Before the wedding bells ring: some considerations for same sex couples in light of the marriage act reforms

Posted on December 14th, 2017

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Following the recent monumental legislative change – legalising same sex marriage – some couples have gone from a de facto couple to a married couple overnight as their marriage in overseas jurisdiction has become recognised in Australia.  Further, there is an expectation of a flurry of filing of Notices of Intention to Marry in the coming months, as same sex couples are finally able to legally marry in Australia.

However, as many same sex couples have been in a committed relationship for many years; they have set up their affairs and finances in a specific manner, which may now need to be reviewed and re-considered in light of their changed – or impending change of – marital status.

So, before the cake is ordered, the celebrant booked, and the wedding bells ring, consider: 

  • Do you need to update or change your Will?

Under the Succession Act (NSW) a Will is revoked by marriage of the testator.  The Act does provide that a bequest to the testator’s spouse (provided that they are married at the time of the testator’s death) and the appointment of the spouse as Executor (provided that they are married at the time of the testator’s death) can survive; however this may result in a partial intestacy (where your intentions are not achieved) depending on the terms of your Will.

In other jurisdictions, the Will is revoked entirely upon marriage, and there are no provisions to save any of your dispositions or appointments.

It is advisable, therefore, to review your Will prior to marriage, and obtain legal advice, to ensure that it continues to reflect your intentions.

  • Do you need to terminate, and enter into a new Financial Agreement under the Family Law Act?

A Financial Agreement between de facto partners is automatically invalidated upon marriage. If you have entered into a s.90UB or s.90UC Financial Agreement with your partner, that agreement should be reviewed, and a new Agreement prepared and signed.

  • Do you need to enter into a new Binding Death Nomination with respect to your superannuation?

Many Binding Death Nominations with respect to superannuation are invalidated by an event such as marriage or the birth of a child.  You should contact your superannuation fund and make enquiries as to whether your marriage will affect your nomination and then obtain legal and financial advice accordingly.

These are but some of the considerations that need to be had when adjusting to a change of – or impending change of – marital status.


Ashleigh John, Associate Director at Mullane & Lindsay Solicitors, NewcastleAshleigh John is an Associate Director and Accredited Specialist at Mullane & Lindsay Solicitors and practices extensively in Family, Relationship and Matrimonial LawIf you require any assistance in this area please contact Ashleigh John to arrange a consultation or contact our Newcastle office.

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