Submission on the Recognition of Foreign Marriages Bill 2014

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Submission date: 31 July 2014

 

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31 July 2014

Ms Sophie Dunstone

Committee Secretary

Legal and Constitutional Affairs Legislation Committee

PO Box 6100
Parliament House
Canberra ACT 2600

 

By Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

Dear Ms Dunstan,

 

Submission on the Recognition of Foreign Marriages Bill 2014

 

We write today on behalf of the Victorian Gay & Lesbian Rights Lobby (VGLRL) in relation to the current inquiry into the Recognition of Foreign Marriages Bill (2014) (the Bill). We do not propose to make a comprehensive submission to this inquiry but raise a number of key points for the Committee’s consideration.

1.    About the VGLRL

The VGLRL is a community based advocacy group which works towards equality, social justice and human rights for lesbian, gay, queer, bisexual and same sex attracted Victorians. We work with, and for the community, along with other non-profit organisations, health bodies and government representatives to create positive change in the area of human rights and policy development. In particular, the VGLRL works consultatively, cooperatively and respectfully with transgender, bisexual, intersex and other organisations that support our mission and vision.

2.    The VGLRL and Marriage Equality

In Australia, thousands of lesbian, gay, bisexual, transgender and intersex (LGBTI) people are denied the legal right to marry their partner. The VGLRL has long called for the Australian Parliament to change the definition of marriage under the Marriage Act 1961 (Cth) (the Commonwealth Marriage Act). In its current form, the Commonwealth Marriage Act legalises and entrenches unacceptable discrimination against LGBTI people.

The VGLRL has campaigned for many years for marriage equality for its members and the broader LGBTI community. The VGLRL has previously made submissions to the two federal inquiries into legislation aiming to achieve equality for LGBTI people in the area of marriage.[1]

The VGLRL is also a proud partner of the Marriage Equality Matters campaign, a joint campaign of state and federal LGBTI rights groups from across Australia.

3.    Support for Marriage Equality in Australia

A recent poll conducted by Crosby Textor for Australian Marriage Equality (AME) found support for marriage equality at an all-time high in Australia, rising from 65 per cent support in August 2013, to 72 per cent support, in June 2014.[2] Indeed support for marriage equality is now found across all demographic and age cohorts, and is higher in Australia than in other Commonwealth countries where it is legislated. In addition, 77 per cent of Australians believe Coalition MP’s should be given a conscience vote on the issue. We note our appreciation for NSW Liberal Democratic Senator David Leyonhjelm, signaling his intention to bring a private members’ bill into Parliament to enable the freedom to marry for all couples regardless of their sex or gender, once a conscience vote was granted by both major parties. Given this unprecedented and high support for a conscience vote, we encourage the Coalition to take action on enabling their members to have a free vote on such bills before the end of 2014.

4.    Marriage Equality around the World

 

As at June 31 2014, 16 countries have amended their laws to enact marriage equality, with laws coming into place in Luxembourg on 1 January 2015. In addition, several sub-jurisdictions of Mexico and the United States of America have marriage equality. Currently four Commonwealth countries, Canada, South Africa, the United Kingdom and our nearest neighbour New Zealand, have marriage equality.

5.    Current Status of Married LGBTI Couples in Australia

 

At the most recent census, 1338 Australian same-sex couples recorded their relationship as ‘husband or wife’.[3] Since this census, the United Kingdom and New Zealand achieved equality in their marriage laws, which anecdotally appear to have increased the number of Australian LGBTI couples marrying overseas.

Since 1985, the Commonwealth Marriage Act has provided for the recognition of foreign marriages in two circumstances: where the marriage is recognized as valid under the local law of the foreign country where it was solemnised[4] (in line with Australian’s obligations under the Hague marriage convention) or under the common law rules of private international law.[5] Accordingly, an Australian same-sex married overseas could have been entitled to a declaration that they were in a valid marriage and consequently would have all the rights and obligations of married couples. However, in 2004, the Commonwealth Marriage Act was amended to provide that:

$1§  the provisions on the recognition of foreign marriages only apply to ‘the union of a man and a woman’;[6] and

$1§  a same-sex union solemnised in a foreign country is not recognized as a marriage in Australia.[7]

The practical effect of this amendment is that same-sex couples married overseas cannot have their marriages recognized in Australia.

Also worth noting, with the achievement of marriage equality in the United Kingdom, Australian residents who have British citizenship can now legally marry within British Consulates and High Commissions around Australia. Essentially this now means that a couple can be married inside a British Consulate or High Commission building, but their marriage will not be recognised as soon as they walk outside onto Australian soil.

