SAME SEX MARRIAGE AND DIVORCE 

 

At the date of this article in August 2017, there is much publicity about whether the Federal Parliament should amend the Marriage Act 1961 which has steadfastly continued to define marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. 

 

The Marriage Act was amended in 2004 by providing that a union solemnized in a foreign country between a man and another man, or a woman and another woman, must not be recognised as a marriage within Australia.  Controversially, however, the Marriage Act recognises foreign polygamous marriages as falling within the definition of “marriage” but only for the purposes of allowing a participant to such a marriage to seek relief such as divorce. 

 

In 2012, a Queensland doctor, who had been married under Canadian law in a same-sex marriage, petitioned the Human Rights Committee.  The petitioner, or “author” as she is referred to in the United Nations Committee’s decision, submitted that she was the victim of a violation by Australia of her rights under the International Convention on civil and political rights and, as such, Australia had violated its treaty obligations by refusing to allow same-sex divorces.

 

Australian State laws do provide some recognition of the rights of participants to same-sex unions.  For instance, both parents can now be named on a birth certificate even of the same sex in circumstances where a female partner might have undergone fertility treatment and choosing a sperm donor and giving birth to a child of that union.

 

However, the restrictive definition of marriage under Australian law still provides the participants to an overseas same-sex marriage with significant disadvantages.  For instance, such a person has no option to remarry or enter a civil partnership in the future in Australia.  A divorce order would have provided the author with conclusive proof that her former relationship by marriage under Canadian law with her same-sex partner had formally ended.  Otherwise, the author would have been regarded as still married when travelling overseas for holidays or as part of her work in countries like Canada, U.K., Denmark and in some parts of the United States which do recognise same-sex marriages under their domestic laws.  This gives consequences for issues such as next-of-kin should there be an emergency whilst abroad.

 

The United Nations Human Rights Committee ruled that differentiation of treatment based upon the author’s sexual orientation constituted discrimination under the United Nations International Covenant on civil and political rights to which Australia is a signatory.  The Committee ruled that the Australian Government was obligated under the treaty to provide an author with an effective remedy.  The Committee ruled that the Australian Government was obliged by the International Covenant to provide her with full reparation for the discrimination suffered through the lack of access to divorce proceedings.  The Australian Government was also obliged to take steps to prevent similar violations in the future and to review its laws in accordance with the views of the Human Rights Committee under the International Covenant.  The Committee found it incongruous that Australian laws allow people who enter into polygamist marriage overseas to gain divorce but does not give the same right to same-sex couples. 

 

At the time the author commenced the United Nations proceedings, divorce under Canadian law was very difficult.  It has now become easier to divorce under Canadian law. 

 

Unfortunately, the United Nations Human Rights Committee’s decision is ultimately not binding on the Australian Government.  However, its views are politically embarrassing and cannot be easily ignored having regard to the current debate over same-sex marriage. 

 

In relation to considering changing the restrictive Marriage Act, the Australian Government seems determined to avoid a Parliamentary vote (which might well be humiliating uncontrollable even along party lines), and is insisting that the process involve postal plebiscite.  Already, possible High Court challenges to such a plebiscite are being discussed.  Such challenges involve whether or not the cost of the plebiscite of $170 million can lawfully be appropriated to the Australian Bureau of Statistics whose job it would be to conduct the postal ballot.  Such expenditure would only be valid under the Australian Constitution if it was not “unforeseen”.  Furthermore, the Australian Bureau of Statistics is only able to collect certain types of statistical information.  Obtaining the opinions of Australians about same-sex marriage may not be within the ABS’s charter which would be another ground of challenge. 

 

The reality, however, is that political reform will probably have to await a change of Government in Canberra which is unlikely to take place until the end of 2018.  

 

In the meantime, De Marco Lawyers can give advice on current laws and rights of those involved in same-sex relationships or in relation to those engaged in relationships with transgender identities.  

 

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This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.

 

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