Same-Sex Marriage & Wills

In December 2017 Australia became the 26th Country to legalise same-sex marriage. Changes in legislation can often bring questions and at times uncertainty about its impact on other areas of law. As a result, below we will examine the impact that same-sex marriage will have on Wills.

Prior to the changes in legislation:

Before the legalisation of same-sex marriage, many couples chose to get married overseas and then return to Australia. Unfortunately, same-sex couples who got married overseas would come back to realise that their marriage was not recognised. Instead under the Family Law Act 1975, they were classified as de facto couples.

After the changes:

The changes to legislation mean that same-sex couples who wed in Australia enjoy the same classification as heterosexual couples. Those who choose not to marry their partners remain classified as defacto. More interestingly same-sex couples who had previously wed overseas now gain recognition in Australia. Those couples who wed overseas prior to the changes in legislation also automatically gain recognition as a married couple.

What does all this mean:

In a previous article, we discussed how marriage and divorce are events which automatically cause Wills to become invalid. For some same-sex couples, this causes a potential problem. In particular, same-sex couples who married overseas and created Wills prior to 9 December 2017 face uncertainty regarding these Wills. The uncertainty stems from the fact that these couples are now classified as married where previously they were de facto.  Those in the legal industry are currently debating whether these categories of same-sex couples need to draft a new Will. Unfortunately, there is no clear answer. No clear answer will likely arise until either a case goes before the courts or the Federal Government provides guidelines.

Our recommendation to the same-sex couples married overseas with Wills prior to 9 December 2017 is to either redo their Wills or keep their eyes on the news. Our belief is that there are no upsides to uncertainty so spending the time to redo a Will may save your loved ones and family time, heartbreak and money. The risk for the category of same-sex couples who do not redraft is that if one court decision or government guideline has the potential to invalidate their Will. If you are a same-sex couple in this category you should contact your lawyer. Alternatively, you can contact our office and speak to one of our team of lawyers on (02) 9687 88585 or you can leave an inquiry on our website.

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