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If you need a divorce from your same-sex marriage, O’Sullivan Legal can help you get the resolution you need!
A same-sex marriage encounters all the same difficulties as a heterosexual one and a same-sex divorce lawyer at O’Sullivan Legal is ready to help you resolve your disputes the same way we have done for hundreds of traditional marriages.
What is divorce and how does it work?
Since the legalisation of same-sex marriage in Australia in 2017, gay and lesbian couples now enjoy the same rights as their heterosexual counterparts. These rights obviously include the right to annul the marriage and end the legal binding of the two parties.
In Australian family law, divorce means the irrecoverable breakdown of a relationship between two married people. For a couple to be eligible for binding separation they must be able to prove there is no reasonable chance they could salvage the marriage.
The conditions that the couple must satisfy include:
- There is a long term and permanent separation of the couple.
- The parties must have been considered separated for a minimum of 12 months before an application can be filed.
- The separation period is 12 months so as to allow time for couples to re-connect before carrying out a hasty breakup.
- Couples do not need to be living separately to be considered ‘separated’; they only need to prove that they are not living in what is functionally a relationship.
- Once the 12 month period has passed the couple will be eligible for a binding separation.
- If the couple gets back together during the 12 months and stays together for at least 3 months, they will need to wait 12 months again to file for annulment.
- Same-sex couples have access to the Australian family law system regardless of when the marriage was solemnised.
Once a couple has satisfied the requirements for divorce under the Family Law Act 1975 they will be eligible to submit an application. Anyone who needs help filing an application should seek the assistance of an O’Sullivan Legal gay and lesbian divorce lawyer.
The application process goes as follows:
The application can be filed by one or both parties in the marriage. If the application is co-signed it will be considered a ‘joint application’.
If the application is not co-signed then the party that signed it or their solicitor must serve a copy of the document to their counterpart.
The filled out and signed application is submitted to the Federal Circuit Court of Australia and parcelled with the certificate of marriage.
If the marriage certificate is not in English or the separation occurred under the same roof additional files will need to be filled out and submitted.
The binding separation will only go ahead once the court is satisfied all necessary documentation has been read, filled out and signed by the parties.
If the court finds the documentation is incomplete than they may adjourn the hearing to a later date so as to allow time for all documents to be registered properly.
When the hearing begins the court we re-evaluate the eligibility of the couple to carry out the annulment. If they are satisfied the court will then serve the official divorce order.
- The order is only considered finalised one month after the date of the hearing.
- You cannot remarry with anyone else until the order is finalised. Attempting to marry again before the final order is considered an offence of bigamy.
- The hearing itself does not necessarily require the presence of either party or their solicitors. Both parties do need to attend if there is a child under 18 present in the relationship and the application was not co-signed.
- The hearing deals only with the validity and issuing of the order. It does not deal with issues of property settlement, child custody or any other family law issues.
- Historically it can take up to 4 months for finalised papers to be posted. This process is made even longer by complications with serving applications or by following an incorrect procedure.
In order to minimise the time spent dealing with the bookkeeping in filing for an annulment you should hire a gay divorce lawyer to help you get through the process as quickly as possible.
Information to know before getting a divorce
Before rushing into sign an application there are some important facts that you need to know. The following are some of the most important facts to know about marriage annulments in Australia:
- Australia has ‘no fault divorce’ which means that the court does not care about the circumstances leading to a separation. The most common example is that a spouse’s infidelity will not be considered putting them ‘at fault’ for the split.
- Separation need to be clearly communicated to your spouse in the form of “this relationship is over” or something akin to that.
- Those who are separated but continue to live in the same residence may need to provide more information to the court. This includes disclaiming if family members and friends considered you both separated and what changes in living arrangements were made.
The couple will also need to file an Affidavit to support the claim of being separated under the same roof. A friend of family member may also need to file an Affidavit backing up your claim.
