Under the Family Law Act 1975 (Cth) (“the Act“), same sex couples and heterosexual de facto couples are granted the same rights as married couples with respect to their property rights, provided that they meet the definition of a ‘de facto’ couple by proving one of the following:

1. that they have been in a relationship on a domestic basis for a period of at least two years, or
2. that they have a child together, or
3. that one person has made significant contributions to the property or finances of the other person.

In addition to the above, the de facto couple must have lived within the same participating jurisdiction for at least one-third of their relationship and/or their relationship must have been registered under State law.  If the above is able to be proved, both same sex couples and de facto couples are able to make an Application to the Family Court of Australia or Federal Circuit Court should they wish to seek a property settlement.

Married couples have this same right but are not subjected to having to ‘prove’ their relationship to the standard as mentioned above.  The Court will take into account the particulars of that relationship and make adjustments in favour of a party where the circumstances warrant it.  The Court will look to the parties’ contributions, future needs, age, care of children and any income-earning differentials.  Both de facto couples and married couples are at liberty to resolve their property dispute by way of a Binding Financial Agreement or a Consent Order.

There is no discrimination under the Act between the manner in which same sex couples, heterosexual de facto couples and married couples can resolve their property matters.

World Events

Same sex marriage has been a recent debate which has caused quite a stir amongst the Australian community especially in response to what is happening elsewhere in the world.  There has been a significant push from communities across the world to allow same sex couples to marry; however, same sex couples have not yet been afforded the right to marry in Australia, with the exception of a five day period in the ACT in which legislation was passed that allowed same sex couples to legally marry, until the legislation was overruled and struck down by the High Court of Australia and the resultant marriages were annulled.

The reason for the push seems to be centred on one’s innate right to basic freedom, liberty and justice.  The question begs to be asked, if heterosexual couples are able to marry, why are same sex couples not afforded the same right?  On 22 May 2015 following the referendum in Ireland, same sex marriage became legalised and as such, Ireland amended their Constitution.  Similarly in Kentucky, same sex marriage was legalised on 26 June 2015 as a result of Obergefell v Hodges[1].

The stance in Queensland In Queensland, the only avenue that same sex couples have to register their relationship is by virtue of a ‘registered relationship’ under the Relationships Act 2011 (Qld).  The Australian Labor Party has stipulated that they intend to restore civil partnerships under the Civil Partnerships Act 2011 (Qld) which was renamed and amended under the Newman Government.  However marriage equality activists contend that this is no substitute for marriage for same sex couples.

The Australian Constitution

Section 109 of the Australian Constitution provides that ‘when a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’.  This became relevant in the recent High Court decision of Commonwealth v Australian Capital Territory[2].  Within five days the legislation passed by the ACT was struck down by the High Court in a unanimous decision.

Same sex couples were legally able to marry within this five day time-frame in accordance with the Marriage Equality (Same Sex) Act 2013 (ACT).  Consequently, those couples who did marry during this five day period had their marriages annulled.  The High Court struck this legislation down on the grounds that it was inconsistent with the Marriage Act 1961 (Cth) by virtue of section 109 of the Australian Constitution.

Despite the argument put forward by the ACT and the Australian Marriage Equality, that the Commonwealth only had the power conferred by section 51(xxi) of the Australian Constitution to legislate with respect to heterosexual couples, as defined within the provisions of the Marriage Act 1961 (Cth); namely, ‘a man and a woman’.

The High Court held that the scope of the definition of ‘marriage’ was to be the end all definition of marriage and for its purposes, did not include same sex marriage.  As directed by the High Court, it is necessary to look at the definition of ‘marriage’ as defined by section 5(1) of the Marriage Act 1961 (Cth) to determine the nature and purpose of the definition and construe the definition to determine the level of inconsistency between State and Federal law[3].

The Marriage Act 1961 (Cth)

At the time the Marriage Act 1961 (Cth) (“the Act”) came into force there was no clear definition of ‘marriage’ except section 46(1) of the Act which stated the words a marriage celebrant was to say during a ceremony.  It was not until the Marriage Amendment Act 2004 (Cth) was given assent that a definition of marriage was included within the Act.

In addition to this definition, section 88EA was also included which states, ‘a union solemnised in a foreign country between (a) a man and another man, or (b) a woman and another woman, must not be recognised as a marriage in Australia’.

In effect, the Commonwealth was not willing to allow any degree of same sex marriage to be valid within Australia, including couples who had married overseas.

Interestingly, the case of Attorney General (Cth) v Kevin, the Family Court of Australia held that a male transsexual and his female spouse had a valid marriage[4].  This was the first step for the Courts to recognise marriage outside of its ‘monogamistic Christian tradition’.  Does this then mean that for the purposes of a same sex couples to marry, that only same sex couples that have undergone sexual reassignment procedures are able to marry?  This question of one’s sex identity has come under the spotlight in recent times.

The ACT amended its Births Deaths and Marriages Registration Act 1997 (ACT) in early 2014 to recognise a person’s sex identity other than as male or female.  The High Court has since held in NSW Register of Births, Deaths and Marriages v Norrie[5] that a person has the option to register a person’s gender as ‘non-specific’.

Under the Queensland equivalent, the gender of a person for the purpose of registration, states that a person’s gender change is valid ‘for all legal purposes’[6].  Frankly, it seems valid that a person, who undergoes gender reassignment that was previously in a same sex relationship, may be entitled to marry under Australian law whereas a couple that remains of the same sex is not entitled to marry.

What then is the status of a “non-specific” gender person in relation to the Act?  The answer to this question appears to be that a non-specific gendered person cannot marry.

Prior Attempts To Legalise Same Sex Marriage

There have been eleven bills introduced into Parliament and all but two have been voted down, with another two bills awaiting further debate in Parliament.  The Recognition of Foreign Marriages Bill 2014 introduced by Senator Hanson-Young seeks to repeal the Act so as to legally recognise same sex marriages in Australia that have been performed overseas.

Additionally, the Freedom to Marry Bill 2014 was introduced by Senator Leyonhjelm and seeks to repeal the definition of marriage within the provisions of the Act so as to include same sex couples and consequently, allow them to legally marry.  What is the future of marriage policy in Australia?  It is evident that Australia’s call for marriage equality is growing each year and no doubt, the High Court and/or the Australian people will be called upon to decide whether same sex marriage will be legally recognised in the near future.

[1] Obergefell v Hodges 576 US 2015
[2] Commonwealth v Australian Capital Territory (2013) 304 ALR 204.
[3] [4] Attorney General (Cth) v Kevin (2003) 30 Fam LR 1 at 19 per Nicholson CJ, Ellis and Brown JJ.
[5] NSW Register of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490.
[6] Births Deaths and Marriages Registration Act 2003 (Qld)

How We Can Help

If you would like to discuss your rights and entitlements following the breakdown of your de facto relationship or marriage, contact our experienced family lawyers.

We have assisted countless Queenslanders with family law issues, including divorce, property settlements and children’s issues.

Our team has the experience and expertise required to get you the best possible outcome.

Contact Us

Get the best representation. Contact Ryan Murdoch O’Regan Lawyers on 1800 999 529, email mail@rmold.newwebsite.live, or submit an enquiry below.

We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.

This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.