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Australian same-sex couples who married abroad face difficulty divorcing

Meka Beresford May 27, 2017
Same-sex marriage (Getty Images)

Same-sex marriage (Getty Images)

Australian’s same-sex couple who have got married abroad have reported finding it near on impossible to seek out a divorce.

As same-sex couples do not yet have marriage equality in the country, the current legislature does recognise ceremonies performed outside of the country.

This means that the country does not recognise marriages, and thus divorce proceedings are near on impossible to complete in the country, a factor that is costing Australian over $500 million.

The issue stems from section 88EA of the Marriage Act 1961 which states that “Certain unions are not marriages. A union solemnised in a foreign country between” (a) a man and another man, or a woman and another woman; must not be recognised as a marriage in Australia.

Although the lack of marriage equality has been a controversial issue for a number of years in the country, the issue of not being able to get divorced is a new aspect which is now being deemed “cruel”.

Anna Brown, the director of legal advocacy at the Human Rights Law Centre, explained that the refusal to legalise same-sex marriage was having “unexpectedly cruel consequences in reality”.

“It can leave people trapped in a legal limbo where their marriage is legal in one country but not here,” she told BuzzFeed News.

Another knock on effect means that those who are unable to divorce are also unable to marry again, otherwise, they would be committing bigamy.

Brown explained that the situation can quickly become a “legal minefield”.

“Technically, while you remain married to someone you are required to maintain that person, so people can find themselves in situations where a spouse from an overseas marriage makes a claim on their property years after they have separated if they don’t look after their affairs properly,” Brown said.

While overseas governments can offer and recognise same-sex marriages, they often are not required to inform couples about divorce.

“Only the Australian government can ensure overseas same-sex marriages are legally recognised in Australia and avoid the legal black hole that couples can find themselves in,” Brown said.

Gemma Killen married her ex in Canada in 2012, but the couple split in 2014.

She did not seek out divorce immediately, but when she met her current partner and things grew serious she realised that she would have to seek out divorce.

After months of research, Killen had still not come to a resolution.

“I would find myself in this hole of government forms. I always sat down thinking, ‘this time I’m going to figure it out’ – how to fill in forms, which ones, where to send them. And then an hour later I’d be like, I just can’t. I just can’t figure it out.”

As well as the logistical stress, Killen felt another level of shame about her failed marriage because of her sexuality.

“You can’t really talk about getting divorced because we’re supposed to be holding ourselves up as worthy of marriage, which is ridiculous,” she said. “It feels like we have to be twice as good at it.”

“Something has to be done about it. You can’t have people in legal limbo,” she added.

More: Australia, Australia, divorce, Equality, LGBT, marriage, same sex weddings, Weddings

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