Same-Sex Marriage: What Happens Next?

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Same sex marriage

Unless you’ve been trapped on a deserted island somewhere, you’ll know Australia’s controversial, prolonged and expensive public survey has voted in favour of same-sex marriage.

Across the nation, banners waved slogans such as ‘Love Wins’ and ‘Equality at Last’. But not everyone was happy about the outcome, with 38.4% of those who returned their surveys voting ‘No’.

The ‘No’ vote

Many who voted ‘No’ did so for religious and moral reasons, feeling that same-sex relationships are sinful or otherwise immoral.

Others argued that same-sex couples are in the same legal position as those who are married, and that there is therefore no need to formalise the union by way of a marriage certificate. One of the proponents of this view is former Prime Minister Tony Abbott, who publicly declared that “couples in de-facto relationships have the same rights as married couples.”

For the record, this is simply not true, which is just one of the reasons marriage is important to many same-sex couples.

The difference between de-facto and marriage

Section 4AA of the Family Law Act provides that a person is in a de facto relationship with another if: they are not legally married to each other; and they are not related by family, and, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

While de-facto couples are able to assert some of the rights that married couples enjoy, a significant difference is that they are required to prove the existence of the relationship, which can make legal battles more difficult and expensive.

Marriage is universally recognised, both nationally and internationally, but for de-facto couples, there can be many differences between the law across the states and the when it comes to the relationship, and it’s these nuances that the legal right to marry will overcome.

For example, as far as Centrelink is concerned, you are a de-facto couple from the moment you move in together. But under immigration law, you are only considered de-facto after 12 months of living together, unless you have a child together.

Family lawyers explain that the family law is different again – unless you have registered your relationship or have a child together, then you generally need to be living together for a minimum of two years for your relationship to be recognised.

In terms of apprehended domestic violence orders (ADVOs), a marriage will automatically establish the required ‘domestic relationship’, whereas unmarried couples will need to prove this where it is in dispute.

The bottom line is that under existing laws, de-facto relationships may require proof of matters such as: living arrangements, shared finances and ownership of property, and the like. Meanwhile a marriage certificate is proof in and of itself.

Children and families

The majority ‘Yes’ vote should pave the way for changes in the law relating to surrogacy, IVF and adoption, giving same-sex couples greater access to these areas.

Divorce and Death

Changes to the law will also have important ramifications where the marriage breaks down or family circumstances change.

For example, in the case of married couples who separate, or divorce, a new marriage can nullify an existing will unless the will itself specifically dictates otherwise. But this does not apply where there is a de-facto relationship.

What happens now?

Now the public has spoken, a new bill will need to be drafted, debated and ultimately passed by parliament to enable the legalisation of same-sex marriages.

The Prime Minister expects the bill to be introduced into parliament by Christmas. Political analysts suggest that such a bill will easily be passed by both houses of parliament, despite a handful of parliamentarians saying they may vote against it.

Once this has occurred, it is expected legislative changes will be introduced to prevent the situation where those who are strongly opposed to same-sex marriages will face legal action if they refuse to render their services to these couples.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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