same sex marriage laws Australia

A Guide to Same Sex Marriage

When Australians voted to legalise same sex marriage, the definition of marriage under the Marriage Amendment (Definitions and Religious Freedoms) Act 2017, was redefined to read “the union of two people to the exclusion of all others, voluntarily entered into for life”.  After many years of debate on 9 December 2017 , 61.6% of Australians voted to become the 25th country in the world to allow two people to marry with no definition or discrimination being applied on the basis of gender or sexuality.

Regardless of gender or sexual identity, the legislation means that the same rights, responsibilities and entitlements apply to all couples who wish to marry. This also extends to separation and divorce processes under Victorian law.

 Recognising overseas same sex marriages

Before the introduction of Australia’s marriage equality legislation, many couples chose to marry in countries that already recognise same sex marriage. These are often referred to as ““pre-commencement marriages”.  Popular choices for same sex marrying couples included New Zealand, the United Kingdom and Canada.  Prior to December 2017 these marriages (and any subsequent divorces) were unfortunately not recognised under Australian law.

Following the introduction of same marriage here in Australia, foreign marriages are now legally accepted for same sex couples just as they are for male / female couples. Likewise, the relationship status of same sex couples who married and divorced overseas is similarly recognised.

 What happens when same sex couples divorce?

All couples who have married and / or divorced in countries who enabled marriage equality prior to December 2017 may equally access and are subject to Australia’s family law system. As no determination is made on the basis of sexuality or gender, same sex couples are subject to the divorce and separation provisions of Victorian law and the Family Law Act 1975.

This includes couples who legally married in another country prior to December 2017.  Although they may have married prior to Australia recognising same sex marriage, they may now divorce under Australian law.

This includes requiring couples to be separated for at least one year with no “reasonable prospect” of resuming the relationship before divorce can be sought.

Other applicable factors include property settlement processes and arrangements for the care and time spent with any children from the marriage.

Our previous blog article discusses Victorian law relating to parenting arrangements and it should be noted that these provisions do not discriminate on the basis of gender or sexuality.

As with the end of any relationship, it is important to seek professional advice when first separating to ensure you are aware of your rights and obligations.


At Umbrella Family Law we celebrated Australia’s long overdue recognition of same sex marriage. If you’re considering formalising your relationship or need respectful, empathetic support when ending your marriage, contact us for a chat.