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;