The ability for dual citizen couples to attain marriage in another jurisdiction but to not have that marriage recognized in Australia has created an unnecessary and burdensome legal minefield for many Australian based couples. The British Government (and some other jursdictions) require couples to not be in a marriage or civil partnership (including civil partnership schemes recognized from another jurisdiction) before entering into a marriage under British law. Britain’ civil partnership schemes recognises the Australian states and territories civil partnership schemes that operate in NSW, Victoria, Queensland, ACT and Tasmania.

In practical terms, an Australian couple who have entered into an Australian civil partnership would need to dissolve their partnership before being married under British law as the two cannot co-exist. The couple would not, however, have their marriage recognised upon returning to Australia except in Tasmania, which allows overseas same-sex marriages to be recognised as civil unions.[8] In effect Australian same-sex couples are being forced to choose between the practical protections afforded to the recognition of their relationship under an Australian scheme (next of kin, immigration, legal recognition when not living under one-roof etc); or to have their relationship appropriately recognised as they see it by being legally married under the British scheme. This is an unfair and unjust choice being imposed upon dual citizen relationships in Australia.

The Bill seeks to amend the Commonwealth Marriage Act to provide that a same-sex marriage solemnized in a foreign country under the local law of the foreign country will be recognized in Australia. The effect of the Bill would be that same-sex couples married overseas could have their marriages recognized in Australia so long as the marriage was valid under the local law of the foreign country. This would resolve the above mentioned issues and the jurisdictional inconsistencies regarding the recognition of same-sex marriages in Australia.

6.    Technical Issues

In debate on the Marriage Act Amendment (Recognition of Foreign Marriages) Bill 2013 – which is essentially identical to the present Bill – some argued that the Bill was technically deficient in that it was inconsistent with Australian law and section 88E of the Commonwealth Marriage Act.

Section 88E provides that a foreign marriage which is valid under the common law rules of private international law will be recognized as valid in Australia (this generally arises where the marriage did not comply with the formalities of the law of the country where it was solemnized and so resort is had to common law principles).[9] It is likely that this section would have allowed for the recognition of foreign same-sex marriages,[10] but now by definition only applies to marriages between a man and a woman.[11]

We suggest that a simple amendment is required in order to clarify that s 88E would extend to same-sex marriages. The Bill currently retains s 88B(4), which provides that the meaning of marriage in s 88E is given by subsection 5(1), that is, that marriage is between a man and a woman. This provision should be repealed.

This would bring Australia in line with other countries such Japan and Israel who have not legislated for marriage equality but recognise same-sex marriages performed in foreign countries.

7.    Conclusion

These on-going legal issues, grey areas and the complexity of over-lapping and varying laws within Australian jurisdictions make it imperative that the Federal Government, who is empowered to make such laws, provide certainty through the recognition of overseas marriages and reflect the global shift towards full marriage equality.

We thank the committee for its time in reviewing this brief submission and we would be pleased to make ourselves available to the committee at any stage should it have further questions in relation to these matters.

Yours sincerely

                                                  

Anna Brown                                                                    Corey Irlam

Co-Convener                                                                  Co-Convener

Victorian Gay & Lesbian Rights Lobby                          Victorian Gay & Lesbian Rights Lobby

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.                                              Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Mobile: 0417 484 438                                                     Mobile: 0401 738 996



[1] The VGLRL’s recent submissions on marriage equality can be accessed at http://vglrl.org.au/submissions/vglrl-submissions .

[2] ‘Record Support for same-sex marriage’ Crosby|Textor Research. 15 July 2014. Available from: http://www.crosbytextor.com/news/record-support-for-same-sex-marriage/

[3] Counts of same-sex couples, Australian Bureau of Statistics, retrieved from: http://abs.gov.au/websitedbs/censushome.nsf/home/factsheetsssc?opendocument&navpos=450. Though we note comments of the former Australian Statistician to previous census results that this is likely to be an under reporting of the true figure.

[4] Marriage Act 1961 s 88C(1).

[5] Marriage Act 1961 s 88E(1).

[6] Marriage Act 1961 s 88B(4).

[7] Marriage Act 1961 s 88EA.

[8] Differing same-sex marriage laws create headache for couples, The Sydney Morning Herald, retrieved from: http://www.smh.com.au/federal-politics/political-news/differing-samesex-marriage-laws-create-headaches-for-couples-20140706-zsxvy.html

[9] W & T [1998] FamCA 49 [5.16] (Fogarty J); Nygh & Kasey [2010] FamCA 145 [57]-[89].

[10] Peter Nygh, ‘The consequences for Australia of the new Netherlands law permitting same gender marriages’ (2002) 16 Australian Journal of Family Law 139, 143.

[11] Marriage Act 1961 s 88B(4).

 

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