Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Australia says YES to Same Sex Marriage – What about the legal issues?


Legal issues arising from historic ‘YES’ vote and same sex marriage legislation – Senior Associate and senior family lawyer Hayley Condon discusses this important topic.

On the 8 December 2017 Governor-General Sir Peter Cosgrove signed off on the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – the last step to making same sex marriage legal in Australia. The legislation is the end product of the recent same sex marriage plebiscite in which 12 million people voluntarily expressed their view as to whether same sex marriage should be legalised in Australia – the result of the vote was an emphatic “Yes”.

The new marriage law that came into effect on Saturday prompted a surge of same-sex couples to assemble outside registry offices throughout Australia to be one of the first to register their intent to marry. With the changes taking effect from Saturday, the first same sex weddings in Australia will be able to take place from January 9, 2018.

With same sex couples busily planning their proposals and weddings, the question to be considered is whether the new law achieves true equality for same sex couples when it comes to marriage in Australia?

From Saturday, the legal definition of marriage in the Marriage Act 1961 changed and celebrants are now required to read out a new monitum when officiating at weddings (being the statement explaining the nature of marriage).  Previously, civil celebrants would have to note that “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” This will now be changed to a “union of two people”.

But while the law now gives same sex couples the right to marry in Australia and recognises unions where gay couples have legally married overseas, the parliament has built into the legislation religious exemptions which allow certain authorised celebrants to refuse to marry gay couples.

The legislation provides that:

  • Celebrants will be divided into two different types being a religious marriage celebrant and a marriage celebrant. A religious marriage celebrant, which includes ministers of religion, can refuse to conduct a marriage ceremony for a same sex couple if it is contrary to their religious beliefs.

Only existing celebrants will be allowed to be registered as a religious marriage celebrant and will have 90 days to decide whether they want to be registered in this way. (This however does not apply to ministers of religion)  Any person who becomes a celebrant after Saturday, 9 December (excluding ministers of religion) will be considered a marriage celebrant and will not be allowed to refuse to marry gay couples.

  • Further, a body established for religious purposes can refuse to hire its community hall or other facilities or to provide any goods or services for a same sex wedding.
  • Australian Defence Force chaplains will also be able to refuse to solemnise a same sex marriage.

Notwithstanding the exemptions set out above, the legalisation of same sex marriage in Australia is a significant step forward for the LGBTQI community.

It will also have an impact for same sex couples in other areas of the law.  By way of example:

  1. Family Law – Prior to the change in the law, in order for a party to a same sex relationship that had broken down to be able to access the family law courts to obtain a property settlement order the party would need to prove firstly, that they were in a “de facto relationship” as defined in Section 4AA of the Family Law Act 1975 (Cth) with their former partner but ALSO would need to meet the requirements set out in Sections 90SB and 90SK (geographical requirements) of the Act for the Court to have jurisdiction to deal with their matter.

With the change in law, access to the family law court system will be made easier for same sex couples that choose to marry. Upon the breakdown of their marriage, they will be eligible to apply to a family law court to seek orders for property settlement and/or spousal maintenance without being required to meet the requirements set out above.

  1. Succession Law – Where a party to a same sex relationship has passed away and has made little to no provision for their gay partner in their Will, the change in the law will now make it easier for the surviving partner to apply to the Court to seek provision from their deceased partner’s estate, if the couple had married prior to the death.

In this case, the surviving spouse would simply need to prove that the parties were married prior to the death of the other via production of a Marriage Certificate to be regarded as an eligible applicant under Section 41 of the Succession Act 1981 (Qld) as opposed to the surviving partner being required to prove that they were living with the deceased as a couple on a genuine domestic basis within the meaning of Section 32DA of the Acts Interpretation Act 1954 (Qld) for a continuous period of at least 2 years ending on the deceased’s death.

Anyone who marries should be aware that the marriage normally revokes any will that you have in place, unless it has been entered into in contemplation of marriage (which most gay couples would not have done as marriage was not available to them!). Enduring Powers of Attorney can also be revoked by marriage (there are different laws that apply in QLD & NSW) and should be reviewed. We strongly recommend that all same sex couples contemplating marriage urgently review their estate planning and update your wills and powers of attorney!

  1. Superannuation Law – The change in law will also make it easier for same sex couples who chose to marry to seek payment of death benefits from the Trustee of a superannuation fund after one of the party’s passes away.

Where a valid Binding Death Benefit Nomination is not in place in relation to the superannuation account, distribution of the deceased’s death benefits would ordinarily fall within the discretion of the Trustee of the superannuation fund. Under the superannuation law, a Trustee is only permitted to distribute death benefits to a dependant of the deceased or to the deceased’s Legal Personal Representative.  A dependant includes a spouse of the deceased being a husband or wife or a de facto partner.

In circumstances where the parties to the same sex relationship may have kept their relationship hidden from family and friends, the surviving partner will now be able to prove their relationship to the Trustee of  the fund by producing their Marriage Certificate as opposed to putting evidence before the Trustee to support their position that they were in a de facto relationship with the deceased at the time of their death  and therefore have the strongest claim to the death benefits.

The change in the marriage law will have a positive flow-on effect for same sex couples in many aspects of the law.  

For one woman in Perth, this is the case, where she intends to use the long-awaited law to officially end her marriage with her same sex partner rather than to wed. The woman in question married her long term partner in 2015 at a local consulate of a European country where same sex marriage was legal.  The couple later separated and the woman discovered that obtaining a divorce in circumstances where same sex marriage was not recognised in Australia would be much more complex than for a heterosexual couple.  With the change in law, this woman in Perth looks set to become the first legally divorced same sex couple in Australia.

We welcome any enquiries or comments in relation to these issues.  Please contact our Family Law and Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email or free call 1800 621 071. We have a dedicated family law team that practices exclusively in this complicated area.

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Hayley Condon - Senior Associate - Wills & Estates, Family Law

Hayley Condon

Special Counsel
Wills & Estates, Family Law

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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