Wednesday, 4 July 2018

Marriage Act changes

In February, I presented for the Queensland Law Society about the Marriage Act changes. Thankfully since then there has been a change in the Civil Partnership Regulations in Queensland so that overseas same sex marriages still have to be dissolved by the usual way- divorce. Here is my paper:




AMENDMENTS TO THE MARRIAGE ACT 1961

QUEENSLAND LAW SOCIETY LIVECAST Q &A

14 FEBRUARY 2018

Stephen Page[1]


1.      The prevailing view in family law

The prevailing view in family law, as expressed by a Federal Circuit Court Judge last year on the panel which I was also on, was that the amendments will make no difference whatsoever in family law.  Of course now we have the Marriage Amendment (Definition in Religious Freedoms) Act 2017 (Cth) which in general took effect on 9 December 2017.  They effect changes not only to the Marriage Act 1961 (Cth) but also to a whole host of other legislation including the Family Law Act and portfolios in defence, employment, finance, immigration and border protection, veterans affairs and the role of Attorney-General. 

The effect of the amendments has been:

(1)   To allow equal marriage laws to adults, if they are two people, irrespective of the gender;

(2)   Overseas marriages that were entered into on or before 9 December 2017 (such as mine) are automatically recognised because of the effect of the definition of marriage being amended in section 5 and therefore having a flow on effect for the recognition of foreign marriages under section 88D. 

The other major change is to allow ministers of religion and religious marriage celebrants to refuse to solemnise marriage if doing so is contrary to their religious beliefs.  Although there has been a change concerning ministers of religion, under the old section of the Marriage Act concerning this issue, they had a blanket ability to refuse to solemnise a marriage.  Now the section is longer, but the ability for ministers of religion to refuse to solemnise hasn’t altered in substance.  There is a new category of marriage celebrants who are religious marriage celebrants being either ministers of religion or under a grandfather clause have by Friday, 9 March 2018 applied to be recognised as religious marriage celebrants.

2.      Transitional provision

Schedule 4 to the Marriage Amendment (Definition of Religious Freedoms) Act 2017 commenced on 9 December 2017.  Clause 2 provides:

“(1)    This item applies to proceedings that:

(a)          were pending under the Family Law Act 1975 immediately before the recognition time [i.e. 9 December 2017]; and

(b)          related to a de facto relationship that:

(i)                 existed before or when the proceedings were instituted;

(ii)         was between 2 persons who are parties to a single pre-commencement same-sex marriage solemnised before the proceedings were instituted.

(2)      The proceedings continue under the Family Law Act at and after the recognition time:

(a)          As if they related to a marriage that had been solemnised when the pre-commencement same-sex marriage was solemnised;

(b)          If the proceedings were a de facto financial cause – as if anything done before the recognition time for the purposes of a provision of Part VIIIAB of that Act (except Division 4 of that Part) has been done for the purposes of the corresponding provision of Part VIII of that Act.”

Clause 3 provides:

“(1)    If:

(a)          before the recognition time, an order was made under Part VIII of the Family Law Act 1975 with respect to the maintenance of a party to a marriage; and

(b)          the party later became a party to a pre-commencement same-sex marriage;

                 subsections 82(4), (6), (7) and (8) of that Act apply in relation to the order as if the party had remarried at the recognition time.

         (2)   If:

(a)          before the recognition time, an order was made under Division 2 of Part 8AB of the Family Law Act 1975 with respect to the maintenance of a party (the receiving party) to a de facto relationship; and

(b)          the receiving party later became party to a pre-commencement same-sex marriage with someone who was not a party to the de facto relationship;

(c)          subsections 90SJ(2), (3), (4) and (5) of that Act apply in relation to the order as if the receiving party had married at the recognition time.”

