The Impact of Same-Sex Marriage on Property Settlements, Divorce & Inheritance

Same Sex

Same sex marriage in Australia has been legal since 9 December 2017 under the Marriage Amendment (Definition and Religious Freedom)Act 2017.
The option of marriage for same-sex couples has conferred a number of benefits and rights previously denied to them.
Some of those rights include:

  1. Less hurdles in applying for a family law settlement:
    Same-sex de facto couples have been recognised in Australia for some time for the purposes of Family Law property division and parenting matters. However issues often arose in the past where one would assert that there was no de facto relationship or that the duration of such a relationship was shorter than the other party stated. The other party then had to prove that they meet certain eligibility requirements, and that the couple were together on a ‘genuine domestic basis’. This often lead to expensive and lengthy court battles.
    This burden is discharged when the same-sex couple is married. Marriage overcomes this hurdle and if the parties separate the same-sex couple is able to immediately negotiate a property division, or if necessary apply to the Family Court or Federal Circuit Court to seek a property settlement.
  2. Same-sex couples are able to apply for divorce in Australia:
    Prior to the Australian legislation, many same-sex couples chose to have their relationship affirmed by marriage in another country. However in the past same-sex couples married overseas were unable to get divorced in Australia, so many parties chose to separate without ever seeking a formal divorce.
    Now that same-sex marriage is recognised in Australia, a formal divorce can be sought by either party upon the expiry of the 12 month separation period.
    Considering the fact that same-sex marriage legislation is still very new in Australia, you may be thinking that it will be a while before same-sex couples start filing for divorce. However, the legislation has also recognised historical same-sex marriages that took place overseas. Given that there are nations which legalised same-sex marriage as early as 2001 (the Netherlands), there are many same-sex couples in Australia who have already been married for a significant period of time.
    Given that marriages are recognised retrospectively, one potential flaw in the Australian same-sex marriage legislation is that people who get married under Australian law may be getting married for the second time (if they were previously married overseas, but did not formally divorce as their marriage was not legally valid in Australia).
    This means that there may well be people in either two same-sex marriages, or potentially one same-sex marriage and one heterosexual marriage.
    Under section 88D(2) of the Marriage Act, the second marriage will be nullified if a person enters into a second valid marriage. This has potential ramifications for the parties to a ‘second’ marriage- who will then be subject to the de-facto provisions of the Family Law Act instead of the marriage provisions.
  3. Married same-sex couples have the right to inherit:
    Marriage equality has allowed same-sex couples to have the benefit of rights to their spouse’s estate and superannuation in the event of the death of their spouse.
    Previously, when a person died leaving no Will, the surviving same-sex spouse needed to prove the existence of a de facto relationship before they could claim rights to their deceased partner’s estate. This was problematic for de facto couples, particularly where the direct family members of the deceased may not be accepting of the relationship, and seek to deny the surviving partner of their rights. This issue is now resolved