New same sex marriage laws: things to do before you rush down the aisle

By Alison Ross / 08 December 2017
4 min.
Worthwhile read for: Same sex couples

With the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 now passed, it’s anticipated that the New Year will see record numbers of same sex marriage ceremonies. 

But, before those ceremonies happen, couples shouldn’t forget these very important things in their rush down the aisle…

Relationship planning

Parties about to embark on a marriage, including those under the same sex marriage legislation, may wish to consider entering into a prenuptial agreement under the Family Law Act 1975 before their marriage. 

Many couples are increasingly turning to agreements (such as prenuptial agreements) as a way to provide some security for themselves in the event of a relationship breakdown. Agreements, when properly considered and carried out, are one of the best forms of insurance policy for couples about to head down the aisle. These agreements provide certainty in relation to financial matters for the couple in the event of a separation.

A word of warning though. If the agreement does not comply with the strict requirements of the legislation, or sufficient consideration is not given to the terms of the agreement and how you intend to divide your property to limit the potential arguments to set aside an agreement in the future, couples could simply be wasting their time. Ensure that the agreement is properly drafted and properly considered to ensure the agreement isn’t one “not worth the paper it’s written on”.

For those couples that already have a relationship agreement (commonly referred to as a cohabitation agreement or agreement during a de facto relationship), those agreements will cease to be binding if the couple marries. In that case, couples shouldn’t forget to reconsider the terms of their existing agreements, and to enter into a new agreement if they wish for the terms to continue to apply upon their marriage. 

Are you already married?

While it is not possible, until 9 January 2018, for same sex couples to marry in Australia, many same sex couples have already married under overseas laws.  Those marriages will now be automatically recognised as valid in Australia provided that, for example, they are not otherwise prohibited under Australian law (for example, underage marriages, prohibited relationships or if there is no consent to the marriage).

Couples may need to consider whether they are already married (whether to their intended spouse or to a former partner) and, if the overseas marriage has not otherwise been dissolved and that relationship has broken down, a party to an intended marriage will now need to contemplate a dissolution of that overseas marriage before they head down the aisle to anyone else.

Wills and estate planning

In Queensland, a person’s will is automatically revoked upon marriage unless it is expressed to have been made in contemplation of marriage. Most Australians in same sex relationships are unlikely to have ensured their wills were prepared in anticipation of marriage. 

This means that if you marry, you will need to re-execute your will after the marriage in order for it to remain valid or, preferably, enter into a new will before the intended marriage, ensuring that it specifically contemplates the forthcoming nuptials.

Enduring power of attorney

Similarly, unless your enduring power of attorney states otherwise, it is revoked if you get married. However, if your husband or wife is already your attorney, your power of attorney will only be revoked to the extent that it gives power to someone other than your husband or wife.

While there is a lot of planning that goes into weddings, it can be the most important that are sometimes forgotten. Relationship and estate planning requirements should be at the forefront of couples’ minds before they head down the aisle.

For more information or discussion, please contact HopgoodGanim Lawyers’ Partner, Alison Ross from our Family and Relationship Law team or Greg Cox from our Estates and Succession team.

08 December 2017
Key Contacts
Alison Ross
Alison is a Partner of our Family and Relationship Law practice who works exclusively with HG Private clients.

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