Same Sex Marriage, Divorce and Wills

Posted by Ross Selvaggio on 15 August 2018

From 9 December 2017, same sex marriages have been legally recognised in Australia.

As legislation is being amended to accommodate same sex marriages, there is also the possibility that the current wording of some statutes may cause unintended consequences and complications for same sex couples.

Wills:

When a couple marries, any previous Wills they have written are revoked. This affects all marriages and it should be borne in mind by all couples who are considering marriage.

Many same sex couples may have been in de facto relationships prior to 9 December 2017 and may have made Wills that make provision for their spouse, family and friends. Once marriage occurs, the provision relating to the spouses will survive, however, the remaining provisions will be invalidated.

If marriage is in the near future for you, it is prudent to consider making a new Will in anticipation of the marriage to ensure that your wishes can fully be carried out and you do not die intestate (without a Will).

Divorce:

When a divorce occurs or a marriage is annulled, any provision made for the former spouse made in the Will is revoked. This includes any appointment of the former spouse as an executor, trustee or guardian in the Will.

If a marriage does break down, the impact of a divorce or annulment of the marriage upon your Will needs to be considered along with the need to make a new Will.

Same sex marriages:

A same sex couple who was married overseas in accordance with a foreign law will have that marriage legally recognised in Australia from 9 December 2017.

It is not yet entirely clear what impact Australia’s new laws will have upon same sex marriages that were celebrated overseas.

It is likely that if a same sex marriage was celebrated overseas prior to 9 December 2017, and the couple made Wills after the marriage but before that date, the current wording of legislation may invalidate those Wills.

This is due to marriage revoking all previous Wills of both parties to the marriage. Although this position is still unclear and the Attorney General has announced a review of these laws to avoid any unintended circumstances, we recommend that any couple in this situation should consider making a new Will as soon as possible.

If you are concerned that your Will may be impacted by the changes of the law or you would like advice on Wills or marriage and divorce general, please contact our office to arrange for an initial consultation.

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