While we find out tomorrow whether most Australians approve of same-sex marriage, a ‘yes’ outcome will have little impact on the family law entitlements of separated same-sex couples.
The existence and duration of a de facto relationship can be difficult to calculate, as parties often disagree about the nature of their commitment to each other. It is much more straightforward to ascertain when a couple married and obtained a divorce.
However, in practice, there is no difference in the treatment of married or de facto maintenance or property alteration cases in the Family Law Courts. The Family Law Act 1975 contains almost mirror provisions for married spouses and those in de facto relationships. One type of union is not prioritised above the other.
In terms of parenting issues, same-sex marriage will not affect the outcome of those matters either. Parents or concerned parties, gay or straight, are now able to pursue parenting orders through the Family Law Courts. The courts do not treat gay or straight parents any differently.
Therefore, if same-sex marriage is legalised, this will not create any additional rights for same-sex couples in a family law sphere; other than, of course, an ability to marry and divorce.
There is much public discussion about same-sex marriage. From a family law perspective, a majority ‘yes’ vote which leads to legalisation of same-sex marriage will not result in same-sex couples being treated any differently.