Laws regarding same sex rights had a lot of ground to make up. Beginning with decriminalisation, Australia eventually legalised same sex marriage. This effectively affords same sex couples the same rights as heterosexual couples. Let’s explore the importance of these changes on questions around inheritance and finances.
Same sex marriage laws in Australia
Decriminalisation of Homosexuality
1970s-1990s
The process of decriminalising homosexuality in Australia was gradual. It varied significantly across states and territories. South Australia was the first jurisdiction to decriminalise male homosexual acts in 1975. Other states and territories followed suit over the next two decades. The last jurisdiction to decriminalise homosexuality was Tasmania in 1997. This followed a landmark case at the United Nations Human Rights Committee.
Recognition of Same Sex Relationships
Early 2000s
Australian states and territories began to recognise same-sex relationships in various forms. This included domestic partnerships and civil unions. This provided same-sex couples with rights to property, inheritance, and medical decisions.
Same Sex Marriage
2017
A survey found a majority of Australians support same-sex marriage. A milestone was reached when Australians voted to legalise same-sex marriage. A national postal survey showed a majority support for marriage equality. The Australian Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. This came into effect on December 9, 2017. This law amended the federal Marriage Act 1961. The amendment defined marriage as a union of two people to recognise same-sex marriage across Australia.
If you need help with same sex couple rights, you can get a free 30-minute consultation from Ferrall & Co. Lawyers. Contact us for assistance.
Estate planning
Before marriage equality, same sex unions could only be recognised under the Family Law Act as de facto couples. One difference between de facto partnerships and marriages is their effect on wills.
Marriage and Wills
When a person marries, any existing will they have is generally revoked (cancelled). It becomes invalid unless the will was made “in contemplation” of that marriage. The will must explicitly state it was made with the forthcoming marriage in mind to remain valid. This legal provision protects the rights of the new spouse. It ensures they are not unintentionally disinherited.
A person may die without updating their will after marriage (and not include an in contemplation of marriage clause). Their estate will be distributed according to the rules of intestacy. This may not reflect their wishes.
De facto relationships and wills
A de facto relationship does not automatically revoke a will. If someone is in a de facto relationship and they have a will, the will remains valid unless the testator changes it. De facto partners have rights under the law and can be included in a will as beneficiaries. If a person dies intestate, the de facto partner will be provided for along with dependents such as children.
Marriage equality and wills
The legalisation of same-sex marriages clarifies the inheritance rights of same-sex married couples. However, existing wills of same-sex couples may not accurately reflect their desires. It’s important for same-sex couples to review their wills. This is vital if they haven’t included the “in contemplation of marriage” clause.
Superannuation nominations
Binding Death Benefit Nominations (BDBN) may only apply to the policyholder’s dependents. This includes a spouse or de facto partner. A BDBN isn’t invalidated when a married couple separates. Depending on the provider, it may be invalidated on divorce.
After marriage equality, same-sex married couples may be affected by binding nomination rules. Assessing whether existing BDBNs are affected or should be amended after same-sex marriage is crucial.
For help with same sex couple rights, contact Ferrall & Co. Lawyers for a free 30-minute consultation.
Overseas same sex marriages
Before 2017, foreign same-sex marriages weren’t recognised in Australia. This denied them the rights afforded to married couples. Amending the federal law for marriage gives these marriages access to specific processes. These include Australian divorce procedures and inheritance rights.
Conclusion
Legislation related to same-sex rights stretches back decades. Laws began decriminalising homosexuality and finally legalised same sex marriage. Australia has come a long way. Same sex marriage affected issues, including inheritance and other financial matters. This provides greater clarity over same sex rights and affords greater legal protection.
Contact us today if you have questions about your same sex couple’s rights.
