Marriage Act & Divorce

The Marriage Act regulates and defines marriage in Australia.  It contains the well-known definition of marriage in Australia as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

The present form of the Marriage Act excludes gay marriages. However, in many countries around the world, gay marriage is permitted.

Foreign marriages can be recognised in Australia, as long as they were legally and properly carried out according to the laws of that country. People married overseas can still be divorced in Australia, as long as there is some connection between the parties and Australia (e.g. Australian citizens, domiciled in Australia).

So, on the face of it, a properly conducted and lawful gay marriage carried out overseas could be recognised in Australia and a properly married gay couple could be divorced in Australia as long as they had some connection to Australia.

However, a recently inserted provision (Section 88EA) of the Marriage Act specifically states that:

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman;

must not be recognised as a marriage in Australia.

If a marriage is not recognised as a marriage in Australia then the parties cannot be divorced in Australia as there is no marriage to dissolve.

If marrying overseas, great care needs to be taken in terms of understanding the requirements to dissolve that marriage.  Some countries (or States in the United States) have residence requirements meaning that you actually have to live in that jurisdiction for a certain period of time before you can get divorced.

Party to a same sex marriage can otherwise avail themselves of other provisions in the Family Law Act to, for example, to divide property, split superannuation or enter into post separation parenting arrangements.   Basically, anything other than a divorce order. 


Laura McDonnell  | Lawyer


Family & Relationship Law


+61 3 9269 9618




Jodylee Bartal  | Senior Associate


Family & Relationship Law


+61 3 9269 9151