Loading ...- Category:
- Soap Box
- Author:
- Guest Column
- Posted:
- Tuesday, 6 July 2010
PAUL BOERS
For people in a same-sex relationship who married in a civilised country where same-sex marriage is available, and reside in Australia, what happens if your relationship irretrievably breaks down? Can you apply for a divorce in Australia? The simple answer: no.
When the Howard Government amended the Marriage Act in 2003 to introduce a definition of ‘marriage’, a new section 88EA was introduced to provide that no overseas same-sex marriages were recognised here.
To apply for a divorce in Australia, there first has to be a marriage. Section 88EA of the Marriage Act does not enable divorce for married same-sex couples as your overseas marriage is not recognised in Australia.
What about applying for declaration of nullity? Section 51 of the Family Law Act says that the only ground for an annulment is that the marriage is void. A marriage is void if a marriage ceremony is entered into but is considered not to be a marriage.
Section 23B of the Marriage Act sets out the grounds upon which marriages are void. They may include prohibited relationships such as marrying a relative; entering into the marriage under duress; already being married to somebody else; being mentally incapable of understanding the nature of the ceremony being entered into; or not being of marriageable age.
There is no specific ground of a marriage being void where it involves somebody of the same sex. So what can separated same-sex couples who have married overseas do to formally dissolve their marriage? They need to seek a divorce in the country where they married, provided they can establish jurisdictional requirements.
For instance, to apply for a divorce in Australia you would need to be ordinarily resident here for the past 12 months, be domiciled here, or be an Australian citizen. Married same-sex couples seeking to divorce overseas ought to enquire whether similar requirements exist in the place they intend to seek a divorce.
For the moment, married same-sex couples are treated as de facto couples in the eyes of Australian law.
info: Paul Boers is an Accredited Specialist (Family Law) at Craddock Murray Neumann, and also volunteers at the Inner City Legal Centre providing family law advice, particularly concerning same-sex relationships.
Tags: divorce, family court, Howard Gov, Marriage Act