Clause 4 deals with the recognition of overseas divorces, annulments and legal separations relating to pre-commencement same-sex marriages.  Clause 4 provides:

“(1)    To avoid doubt, subsection 104(3) of the Family Law Act 1975 extends to a divorce, annulment or legal separation relating to a pre-commencement same-sex marriage, even if:

(a)          the relevant date (as defined in section 104 of that Act) was before the recognition time; or

(b)          the divorce, annulment or legal separation occurred before the recognition time.

(2)      The Family Law Act 1975 applies as if section 104(3) of that Act also provided for a divorce effected in accordance with the law of an overseas jurisdiction to be recognised as valid in Australia if the divorce related to a pre-commencement same-sex marriage and was effected before the recognition time.

(3)            For the purposes of the application of section 104(4) of the Family Law Act 1975 in relation to subsection 104(3) of that Act as it applies because of sub-item (2), the mere fact that the divorce relates to a pre-commencement same-sex marriage does not mean that recognition of the divorce would manifestly be contrary to public policy.”

Clause 5 deals with financial agreements and separation declarations:

“(1)    This item applies if:

(a)          before the recognition time, the parties to a pre-commencement same-sex marriage made a Part VIIIAB financial agreement relating to a contemplated, actual or former de facto relationship between them:

(i)            whether or not they were parties to the pre-commencement same-sex marriage at the time they made the agreement; and

(ii)         whether or not anyone else is a party to the agreement; and

(b)          under section 90UJ of the Family Law Act 1975, the agreement is binding on the parties to the agreement immediately before the recognition time.

  (2)    For the purposes of a law of the Commonwealth (including the Family Law Act 1975) at and after the recognition time, the agreement, with the necessary changes, is taken:

(a)          to be a financial agreement made under Part VIIIA of that Act relating to a contemplated, actual or former marriage between the parties to the pre-commencement same-sex marriage; and

(b)          to be binding on the parties to the agreement under section 90G of that Act until the agreement is terminated or set aside in accordance with that Act.

  (3)    However, the agreement is taken not to include a provision that deals with the matter that could not validly have been dealt with in a Part VIIIAB financial agreement, even if the matter could validly be dealt with in a financial agreement.

  (4)    Section 90E of the Family Law Act does not apply in relation to the agreement at and after the recognition time if the agreement was covered by section 90UE (agreements made in non-referring States that become Part VIIIAB financial agreements) of that Act before that time [i.e. Western Australia].

  (5)    If, before the recognition time, a separation declaration was made, as described in section 90UF of the Family Law Act 1975, for the purposes of giving effect to the agreement (whether a declaration was included in the agreement or not), the declaration is taken on and after that time to be a separation declaration made as described in section 90DA of that Act.

  (6)    If before the recognition time, a separation declaration was made, as described in subsection 90MP(8), (9) or (10) of the Family Law Act in relation to the agreement so far as it is a superannuation agreement for the purposes of Part VIIIB of that Act, the declaration is taken on and after that time to be a separation declaration made as described in subsection 90MP(3), (4) or (4A) of that Act.

  (7)    Sub-item (6) applies where the separation declaration was included in the superannuation agreement or not.”

Division 3 confers similar matters under the Family Court Act 1997 (WA).

There are other transitional provisions concerning second marriage ceremonies for certain marriages by foreign diplomatic or consulate offices that occurred in Australia before commencement.

Section 113(2) and (5) of the Marriage Act deals with second marriages for people who engaged in a second marriage where their marriage was already solemnised in Australia before 9 December 2017 and the marriage was solemnised in the presence of a diplomatic or consulate officer of a foreign country.

The Commonwealth Attorney-General has the ability by legislative instrument to make transitional rules describing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or appeals made by the Act.  As far as I am aware, so far there have been no such transitional rules.

3.      Is the assertion correct?

Before the amendments, it mattered little whether someone was married or in a de facto relationship both as to parenting matters and property settlement/spousal maintenance.  The latter of course had extra requirements:

·         You had to prove that a de facto relationship was in existence plus the jurisdiction requirement in terms of location.

