same sex marriage and divorce in Australia

Same-Sex Marriage and Divorce in Australia

After more than a decade of formal parliamentary debate and 22 rejected Senate bills, same-sex marriage was legalized in Australia on December 9, 2017. This followed a voluntary postal survey of all Australians where 61.6% of respondents supported the legalization of same-sex marriage. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 redefines marriage in Australia as:

“The union of two people to the exclusion of all others voluntarily entered into for life.”

I remember voting with the majority, and my Mum at 83 was also in favor of gay union as my partner and I had lived together for 15 years at that point and she loved Heather as another daughter. We were thrilled with the result that Australians chose, joining 30 other countries in the world by 2020 that have legalized same-sex marriage. Sydney, my home for 40 years, has been named one of the most gay-friendly cities in Australia—and the world.

A brief overview of same-sex marriage in the world…

There are records of marriage between people of the same gender dating back to the first century, but in the modern era, The Netherlands was the first country to legalize same-sex marriage in 2000. In 1989, Denmark paved the way and established a ‘registered partnership’ status, granting people in same-sex relationships most of the rights given to married heterosexuals.

More than half of the countries allowing same-sex marriage are in Western Europe; in all of Asia and Africa, the most populated areas in the world, same-sex marriage is only legal in South Africa and Taiwan. Eleven countries such as Sudan, Pakistan, Iran, and Saudi Arabia currently execute LGBTIQ people and are not close to achieving marriage equality. In 2021, 71 countries criminalize homosexuality.

…and in Australia

The first same-sex marriage in Australia took place on December 15, 2017, and since then more than 14,000 couples have tied the knot. This represents approximately 5% of all marriages in Australia. There are more women marrying than men (58.9% to 41.1%) and the average age of a gay man to marry was 39.3 years versus 36.5 for women.

COVID-19 and marriage across the world

The pandemic abruptly slowed the number of all kinds of marriages across the globe in the key COVID months as social distancing restrictions affected group celebrations. Increases in unemployment and financial insecurity have meant the marriage rate is falling since 2020, adding to the downward trend.


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As divorces are only granted typically 12 months after separation in Australia, the effect of COVID-19 on divorce rates is yet to be seen. Marriages typically break down over the school holidays and Christmas period when couples are together the most, so lockdowns would have exacerbated this effect. Immense financial pressures, home-schooling, and working from home contribute to the breakdown of marriages from 2020.

Same-sex marriage figures in Australia

Bearing in mind the marriage rate in Australia (and worldwide) has fallen since 2000 by more than 20% and more people are cohabiting as de facto rather than legalizing their union, what are the facts about same-sex marriage in Australia?

The 2016 Census (and latest available data) recorded just under 46,800 same-sex couples living together in Australia, a 39% increase since the 2011 Census. In 2019, there were 5,507 same-sex marriages and in 2020 there were over 2,500 same-sex marriages in Australia, mostly performed by civil celebrants as ministers of religion are generally less supportive of same-sex marriage.

De facto vs married?

For many years, Australian couples who lived in same-sex de facto relationships had similar protections as straight de facto couples under the various state and territory laws. The Australian federal Family Law Act 1975 covered de facto relationship breakdown—whether same-sex or heterosexual.

One major difference and obstacle for parties to a de facto relationship in Australia is that in a divorce/breakup, before commencing property proceedings they must prove the existence of their de facto relationship. Married partners only have to provide their marriage certificate to commence property proceedings.

Same-sex divorce in Australia

In 2019 in Australia there were 104 divorces of same-sex couples. This represented less than 1% of all Australian divorces. 70 divorces were female couples and 34 were male same-sex couples.

There are more marriages and divorces among lesbians since same-sex marriage in Australia was legalized. This is consistent with data showing that women initiate most of the heterosexual divorces in Australia too with 39% initiated by the wife and 28% by the husband, (with 34% a joint agreement). Some studies in the US have shown that lesbian marriages do not last as long as gay male marriages.

Important facts about same-sex divorce in Australia:

  • Divorce in Australia will be granted only to Australian citizens or citizens of descent, and to people who have been living in Australia for the past 12 months with the intention of continual residence.
  • You can only file a divorce application if you have been separated for a minimum of 12 months, which includes separation under the same roof.
  • You can apply for a divorce order, whether you both want it or only one of you does.
  • A divorce application is not the same thing as completing a property settlement or seeking orders for post-separation parenting arrangements.
  • You can apply for property settlement or spousal maintenance at any time before you file for divorce and up to one year following your divorce.
  • Australian law allows for a no-fault divorce. This means the Court does not consider the circumstances of the marital breakdown—it is sufficient that one or both parties state there is no chance of reconciliation.

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Children

Many same-sex couples are bearing children, adopting children, and bringing children into their relationship conceived in the context of a heterosexual relationship. About 11% of gay men and 33% of lesbians have kids in Australia, and there are more than 10,000 children living with same-sex parents in the country.

If there are children of the marriage under 18 years of age you will need to provide particulars in your divorce application including housing, financial support, care arrangements, schooling, health, and contact arrangements with each parent.

Warning signs that your relationship is breaking down

If these signs are familiar to you, you can seek help to resolve the conflict:

  • you don’t do things together as much as before
  • you have recurring arguments about the same issues that are never resolved
  • one partner spends increasing time on interests and activities outside the relationship
  • you feel dissatisfied and unhappy
  • you have sex less often, or it isn’t what it used to be
  • there is a loss of warmth and friendliness in the relationship, one or both of you speak of no longer being in love
  • you feel tired and less able to meet responsibilities at work and at home
  • arguments about the children continue
  • one of you has an addiction problem that is affecting the relationship.

Organizations such as Relationships Australia or registered psychologists and counselors can help you, on your own or with your partner, to come to terms with difficulties you are facing in your marriage. As 33% of all marriages conclude in divorce in Australia (50% in the USA) these issues are likely to affect you, your family, or your friends.


If you are thinking about … or beginning the divorce process, you will want to consider Annie’s Group, our powerful group coaching program for women across the world.


If your same-sex marriage is no longer viable

Apart from seeing couples’ counselors or marriage guidance therapists if you are working through a relationship breakdown, if divorce is your ultimate decision, then a divorce coach may be the best advisor to let you know how you might organize and structure your divorce steps.

If you decide to end your same-sex marriage

In contrast to the United States, applying for divorce in Australia can be as simple as preparing your own divorce application or asking a family lawyer to do it for you. A fee of $940 is payable if you are not eligible for a reduced fee of $310.

Divorce in Australia will typically take approximately four months before the court will grant it. This is the time from the point of the first application to the issue and finalization of the divorce order. The most common percentage split in the division of assets in Australia is 60/40.

Lance Tapsell, a marriage celebrant in Australia who has officiated for 10 years and has married a number of same-sex civil unions in that time, is hopeful gay divorce rates will be lower than their straight counterparts He said, “I think that gay couples would probably take their wedding or marriage a lot more seriously because they had to fight so hard to get it.”

Notes

Sarah Newton-John is a copy editor and proofreader by trade and someone who also enjoys writing. She is an Australian living in Spain since 2018 with her partner, two dogs, three chooks, and a cat. You can connect with Sarah here: sarahnewtonjohn@hotmail.com

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience and its confusing afterward. SAS offers women six FREE months of email coaching, action plans, checklists, and support strategies for you, and your future. Join our tribe and stay connected.

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