Same-Sex​ Marriage, Divorce & Intestacy

The introduction of same-sex marriage in Australia has lead to same-sex couples having greater access to legal protections surrounding both financial and parenting matters.

Conversely, the amendments to Australia’s marriage act meant that a couple married under another jurisdiction’s laws was recognised under Australian law and so is their eligibility to file for divorce. In Australia, almost 1 in 3 marriages end in divorce, with the most common time for a marriage to end being following a period of 12 years.

Although same-sex marriage legislation is new in Australia, for some time it has been recognised in foreign jurisdictions; the Netherlands legalised same-sex marriage in 2001 therefore many same-sex couples in Australia have already been married for a significant period of time.

A Perth couple married under the Netherlands law at the Dutch embassy in Perth in 2015 were able to file for divorce under the amended law.

In Western Australia the Wills Act 1970 (WA) provides that a divorce order or annulment issued by the Family Court revokes a Will except where:

(a) a contrary intention appears in the will, or

(b) there is other evidence establishing such an intention.

Separation from a spouse does not invalidate a Will, because at law the marriage still exists.

As previously discussed a Will is revoked if you marry someone after making it unless the Will was made in contemplation of that marriage.

Legislation in most jurisdictions provides that Wills made in contemplation of marriage generally or in contemplation of a particular marriage are not revoked by the marriage of the will maker.

Courts have held that the definition of contemplation of marriage depends upon the facts of the case. Importantly Courts have held that the will maker must hold the intention that the will is to remain in effect after the marriage. Generally speaking, a Will is made in contemplation of marriage if the will-maker is

“intending proposing or having a marriage in mind as a contingency to be provided for as an end to be aimed at”

However, due to the previous marriage act that precluded same-sex marriage, it is unlikely that same-sex partners would have contemplated marriage when making their respective wills.

In 2013 the High Court of Australia held that the Australian Capital Territory’s Marriage Equality (Same Sex) Act 2013, could not operate concurrently with the federal Marriage Act 1961. The Australian Constitution gave federal Parliament the power to legislate with respect to same-sex marriage.

The Court held that “marriage” in s 51(xxi) of the Constitution refers to a consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations. Importantly the Court held “Marriage” in s 51(xxi) of the Constitution included a marriage between persons of the same sex.

Same-sex couples who wed in the ACT had their unions annulled following the High Court ruling against the laws.

Same-sex couples married when it was briefly legal in the ACT will have the $55 certificate fee waived if they were married previously under the ACT’s Marriage Equality (Same Sex) Act 2013.

As same-sex couples begin to consider the possibility of their union being legally recognised as marriage through legislation that came into effect as of 9 December 2017, they should check that their existing Will is valid; importantly does it include a clause stating it was made in contemplation of marriage.

If you and your partner married overseas, as a result of the same-sex marriage reforms, any same-sex marriage validly entered into overseas is now recognised in Australia. Including marriages under foreign law in Embassies or High Commissions in Australia. If your overseas marriage is now recognised as a marriage under Australian law, then you need to consider whether that legal change has affected the validity of your Will.

Similarly, if you have made an Enduring Power of Attorney, in some jurisdictions marriage revokes an earlier Enduring Power of Attorney that nominates anyone other than your spouse to be your attorney.

Only a valid Will can control what happens to your assets and how they are distributed to your loved ones.

A Will is a planning document. You should make and update your Will regularly think about the following when you start making your will:

  • Have you been divorced or separated? In some jurisdictions except where (a) a contrary intention appears in the will, or (b) there is other evidence establishing such an intention, divorce will revoke a will.
  • Have you married or started a new relationship? Unless a Will is made specifically in contemplation of an impending marriage an existing Will is automatically revoked by marriage
  • Have you or your beneficiaries had a new baby?
  • Have you bought or sold an asset such as an investment property?
  • Have you or any of your beneficiaries developed a health problem?
  • Have you or your beneficiaries had a business failure?
  • Have you gifted an asset or made a loan, to a family member?
  • If you own a business – has, a partner has retired, or a new partner been admitted?
  • Have you or your beneficiaries had a business failure?
  • Have you started a SMSF (self-managed superannuation fund)?
  • Have you transferred a major asset owned by you to a self-managed superannuation fund? 

Importantly have a Will – an intestate estate is never directed the way that you want it to and can compound an already difficult time for your loved ones.




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