If same-sex marriage is legalised, can you divorce?

This week we have received messages from friends and family members from overseas and all over Australia who have heard about the “Canberra couple who vow to divorce if same-sex marriage is legalised”. The article and the announcement has indeed gone viral and in turn, prompted a range of interesting and varied responses, including outrage, support and disbelief. This local couple have publicly broadcast their decision that if the definition of marriage is changed to allow same sex couples to marry, they will get a divorce. “’Marriage will have an altogether different sense and purpose… It will not be about the mystery of difference in sexual unity, as children come from gendered dissimilarity. It will not be about building and securing communities into the future..”

Mr and Mrs Jenson go on to say, that after they divorce, they will continue to live together and hope to have more children together. Mr Jensen also states, “It’s worth saying that our decision is not as extreme as it may seem. We will still benefit from the same tax and legal provisions of the state’s de facto laws.”

Whilst we cringe to know that this is what puts “Canberra on the map”, we cannot help but comment in relation to the legal aspects of what Mr Jensen has said.

The only way to get a legal divorce in Australia is to apply to the Family Court (or Federal Circuit Court) pursuant to the Family Law Act (FLA). Section 48 of the FLA states that “An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably. Section 48  goes on to say that ‘a divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed’. Further, ‘the divorce order shall be made, if and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months”.

Noting the very public statements that Mr Jensen had made about their intention to continue to live together and refer to each other as ‘husband’ and ‘wife’; we think they may have difficulty applying to the Court for a divorce.

The lawyers in us cannot help to also point out that even if Mr and Mrs Jensen satisfy the court that they have met the conditions to apply for a divorce, living together as a couple immediately after they divorce does not instantly mean they are living together in a de facto relationship. Getting a divorce will also affect their wills.  For more information about de facto relationships, see our previous blog about ‘am I in a de facto relationship’.

By | 2017-03-15T12:26:09+00:00 June 11th, 2015|

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