Destination Weddings -- When a destination wedding may mean a difficult divorce for same-sex couples

Family Law - 30 October 2017

Summary

Generally, marriages entered into overseas are recognised as valid marriages under Australian law as a result of the Hague Marriage Convention of which Australia is a signatory. Couples married overseas have the same rights and responsibilities as if they had married in Australia. However, Australia does not yet recognise same-sex marriages by law, meaning that same-sex spouses cannot be granted a divorce in Australia or indeed, in certain circumstances, in the county in which they were originally married. 

 

Quick links

How do I go about getting married overseas?

If you are an Australian citizen (or permanent resident) and wish to marry overseas, it is important to be aware of the legal requirements in the country where you plan to marry. The best way to ascertain the marriage requirements of a foreign country is to contact the Australian Embassy, High commission or Consulate in that country.

As a general guide, a foreign country may request that you first have certain documentation before you are able to be married in that country.

Some countries require a document as evidence that a person is free to marry. This document in Australia is called a "single status certificate" and is issued by the Registry of Births, Deaths and Marriages. Additionally, some countries also require a "Certificate of No Impediment to Marriage" which is issued by the Department of Foreign Affairs and Trade.

Certificates of No Impediment to Marriage may also be issued to same-sex couples wishing to enter into a marriage overseas. The issuing of a Certificate of No Impediment will allow same-sex couples to take part in a marriage ceremony overseas and to be recognised as being married according to the laws of that overseas country.

 

Will my marriage be recognised in Australia?

Generally speaking, an overseas marriage will be recognised as valid in Australia if it was validly entered into in that overseas country in the first place. It will also be recognised as a valid marriage under Australian law if it had taken place in Australia.

However, whilst same-sex couples can be recognised as being in a de facto relationship in Australia under the Family Law Act 1975, same-sex marriages from other countries are not recognised as valid marriages in Australia.

This is because the Marriage Act 1961 (Cth) defines marriage as "the union of a man and a woman". This definition applies regardless of whether a marriage has taken place in Australia or overseas. Section 88EA of the Marriage Act 1961 expressly provides that any same-sex union "must not be recognised as a marriage in Australia".

Therefore, although same-sex couples may be married according to the laws of the overseas country in which they were married, the marriage may only be used as evidence in support of the existence of a de facto relationship in Australia.

 

Can I get a divorce in Australia if I entered into a same-sex marriage overseas?

The short answer is no. In order to be eligible to apply for a divorce in Australia, there first must be a legally recognised marriage. As the Marriage Act 1961 expressly provides that same-sex marriages are not recognised in Australia, this precludes same-sex couples from accessing Australian divorce laws.

Same-sex couples are also not able to annul their marriage under the provisions of the Marriage Act and Family Law Rules. A marriage may be annulled if it is "void", however the exhaustive list of grounds on which a marriage may be seen to be void does not include same-sex marriages.

This leaves same-sex spouses without the opportunity to apply for a divorce in Australia in the event that their marriage breaks down irretrievably.

Same-sex spouses may be able to seek a divorce in the country in which they were married. However, even this may prove difficult. Divorce laws vary from country to country and separating spouses will need to ensure they met all the relevant requirements of that particular country.

Some countries have specific jurisdictional requirements in relation to the granting of a divorce, such that one of the spouses to the marriage may be required to have lived in the country of marriage for a period of 12 months in order to be eligible to file a divorce.

In circumstances where neither party can satisfy the jurisdictional requirements of the country of their marriage, then there is a strong possibility that the same-sex couple who married overseas may be unable apply for divorce in either country.

 

How exactly could this affect me?

Sally and Sandra are both Australian citizens and have lived in Australia all of their lives. After living together for many years in a loving relationship, they decide they would like to get married.

As same-sex marriages are not yet legally recognised in Australia, Sally and Sandra instead travel to Canada where Canadian marriage laws have recognised same-sex spouses since 2004. They have a lovely destination wedding ceremony surrounded by their closest family and friends.

Sally and Sandra return to their home in Australia. After a few years, they make the decision to separate and seek legal advice on how to go about making an application for divorce to dissolve their legal marriage.
After obtaining advice from their lawyers, Sally and Sandra find out that they can finalise property settlement matters between them in accordance with the relevant property provisions of the Family Law Act dealing with "de facto relationships".

However, Sally and Sandra however are not able to make an application for divorce in either Australia or Canada. This is because they do not satisfy the jurisdictional requirements to make an application in either the country of residence and/or citizenship (being Australia) or the country in which the marriage was solemnised (being Canada).

In summary:

  • Australian marriage laws expressly provide that same-sex marriages are not recognised in Australia. This precludes same-sex couples from accessing Australian divorce laws.
  • Canadian marriage laws, namely section 3(1) of the Canadian Divorce Act 1985, provide that an applicant must be "ordinarily resident" in Canada for at least one year. Both Sally and Sandra have working commitments which mean that they are unable to move to Canada for one year in order to satisfy this requirement.

This results in a situation whereby Sally or Sandra are not able to access the divorce laws in either Australia or Canada and are therefore unable to divorce.

 

Where to from here?

Earlier this year, the United Nations Human Rights Committee (UNHRC) found that the current Australian laws preventing same-sex couples from obtaining a divorce in Australia violate international human rights obligations.

The UNHRC ruling ultimately determined that the differentiation of treatment based on sexual orientation, being the exclusion of same-sex couples to access Australian divorce laws, constitutes discrimination and contravenes the International Covenant on Civil and Political Rights. In a statement, the UNHRC added that the Australian Government was required to provide "an effective remedy".

Lander & Rogers supports diversity in gender and sexuality and recognises the rights of the lesbian, gay, bisexual, transgender, intersex, queer and gender nonconforming community to live and work, free of prejudice and discrimination, with all the essential freedoms enjoyed by the broader Australian community. Lander & Rogers is a corporate signatory to Australian Marriage Equality.

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Further information

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