Same sex marriage in Australia
Marriage equality is legal in Australia. Same-sex couples have been able to marry each other since the 9th of December 2017, when the Australian parliament passed a bill to change the definition of marriage. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 redefined marriage as “the union of two people to the exclusion of all others, voluntarily entered into for life.”
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.
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 Family Law 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.
When it comes to parenting disputes, the same overarching principle that decisions be made in the best interest of the child apply.
Same-Sex Marriage and Divorce
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.