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The whole team at Nevett Ford Melbourne is committed to helping clients with their access to family law, regardless of sexuality of gender. With Australia becoming the 26th country to legalise same-sex marriage on the night of 7 December 2017, we are very proud to share in this wonderful historical moment of love, equality and respect.
What we often find is underappreciated though, is the existing access to family law systems, and the new access that will be provided as a result of this historic change.
If you are wondering how same-sex marriage might change things for the LGBT community from a legal perspective (aside a boom in the wedding planning industry), we have the answers.
When separating, being married, rather than defacto, can be very legally significant
The same Australian Family Law Act (Commonwealth) or Family Court Act (Western Australia) legislation applies to same-sex couples as it does to heterosexual couples in a defacto relationship. Now that non-hetero couples can marry, they will have access to the provisions that deal with married couples as well in the Family Law Act. Whilst these laws are almost identical, there are some interesting differences that arise as between defacto and married couples, particularly around:
1. how long you have to apply for a property settlement if your marriage or relationship breaks down;
2. when you can apply for a property division – married couples have a broader ability here; and
3. when pregnancy support payments might be payable by a former partner.
More broadly, a family law Court will be able to make a decision about the assets or children of your relationship if you and your partner are unable to do so. There are extensive mediation requirements before and after you go to Court, so Court is never the first, or the last, stop on the journey.
'Pre-nups': worth the paper they're written on?
In Australia, a 'pre nup' is actually a type of Binding Financial Agreement. You can make a binding financial agreement before, during or after a defacto or married relationship. An interesting point of the law however is that if you have a defacto agreement, that will 'terminate' or end when you get married. This of course was not an issue for non-hetero couples until the end of 2017, but all of a sudden that pre-nup you might have arranged years ago might be swept aside in the happy occasion of your marriage.
Having a pre-nup or a Binding Financial Agreement in place when “I will love your forever “ turns out to have some conditions attached, will prevent a great deal of confusion, disagreement and heartache. Whilst talking about a BFA is not incredibly romantic, it is better to have the conversation when everything is amicable and we would say that 90% of our clients that come to us about property matters after a separation wish they had a BFA in place. If you have assets to protect, it can better to have one than not, as long as you understand the limitations of what these documents do.
Perhaps in the future part of our wedding vows will include the signing of a BFA. Until then, we suggest you give some serious consideration to whether one is right for you, and it's exactly the type of protective measure you should look at if you've already been through one or more property settlements, or have acquired a good deal of wealth before your relationship or marriage already.
Research has confirmedthat it is the quality of parenting and of relationships and not the gender of parents or make-up of families that determine the healthy development of children.
Paula Gerber, Professor of Human Rights Law at Monash University, has stated that the redefinition of marriage is only the beginning, and that “the fight for LGBTI people to live lives free from discrimination will continue”. Gerber explains:
Australian law has not yet caught up with the reality of modern families. Children in LGBTI families may have more than two parents: a lesbian couple may have a child with the assistance of a gay couple, for instance, and all four parents may be actively involved in raising the child.
In contrast to Canada, which allows birth certificates to record up to four parents, Australia allows only two parents to be recorded. This means that this pivotal identity document may not accurately reflect a child’s family structure.
This issue is particularly vexing for people involved with surrogacy arrangements and invitro fertilisation (IVF) methods. With the increasing level of equality afforded same-sex and non-hetero couples, these issues are becoming increasingly streamlined, but still present some occasionally challenging problems your lawyers may need to deal with.
Due to the change to the law in December 2017, same-sex couples legally married overseas will automatically be recognised now under Australian law as married couples. This means that these couples can now easily obtain a divorce in Australia (if they want to, of course!) Previously, there was a real risk of legal-limbo where same-sex couples had difficulties obtaining divorces in Australia, and continued to be tied together despite wanting to separate. It also put couples in the odd and discomforting position of having to apply as 'defacto' couples if they went to Court, despite their clearly being married.
What Will you do?
If you recently got married to your partner, you might need to draw a new Will to reflect your new relationship status. Many Australians are unaware that their Will becomes invalid when they marry. If you are separated, it is also essential for you to update your Will, otherwise a large part of your estate might end up being given to your spouse (and not, for example to your children or your parents).
This is just a sample of the issues that might arise for same-sex couples. Our lawyers and support staff are familiar with all these scenarios and more, and operate in a sensitive, caring manner dealing with all our clients, whilst ensuring that you have representation that has the breadth of experience of having dealt with a diverse range of people and backgrounds. Our lawyers, Richard Hamilton, Mei Ngo and Caron Easton have a reputation of standing up for our clients when they are in need, and look forward to working with you to ensure that you have the benefit of our approach. call us on 03 9615 4390 to find out more.