Since the Marriage Amendment (Definition and Religious Freedoms) Act came into effect on 9 December 2017, LGBTIQ+ Australians have been provided equal rights and many have finally married on home soil.
This means that same-sex couples now have the option between marriage and de facto relationship. Beware, however, that the laws relating to de facto relationships varies across States and the Commonwealth. For example under Centrelink regulations you are a de facto couple from the moment you commence co-habitation but under Family Law there must be evidence of co-habitation continuing for a minimum of two years.
What if I was already married overseas?
If you are a same-sex couple who decided to marry overseas, then your marriage will automatically and retrospectively be recognized in Australia. A marriage is lawful if “the marriage was recognised as valid under the law of the foreign country” or if it was performed “in the presence of a diplomatic or consular officer of a foreign country”.
Do I have to update my Will?
If you have a valid Will and then get married or your marriage is now recognised in Australia, your Will is revoked unless made in contemplation of marriage. Registering your de facto relationship also has this effect on your Will.While you should review your Will frequently, such as when having children or purchasing large assets, you will also need to review it when getting married.
Divorce also affects your Will when you have appointed your former spouse as your executor or listed them as a beneficiary. Your divorce will revoke these aspects of your Will, however no other person named is affected. Revoking or removing your de facto relationship from the register also has this effect on your Will.
Other things such as dying without a valid Will or making a claim for further provision from a deceased estate will be favourably affected by the inclusion of same-sex marriage into Australian law.
What about my superannuation?
If you or your partner has superannuation, generally the benefit is paid to the spouse (or the deceased’s Estate if nominated to do so). Most superannuation funds require evidence of your shared life and dependency, which will now be easier for same-sex couples who are either married or have registered their de facto relationships.
Will there be any difference between a same-sex and heterosexual marriage?
Same-sex couples have all the same obligations as other relationships like paying tax and child support. Itis a pleasant step towards those couples enjoying the symbolic, emotional and legal effects of entering into a legally recognised union with their partners.
Hume Taylor & Co is an accepting and open-minded firm that understands no two relationships are the same. Contact us today for further information or assistance with your legal matter.
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