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The Perils of Crossing the Ditch to Get Hitched

November 16, 2017

Yesterday, hours after we learned Australia had voted in favour of same sex marriage, I was interviewed on Radio Live Drive about a peculiar anomaly in the law which means same sex couples who have already married in New Zealand but call Australia home have no way of obtaining a divorce.

It’s an unusual day in the office when, as a divorce lawyer, I must tell a client he or she cannot divorce. That is exactly the scenario I have found myself in on several occasions since New Zealand passed its same sex marriage legislation. New Zealand has developed a lucrative nuptials market with overseas same sex couples, many from Australia, coming to our shores to marry. Last year, 471 same sex marriages in New Zealand were between overseas residents and over 330 of those were Australians crossing the ditch to get hitched.  Furthermore, some New Zealanders who enter same sex marriages here inevitably end up doing as many New Zealanders do and move to Australia to establish new lives there. For many starry-eyed newlyweds, the thought of wedded bliss turning sour is not something that is dwelled on. However, for those in same sex relationships, divorce might not be an option in the future should they not reside in New Zealand and “till death do us part” will really mean just that.

So, how is it that a same sex couple living in Australia can marry in New Zealand but not divorce? The issue arises for two reasons – the circumstances in which you can apply for a divorce in New Zealand and the lack of legal recognition of same sex marriages across the Tasman.

To apply for a dissolution of marriage (or divorce) in New Zealand, one of the married parties needs to be domiciled here. If both parties are domiciled overseas, then a dissolution cannot be sought in New Zealand even if the marriage occurred here. Domicile shouldn’t be confused with where you live at any given moment. It has a specific legal meaning but generally speaking, requires a level of intention and long term commitment to the country of domicile.

If a same sex couple cannot seek a divorce in New Zealand because they are domiciled in Australia, surely the solution is that they apply in Australia for a divorce. This is exactly what a heterosexual married couple faced with the same circumstances could do. However, not only does Australia not allow same sex marriages to occur there, it specifically outlaws the legal recognition of same sex marriages that have occurred overseas. Australia’s Marriage Act 1961 specifically states that unions solemnised in a foreign country between members of the same sex must not be recognised as a marriage in Australia. Therefore, a divorce cannot occur in Australia because the very marriage being dissolved is not legally recognised in the first place. Essentially, in the eyes of Australian law, there is no marriage to dissolve.

If you are thinking this is all rather unfair, the United Nations Human Rights Committee agrees with you. On 3 August 2017, it found that Australia’s denial of divorce to a citizen who had entered a same sex marriage in Canada was discriminatory and violated the International Covenant on Civil and Political Rights which states that “all persons should be equal before the law and are entitled without discrimination to the equal protection of the law”. The Committee found that Australia is treating overseas same sex marriages less favourably than other types of marriage. Advocates of same sex marriage in Australia have argued the decision creates an obligation on Australia to grant marriage equality as it confirms Australia has an obligation to treat same sex couples equally and give them equal protection of the law.

Some may ask why having the ability to divorce matters if the marriage is not recognised at all in law. Putting aside the significant human rights issue as confirmed by the UN Human Rights Committee, the right to divorce has practical implications. Divorcing frees you to marry another, should you choose to do so. We all live, love and occasionally make a mess of things. For heterosexual couples, they can choose to try again and remarry. By denying same sex couples the right to divorce, they essentially are denied the right to remarry after one marriage ends. Should someone simply ignore his or her earlier same sex marriage and marry again, they would be committing bigamy under New Zealand law.

If Australians do for marriage equality reform as their Prime Minister urged yesterday and simply “get on with it”, this situation will be promptly rectified. In that case, some of those couples who first rushed to New Zealand to be among the first to marry here under our same sex marriage laws may find themselves being some of the first rushing to the apply for same sex divorces in Australia.  But, what will happen in the seemingly unlikely event Australia doesn’t change its law? Do we in New Zealand, having marketed ourselves as a destination for same sex couples wanting to marry, have an obligation to warn of the potential legal quagmire these couples could be sinking into? One option that New Zealand may have to consider is an amendment to its law to allow couples in this situation to apply for divorces here of their New Zealand marriages and, in doing so, grant complete marriage equality

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