Same-sex marriage is now legal in Australia. This will mean that marriages between same-sex couples will have the same legal recognition as any other marriage and there may be significant consequences for a range of legal areas, including family law, wills and deceased estates. Here’s a summary of how the new laws will operate and what to expect.

Previous definition of “marriage”

Marriage laws in Australia previously defined marriage as having three key components:

• The union of a man and a woman.
• To the exclusion of all others.
• Voluntarily entered into for life.

The words “man” and “woman” have been the key aspect of the debate about changes to the marriage laws.

Plebiscite

In 2017, the Australian Government decided to hold a plebiscite to allow the Australian population to vote on whether Australia should have same-sex marriage laws. A plebiscite is a public vote about an issue that doesn’t require a change in the Australian Constitution. In order to participate, each voter must be enrolled to vote in Australia. Although governments aren’t bound by plebiscite results, it is usually a political risk to go against the majority vote.

The plebiscite simply asked for a yes or no response to the question

Should the law be changed to allow same-sex couples to marry?

Approximately 62 percent of registered voters were in favour and 38 percent were against.

The Bill becomes law

Following this, the Australian Parliament acted quickly to pass same-sex marriage laws. On 8 December 2017, the Bill received Royal Assent and on the following day it became law. This means that same sex marriage is now legalised in Australia.

Australia’s new marriage laws – the nuts and bolts

The new marriage laws extend the definition of marriage to:

• The union of two people.
• To the exclusion of all others.
• Voluntarily entered into for life.

Ministers of religion can refuse to solemnise a marriage if they believe it is inconsistent with their own beliefs or their religion’s teachings and beliefs. Similarly, marriage celebrants can refuse to solemnise a marriage if it is inconsistent with their religious or conscientious beliefs.

In other words, religious and civil marriage celebrants are free to refuse to marry a couple without fear of a discrimination claim being made against them.

It remains illegal to make comments against, threaten or harass people based on their:

• Sexuality
• Gender identity
• Intersex status
• Marital or relationship status
• Family responsibilities.

It is unlawful for government bodies to refuse to provide funding, withdraw funding or to impose conditions for funding because of a person or organisation’s beliefs about marriage. Similarly, charities that hold and promote beliefs about marriage will not lose their charitable status because of the changes to marriage laws. Religious-based organisations, including schools, won’t be penalised for acting consistently with their beliefs about marriage.

These measures aim to protect religious freedom in Australia. Anyone who believes that they have suffered unlawful discrimination under of the new laws can make a complaint to the Australian Human Rights Commission. If there is an inconsistency between the federal marriage laws and any State-based laws, the federal laws will apply.

Overseas marriages and wills

Couples who have married overseas in accordance with the marriage laws of those countries will now have their marriages recognised under Australian Law.

If your same-sex marriage was celebrated overseas and then you or your spouse made a will before the new Australian laws came into effect, there is a chance that those wills are now invalid. This is because marriage invalidates all previous wills of both spouses (unless those wills were made in contemplation of marriage to the person you did in fact marry).  In other words, if the effect of the new laws is that they recognise the marriage as being a legal marriage only from 9 December 2017, any wills made before that date may be invalid. As yet, this is unclear and so we recommend that anyone in this situation should make a new will as soon as possible.

If it is the case that such wills are invalid, either spouse failing to update their wills may mean that they could die intestate (without a will) and won’t have the opportunity to direct how their estate is to be divided.

What now?

Marriage laws require that a couple intending to marry must give at least one month’s notice by completing a Notice of Intended Marriage and lodging it with a religious or civil marriage celebrant. This means that in most cases, the earliest time that same-sex marriages can occur in Australia is 9 January 2018, unless exemptions apply which will allow the marriage to occur earlier.

There are other legal effects for same-sex couples who marry. For example:

• Any wills made prior to a marriage will be automatically revoked unless the will was made in contemplation of the marriage (these wills would remain valid after the marriage). Same-sex newlyweds should see lawyer to make or update their wills.
• If a person dies without a will, their spouse or domestic partner will be first in line to inherit the estate. While a spouse can prove their relationship by producing a marriage certificate, a domestic partner may have difficulties producing sufficient evidence (unless the relationship is registered. See below for further information). A domestic partnership must also have existed for at least three years, otherwise the partner will be passed over in favour of the person’s children, parents or other family members.
• If a person needs medical care, their spouse is regarded as their next of kin and can be make decisions about their care (if those decisions aren’t contrary to any valid advance care directive).
• If a person dies, their spouse is the next of kin and has the right to deal with that person’s remains.
• If a person dies without making a valid binding death nomination for their superannuation fund, the fund trustee will decide who gets the benefit. The person’s spouse or partner is usually first in line. If the person is married, their spouse can prove the relationship by producing a marriage certificate. It may be more difficult for a de facto partner to prove the relationship (unless the relationship is registered. See below for further information).
• Marrying (or having a child) will also override some minimum time periods for relationship recognition according to different laws. For example:
  • A domestic relationship must have existed for at least one year before the person has any rights to the property of the relationship, should the relationship end.
  • A domestic relationship must have existed for at least three years before South Australian law will recognise that person’s rights where there is intestacy, death caused by negligence, death caused by crime, a workplace death or a surrogacy agreement.
• In the case of adopting a child, a marriage will be proof that the relationship is a qualifying relationship. Usually, the couple must also have been living together continuously for at least 5 years.
• In the case of divorce, there would be a legal recognition that the marriage has ended.
• Same-sex couples can now apply for divorce in the Australian Courts.

Relationships Register

Since August 2017 in South Australia, couples can register their relationships subject to:

• Both parties being over the age of 18 years.
• At least one person living in South Australia.
• Neither party being married or already in a registered relationship.
• Neither party being in a relationship with anyone else.
• Neither party being related to each other (as grandparent, parent, brother or sister).

Any couple can apply to register their relationship, regardless of sexual orientation. A registered relationship is proof that the relationship exists and is recognised by many South Australia laws. The South Australian Government has indicated that even though the federal marriage laws are in effect, the Relationships Register will continue as a service for those couples who don’t wish to marry but who wish to secure legal recognition of their status as domestic partners or de facto couples.

The changes to Australian marriage laws may have impact in many different areas including anti-discrimination claims, wills and estates, adoption, superannuation, migration, family law, powers of attorney and advance care directives. If you have any questions or concerns about how the laws may affect you, contact us today for a free initial consultation.