·         Section 2CA of the Acts Interpretation Act 1981 (Cth) has been amended to reference to spouse:

“(1)           For the purposes of any act, a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person.

 (2)             Subsection (1) has effect in addition to any provision of an Act that affects the meaning of spouse in a provision of that Act.

Example:   Spouse is defined for the purposes of an Act to include a de facto partner and a former spouse. Because of this section, a reference in the Act to a person’s spouse covers any person who is legally married to the person, in addition to any person covered by the definition of the Act.”

There is then a clause 3 in Schedule 3 to the Marriage Amendment (Definition of Religious Freedoms) Act 2017 (Cth) which says:

      “The amendments of the Acts Interpretation Act 1981 made by this Part apply, on and after the commencement of this Part [i.e. 9 December 2017], in relation to Acts enacted and instruments made before, on or after that commencement.”

There are machinery changes to the Family Law Act.  For example, the presumption of the need to preserve and protect the institution of marriage in section 43(1)(a) is changed from “a man and a woman” to “2 people”.  The need to be satisfied about arrangements for children in divorce under section 55A has in 55A(3) changed from “the husband or the wife” to “party to the marriage”, and from “the husband and wife” to “both parties to the marriage” and in 55A(4) from “husband and wife” to “parties to the marriage”.

In section 100 party is treated as a husband, wife or spouse even if the marriage or the adoption occurred before the commencement of the relevant sections 55A, 60F, 98A or 60E. 

4.      State Law

The first point is the obvious one.  People whose marriage has now been recognised are now affected by section 14 of the Succession Act 1991:

“(1)    A will is revoked by the marriage of the testator.

 (2)     However, the following are not revoked by the marriage of the testator:

(a)          a disposition to the person to whom the testator is married at the time of the testator’s death;

(b)          an appointment as executor, trustee, advisory trustee or guardian of the person to whom the testator is married at the time of the testator’s death;

(c)          a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised.

 (3)       Also –

(a)          a will made in contemplation of a marriage, whether or not the contemplation is stated in the will, is not revoked by the solemnisation of the marriage contemplated; and

(b)          a will that is stated to be made in contemplation of a marriage generally is not revoked by the solemnisation of a marriage of the testator.”

5.      A quick checklist of State family law

There doesn’t seem to have been any problems arising from the amendments to the Marriage Act in the following legislation:

·         Child Protection Act 1999;
·         Adoption Act 2009;
·         Surrogacy Act 2010;
·         Domestic and Family Violence Protection Act 2012.

As an example, to have standing under the Domestic and Family Violence Protection Act 2012, there needs to be a relevant relationship, one form of which is a spousal relationship: section 15.  The definition of spouse includes a former spouse of the person and a parent or former parent of a child of the person: section 15(2).

The definition of spouse under the Acts Interpretation Act 1954 includes that of a de facto partner: schedule 1, the latter of course being defined in section 32DA.

6.      Status of Children Act 1978 (Qld)

There is a problem with parenting presumptions under this Act, which needs to be amended in light of the changes to the Marriage Act.  The parentage presumptions contained under the Status of Children Act for children conceived by fertilisation procedures are contained in Part 3:

  • Subdivision 2 – fertilisation procedures for married women with the husband’s consent;

  • Subdivision 2A concerns fertilisation procedures for women with female de facto partner’s consent;

  • Subdivision 3 – fertilisation procedures for other married women and unmarried women.

For a woman who is married to another woman (or someone who is not a man) means that she is now outside subdivision 2A and also falls outside subdivisions 2 and 3.  Subdivision 2 only applies to a woman who is married to a husband (or de facto male partner): section 16.  Subdivision 2A only applies to a woman who has a female de facto partner and undergoes a fertilisation procedure with that partner’s consent or has a female civil partner and undergoes a fertilisation procedure with that partner’s consent: section 19B.  Subdivision 3 only applies if:

(a)            a married woman undergoes a fertilisation procedure other than with her husband’s consent;

(b)            a woman who is not married and does not have a de facto partner or civil partner undergoes a civil fertilisation procedure;

(c)            a woman who has a de facto partner undergoes a fertilisation procedure other than with their partner’s consent; or

(d)            a woman who has a civil partner undergoes a fertilisation procedure other than with her partner’s consent.

