Sunday, 5 August 2012

How Tasmania's same sex marriage proposal could affect Newman's surrogacy proposal

If Tasmania allows same sex marriage, will those marriages be recognised interstate? Who knows, but in all probability they would be- because of the principle of comity between the States. This is based on a common law doctrine to recognise actions taken in another jurisdiction, such as judgments and laws, and marriages.

 This has been seen in the US, where unanimously the highest appeals court in Maryland has recognised a same sex marriage from California to allow the couple to get divorced in Maryland, even though Maryland did not recognise same sex marriage:

Under the common law doctrine of comity, a valid out-of-state marriage will be recognized in Maryland, for purposes of application of its domestic divorce laws, if it is not statutorily prohibited or “repugnant” to Maryland public policy. The “repugnancy” threshold is very high. Maryland statutes do not treat as void expressly foreign same-sex marriages. Rather, a review of Maryland statutes and executive branch policies demonstrates that recognizing valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the parties’ valid California same-sex marriage is cognizable in this State for purposes of adjudicating a divorce complaint.

This could have enormous implications, because many of our States' discriminatory laws are based on a couple being married. In Queensland, for example, the Government is proposing that surrogacy be open only to those who are married or in heterosexual de facto relationships of greater than 2 years. If a Queensland gay or lesbian couple were to travel to Tasmania, get married, then they might be able to seek surrogacy in Queensland.

Those same sex couples who married overseas wouldn't have the same luck, because the 2004 amendments to the Marriage Act  specifically prevented their marriages from being recognised.

2 comments:

  1. SO WHEN WILL PEOPLE KNOW OF THE OUTCOME
    OF THIS ONE

    ReplyDelete
  2. Hi Stephen,

    Thank you for answering many of our questions :) I have set up a Human Rights project with the aim of reversing the QLD Premier's recent decision to change the Civil Partnerships Act. Its still very early days, but I was wondering if you would promote my page? It is http://www.facebook.com/pages/The-changes-to-the-Civil-Partnerships-Act-QLD-is-an-abuse-of-human-rights/227612097362281 Also I will be doing a video in the next few months, would you be open to doing an interview on this? If so you can message me via my page.
    Cheers,

    Cassandra

    ReplyDelete