Since 2017, same-sex couples across Australia have had access to full marriage equality. And that means that they also enjoy the same legal pathway to divorce. At Watts McCray, we’re proud to work with LGBTQ+ clients to help them navigate that pathway with straightforward advice and specialist family law expertise.
As one of Australia’s leading family law firms, our Accredited Specialists in Family Law offer compassionate, inclusive and expert support through same-sex divorce and separation.
Understanding same-sex divorce in Australia
Same-sex marriage has been recognised in Australia since December 2017, when the government passed The Marriage Amendment (Definition and Religious Freedoms) Act 2017. This removed the ban on same-sex marriages and on recognising foreign same-sex marriages that were entered into legally as well. What that means for the LGBTQ+ community is that both Australian same-sex marriages and those completed in a foreign country are valid in our country.
Because same-sex marriage is legally the same as for any other married couple under Australian law, divorce is also legally the same. To apply for the divorce, whether or not you’re in a same-sex or an opposite-sex marriage, you just need to meet standard requirements for divorce (these are known as the jurisdictional requirements).
In Australia these are:
- You and your spouse must have been separated for at least 12 months.
- There’s no reasonable likelihood of reconciliation.
- At least one partner is an Australian citizen, permanent resident or has lived in Australia for the past 12 months.
As long as you meet these requirements, you’re eligible to seek a divorce order.
Unique considerations for same-sex separating partners
While the legal pathways for divorce are the same for all marriages, there are some circumstances that are more common in same-sex marriages.
- Recognition of overseas same-sex marriages: If you were married overseas before Australia recognised same-sex marriage, your marriage will still be legally valid here as long as it was legally valid in the country in which you were married.
- Separation under one roof: Many couples, same sex or opposite sex, continue living together for financial or practical reasons after separation. In these cases, additional evidence may be needed to prove separation, but this can certainly be done and we’re here to help if needed.
- Social and emotional complexity. LGBTQ+ couples can often face more community pressures or family challenges during separation for a variety of reasons.
Our team offers a judgment-free and fully supportive environment for divorcing and separating same-sex couples. And we’re here to help when you need us.
Divorce process for same-sex couples
The divorce process for same-sex couples is the same as the divorce process for any couple in Australia.
Here’s how that process works:
Step 1: Confirm your separation
Legally, you must be separated for 12 months before you can apply for divorce. Separation can occur when you move out of a shared home, or you can be separated under the same roof (so while still living together). The only requirement is that one of the couple must decide they want to separate, and they must inform the other party.
If you do decide to continue living together while separated, you will also need to demonstrate that your relationship has ended by showing something like changed sleeping arrangements within the home, separate finances or by letting friends and family know that you’ve separated.
Step 2: File your Application for Divorce
Once you have been separated for one year you can file your Application for Divorce. You may, of course, work on the application during the year waiting period, but neither signing nor filing cannot occur until 12 months after your separation.
You will also need to file your marriage certificate and proof of Australian citizenship or residency with the application, if you were not born in Australia. If you were married overseas before 2017, you may need to file additional documents to show that your marriage was legal in that country at that time.
- Joint applications – you can apply for divorce jointly, with your spouse; or
- Sole applications – you can apply solely if the other party doesn’t wish to participate or is not part of the process.
Step 3: Serve the other party
If you’re filing alone, then once the Application has been filed, it will need to be served on the other party. This must happen at least 28 days before the hearing (42 if the respondent is overseas). Service has some requirements, but in general it can be done by any adult over the age of 18. You can also serve the Application via post, if the responding spouse agrees to sign a receipt.
Step 4: Hearing to take place
Once your Application is filed, the Court will set the date for your hearing. You will not always be required to attend Court. Most commonly, the Court will decide the application in your absence and neither you nor your ex will need to be there.
However, you may be required to attend if:
- either party opposes the divorce
- there are any other issues (for example, with paperwork or service)
At the hearing, as long as the Court is satisfied that you have met the requirements for divorce, they will pronounce a Divorce Order. This is a provisional degree that will become final one month after it is made.
Step 5: Your divorce is finalised
Your divorce normally becomes final one month and one day after your hearing. Once your divorce becomes final, the Court issues the final Divorce Order, and your marriage is officially dissolved. At this stage, you are free to remarry if you wish to do so.
Other matters relating to same-sex divorce
Splitting from a spouse often involves more than just getting the divorce order, and this is particularly true for same-sex couples. LGBTQ+ couples often face unique situations around children, financial contributions and pre-marital relationships.
