Australia recognises same-sex divorce; as well as same-sex marriage

“Same-sex marriage in Australia, also now recognises same-sex divorce.  If you previously married in another jurisdiction you can now have recognition of, or file for divorce in Australia.  With an extensive global network, Koffels Solicitors & Barristers, Sydney,  can assist with both your family law concerns, and any cross-border property settlement if required.  We are highly experienced and we can help.”

This weekend saw the new Australian same-sex marriage legislation come into effect.

In particular, Governor-General Sir Peter Cosgrove signed the Marriage Amendment (Definition and Religious Freedoms) Bill 2017.

Under the new legislation, the definition of marriage in the Marriage Act 1961 has been changed to “a union between two people”.

This means that same-sex couples who have married overseas can now have their marriage legally recognised in Australia and same-sex couples wishing to marry in Australia can now do so.

Further, as same-sex marriages will now be legally recognised in Australia, the Family Court will now have jurisdiction to grant a Divorce to married same-sex couples.

In order to get a Divorce in Australia, one party (or both, jointly), must file an Application for Divorce at the Court. This Application must then be served on the other party.

Parties must have been separated for at least 12 months prior to filing an Application for Divorce.

In some cases, parties will be ‘separated under one roof’ as they will still be living together, though not as a married couple, for some of that 12 month period. In this case, the Applicant will also need to file an Affidavit setting out the details and circumstances of the parties being separated under one roof.

Upon the filing of the Application for Divorce, the Divorce Hearing date will usually be set down for at least 6 – 8 weeks in advance, to allow time for service of the Application and depending on how busy the Court is.

If there are children of the marriage under the age of 18 years, the Applicant must attend the Divorce Hearing. If there are no children, the Applicant’s solicitor can attend on the Applicant’s behalf.

In addition to other jurisdictional requirements, the Court will find that there is a valid marriage between the parties, that they have been separated for at least 12 months and that appropriate arrangements are in place for the children.

Once the Divorce Order is made, it will become effective one month later.

If you are wanting to obtain a Divorce, contact our office. We can draft the Application for Divorce and attend Court on your behalf.