Same-Sex Divorce and Child Custody Arrangements in Australia

Regardless of the specific wording of a couple's marriage vows, the general idea of a wedding is permanence, of something that will be for a lifetime. Unfortunately, this isn't always how things pan out. As of 9 December 2017, Australia legalised same-sex marriage, and in doing so, also legalised same sex divorce. Since the legislation was broadly referred to as marriage equality, does this also mean true equality when it comes to the dissolution of the marriage? If you and your same-sex partner have made the difficult decision to end your marriage, there are a few things you need to know.

Overseas Marriages That Predate Australian Marriage Equality Laws

The first same sex couple to become divorced in Australia didn't, in fact, wait for marriage equality in Australia before they got married. In 2015, a same-sex Perth couple were legally married under European laws before the legalisation of same-sex marriages in Australia, putting them in a legal grey area. The marriage itself was performed at the consulate of the country, where that country's laws were in effect. The marriage was still legally recognised in Australia, even though the marriage could not have been performed under Australian law at that time. Since the couple opted to divorce before the legalisation of same-sex marriage in Australia, they found themselves in a problematic place, since they could not be granted access to the Australian divorce system. If you should find yourself in a similar situation, with a marriage that was performed overseas or under the laws of a different nation, your rights to divorce were confirmed with the legalisation of same sex-marriage in Australia on 9 December 2017. It doesn't matter if the marriage predates the legislation.

Same-Sex Joint Adoption

Equality means just that, in the legal sense. Now that same-sex marriage is permitted, a same-sex divorce will follow the same general process as when a heterosexual couple divorces. This also applies if there are any dependant children of the marriage, although there can be some variations to your rights, depending on your specific case. All Australian states and territories now permit a same-sex couple's joint adoption petition, meaning that both parties can be legally recognised as a parent of the child.

Same-Sex Stepparenting

Likewise, all states and territories now recognise same-sex stepparent adoption, allowing you to become one of the legal guardians of a child from your partner's previous relationship. The extent of your rights can be somewhat contingent on whether your parenting arrangements were formally legalised with an application to the Courts. When any marriage breaks up, you might need to consult a family law specialist to determine custody and visitation to ensure that you're not deprived of any parental rights.  

Both marriage and divorce are no longer gender specific, and a same-sex couple has as much of a right to end their marriage as anyone else.