What the 'Yes' Vote meant

On 15 November 2017, 79.5% of Australians expressed their view towards same-sex marriage through the Australian Marriage Law Postal Survey.

The Australian Bureau of Statistics announced a 61.6% vote in favour of the change. 

Australia is now the 26th country to pass laws legalising same-sex marriage which will seek to protect discrimination against lesbian, gay, bi-sexual and transgender (LGBT) persons.

What are the new changes to the law?

The Marriage Amendment Act1 came into effect on 9 December 2017 and amended the Marriage Act2 (the Act).

Section 2A of the Act redefines marriage as:

to allow civil celebrants to solemnise marriage, understood as the union of two people to the exclusion of all others, voluntarily entered into for life.

Here are some of the changes to the wording in the legislation to reflect the right to marry in Australia no matter what gender or sex.

The Monitum

Section 46 of the Act now requires authorised celebrants to explain the nature of marriage as:

I am duly authorised by law to solemnise marriages according to law.

Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

Marriage according to law in Australia, is the union of two people to the exclusion of all others, voluntarily entered into for life.

Form of Ceremony

Section 45(1) of the Act allows for ministers of religion to continue to use the same form of ceremony, to marry same sex couples.  If that religion does not recognise or provide a ceremony for same-sex marriages, then the minister should consider whether they can solemnise a marriage.  If the minister cannot solemnise a marriage due to this reason, then under section 45, the marriage may be held void.

Same-sex Vows

Section 45(2) of the Act covers the vows to be said by parties in a civil marriage ceremony where the authorised celebrant is not a minister of religion.

"I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. ( or A.B.), to be my lawful wedded wife (or husband, or spouse)";

Or words to that effect.

This gives marrying couples the freedom to interchange vows that best reflect their relationship.

Same-sex Divorce System

Through the new amendments made to the Act, couples who have solemnised their unions overseas were automatically recognised as married under Australian law and therefore eligible for divorce.

Same-sex couples who married overseas prior to 9 December 2017 and same-sex couples, who tie the knot after 7 January 2018 in Australia, will be granted access to the Australian divorce system.

Under the Family Law Act,3 same-sex couples will need to meet the same criteria as heterosexual couples which is:

  1. Living separately for at least 12 months; and
  2. No likelihood of reconciliation between the parties for grounds of divorce.

Foreign same-sex divorces will generally be recognised pending they meet the requirements of the Family Law Act.

Is my same-sex Binding Financial Agreement (pre-nup) still valid?

If you and your same-sex de-facto partner previously made a binding financial agreement (BFA) prior to the new laws changing, then your agreement will be treated as an agreement made between married couples.

Your BFA will continue to operate as a valid and legally binding agreement.

Is my same-sex Spousal Maintenance Order still valid?

After 9 December 2017, any maintenance order made in favour of a party to a pre-commencement same-sex marriage will cease to be in effect.  This is to prevent retrospective obligations in having to back pay maintenance payments.

Prior to the new amendments, if a heterosexual couple who had a maintenance order in their favour re-marry, then that maintenance agreement would cease.

However, because same-sex marriages were not recognised until recently, they did not previously cause a maintenance agreement to cease.

Lavan Comment

If you have any questions about the change to the Act or your rights under the Act, we invite you to contact one of our family lawyers.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.