The Marriage Act 1961 (Cth) defines marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.
As of 9 December 2017, the right for couples to marry is no longer restricted by sex or gender. Same-sex couples are now able to access Australia’s marriage and divorce regime set out in the Family Law Act 1975 (Cth). This means that all marriages will be subject to the same marriage and divorce laws.
Same-sex marriages that have been solemnised and are valid in a foreign jurisdiction are now recognised in Australia, irrespective of when the marriage took place. This means that same-sex couples who were married overseas may now automatically be considered legally married in Australia.
As with most things, there are exceptions – for example, where either party at the time of the overseas marriage was a party to a marriage with another person which was at the time, legally recognised in Australia; or where a party to an overseas same-sex marriage subsequently entered into a valid marriage in Australia.
If you are unclear about your marital status, you should discuss your situation with your lawyer.
The legalisation of same-sex marriages in Australia, and the retrospective recognition of same-sex marriages that took place in other jurisdictions, brings about important legal considerations.
If you are in a same-sex relationship it is important to understand some of the immediate effects of the reforms, so you can ensure your legal affairs are appropriately managed.
How do the marriage amendments affect my Will?
An overseas marriage, now recognised in Australia may affect the validity and terms of your Will. Your Will may be inadvertently revoked by the new laws.
The Succession Act 2006 (NSW) automatically revokes certain provisions of an existing Will when a testator marries, unless the Will is made in contemplation of marriage. If you have a Will and now find yourself in a valid marriage under the reforms, you will need to check its provisions to ensure that it is still relevant and distributes your property as you intend.
Further, a Will that refers to a civil union or civil partnership may not clearly express your wishes now that you are ‘legally’ married.
If you and your partner plan to marry, or are living in a de facto relationship, and you do not have a Will, you should discuss your circumstances with your lawyer. Your lawyer will provide appropriate advice and prepare your Will and other estate planning documents to ensure your wishes are upheld should the unforeseen happen.
Couples planning to marry need not wait until their special day, as the Will can be made in contemplation of the marriage. This means that the Will remains effective when the marriage (to the person nominated in the Will) takes place and avoids the statutory provisions that might otherwise void certain parts of the Will because of the marriage.
What other documents should I check?
A Financial Agreement (also referred to as a binding financial agreement or pre-nuptial agreement) is made before or during a marriage or de-facto relationship or after the breakdown of a relationship.
Agreements made before or during a relationship will determine how property is to be divided between the parties if the relationship ends.
If you have a Financial Agreement in place which was drafted under the de facto provisions of the Family Law Act 1975 (Cth), and you are now in a legal marriage, the enforceability of the Agreement may come into question. The Agreement should be reviewed to reflect the legal status of the relationship and to ensure that the financial protection intended for each party remains intact.
You should also re-visit any Power of Attorney or Appointment of Enduring Guardianship documents, as well as your nominated beneficiaries of your superannuation fund.
It’s all about streamlining your legal affairs, maintaining consistency and avoiding uncertainty, to ensure you and your loved ones are adequately protected in the event of a relationship breakdown, incapacity or death.
Conclusion
If you are uncertain about the validity of your previous marriage under the new Australian marriage laws, and how they affect your Will or other legal affairs, you can discuss your concerns with a lawyer.
No matter what your circumstances or relationship status is, estate planning is essential to alleviate uncertainty and suffering, and to ensure your loved ones are protected when you die.
If you need any assistance contact one of our lawyers at info@legallysmart.com.au or call 02 8332 6126 for a no-obligation discussion and for a specific legal advice.
This article is for information purposes only, and it is not intended to be a legal advice.