In countries that allow same-sex marriage like the States or Australia, LGBTQ couples who want to get married also have the right to get divorced. Like in all divorce cases, same-sex divorce can be stressful and complicated, even more so than traditional divorce. 

Marriage might be defined as a union two people enter for life, but in reality, marriage lasts much shorter (in Australia, the average is 8 years). In case you and your same-sex spouse choose to break your marriage, here’s what you need to know: 

Basis for divorce

Most countries that allow same-sex marriage also have some sort of no-fault divorce option. What this means is that the parties are not required to state the reason for divorce, just that both of you want to get it. In some countries and states, it’s possible to get a fault-based process that involves one of the spouse’s misconduct, like adultery or abandonment. No matter what the basis for divorce is, a judge will divide property and decide on custody, child support and spousal support. 


Any married couple can file for divorce, however, if you two don’t have multiple registrations for civil unions or if you got married after the law allowing gay marriage, it’s possible to file for divorce in your state as long as you’re are a resident of that state. There are different rules for different states, but in most of them, the couple must live in the state for at least 6 months but make sure to read specific laws for your location. For many people, divorce is a complicated process, especially if you used to be together for a long time before marriage equality acts. 

Property division

Every divorce process involves a judge dividing marital property and debts. The biggest issue for same-sex couples who were living together before marriage equality acts is the unfair property division due to the late date of the marriage. When it comes to the division of marital property, it involves anything acquired by one or the other spouse during the marriage. However, same-sex couples didn’t have the option to get married before (in Australia, there was no same-sex marriage before 2017), so what happens with the property then?

If one partner bought something before the marriage, this might be counted as separate property that doesn’t get included in property division. However, in the case of same-sex marriage, property division might be based on specific factors and the judge’s discretion. To get the fairest divorce, it’s smart to get a lawyer in Essendon dealing with divorce law. With them on your side, it’s possible to get a better settlement than previously thought. 

Child custody

Many same-sex couples couldn’t wait for marriage equality to start a family, but they found it was almost impossible to adopt the other spouse’s children. And without the legal process of adopting the children, it’s more than likely that the court won’t award any rights to the non-biological parent. And if two people had the children together and raised them as a family, this can be truly devastating for the non-bio parent. Due to same-sex marriage being so new, it’s not entirely possible to know the outcome of custody cases, even when a child is born during the marriage. In traditional marriages, it’s usually presumed that the wife is the mother and the husband is the father, but it’s not possible to state the same with certainty in same-sex marriage. Again, having lawyers on your side can help with reaching a fair decision.

Spousal support

In long term marriages, the lower-earning or non-earning spouse has the right to receive spousal support. However, there are same-sex relationships that lasted for decades before gay people were allowed to get married. Is the spousal support awarded still? This is mostly uncharted territory and it all depends from case to case. 

Since same-sex marriage is relatively new in most parts of the world, couples will be faced with many difficulties when trying to break up their marriage. The law is still undecided on many things and judges lack proper experience in dealing with same-sex marriage divorce. However, with an experienced lawyer and a lot of civilities, it’s possible to end your marriage on the right note.