Same sex marriages – what are some implications?

Some would argue that the legislation that passed through the Federal government allowing same sex marriages has finally brought Australia kicking and screaming (so to speak) into the 21st Century.

Many happy couples celebrated a wedding on 9 January 2018 – the first day that same sex marriages were allowed in Australia without and abridgment of time for the notice period.

Some interesting statistics

  1. Australia is the 26th country to legalise same sex marriage
  2. There were more than 20 attempts to change marriage equality through the Australian houses of parliament before the law was finally enacted in December 2017
  3. The unprecedented national postal survey saw 61.6% of respondents voting in favour of the proposed changes
  4. 5% of those eligible to take part in the postal survey did so

What will really change?

The obvious change, of course, is that two people in a same sex relationship can now legally marry in Australia. It flows, therefore, that same sex married couples will also be able to divorce.

Australia also now recognizes same sex marriages that have taken place overseas, no matter when they occurred, as well as overseas same sex divorces.

In Western Australia, same sex de facto relationships are (like any other de facto couple) regulated by state legislation. Now same sex marriages will be governed by federal legislation.


A reminder to everyone – Upon marriage your Will becomes invalid 

Many people would be shocked to find out that any Will they make prior to getting married becomes invalid as soon as they tie the knot, (unless the Will is made in contemplation of marriage) and the distribution of their estate will depend on what state in Australia they live in.

This principle has sparked conversation recently, as same sex couples who were married overseas prior to Australia’s same sex marriage reform may find their Wills are now invalid. This is because Australia only recognised these marriages on December 9, 2017 and, although this was cause for celebration, same sex couples who were affected by this need to be wary because it means that any Will they made before 9 December 2017 could turn out to be void.

Although the Courts may decide that the special circumstances allow for these Wills to remain valid, no one can be sure until such time as one is disputed in Court. Would you be willing to take that risk?

If you are part of a same sex marriage that occurred overseas before Australia’s marriage reform, or if you are recently married and you or your spouse made a Will prior to the wedding, you may need to revise your Will.

If you think you or someone you know may be affected by this, please do not hesitate to contact Lynn & Brown Lawyers for expert advice.


About the authors:

This article has been co-authored by Chelsea McNeill and Jacqueline Brown at Lynn & Brown Lawyers. Chelsea is in her third year of studying Law at Murdoch University. Jacqui is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in family law, mediation and estate planning.  Jacqui is also a Nationally Accredited Mediator and a Notary Public.


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