For those people in a same sex relationship who have married one another in a civilised country where same sex marriage is available, and reside in Australia, what happens if your relationship irretrievably breaks down? Can you apply for a divorce in Australia? The simple answer no.
When the Howard government amended the Marriage Act in 2003 to introduce a definition of “marriage”, where no such definition existed since the inception of the Act in 1961, a new section 88EA was introduced to provide that no overseas same sex marriages would be recognised in Australia as marriages.
In order to apply for a divorce in Australia, there first has to be a marriage. Section 88EA of the Marriage Act effectively does not enable divorce for married same sex couples as your overseas marriage, whilst recognised as valid where you married, is not recognised in Australia.
What about applying for declaration of nullity? Section 51 of the Family Law Act says that the only ground for an annulment is that the marriage is void. A marriage is void if a marriage ceremony is entered into but is considered not to be a marriage. Section 23B of the Marriage Act sets out the grounds upon which marriages are void, and they are exhaustive. Grounds for marriages being void may include prohibited relationships such as marrying a relative; entering into the marriage under duress; already being married to somebody else (bigamy); being mentally incapable of understanding the nature of the ceremony being entered into; or not being of marriageable age. There is no specific ground of a marriage being void where it involves somebody of the same sex. Therefore a declaration of nullity is not available either.
If the Family Court cannot dissolve an overseas same sex marriage, or grant a declaration of nullity, then it would lead to an absurd result. It would mean that same sex couples in Australia who have married overseas would not be able to formally dissolve their marriage relationship in one form or another in Australia (maybe that is what the Howard government intended). It is also particularly absurd when you consider that same sex couples who have separated after 1 March 2009 can now access the Family Court to seek a financial settlement applying the same legislative methodology and factors as in marriage cases.
So what can separated same sex couples who have married overseas do to formally dissolve their marriage? They would need to look at seeking a divorce in the country where they married, provided they can establish jurisdictional requirements to apply for a divorce in that place. For instance, to apply for a divorce in Australia you would need to be ordinarily resident here for the past 12 months (entitled to be here under a visa), be domiciled here, or be an Australian citizen. Married same sex couples seeking to divorce overseas ought to enquire whether similar requirements exist in the place they intend to seek a divorce.
Although Australia is a Contracting State to the Hague Convention on the Celebration and Recognition of the Validity of Marriages (“the Hague Convention”), which provides we agree to recognise validly entered into overseas marriages, Article 14 of the Hague Convention says a Contracting State can refuse to recognise the validity of a marriage where such recognition is manifestly incompatible with its public policy. Is the recognition of same sex marriages manifestly incompatible with Australia’s public policy? How is that measured? There may be a constitutional challenge to Section 88EA of the Family Law Act on the basis it violates Australia’s obligations under the Hague Convention, which may open the way for married same sex couples to apply for a divorce in Australia, however this is by no means certain.
For the moment, though, married same sex couples are treated as de facto couples in the eyes of Australian law.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.