurisdiction? And if so, when was the crime committed?
  3. Are their Wills suddenly revoked? And from when?

While these are interesting theoretical questions for lawyers, we understand that they can have very real consequences for the people affected. If you were married to your partner overseas and are now separated, divorce is now a real option.

If you need a divorce or if you think you need advice about making a property application following the amendments to the Marriage Act, call the lawyers at FGD on (03) 8376 7000 to discuss your options.

Tom MainwaringTom Mainwaring is a solicitor in our Melbourne office.

By |2018-02-22T00:30:04+00:00February 22nd, 2018|

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