Same-sex couples getting married overseas? Be prepared Same-sex couples getting married overseas? Be prepared

News & Events

Same-sex couples getting married overseas? Be prepared

Same-sex couples considering marrying overseas should think carefully about where they tie the knot and weigh up the potential risk of divorce in a foreign country.

Barry.Nilsson. Special Counsel Terrence Trainor said the current debate around marriage equality in Australia raised serious issues regarding the potential consequences of same-sex couples marrying overseas and subsequently seeking divorce here.

In June, Malta and Germany joined the growing list of 23 countries that have legalised same sex marriage since 2001. These countries include the Netherlands, Belgium, Spain, Germany, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Uruguay, New Zealand, France, Brazil, England, Wales, Luxembourg and Scotland. In the U.S., same sex-marriage is legal in 37 states.

According to Mr Trainor, Australian same-sex couples who marry in a country where such marriages are legal and then return home are not permitted to divorce in Australia.

“In order to apply for a divorce in Australia, the marriage must be recognised as valid,” said Mr Trainor, who specialises in international divorce cases.

“The Marriage Act 1961 makes it abundantly clear that overseas same-sex marriages are not recognised as valid in Australia.

“Under our existing laws, Australian Family Courts are unable to divorce or annul the marriage of same-sex couples who are married abroad.

“Instead, same-sex couples need to establish the jurisdictional requirements to apply for a divorce in the country in which they were married.”

This would mean, for example, an Australian same-sex couple who married in England and Wales would not be able to divorce in Australia.

“While you cannot cherry-pick jurisdictions without having a connection to that country, the legal tests which are applied will need to be considered on a country-by-country basis,” said Mr Trainor.

“The bottom line is if you’re a same sex couple and you’re thinking of getting married overseas then you need to find out what you need to do to get married in that particular country and what are your options for divorce if the relationship falls apart and what are the potential costs?”

Mr Trainor recommends same-sex couples seek legal advice before getting married to understand the divorce laws in the country where the marriage is taking place.

Other key considerations:

  • The time it will take to get divorced in the relevant jurisdiction.
  • The financial implications of getting divorced in a particular country.
  • Whether the courts in the particular country will have the power to issue injunctive type orders so that assets cannot be transferred out of the country and out of the jurisdiction of the court.
  • The way in which a court in a particular jurisdiction is likely to deal with parenting disputes.
  • The cost of obtaining a divorce and other proceedings in a particular jurisdiction.
  • Any issues relating to the enforceability of overseas orders – such as registering an order or having mirror orders in another country.

For more information contact:

Sally Cuskelly
Digital Marketing & Communications Specialist

About Terrence Trainor

Terrence Trainor is a special counsel in Barry.Nilsson.’s Family Law team. He is an expert in international family law and is admitted to practice in Australia, England and Wales. Terrence moved in 2007 to London, where he practised for nearly a decade in several specialist family law firms and most recently was head of the family law team at a leading Mayfair firm. During his time overseas, Terrence led cases that spanned multiple countries, many of which included elements of specialist issues including Jewish and Sharia law. Terrence returned to Australia in late 2016 to specialise in complex financial and children’s matters, often with an international or cross-jurisdictional element. He is an expert at assisting clients with binding financial agreements (both pre-nuptial and post-nuptial) and cohabitation disputes.