Slater & Gordon : Commencement of marriage equality reforms

Marriage equality has finally become law in Australia, after an historic bill changing the definition of marriage passed federal parliament on Thursday afternoon.

Slater and Gordon Family Lawyer Heather McKinnon welcomed the reforms as long overdue.

'The exclusion of the LGBTIQ community from marriage in Australia amounted to legalised discrimination, which allowed discrimination to flourish in other areas,' Ms McKinnon said.

'While married and de facto couples are theoretically treated the same under the Family Law Act, in practice, same-sex couples have suffered from a lack of certainty and clarity in having to prove they meet the threshold for a de facto relationship.

'Everyone deserves the same options when it comes to love and these reforms will go a long way towards removing the double standard.'

Ms McKinnon said the burning question everyone is asking is how long same-sex couples will have to wait to tie the knot.

'The reality is that same-sex couples will be subject to the same notice requirements as heterosexual couples under the Marriage Act 1961,' Ms McKinnon said.

'That means same-sex couples will need to give notice of their intention to marry at least one month before the date of the marriage, so it will be at least a month after the laws have received Royal Assent before a same-sex marriage will be considered official.

'It could also be up to 28 days before the law prohibiting the recognition of overseas same-sex marriages is repealed, depending on whether a proclamation date is set.'

Marriage Equality Reforms: FAQ

How quickly will same-sex couples be able to get married if the laws are changed?

Same-sex couples will be subject to the same notice requirements as heterosexual couples, which means they will need to wait at least one month:

• Section 42 of the Marriage Act 1961 specifies that a marriage is not official unless the authorised celebrant receives notice in writing of a couple's intention to marry at least one month before the date of the marriage.

The new definition of marriage as being between two people will come into effect upon Royal Assent.

• Now that Senator Dean Smith's bill has passed both houses of parliament, it will be presented to the Governor-General for assent. Royal Assent is given after the Governor-General receives the necessary documentation from the Attorney-General and the Parliament.
• The Attorney-General has indicated the bill will commence this Saturday, 9 December 2017. That means same-sex couples will be able to lodge a Notice of Intended Marriage on that date and the first marriages could happen from 9 January 2018.

Would overseas same-sex marriages automatically be recognised in Australia?

Yes, Part VA of the Marriage Act 1961 recognises foreign marriages in Australia as valid, so the marriages of same-sex couples who have already wed overseas will be recognised.

• The reforms have not only changed the definition of marriage, but they have also repealed section 88EA which specifically proscribes that same-sex unions solemnised in foreign countries cannot be recognised as marriage in Australia.
• The repeal of this section is due to come into effect on a date to be fixed by Proclamation, or the day after the 28 day period following Royal Assent - whichever comes first.

Would same-sex couples in legal limbo after marrying overseas be able to divorce?

Same-sex couples who have married in countries like New Zealand and the United Kingdom have found themselves in legal limbo and unable to get divorced.

• Under New Zealand laws, a same-sex couple can be married, but at least one of them needs to be domiciled (permanently based) in New Zealand to get a divorce. In the United Kingdom, both partners need to be domiciled there to file for divorce.
• In Australia, the Family Law Act 1975 only allows divorce for unions recognised as marriages, which previously did not include same-sex relationships. Marriage equality legislative reforms have addressed this issue and will allow same-sex couples married overseas to divorce under Australian law.

Will couples need to deregister a civil union before they can get married?

It is unlikely that same-sex couples who are currently in civil unions will need to deregister or annul their union in order to get married.

• It is possible for a couple to be both married and registered in a civil union.
• Civil unions are recognised under various state laws, including in New South Wales, Victoria, Tasmania, Queensland and the ACT. Marriages, however, are governed by the Marriage Act 1961, which is Commonwealth legislation.
• As long as there are no inconsistencies between the state and Commonwealth laws, they can both operate side-by-side, however this will depend on the exact wording of any changes to the Marriage Act and any consequential changes made by State Parliaments to their civil unions legislation.

Will non-binary people be able to get married after same-sex marriage reforms?

The new reforms have changed the definition of marriage to 'between two people'. This is likely to extent to allow two people who do not identify as either male or female to legally marry in Australia.

For the last ten years, Slater and Gordon has been an official corporate supporter of the Australian Marriage Equality campaign and the entire firm is thrilled to finally see the definition of marriage changed to include same-sex couples.