Tuesday 10 December 2013

High Court to deliver judgment on same sex marriage this week

Driving through Canberra on the weekend I saw a happy sight - multiple wedding parties posing for photos and celebrating their marriage. But the question remains, will their marriages be valid?

This coming Thursday, the High Court will deliver judgment on 2 key questions:

- is the ACT Marriage Equality (Same Sex) Act 2013 inconsistent with the Commonwealth Marriage Act and/or the Commonwealth Family Law Act? and 

- if the ACT Legislation is inconsistent, does that cause the ACT Legislation to be of no effect or void?


In total approximately 46 couples have registered to marry under the ACT Legislation. So what affect will the High Court ruling have on them? 

If the High Court finds that the ACT legislation is inconsistent, then the likely effect is that the marriages will be deemed invalid. From a Family Law point of view, the parties would then likely be treated as de facto couples (subject to meeting the criteria under the Family Law Act) if they ever separate. 

If however the High Court declares the legislation valid, although this will mean that same sex couples can be "married" in the ACT, it does create some difficulties for these couples from a Family Law and Estate Planning point of view. In particular, divorce and property settlement could become a much more complex and costly exercise for these couples.

More on this coming soon...

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