All same-sex married couples (including those married validly overseas before 9 December 2017) are automatically married couples for the purposes of the Family Law Act 1975 (Cth) (Family Law Act) and the principles that apply in relation to divorce.

Under the Australian Family Law Act, there is a single ground for divorce—the irretrievable breakdown of marriage (s 48(1)), and the precondition to filing the application for divorce with the court is that the court must be satisfied that:

  • the parties to the marriage have lived separately and apart for a continuous period of at least 12 months immediately prior to the application of the divorce being filed (s 48(2))
  • there is no reasonable likelihood of reconciliation between the parties (s 48(3))
  • proper arrangements have been made for the care, welfare and development of any children of the marriage (s 55A).

Existing proceedings under the Family Law Act, where a pre-commencement, same-sex married couple had litigation in any of the Commonwealth or state courts (in the de facto jurisdiction), would continue as if the original application was an application for proceedings between a married couple.