Friday, 27 September 2013

Will the ACT equal marriage and divorce laws survive a challenge?

Tony Abbott and the ALP will soon be tested about what to do with the proposed ACT Marriage Equality Act. The Act, if passed, will allow same sex marriage in the ACT. People outside the ACT will be able to get married there under the proposal. It is likely to be the first of such bills to be passed, others being contemplated in NSW, SA and WA.

When the ACT previously passed similar laws, they were overruled by the Government of the day- first by John Howard, and then by Kevin Rudd. That can’t happen now. Changes to Commonwealth laws in 2010 mean that for the Commonwealth to override an ACT law, it’s not just a proclamation of the Governor-General at the behest of the Prime Minister of the day, but there would need to be special legislation passed by both Houses. 

Until 30 June the Senate is controlled by the Greens and the ALP (if the ALP did not allow a conscience vote on the issue). If the ALP votes as a bloc, then the proposed disallowance by Tony Abbott will be disallowed. If the ALP is wedged on the issue, as it was when John Howard amended the Marriage Act, so that marriage was only between one man and one woman, then who knows what it might do? It might take the Coalition’s lead and seek to overturn the ACT laws, or might allow a conscience vote- meaning that the disallowance will pass.

If Tony Abbott wanted to, he could use the failure to pass this legislation as a trigger for a double dissolution, but three months must pass between the first rejection in the Senate and the second- allowing plenty of time for marriages to be pronounced in the ACT.

From 1 July legislation it’s anyone’s guess as to whether the laws might be passed- given the bunch of minor parties who might allow or block passage, including the Palmer United Party.

In the meantime, depending on how quickly the ACT and the Abbott government act, it is possible that we may have a Californian style wedding gold rush- when many same sex couples seek to marry in the ACT before the law changes. Anyone contemplating marrying in the ACT will have to fill out a notice to marry and give one month’s notice of intention to marry. They will also not be allowed to marry if they are already married (which seems to be either a heterosexual marriage or a same sex marriage).

The proposed ACT laws work on the premise that they run parallel to the Marriage Act, and therefore are not overruled by it. It is likely that there will be a High Court challenge, but there is every chance that that challenge will be unsuccessful.

The proposed laws also provide for divorce. Here I wonder if the laws are not open to challenge. The definition of “marriage” under the Family Law Act appears not to be limited to marriages recognised under the Marriage Act. It may well be that the scheme for divorces under the ACT laws may not survive a challenge as the proposed laws as to divorce may run directly counter to the Family Law Act.
Time will tell.


  1. The ACT law also applies to existing marriages that may not survive court challenge. For example, where one partner is Intersex.

    Leading case:
    In the marriage of C and D (falsely called C).
    (1979) FLC ¶90-636
    Other publishers' citations: (1979) 35 FLR 340 (1979) 5 FamLR
    636 (1979) 28 ALR 524

    "The ground of identity is in my opinion made out in that the wife was contemplating immediately prior to marriage and did in fact believe that she was marrying, a male. She did not in fact marry a male but a combination of both male and female and notwithstanding that the husband exhibited as a male, he was in fact not"

  2. Thanks Stephen for this informative report.

    Re the last paragraph - if the scheme for divorces under the ACT laws does not survive a challenge, what would this mean?
    Could we see same sex couples able to marry in the ACT, but not able to ever divorce there?

  3. Stephen,
    Can you spell out a little more about your concerns with the ACT bill and the Family Law Act? How could it be inconsistent with the FLA and Divorce if the FLA does not recognise the legal relationship?

    The FLA would recognise the parties as a member of a defacto relationship, which doesnt that mean they could elect to "dissolve" their marriage under ACT law, but transfer their property division to the Family Court under the defacto status they enjoy? That is of course assuming the ACT marriage Act is not declared a registered relationship, which still would only meant the parties were a member of a defacto relationship but would be waived from the cohabitating requirement. Yes? No?

    Im a little confused at what the issue is.

  4. Thank you both Zoe and Corey for your comments. it is interesting to note that the Commonwealth believes that the ACT Bill, if passed, will not survive a challenge. Let's see. It may be that legislation is passed by the House of Representatives and the Senate overriding the ACT law.

    The ACT Bill allows for divorce of marriages recognised under that Bill. The argument goes that the ACT Bill, concerning marriage, will survive a challenge because the definition of marriage under the Marriage Act is so narrow- it is only between heterosexual couples and therefore does not cover the field.

    The position regarding divorce is not so clear. It may be argued that marriage as recognised under the Family Law Act for divorce is taken to be marriage under the Marriage Act. However, the definition of "marriage" under the Family Law Act is merely that it includes a void marriage. This means that it is possible that a marriage that is not recognised under the Marriage Act might be recognised under the Family Law Act for divorce. If so, then for divorce the Family Law Act covers the field and the ACT law will be overridden so far as it concerns divorce.

    We will only know if and when there is a challenge in either the High Court or possibly later in the Family Court. Time will tell.

  5. Hi Phil. Sorry I missed your comment. if the ACT laws are successfully challenged about the divorce issue, not about marriage, then this should mean the ability to get married under the ACT laws, and then divorced under the Family Law Act.