- If you cannot produce your marriage certificate then you will need to apply to the state of territory registry for Births, Deaths and Marriages to get a new copy. You cannot file for an annulment without presenting a copy of the marriage certificate.
- If you have been married less than 2 years at the time of filing papers you will need to attend counselling sessions to try and salvage the marriage.
- Only one party needs to ‘want’ a divorce for it to be approved. Providing they meet the separation requirements, they can serve a court order even if their spouse wants to continue the marriage.
- If there are children less than 18 years old present in the relationship then the court will need to be satisfied with the living arrangements for the children before a divorce can be approved.
- Issues regarding the future of children in a relationship are handled by parenting orders. Proceedings on parenting orders can begin right after separation and do not need to wait until the annulment is finalised.
- Even if parenting proceedings have not been concluded, if they are in place when the annulment is applied for the court will likely still approve the order.
- Contrary to popular belief, property settlements are rarely a 50/50 split between parties. The court considers many factors in order to produce a ‘fair’ distribution of assets.
- Like parenting orders, property orders can begin right after separation occurs and do not need to wait for an annulment to be finalised.
Are there differences between same-sex and traditional marriage?
There are no differences between same-sex and heterosexual marriages under the law. As the marriage act now fails to specify sex or gender, the union between two people is all that is considered.
There is however some small things to make note of as several relationships transition from de-facto to being a recognised marriage:
Binding financial agreements
If a pre-amendment same-sex marriage couple have used a binding financial agreement as a de-facto couple then the agreement will still remain binding.
- As of the law change on December 9 2017, these agreements will be treated as being made under the family law act following the same rules as those given to marriage.
- The agreement will be seen as one made under the laws governing married couples assuming that ‘necessary changes’ have been made.
- ‘Necessary changes’ are only minor changes to wording to ensure that the agreement would remain binding based on the terms that were agreed on originally. They are not designed to make any substantial changed to the agreement.
If someone pre-amendment had a previously existing maintenance order favouring them the agreement will cease to be after December 9 2017.
- Normally, a maintenance agreement that is in one person’s favour would end once they get married but since a same-sex marriages were at the time not previously recognised they failed to cause maintenance orders to be nullified.
- Maintenance orders cease on December 9 2017 and not on the date the same-sex marriage began. This is in order to avoid forcing parties to pay-back maintenance payments.
These facts of the law are minor and serve only to facilitate the transition for same-sex marriages to become legitimised.
Same-sex marriages are identical to their heterosexual counterparts and you can rely on same-sex divorce lawyers from O’Sullivan Legal to help you achieve the same outcomes.
The benefits of a gay and lesbian divorce lawyer
Like with any legal matter, the importance of hiring an experienced solicitor cannot be understated. The legal world is mastered by professionals who spend their lives representing those who cannot adequately represent themselves.
There are several great reasons why a solicitor is so beneficial in same-sex family law cases:
- In cases of family law there is a higher emotional stake for clients are they are dealing with their loved ones. No matter the circumstances, leaving a long-term relationship is hard and can often bring up emotions that cloud your judgement.
- In order to prevent these emotions from jeopardising your best legal outcome you should always hire a professional to consult with you. The lawyers at O’Sullivan Legal are able to empathise with your situation while remaining clear headed and unbiased to work on your behalf.
- The solicitor can sit down with you and act not only as a legal counsellor but as an emotional one too. They are humans too and can help you to rationalise your emotions and translate them into meaningful legal action.
- Whether you are dealing with property settlement, child custody or just the complex paperwork behind divorce applications you will likely face serval emotional hurdles. A professional solicitor is your best friend when it comes to these issues, they can listen to you and use their legal expertise to devise the best path forward.
Get in touch with O’Sullivan Legal today to put your worries behind you and start working with us for your benefit!
Our expert team are eager to meet you and help work with you to solve your legal issues. We offer a comprehensive legal solution that leaves no page unturned in seeking the best outcome.