What impact will legalising same sex marriage have on our family law system?

By now most of you would have received your postal vote forms in the mail, heard campaigns on the television, debates on the radio and received campaign materials in the mail or in public places. Regardless of your view, it is important during this time, to reflect on our current family law system and the impact legalising same sex marriages may have on that system moving forward.

The Definition of Marriage

The greatest impact legalising same-sex marriage will have revolves around the definition of “marriage” and therefore the question of who is able to marry in Australia pursuant to the Marriage Act 1961 (Cth). This is most certainly a hot topic of debate at the moment.

Currently the definition of “marriage” in the Marriage Act 1961 (Cth) is the union of a man and women to the exclusion of all others, voluntarily entered into for life. Obviously, if same sex marriage is legalised that definition will likely change to include the union of people who are in a same sex relationship.

Primarily the postal vote is centered on this very issue.

The Ability to Divorce

Property and Children Disputes

The laws enabling a person to make an application to the Family or Federal Circuit Court for property or children’s Orders will not need any real change. The Family Law Act 1975 (Cth) already allows parties to a marriage or de facto relationship to apply for property settlement and/or parenting Orders following separation.

Same sex couples already fall within the definition of a “de facto relationship” and therefore already have the ability to seek such Orders from the Court.

This means that legalising same sex marriages will have no real impact on the ability to seek Orders about parenting or property matters so long as persons to a same sex relationship can establish, just like heterosexual couples, that they had been a couple living together on a genuine domestic basis.

The Impact on Adoption

And then one most consider the ability for same sex couples to express interest in adopting a child in Queensland.

From 2009 until November 2016, same sex and de facto couples were not able to express interest in adopting a child in Queensland. This all changed in November 2016 when the eligibility criteria were extended by the Queensland Government.

Accordingly, legalising same sex marriage will have little impact on the ability of a same sex couple to adopt a child in Queensland provided they meet the eligibility requirements and criteria.

So regardless of your views and beliefs, it is important that you make an informed decision with an understanding of how the changes will impact on the current Family Law System.

If you need assistance with your separation or divorce matters, please contact our experienced family lawyers on (07) 3870 8244.

Written by

Courtney Lockett is a solicitor admitted in the Law Court of Queensland and the High Court of Australia with years of law practice in Brisbane and Townsville. She has experience in various specialised areas of law such as property law, business and commercial law, family law, criminal law, succession law, and litigation. Click here to learn more about Courtney or follow her on Linkedin

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