Marriage Equality in Australia is now a reality.
But what benefits have same sex couples gained from this change in the law? Other than the fact that they are finally being treated as equal citizens, there are actually some important legal benefits as well.
Here are 5 key benefits for same sex couples now that marriage equality has finally happened.
1. The choice of who to marry and to have that marriage recognised in Australia
Because marriage was defined as between “a man and a woman”, not only were same sex couples prevented from getting married here, if they marry overseas, that marriage was not recognised in Australia. Imagine making the decision to marry your loved one, only to find that your union means nothing in your own country. Amending the Marriage Act means same-sex couples can get married in Australia, get married overseas and (for those who have already taken the leap) have their existing marriages acknowledged. And spoiler alert … giving same sex Australians the right to choose who they marry has absolutely no impact on past, existing, or future, heterosexual marriages.
2. Being able to get divorced
Previously, if a same sex couple went overseas to get married and then comes home to Australia, and ultimately separated, they could not get divorced. Take for example Adam and Steve. They’ve grown up in Australia, live and work here. A few years ago, they flew to New Zealand for a short trip to get married and then returned to Australia. They have now decided to separate. The problem is, because they live in Australia, their marriage is not recognised, which means they cannot get divorced here. They also don’t meet the requirements to apply for divorce in New Zealand, because they do not, and have never, lived there. So, Adam and Steve are stuck in legal limbo, unable to get divorced either here or in New Zealand. Imagine if you were forced to stay married to your ex!
3. Being a legal parent to their non-biological child
Under the Family Law Act, if a married woman (we’ll call her Sally) becomes pregnant using IVF, and her Husband ‘Harry’ consents to that procedure, then Harry is a legal parent of that child. However, if a same sex couple uses the same process, (in this case, Harry is instead Mary) and they later separate, the non-biological parent (in this case Mary) would then need to prove that she was in a de facto relationship with Sally at the time of IVF to be deemed a parent. Being married gives certainty to Harry that is not available to Mary.
By allowing Mary and Sally to marry, if they have children by IVF, Mary is legally a parent. She does not have to go through the ordeal of having to prove the very existence of her relationship with Sally. Marriage Equality gives Mary and Sally the choice to marry and remove this obstacle.
4. Being a legal parent to their non-biological child
Just like having to prove their relationship to be a ‘parent’ of an IVF baby, same sex couples used to have to prove that they were in a ‘de facto relationship’, and that the relationship met the criteria under the law, before they can make a property claim. Married couples on the other hand, don’t have to provide evidence of the existence of their relationship and commitment to each other. Being married, takes away one of the legal hurdles people have to navigate.
5. Rights in the event of death
In the past, if you were in a same sex relationship and your partner dies, you could have been faced with not only an unimaginable loss, but also a legal minefield – particularly if they die without a will. How this impacts the surviving partner also varied greatly between States and Territories. Being able to make the choice to marry your partner means that if your partner passes away, you will get more rights and entitlements in the event of their death.
As I said in a previous blog post about same sex marriage“Amending the Marriage Act really is the best way forward for true marriage equality and for equal treatment under the Family Law Act.”
The legal obstacles and increased costs that same sex couples face have finally (at least in part) been alleviated with our recent change in law. As a woman, a family lawyer, a heterosexual, an Australian, but more importantly as a human being, I voted YES.
If you are in a same sex relationship, and want more information on family law, marriage equality, same sex divorce, IVF, parentage or wills and estates, you need a family lawyer to provide you with advice particular to your circumstances. Contact me and I’ll let you know how I can help.