How does my same-sex marriage, entered into overseas, stack up in Australia?

In their recent blog post, Lee Formica – Partner and Katalin Lello – Lawyer from Lander & Rogers outlined some helpful information for Australian LGBTI couples who may choose to marry overseas. The information is also valuable for LGBTI couples who have married overseas and are now residents of Australia.

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. “*

How does my same-sex marriage, entered into overseas, stack up in Australia?

Formica and Lello cover a range of topics that we should all be aware of:

  • How do I go about getting married overseas?
  • Will my marriage be recognised in Australia?
  • Can I get a divorce in Australia if I entered into a same-sex marriage overseas?
  • How exactly could this affect me?
  • Where to from here?

The following is an excerpt from Lander & Rogers blog post:

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.

*SOURCE: Portions of this blog post have been reproduced with permission from Lander & Rogers.