Marriage for all (& divorce for some)

By | December 11th, 2017|


With the excitement of the YES vote being announced on 15 November 2017, Michael Tiyce of Tiyce & Lawyers has made headlines all around the world. From Belgium, Sweden, the United Kingdom across the Atlantic to the United States of America and across the Pacific to New Zealand, Michael Tiyce has made news.

A Sydney based family lawyer with over twenty-five years’ experience, Michael Tiyce has offered his firm’s services to a distraught heterosexual married couple to help them divorce when marriage equality is legalised.

Michael Tiyce

Earlier this year the Federal Government announced the postal survey which asked the Australian people whether they supported the legalisation of marriage equality, Michael Tiyce came forward, announcing his intention to assist Nick and Sarah Jensen from Canberra. Both Nick and Sarah made news across Australia in 2015, when they announced their intention to divorce if same-sex couples would be allowed to get married.

At 10am on Wednesday 15 November 2017, the Australian Bureau of Statistics announced that 62 per cent of those Australians who had responded to the postal survey had returned a YES vote, in support of the legalisation of marriage equality. The Australian Capital Territory, home for the Jensen family had the highest recorded Yes vote in any Australian jurisdiction, with a staggering seventy five percent supporting marriage equality.

Nick and Sarah Jensen have been happily married for ten years but the road to their divorce may be slightly more complicated than they had anticipated.  When questioned why Michael was offering his assistance to Nick and Sarah on a pro-bono basis, he said “because, quite simply, they are going to need it”.

In order for the Jensens to be granted a divorce by the Federal Circuit Court of Australia, they must satisfy to the Court that they have lived separately or apart for a minimum period of 12 months. The Jensens would also need to prove that there is no reasonable likelihood of resuming married life between spouses.  Their intention to remain together, albeit divorced and continue to have children presents a number of complications, rendering their intention to divorce impossible. This is founded on the basis that it would not be possible to establish that their relationship has come to an end.

Apart from these factors a number of other requirements must be fulfilled in order for a divorce to be granted in Australia. One of or both spouses must regard Australia as their home and have the intention to live here indefinitely, or one or both spouses must be an Australian citizen either by birth, descent or by a grant of citizenship; or ordinarily live in Australia or have done so for 12 months in the period before their application for divorce is filed.

In addition to this, for couples who have been married for less than two years, there is a requirement that married couples attend counselling with a family counsellor or a nominated counsellor in the hope of reconciling. Alternatively, if either party does not attend counselling, than an application may be made to the Court seeking permission to apply for a divorce.

As marriage equality laws have been enacted across the World, we have increasingly advised Clients on their ability to terminate marriages entered into outside Australia.  In many countries which have enacted marriage equality, it remains a requirement for divorcing parties to live or have lived in the country for a significant period of time before a divorce will be considered.

With New York and New Zealand both being popular wedding venues for gay marriages which maintain residence requirements, this has resulted in a situation unfortunately described as wedlock – you remain parties who have entered into same-sex marriages in these places and cannot divorce in Australia or in the country in which they married.

Thankfully when marriage equality is enacted by our Parliament, upon the commencement of the legislation, recognition of overseas marriages will occur and parties who have been locked in to marriages with their same-sex partners will be free to apply for a divorce.  We are able to assist in this process.

If you are married and considering divorce, it is important that you obtain legal advice with respect to your rights and responsibilities prior to making an application to the Court.

Please contact our team at Tiyce & Lawyers if you would like to discuss your current situation with one of our family law specialists.

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