Earlier this week an anti-gay Australian couple earned international headlines when they declared that that they will divorce in a symbolic stand against same-sex marriage. But as it turns out, their plan to remain living together may thwart any divorce under Australian law.
The Family Law Act states that an application for divorce will only be considered if the parties had separated and lived separately for a continuous period of at least 12 months. Family lawyer Denis Farrar said the court also needs to be satisfied that there is no reasonable likelihood of cohabitation being resumed. "It surprises me that any sensible person would make such a threat, because you can't get a divorce unless you've been separated for 12 months," he said. "It doesn't sound like Mr Jensen could truthfully swear that those facts are correct. And in that case he may apply for a divorce, but he won't get it unless he lies."Jensen, not incidentally, is the former director of the Australian Christian Lobby.
Mr Jensen conceded the Family Law Act may throw a spanner in the works. "There will be issues around the fact that we would have to prove that our marriage was irreconcilably broken, which it isn't," he said. But Mr Jensen said he and his wife could look at a legal challenge, which would leave them effectively fighting for their right to get divorced. "It would be quite ironic if the state wouldn't actually allow us to get divorced," he said. "If a group of people got together and said 'actually, we want to take this to the courts', then maybe that would be something we'd be involved with. It's something we take very seriously, and we feel in our conscience that we can't actually partake in any redefined marriage."