Uncategorised, same sex, divorce

Same Sex Marriage: Do I Need a Family Law Lawyer?


When was same-sex marriage Legalised in Australia?

Just over one year ago, on September 7, 2017, the practice of same-sex marriage was put to a survey via postal vote in Australia. Less than a week later, the ballots went out. On September 12, 2017, people read ballots that asked, “Should the law be changed to allow same-sex couples to marry?” They wrote in their answers, and the nation waited to hear what the decision would be.

Two months later, on November 15, 2017, the results were in. The people’s voices had been heard: over 60% of respondents, a staggering 7.8 million Australians, had voted in favour of changing the law to allow same-sex couples to marry.

The law previously governing marriage, the Marriage Act of 1961, required that the officiant state the legal nature of marriage, defined as the union of a man and a woman. There had been many legislative attempts to alter this definition in the past to allow for same-sex marriage, but the purely legislative route failed time and again.

After the incredible success of the survey, however, the Government agreed to pass a private member’s bill to make same-sex marriage legal in Australia. The new bill, which amended the Marriage Act of 1961, redefined marriage as the union of “two people” and also required the government to accept the validity of international same-sex marriages. This includes those marriages that occurred prior to the new bill.

As of December 9, 2017, same-sex marriage became legal in Australia, courtesy of the Marriage Amendment (Definition and Religious Freedoms) Act of 2017. It immediately validated overseas marriages, and the first domestic same-sex Australian wedding was held six days later on December 15, 2017.

Do you know your legal rights?

Of course, this new legal status for same-sex relationships also comes with additional legal responsibilities. All marriages are subject to tensions that can lead to divorce. If you’re married to a same-sex partner and are contemplating divorce or concerned about how your divorce is proceeding, a family law lawyer can help. Even if you are not contemplating a separation, family law solicitors can help you understand what your rights are.

Speak to a Family Law Lawyer to Know Your Rights in a Same-Sex Marriage

Whether you are married or in a de facto relationship (i.e. living together), you have certain rights pursuant to law. A family law lawyer can help you determine what exactly those rights are.

Family law lawyers are experts in all things related to the family law advice you may be looking for. It is even recommended to speak to a family lawyer either prior to marriage or entering into defacto relationship to take advice on the options available to you to protect your assets in the event of either a divorce or the breakdown of your relationship.

Foreign Same-Sex Marriages

Foreign same-sex marriages are now recognised in Australia and if you are already part of a valid same-sex foreign marriage, you cannot marry again in Australia. Overseas marriages have full access to the Australian system of family law, including divorce, maintenance orders etc. A family law lawyer can help you navigate this system.

Are you Separated or Contemplating Separation?

One thing we always recommend is to speak to family law lawyers or divorce lawyers if you are going through the separation process. Separation does not need to be filed officially (and indeed, there exists no official process for “registering” separation) in Australia, and this leads many to think that a lawyer is not helpful at this early stage of the process.

However, that couldn’t be further from the truth. Separation is usually the beginning of the end of a relationship, and the steps taken by both parties during the separation can have an impact on the divorce proceedings.

For example, you need to record the date of separation, and you should be able to prove that the separation took place on that date, if in dispute. Also, there are various ways to effectively separate under Australian law, especially considering that separation can happen while still living under the same roof.

There are a number of factors that the courts will consider to determine whether or not a couple is officially separated, including:

  • Sleeping in the same or different rooms after the stated date of separation
  • Whether partners cooperated in domestic duties or performed them for one another, including cooking, washing, and cleaning
  • How assets were divided after separation (if at all)
  • Whether either partner has represented themselves as single post-separation in government documentation
  • Whether the couple continues to experience physical intimacy with one another after the separation
  • Whether the couple represented themselves as separated to their social and family groups

How your assets are divided during the separation may also require some record keeping.

Contacting a family law lawyer at this stage can streamline the entire process of divorce. The sooner you start taking a lawyer’s advice, the better.

Need Family Lawyer Advice about Spousal Maintenance?

Family law solicitors are your number one resource when it comes to getting spousal maintenance advice.

Spousal maintenance refers to financial support provided by one partner to their former partner. It is awarded under varying circumstances. When one partner is not able to make a reasonable living through their own assets/income, their former partner may be held responsible to assist in supporting them.

Of course, this isn’t determined without an investigation of a number of different factors.

  • Was there a marked disparity in the partners’ individual incomes at the date of separation
  • Is the more financially stable partner capable of supporting the other partner?
  • Is one partner unable to adequately provide for themselves due to…?
    • Providing childcare for a child under the age of 18
    • Physical or mental disabilities that interfere with employment
    • Other reasons determined valid by the court
  • What is the age and health of both parties
  • What income, assets, finances, property, etc., belong to both parties?
  • Are both parties able to work?
  • What is a suitable standard of living?
  • Has the relationship between the parties affected either’s ability to earn a sufficient income?

There may be several reasons why one partner may not be able to work including illness or disability, providing childcare, or being out of employment either directly or indirectly due to the relationship. In these situations spousal maintenance may be awarded, provided the other partner can afford to pay it.

Choose a Divorce Lawyer in Perth You Can Trust

Choosing the right divorce lawyer is critical to how your case progresses as well as its final outcome. The right lawyer can reduce the tension you’re feeling and can help to minimize the costs. It can be expensive and complicated to change your lawyer mid-case,  so it is wise to do your research ahead of time. Ideally, you will take the time to make an educated choice of divorce lawyer (and instruct one early on) to ensure your divorce proceeds smoothly.

That’s also why we suggest approaching lawyers during the separation process. Not only can they help with the separation process, but this gives you time to get to know and work with your lawyer without feeling rushed.

You might not know any divorce lawyers personally, and you might not be sure how to find one. The first step is often to ask for a referral! Other lawyers, accountants, financial planners, doctors, and other professionals usually have a plethora of legal contacts. Also, consider asking friends or family that have been divorced if they have any recommendations.

Look at the lawyer’s credentials. Family law is a very specific field, and special skills and expertise are required.

Finally, choose someone that fits your budget and that you feel personally compatible with.

Perth Divorce Lawyers is a dedicated Family Law practice, specialising in all areas of divorce and family law.

Having a family lawyer can help you get through many different stages of life and your relationships. Choose your family lawyer carefully and early.  Marriage and divorce can be full of stressful challenges, and none are better equipped to help you with the legal side of those challenges than a family lawyer.

When choosing your family lawyer, it’s best to choose a lawyer with experience.

Speak to the Director of Perth Divorce Lawyers, Annelie van Zyl.

A former solicitor of the Supreme Court of South Africa, having practiced law since 1995, Annelie has the experience and empathy to assist you in all matters pertaining to family law including, children matters, consent orders and divorce proceedings.

Contact us on now on 08 92494964 submit an enquiry here to arrange a confidential discussion.