Same-sex marriage in Australia
Marriage equality has been recognised in Australia since December 2017. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 changed the federal definition of marriage so it is no longer limited by the sex or gender of the parties.
Previously, in the Marriage Act 1961, marriage was specifically defined as between a man and a woman. As a result of the new legislation, same-sex marriages solemnised overseas are now also recognised in Australia.
Does marriage determine legal parentage?
Marriage and legal parentage are related but separate questions. Parentage following donor conception, assisted reproductive treatment, adoption or surrogacy can depend on the Family Law Act, Victorian legislation, consent requirements and any court orders that have been made. The outcome should not be assumed from a birth certificate, biology or marital status alone.
Anyone planning a donor-conception or surrogacy arrangement should obtain advice before treatment or entering an agreement. Early advice can identify the documents, consents and court process that may be required. Existing parents who are uncertain about legal parentage or decision-making responsibilities should obtain advice specific to the way their family was formed.
In a parenting dispute, the Court’s central consideration is the child’s best interests. The legal framework applies irrespective of the parents’ sexual orientation. See our parenting arrangements service for practical information about parenting plans, consent orders and disputed arrangements.
Marriage and divorce for same-sex couples
Australia has a no-fault divorce system. The Court does not determine who caused the relationship to end. The applicant must establish that the marriage has broken down irretrievably and that the parties have been separated for at least 12 months. Separation can occur while the parties remain under one roof, but additional evidence may be required.
At least one party must also satisfy the Australian citizenship, domicile or residence requirements. The Federal Circuit and Family Court of Australia publishes the current eligibility and filing requirements.
If the parties have been married for less than two years, additional counselling-certificate requirements may apply unless an exception is established. Legal advice should be obtained where there is family violence, difficulty locating the other party, uncertainty about the separation date or an overseas marriage.
Divorce does not determine parenting arrangements, property division or financial support. Different steps and time limits apply to those issues. See our separation and divorce service for advice about the complete pathway.
This article provides general information only. Parentage and divorce requirements depend on the facts and the law applying at the time advice is obtained.