Same Sex Marriage
Same Sex Marriage in Western Australia
On December 7th, 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was changed by the Australian Parliament to provide for marriage equality in Australia. The passing of the Act allowed for marriage in Australia to no longer be determined by gender or sex. The definition of marriage is now ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.
Simplified from:Â (Recognition of foreign same-sex marriages From 9 December 2017, Part VA of the Marriage Act generally recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country where the marriage is valid under the foreign law. Same-sex marriages solemnised in Australia by a diplomatic or consular officer under the law of a foreign country before 9 December 2017 are also recognised.)
Same-sex couples are now able to lodge a Notice of Intended Marriage which commences the one-month minimum notice period which is required before marriages are solemnified. Issues of property settlement and parenting issues are treated the same for same-sex couples as they are for married and de facto couples.
Same-sex Relationships and De Facto Relationships
People in same-sex relationships who choose not to get married may be considered to be in a de facto relationship if the correct criteria are met. The Australian Family courts treat same-sex de facto relationships no differently to heterosexual de facto relationships under s 13A of the Interpretation Act 1984 (WA). If the relationship is deemed de facto, then the Family Court of WA may make property orders, including orders on entitlements, just like in a heterosexual marriage. The only difference is that the apportionment of superannuation entitlements does not split or roll over.
Same Sex Relationships and Divorce
As with heterosexual marriage, same-sex marriage couples have access to the divorce system. Any couple that gets divorced must demonstrate that the marriage has broken down. The parties must have been separated for at least a year and to have no chance of reconciliation.
Same Sex Relationships and Migration – eg. Spouse Visa (Partner Visa)
Same-sex couples are also able to apply for various partner visa.
To apply for same-sex partner Visa, visa applicants must first apply a temporary partner visa and then a permanent partner visa. The applicant also needs to be sponsored by their partner (who they are applying their partner visa with) – who is an Australian or eligible New Zealand citizens or an Australian Permanent Resident.
Proof of your genuine de facto relationship may be evident in the following documents:
- Shared legal obligations or commitments
- Friends or family who knows about your relationship
- Explaining how you and your partner met
- Explaining your domestic arrangements, including the nature of your relationship and financial, households and social obligations
For more information, do not hesitate to contact Tan and Tan Lawyers at 9221 2888
Same Sex Marriage FAQ's
Is same sex marriage legal in Australia and what are the requirements?
Yes, same sex marriage has been legal throughout Australia since 9 December 2017, when the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into effect. The law redefined marriage as “the union of two people to the exclusion of all others, voluntarily entered into for life,” removing all gender and sex based restrictions. The same legal requirements apply to all couples: both parties must lodge a Notice of Intended Marriage, observe a minimum one month notice period before the ceremony, and have the marriage solemnised by an authorised celebrant.
Existing same sex marriages that were solemnised overseas are also recognised under Australian law from 9 December 2017 onwards, provided they were valid under the law of the country where they took place. We assist same sex couples with every aspect of the marriage process, from understanding the notice requirements through to the legal documentation involved. If you have questions about how the legislation applies to your specific circumstances, our team can provide clear, practical guidance through a free initial email consultation or a low cost phone or Zoom appointment.
What legal rights do same sex de facto couples have in Western Australia?
Same sex de facto couples in Western Australia have the same legal rights as heterosexual de facto couples under section 13A of the Interpretation Act 1984 (WA). If the relationship meets the criteria for a de facto partnership, the Family Court of WA can make property orders, determine entitlements, and address parenting matters in exactly the same way it would for a married couple or an opposite sex de facto relationship.
The one notable difference relates to superannuation: under current law, superannuation entitlements in same sex de facto relationships do not split or roll over in the same way they do for married couples. This distinction makes it especially important to get legal advice early if you are separating, so that the treatment of superannuation is properly addressed as part of any property settlement. We regularly advise same sex de facto couples on their rights and can help you understand your entitlements through a free email consultation or a low cost phone or Zoom appointment.
How does divorce work for same sex couples in Australia?
The divorce process for same sex couples in Australia is identical to the process for heterosexual couples. To obtain a divorce, you must demonstrate that the marriage has irretrievably broken down, which requires evidence of at least 12 months of separation with no reasonable prospect of reconciliation. There is no separate procedure or additional requirement based on the gender or sex of the parties involved.
Property settlement and parenting issues that arise during a same sex divorce are also treated in the same way as they would be for any other married couple. This means the court considers each party’s financial and non financial contributions, future needs, and the best interests of any children when making orders. We guide same sex couples through every stage of the divorce and settlement process, and we are committed to resolving matters as efficiently and affordably as possible. A free initial email consultation is available if you want to understand your position before taking the next step.
Can same sex couples apply for a partner visa to live in Australia?
Yes, same sex couples can apply for partner visas on the same basis as heterosexual couples. The process involves lodging a temporary partner visa followed by a permanent partner visa, and the applicant must be sponsored by their Australian citizen, eligible New Zealand citizen, or Australian permanent resident partner. The Department of Home Affairs assesses the relationship using the same criteria regardless of the gender or sex of the parties.
To support a partner visa application, you will need to provide evidence that the relationship is genuine. This typically includes documentation of shared legal obligations or financial commitments, statements from friends or family who know about the relationship, an account of how you and your partner met, and details of your domestic arrangements including household and social obligations. We assist same sex couples with partner visa applications and can help you compile the strongest possible evidence package. Our CEO, Raymond Tan, is a registered migration agent with MARA, so we handle both the legal and migration aspects of your application under one roof.
Are property settlements handled differently for same sex couples in Australia?
No, property settlements for same sex couples, whether married or in a de facto relationship, follow the same legal framework that applies to all couples under Australian family law. The court assesses the total asset pool, evaluates each party’s financial and non financial contributions, considers future needs, and makes orders accordingly. There is no separate process or different standard applied based on the gender or sex of the parties.
The only practical distinction worth being aware of relates to superannuation in de facto relationships, where entitlements do not currently split or roll over in the same manner as they do for married couples. If superannuation forms a significant part of the asset pool, this can materially affect the outcome of a settlement, which is why professional legal advice is essential. We regularly handle property settlements for same sex couples and can ensure that all assets, including any superannuation considerations, are properly accounted for. Free initial advice is available by email, and low cost Zoom or phone consultations allow you to discuss the specifics of your situation before committing to any course of action.
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