When a same-sex marriage ends – legal aid

When a same-sex marriage ends - legal aid
Photo: Innovated Captures, BS

With the introduction of same-sex marriage in Australia on the 9th of December 2017, gay and lesbian couples are now entitled to the same rights as heterosexual couples. Yet with marriage may come divorce, and it is important that same-sex couples are aware of their right to annul the marriage if they choose.

It may seem odd to consider the topic of same-sex divorce so shortly after the legalisation of same-sex marriage. However, legislation recognises same-sex marriages that occurred overseas prior to the 9th of December 2017. As such, there may be many same-sex couples living in Australia who have been married for a long period of time, making the possibility of divorce more likely given that most divorces occur after around 12 years of marriage.

The process of divorce in Australia is the same for same-sex marriages as it is for traditional marriages. A couple must prove that their marriage is irreparable, as well as fulfil several other criteria such as having been considered separated for at least 12 months (listed under the Family Law Act 1975), in order to be eligible to apply for binding separation. It is also worth noting that same-sex couples whose divorce takes place overseas on or after the 9th of December 2017 will have their divorced recognised in Australia the same as a heterosexual couple would.

If a couple can agree upon a divorce settlement, they may not require as much or any legal assistance. A divorce settlement is a legal agreement between two separating adults and covers details such as child custody and visitation, child support, alimony and property division. However, many couples (even agreeable ones) may not be able to see eye-to-eye on every matter, and difficult emotions may affect one’s judgment. Processes such as determining property division may be more challenging than expected, as there are many factors taken into consideration by the court – it is seldom a 50/50 split. Large assets such as superannuation, trusts, shareholdings and family businesses may also further complicate matters.

Enlisting the aid of a lawyer in the divorce process comes with several benefits. Whether a couple has come to an agreement on their own or with legal support, a final review of the proposed divorce settlement by a legal professional ensures that any errors, disagreements, legal issues or changes of mind can be corrected. Additionally, the legal expertise provided by a lawyer allows individuals to ensure that they are fully aware of their legal rights and responsibilities. This may also help speed up the process of a divorce, as any issues surrounding paperwork can take time to resolve. Employing an unbiased and clear-minded lawyer helps deter people from making knee-jerk emotional decisions which may jeopardise their chances of achieving an ideal legal outcome, and instead channel these emotions into effective legal action.

Finally, in the case of domestic violence, sexual abuse, child abuse or substance abuse, a fair negotiation between couples may become difficult or even impossible. An effective lawyer is able to employ mediation tactics such as Alternative Dispute Resolution (ADR) in an attempt to get disputing parties to compromise. Like traditional divorce, same-sex divorce often proves to be an emotionally and legally challenging experience. Armed with the right legal assistance, however, the process can be streamlined so that divorcing gay and lesbian couples are able to exercise their rights just as easily as their heterosexual counterparts.

With a history of excellence in client attention and satisfaction, O’Sullivan Legal offers effective legal assistance for same-sex couples seeking family law advice. For any queries or questions concerning same-sex marriage or divorce proceedings, contact the friendly and professional team at O’Sullivan Legal on (02) 8079 5200.