In other words, the parenting presumptions do not apply if a woman who is married to another woman (or someone who is not a man) undergoes a fertilisation procedure either with or without her wife or spouse’s consent (on the basis that her wife or spouse is not her husband).  For example, if a woman has a gender queer spouse, along the lines of Norrie[2] - then the presumption does not apply.

If the woman’s spouse consented to the procedure, then the woman’s spouse would be a parent under section 60H(1) of the Family Law Act 1975, but if the spouse did not consent, then it is unclear whether the spouse might be a parent.

7.      Getting divorced

Fiona Kumari Campbell was the brave soul who took Australia to the UN Human Rights Committee last year because she married overseas to another woman, their marriage ended but she was unable to get divorced.  The UN Human Rights Committee took Australia to task for not allowing Ms Campbell or other people stuck in being unable to get divorced because their marriage was not recognised in Australia and they did not meet the jurisdiction requirements of the overseas jurisdiction where they were divorced.

The amendments to the Marriage Act now enable those people to get married.

8.      Civil Partnerships Act 2011

There will be those who have entered into a civil partnership and have since married (whether overseas or from 9 December).  Section 14 of the Civil Partnerships Act 2011 (Qld) makes plain that a civil partnership is terminated on the marriage of either party.  If they married before 9 December, then the termination date is likely to be 9/12/17.

There are same sex couples who entered into civil partnerships overseas whose relationship has broken down and were unable to end the civil partnership overseas because they did not meet the jurisdiction requirements there.  Schedule 1 Part 1 of the Civil Partnerships Regulation 2012 (Qld) has a list of 34 corresponding laws covering New South Wales, Victoria, Tasmania, ACT, South Australia and New Zealand but also the UK, various Canadian and American jurisdictions and the matching 34 corresponding relationships, for example “a marriage of 2 persons of the same sex under the Domestic Relations Law of the State of New York (United States of America)”.

It would appear that in light of the amendments to the Marriage Act, this regulation now needs to be updated as the ending of those marriages must be by way of divorce under the Family Law Act, not by a termination of civil partnership application to the Registrar of Births, Deaths and Marriages under section 15 of the Civil Partnerships Act 2011.

9.      Bigamy

I am aware of a case in the United States where a party entered into a same sex marriage in California.  That marriage broke down.  Subsequently that partner entered into an opposite sex marriage in Arizona.  These events occurred before the US Supreme Court decision in 2015.  A lawyer apparently advised the party that they were free to marry because the first marriage was not recognised in the State of Arizona.  The effect of the US Supreme Court decision meant (as the first marriage had not been dissolved) that from the handing down of that decision, the party had engaged in the crime of bigamy.

Under section 94 of the Marriage Act 1961, a person who is married shall not go through a form or ceremony of marriage with any person, the penalty being imprisonment for 5 years.


Strict liability applies to the physical element of circumstance that the person was married when the formal ceremony took place and there is a reversal of the onus of proof on certain issues upon the defendant.



Stephen Page
Harrington Family Lawyers
www.facebook.com/Stephen.Page.Lawyer.Brisbane


[1] Stephen Page is a partner of Harrington Family Lawyers.  He was admitted in 1987 and has been an accredited family law specialist since 1996.  Amongst other memberships he is a Fellow of the International Academy of Family Lawyers.  Stephen and his husband Mitchell were married in Las Vegas in 2015.
[2] NSW Registrar of Births, Deaths and Marriages v. Norrie [2014] HCA11.

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