What does the law say about gay couples marrying overseas?

There are many legal issues for South Australian same-sex couples who marry overseas.

6/11/11: Sunday Mail, “Gay couples face legal mess”. Click here.

Q and A with Adelaide lawyers Mal Byrne, Richard Yates and Andrew Johnston:

Marriage equality can’t come soon enough for many same-sex Australian couples. Some aren’t prepared to wait, so are deciding to get married overseas. While overseas marriage may appear as an attractive alternative for same-sex couples, there are some matters they ought to consider before getting hitched.

What is a Certificate of Non-Impediment (CNI)?

Some countries require Australian couples who are wishing to get married to produce a CNI confirming there is no legal impediment (ie if a person is already in another marriage). A CNI is obtained from the Australian government, and the applicant must supply details of the proposed marriage. After a recent policy change, the Australian Government will now issue a CNI to a member of a same sex couple. This allows same-sex couples to get married in other countries and to be legally recognised as married by the laws of that country. Nevertheless, that marriage will not be legally recognised in Australia.

Not every marriage authority requires a CNI. For example, a CNI is not required in the state of New York.

Can I get married in Australia later if I get married overseas?

It is a criminal offence punishable by imprisonment to enter into a marriage when already married to someone else.  As same-sex marriages are not recognised in Australia, they are unlikely to prevent a marriage in Australia to someone of the opposite gender. However, if and when same-sex marriage is recognised in Australia, either or both of the marriages could become void. That legal mess will need to be sorted out by the Australian government when looking to bring in marriage equality legislation, or many legal issues will result.

If the marriage doesn’t work out, do I need a divorce?

Ordinarily an Australian can apply for a divorce through the Australian courts, even if their marriage was entered into overseas. However, as same-sex marriages are not recognised in Australia, it is likely participants who seek a divorce will need to seek it from the country they got married in. The requirements differ country to country. For example, in Canada you need to be a resident for 12 months before you can apply for a divorce. Being in Australia and getting a divorce in an overseas country can be a lengthy, exhausting and expensive process.

Some former couples may decide a divorce is not necessary considering the lack of marriage equality in Australia. That approach might be convenient now, but if marriage equality is introduced to Australia you might find your forgotten marriage is suddenly valid.

Does getting married overseas have any effect on property or child custody proceedings if we split up?

Property Proceedings

It is possible that an overseas marriage could be used to demonstrate that a same-sex couple qualifies as a de facto couple.  The legal effects of being considered a de facto couple closely mirror those of marriage in terms of entitlements and obligations.

Difficulties may arise where one member of the same-sex married couple tries to argue that they are not a de facto couple. A Court may be more likely to rule that there is a de facto relationship if there is an overseas marriage.  However, other factors such as the length of time that the couple lived together will be of equal if not greater importance.

Child Custody Proceedings

In most circumstances, proceedings regarding child custody arrangements are complicated, expensive and emotionally draining. This complexity may be heightened in circumstances involving same-sex couples.

If the people involved are unable to reach agreement and proceedings are commenced, is unlikely that a Court would provide any more recognition to an overseas same-sex marriage than they would to a de facto relationship.  The best interests of the child will always take priority over the recognition of any relationships.

What are the effects of an overseas marriage if one member of the couple dies?

If a member of the same-sex couples does not have a Will, then their property and entitlements may pass to members of the deceased spouse’s family. Situations become complicated when one spouse already has a Will.  Usually, marriage invalidates a Will.  As a same-sex marriage is not legally recognised in Australia, it is not likely to invalidate a Will.

It is therefore important that same-sex couples prepare updated Wills to ensure that their property and entitlements pass to the other member if they so wish.  Couples should also give consideration to nominating each other as the beneficiaries of their superannuation entitlements.

What are the effects of an overseas marriage if one member of the couple becomes ill?

If one member of the couple becomes incapacitated (ie: mentally unable to make decisions independently), the other member may be kept out of important decision making processes if certain legal documents have not been prepared.

Same-sex couples should consider having a Powers of Attorney and Power of Guardianship prepared.  These documents will enable a spouse to act on behalf of the other in liaising with financial institutions or medical authorities if the other becomes incapacitated.

Medical directives may also be prepared to document the medical treatment wishes that a person may have in the event that they are incapacitated.