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The 'Old Ball & Chain': Same-Sex Overseas Marriages & Divorce Implications Arising from Recognition

Updated: Jun 24, 2021

Imagine this scenario:

At a time when same-sex marriages are not recognised in Australia, you and your life-partner decide to travel to New York to pledge your undying love and commitment to each other by taking part in a wedding ceremony. Finally, you are in a place that recognises your right to wed the person of your choosing regardless of their gender.

This was not an uncommon scenario pre-2017.

You then return home to your every-day life in Sydney and, although pursuant to the laws of New York, you are legally married, Australia (according to the law as it existed at the time) steadfastly refuses to recognise your marriage as a valid one.

While Australia has always accepted the validity of marriages and divorces that take place overseas in traditional relationships, section 88EA of the Marriage Act operated to explicitly exclude unions solemnized in a foreign country between ‘a man and another man’ or ‘a woman and another woman’ from being recognised in Australia.

As things turn out, your relationship with your life-partner does not pan out over the long term, and you agree to part ways. If you own assets together, you may have arrived at a property settlement under the De Facto Relationship laws that applied at the time. Your once-significant other fades into obscurity, and you both move on with your lives.

Now fast forward to 9 December 2017:

Australia becomes the 25th country to recognise same-sex marriages with the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

In line with the adoption of a more inclusive definition of marriage, parliament repealed section 88EA of the Marriage Act in 2017, the effect of this is that, as with other marriages validly entered into overseas, foreign same-sex marriages are also now recognised in Australia.

But that’s okay, because you separated from your partner before the recognition of same-sex marriages came into effect, right?

Unfortunately, it’s not so clear cut, because the repeal of this provision also works to retrospectively validate those marriages that were previously not recognised in Australia.

Even though you thought you were done and dusted, this means that, unless you had legally divorced your partner in New York or some other State where the divorce was legally recognised prior to December 2017, ironically, you might still be regarded as legally married to the ‘old ball and chain’, not just in the country where you married but also in Australia.

If you feel like this scenario might apply to you, or if you know anyone who might be in this position, legal advice specific to individual circumstances should be sought, or contact can be made with our friendly staff to arrange for a consultation with one of our solicitors.

Lauren Santas


Gramelis Attorneys

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