New England focus. 43

U nder the Marriage

Amendment (Definition

and Religious Freedoms)

Act 2017, the definition of

marriage was changed from

‘a man and a woman’ to ‘2 people’ voluntarily

entering into a union for life, to the exclusion

of all others. This means that marriage is no

longer restricted to heterosexual couples.

This also means that

same sex marriages that

have occurred overseas

can now be recognised

in Australia, in the same

way as has been the

case for heterosexual

marriages. This also

means that people in

a same sex marriage

can now seek a divorce

in the same way that

heterosexual couples

have been entitled to

divorce, in the event of a

marriage breakdown.

Other impacts of the

change in the law mean

that the Family Law Act

1975 now applies to

same sex couples where there is a need to

consider property settlements and parenting

issues, in the event of a marriage breakdown.

Previously, same sex marriages could not be

recognised under Australian law under the

Family Law Act 1975. This meant that same

sex couples in NSW had to have their property

settlement issues dealt with as a de facto

relationship under the Property (Relationships)

Act 1984.

As the Property (Relationships) Act 1984

does not take into account the future needs

of a party as a consideration in a property

settlement, same sex couples could suffer

disadvantage in the event of a relationship

breakdown compared to heterosexual couples,

who could choose to have their settlement

dealt with under the Family Law Act 1975 and

have their future needs considered as part of a

final adjustment of property interests.

Marriage can and does affect rights under a

Will or a trust, so it is very worthwhile to seek

legal advice about the effects that marriage

will have, on your entitlements, if you are

contemplating getting married. It is also

worth getting legal advice, if you are thinking

of protecting individual assets, by entering

into a Binding Financial

Agreement, either in

contemplation of a

marriage or a divorce.

As the amendments

to the Marriage Act

1961 only occurred

late last year, it may

be a while before the

impacts of the change

are fully understood,

within the community. It

has also been necessary

to enact changes to

other legislation, both

to give practical effect

to the changes in the

Marriage Act, as well

as to ensure that the same safeguards under

anti-discrimination and other legislation are

maintained, and to avoid conflicts in the

legislation itself.

Whether you are in a heterosexual or

same sex relationship, it is important to seek

legal advice, about the effects of marriage

or divorce and any related issues, such as

the care of children, property settlement

and rights and expectations under a Will or

a trust. A lawyer can give you legal advice

and assistance to help you negotiate a path

through what can be a complex (but hopefully

joyful) time in life.

Talk to us You’ll be inspired!

Elizabeth D Stahlut

Solicitor

W I T H E L I Z A B E T H D . S T A H L U T ( S O L I C I T O R )thinking same sex marriage

This also means that same sex marriages that have occurred overseas can now be recognised in Australia, in the same way as has been the case for heterosexual marriages. This also means that people in a same sex marriage can now seek a divorce in the same way that heterosexual couples have been entitled to divorce, in the event of a marriage breakdown.

same sex marriagethinking