Marino Law | Gold Coast Law Firm

Australia Says “Yes” – Where to Now?

The results of Australia’s Same Sex Marriage Postal survey were announced today. By a majority of 61% Australian’s have shown their support for same sex marriage.

The responsibility now shifts to the Federal Government to legislate appropriately to enable same sex couples to marry.  They are hopeful of doing so before Christmas.

The first step will be amending the definition of marriage, as contained within the Marriage Act (Cth) 1961.  The current definition of marriage is:-

‘The union of a man and a woman to the exclusion of all others, voluntarily entered into for life’

Upon this change occurring, marriages between same sex couples can be solemnized pursuant to the Marriage Act.

A Bill to change the definition of marriage has already been introduced into the Senate by Liberal senator Dean Smith with the possibility of debate commencing this week.

The Family Law Act (Cth) 1975 was amended some years ago to specifically include same sex couples within the definition of who can be in a de facto relationship.  These changes enabled the Family Law Act to appropriately protect children born of same sex couples through artificial conception procedures and provide same sex couples the right to seek property adjustment Orders in relation to the assets of their relationship.

However, when defining the jurisdiction of the Family Law Courts, the Act refers to “marriage” and therefore currently can only be referring to the marriage of a man and a woman.

Same sex couples who have validly entered into a de facto relationship Binding Financial Agreement in order to protect pre-relationship assets will need to carefully consider their legal position if they wish to marry their spouse as their Binding Financial Agreement will cease to be binding upon their marriage.

In those circumstances, in the absence of a Binding Financial Agreement the parties will find themselves at the mercy of the Courts in respect of the division of the assets of their marriage.

It is important that parties to a de facto relationship carefully consider their position before making the decision to marry, and at Marino Law we have experts in Family Law who can review and advise upon your current agreement and/or rights and assist in ensuring continuity of protection upon those members of a LGBTI community marrying their partner.  Contact us on 55360157 for an appointment to discuss your situation and how the impending changes to the Marriage Act may affect you.

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