Society has seen many positive changes in recent years with regards to our individual and collective rights and one of the most significant of them is the right for same sex couples to legally marry. However, this begs the question as to how divorce is regarded with respect to same sex marriages and this is often where a lawyer that specialises in family and divorce such as, is needed to advise or help.

The journey to where same sex couples could legally marry has been a long one, and it may surprise some to read that the right to do so was only legislated for as recently as December 2017. Until then, it was the marriage Act of 1961 that was the primary legislation that applied, and in addition, an amendment in 2004 to that act which stated that marriage was a union between a man and a woman.

The reason this amendment was added was due to couples who had legally married overseas returning to Australia, and the conflict between the legislation that existed with regards to what constituted a legal marriage  and those same sex couples wanting their marriage to be legally recognised in Australia.

A major change that resolved this issue took place in December 2017, which was a further amendment to the Marriage Act, and in particular, a change in the definition of marriage. The new definition states that the union is between ‘two people to the exclusion of all others’, which obviously has no reference to which sex either of those two people is.

The change in legislation came about as a result of a national campaign and a subsequent postal vote which asked the simple question, “Should the law be changed to allow same sex couples to marry?”. The result was 62% said ‘Yes’, and 38% said ‘No’, and thus the appropriate steps were taken to amend the legislation to allow same sex marriages.

Although it was an amendment to the Marriage Act that allows same sex couples to marry, as with most matters relating to marriage, children, and families, the legislation that governs the rights of those who marry is the Family Law Act of 1975. This act also applies when issues arise within a de facto relationship between couples of the same sex, and with same sex couples who were married overseas.

The Family Law Act has a number of provisions and principles that relate to divorce, and the most significant one of them is that all divorces are considered ‘no-fault’. In other words, no blame has to be laid at anyone for the marriage ending, with the reason given in all cases being  ‘irretrievable breakdown’.

This means that should a same sex couple decide to divorce, the reason will be irretrievable breakdown, regardless of any other circumstances that may exist such as infidelity, desertion, or domestic violence, all of which can occur in same sex marriages as they do in any other marriage.

Likewise, when it comes to the property settlement, same sex couples will need to agree upon this, and if they cannot, it will be the court that determines it. If the couple have children their needs will be at the top of the agenda for the Family Court, and it will expect that any arrangements which a same sex couple make with regards where the children live, and visitation, will be made in the children’s best interests.