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In December 2017, Australia became the 25th country to legally recognise same-sex marriages. One of the vital questions to consider is how the law regarding same-sex marriage Australia affects your legal rights.
It is an important time for the LGBT community, as for the first time, couples need to consider a number of legal issues. These include their rights and obligations that prior to the same-sex marriage bill passing, were not considered.
De facto vs married according to the law
Although same-sex couples were regarded as being in a de facto relationship, until December 2017, basic human rights have been denied. Couples were able to assert some of the same rights as married couples but this often came with a lot of emotional strain. Even more importantly is how Australian law regarded couples prior to the new law. Before this important Australian legislation, couples were not even afforded the basic freedom to be recognised as a married couple.
This is a historical milestone for Australia, and whilst we celebrate, it is essential to know what the same-sex marriage bill means for you and/or your family in Australia. With equal rights comes equal responsibility. The most important aspect to remember now that the law has finally passed, is that people have the right to choose whether entering into marriage is right for them.
The following 7 points will help you make your own choice; whether to legally marry your loved one or continue in your de facto relationship.
7 same-sex marriage legal things you need to know
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Wills and same sex couples
When in a de facto relationship, your new partner may not have any legal rights to your assets. This is one of the most notable differences between de facto and married couples according to Australian law. For example, if you haven’t updated your Will regarding your new relationship and you pass away before making a new will. In the case of marriage, a new marriage nulls an existing will (unless there was specific wording used) but the same automatic amendment doesn’t occur for de facto couples. This means same-sex couples who marry will have the legal right to their partner’s assets, irrespective of whether a new will was created. Now, they’re afforded the same rights as other married couples. Being legally married means that in the unfortunate event that your husband or wife passes away, you won’t have to navigate a legal minefield in order to access financials. These financials include things such as superannuation, assets, life insurance or centrelink payments. Even if your husband or wife dies without a will, you will be entitled to receive part or all of your loved ones estate.
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Rights after death
Possibly one of the most heartbreaking situations is that as a de facto and not a married couple, same-sex couples didn’t have the same rights regarding their loved ones’ wishes after death. An example of this is the ability to make funeral arrangements, in accordance with their partner’s wishes. Death of a partner is never easy and having the validity of a relationship questioned after death only heightens the emotional stress. As their legally married husband or wife, you will now be able to make these important decisions.
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Caring for your partner
De facto relationships don’t have the same entitlements as married couples. This is apparent when making decisions about a partner’s care and treatment in the unfortunate scenario that they become very ill. The only way to ensure that you are legally entitled to make decisions about your de facto partners care (both financially and non-financially) and well being, is if you have an enduring power of attorney and or enduring guardianship. This is another example of a situation where emotions and stress are going to be heightened, especially when you’re forced to prove your relationship.
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Division of property
When married, couples are automatically entitled to make a claim for the settlement of property. Conversely, de facto couples must prove certain factors, as well as substantiating the authenticity of their relationship. In some cases, when not married, a judge may decide that a same-sex couple was cohabiting and not actually in a legally recognised de facto relationship. This is one of the crucial facts that same-sex marriage alleviates.
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Being a legal parent
Under the Family Law Act, same-sex couples who go through IVF both have legal custody of the child. However, for the non-biological parent in a same-sex de facto relationship, proof of their de facto status is required before being considered as having any parental rights. When you’re legally married and going through this process, both biological and non-biological same-sex parents have equal rights to their children. This means that they’re not required to prove their relationship. This is such an important factor as to why same-sex marriage being legal is imperative for same-sex families. However, it must be remembered that unfortunately our law has not yet evolved whereby non-biological parents (irrespective of de facto or married status) are deemed to have the same parenting rights. This means that you and your husband or wife may still need to obtain Orders from the Court. The court Orders facilitate you both being recognised, having legal parental responsibility and rights in relation to your children. The issue pertaining to DNA still governs parental rights. Unless a non-biological parent has obtained the necessary relinquishing of parental rights from the sperm donor, for example, the law will uphold the biological parent’s rights.
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Divorce for same-sex couples
Many people who weren’t able to legally marry their partner in Australia, married overseas, in countries where same-sex marriage was legal. Unfortunately, not all marriages work out, which means that there are many ex-same-sex couples in Australia who have until now been unable to get legally divorced. For example, a couple who married overseas would be unable to file for divorce there due to the fact that they aren’t residents of that country. Because Australia did not recognise same sex marriage at the time they got married, they were also unable to get divorced in Australia. Same-sex couples who wished to separate and or dissolve their marriages were left in a state of emotional limbo.
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Your overseas marriage is legally recognised
Perhaps the most obvious legal consideration is that now your overseas marriage to your loved one can be legally recognised (providing it was a legal ceremony). What’s even more exciting, is that finally! You can choose to marry your loved one in Australia!
SCB Legal believes that all people deserve to be treated equally and are proud supporters of the new legislation recognising same-sex marriage Australia. Our lawyers are thrilled to see that Australia’s attitudes towards homosexuality and same-sex marriage have been expressed and accepted in a positive light.
Contact SCB Legal today, to discuss any questions you may have about your legal rights.