Parenting arrangements
Parenting matters for same-sex couples can sometimes be complex, especially in situations where:
- One parent is not a biological parent
- Children were conceived through donor conception or surrogacy
- Children were adopted
- Parental responsibility wasn’t legally formalised
Australian family law always prioritises the best interests of the child and applies gender-neutral principles to same-sex couples to ensure that parents have the same legal rights. However, issues can arise in situations where the child was conceived using assisted reproductive technology or if only one partner is listed on the birth certificate.
It’s important to get expert legal advice from a family law specialist familiar with these situations. Our team can help you understand and make decisions around parental rights, responsibilities, child support and future arrangements.
De facto relationships & pre-marriage years
Many same-sex couples lived in long-term de facto relationships before marriage equality. Those years together will certainly be considered in terms of property division, financial and non-financial contributions, parenting responsibility, spousal maintenance and more.
Property settlement
Same-sex couples have the same legal rights to property settlement as any married couple. This includes property adjustment and spousal maintenance. Expert legal advice is important here as well since identifying and valuing the asset pool can be a complicated process, and particularly in situations where there was a long-term committed relationship prior to marriage.
Our team is on hand to help negotiate a fair division and formalise any agreements through consent orders or financial agreements. We can also represent you in Court should that become necessary.
Spousal maintenance
Spousal maintenance rights apply equally to same-sex spouses, and the same eligibility requirements apply as well. If one spouse cannot reasonably support themselves, they may be entitled to financial support from their ex-partner.
So, if a party can demonstrate financial need and the other has the capacity to provide support, they may be entitled to receive spousal maintenance. These will often be in the form of periodic payments.
Sometimes maintenance is only temporary to allow the individual to get on their feet financially, or until the property settlement is finalised. In other cases, it may be granted for a longer period of time.
International same-sex divorce
If you married overseas before Australia recognised same-sex marriage in 2017, you may still be able to divorce in Australia. Our team can advise you on getting recognition for your marriage and the correct pathway to divorce based on your individual circumstances.
Why choose Watts McCray for same-sex divorce?
For more than 40 years, Watts McCray has been one of Australia’s leading firms in family and relationship law, including divorce and separation, in Australia. We bring:
- Inclusive, empathetic and non-judgmental support for LGBTQ+ families
- Accredited Specialists experienced in same-sex separation
- Deep expertise in complex parenting, surrogacy and donor-conceived family structures
- Easily accessible offices in Sydney, Parramatta, Northern Beaches, Eastern Suburbs and Wollongong
- Clear communication and practical advice at every stage
You can trust our team to support you with dignity, respect and care.
The Watts McCray Divorce & Separation Process
If you’re ready to get started with your own divorce or separation, here’s what you can expect:
Step 1: Initial consultation
Meet with one of our expert family lawyers to discuss your separation, children and assets.
We’re available to meet online or in person.
Step 2: Understanding your goals
Working together we’ll clarify any details and find out what goals you’re looking to achieve. We’ll make sure to focus on any urgent concerns quickly as well.
Step 3: Preparation of your Application for Divorce
Your lawyer will explain the divorce process and any required documents. We then assist in preparing your Application, ensuring everything is complete and accurate.
Step 4: Lodgment and representation
We handle filing, service and representation at your hearing, if needed.
Step 5: Ongoing support
We can assist you with parenting plans, consent orders, property settlements and spousal maintenance before or after your divorce is finalised.
Contact our Specialist Family Law Team
Do you have a question about family law or relationship law?
Contact us today, and a member of our team will get back to you soon.
FAQs
No. Same-sex couples follow the same legal process as any other married couple. There may be some unique circumstances to consider, such as a long pre-marriage de facto relationship, and our empathetic team is always on hand to help you understand how those factors might impact your divorce, parenting orders or financial settlements.
Your marriage is recognised in Australia if it was valid in the country where it occurred on the date that it occurred, even if it took place prior to 2017.
Yes. However, you will likely need to provide evidence of separation, such as changes to finances, sleeping arrangements or household responsibilities to show the date of separation and meet the 12-month time requirement.
Your parenting rights are not determined by your gender or sexuality, or by the type of marriage you are part of. They are determined by the Family Law Act 1975 which focuses on what is in the best interests of your child.
However, a same-sex marriage may face unique circumstances, such as only one parent being a biological parent or adoptive or surrogacy arrangements. In Australia, the law recognises that a child may have two legal parents even if only one is a biological parent and in many same-sex families, both partners will be recognised as legal parents even before divorce proceedings begin.
Get in touch. We’d love to have a chat about your specific situation and help clarify your rights.
Not typically. You will only be required to attend the hearing at Court if issues arise. Most divorces are finalised in the absence of the parties
Accredited to deliver
Choose a team with more accredited lawyers.
Other Family Law Services
Contact our Specialist Family Law Team
You can contact our divorce lawyers to assist you with the divorce process.
Our Offices
