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Same-Sex Marriage: The Legal Impact of Same-Sex Marriage Under Australian Law

Same-Sex Marriage: The Legal Impact of Same-Sex Marriage Under Australian Law ‍ Same-sex marriage is now legal in Australia. Since the Marriage Amendment Act came into force on 9 December 2017, same-sex couples may marry under Australian law. This article outlines the legal implications of this change and puts it in context with other same-sex relationship recognition schemes that are available to same-sex partners under Australian law. It also explains what is required to end a same-sex marriage and how property rights operate during and after a same-sex marriage. In addition to this general information, see ” How Same-Sex Marriage Affects Your Rights “, which covers tax obligations, superannuation, property ownership, inheritance rights, legal parentage of your partner’s child, social security benefits and changes to family migration options. What does this mean for couples who are already in a same-sex marriage? Before 9 December 2017, states and territories had the power to decide if their residents could marry. Now that same-sex marriage is legal in Australia, anyone who was legally married in a state or territory that allowed same-sex marriage before 9 December 2017 is automatically recognized as married under Australian law. This means that even if you had a same-sex marriage in a state or territory that didn’t allow same-sex marriage, it is recognized as a same-sex marriage under Australian law. Similarly, if you were in a same-sex relationship but did not marry, your relationship is now recognized as a de facto relationship under Australian law. What does this mean for couples who want to get married? In the past, you would have had to travel to a country that permitted same-sex marriage, such as New Zealand or Canada, to marry. Since 9 December 2017, you can marry in any state or territory in Australia. As a couple, you will also be recognized as a de facto relationship under Australian law. If you choose to marry in a state or territory that did not previously permit same-sex marriage, your marriage will be recognized as a same-sex marriage under Australian law. If you choose to marry in a state or territory that previously allowed same-sex marriage, your marriage will be recognized as a same-sex marriage under Australian law. If you choose to marry in a state or territory that previously did not allow same-sex marriage, your marriage will not be recognized as a same-sex marriage under Australian law. What does this mean for opposite-sex couples? If you are in a relationship with a person of the opposite sex, your relationship is still recognized as a de facto relationship under Australian law. You should be aware of the following points:
  • If you and your partner were in a relationship before 9 December 2017 and you were not married, you are a de facto couple under Australian law.
  • If you and your partner were in a relationship on or after 9 December 2017, or if you were in a relationship before that date but did not marry, you are a de facto couple under Australian law.
  • If you and your partner were in a relationship on or after 9 December 2017 and you did marry, you are a married couple under Australian law.
  • If you and your partner were in a relationship before 9 December 2017 and you did marry, you are a married couple under Australian law.
Marriage ceremonies – who can perform them and what they mean A celebrant who is authorized to conduct marriages in your state or territory can perform your marriage ceremony. There are no special requirements for the person who performs your marriage ceremony, but you should check with the celebrant that they are authorized to conduct marriages in your state or territory. A celebrant can also assist you to prepare a marriage ceremony by providing advice and information about the service, and helping you to select a venue. They can also assist you to obtain a marriage license and, after your marriage ceremony, provide you with a marriage certificate. If your marriage ceremony is religious, it may be conducted by a person authorized by your religious institution. You should check with your religious institution and the celebrant to make sure that they are authorized to conduct marriages. Your marriage ceremony is likely to be recognized as valid under Australian law, but it will be recognized as a civil marriage under Australian law. Divorce and annulment – how are they different from same-o​x marriage? If you are married, you can apply for a divorce under Australian law or you can apply for an annulment. An annulment is a court order that your marriage is void from the beginning. You must satisfy the court that there is a valid reason to have your marriage declared void, such as fraud, duress or that one of you was not capable of consenting to the marriage at the time it took place. An application for divorce is a request for a court order ending your marriage. You can apply for divorce under Australian law if:
  • you and your partner were in a relationship before 9 December 2017 and you were not married, or
  • you and your partner were in a relationship on or after 9 December 2017, or if you were in a relationship before that date but did not marry,
Property rights after a same-sex marriage In general, the property acquired during a same-sex marriage (called “matrimonial property”) is divided based on what is fair and reasonable, taking into account a range of factors including how long you have been in the relationship and your financial contributions. The factors required to divide “matrimonial property” are the same for same-sex couples as for opposite-sex couples. Same-sex couples are able to enter into binding financial agreements to manage their finances, including property. You should consider entering into a financial agreement if you want to protect your assets or you have significant debts. In addition, superannuation is regulated in the same way for same-sex couples as it is for opposite-sex couples. Summing up Same-sex couples now have access to all the rights and responsibilities of marriage under Australian law. This includes the ability to divorce, own property together, access social security benefits and superannuation, and make claims on your partner’s estate after they die. Before 9 December 2017, couples in a same-sex relationship could only enter into a de facto relationship. A de facto relationship is not a legally recognized relationship under Australian law. This meant that same-sex couples were unable to access the same rights and responsibilities that are available to opposite-sex couples. Same-sex couples now have access to all the rights and responsibilities of marriage under Australian law. This includes the ability to divorce, own property together, access superannuation, and make claims on your partner’s estate after they die. ## END ## If you have any questions about the practical implications of same-sex marriage on your relationship, you can contact Eric law international. Quick links: https://ericlawint.com/canadian-immigration-how-to-become-a-canadian-citizen-through-express-entry/
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