At the 11th hour, the Bill was renamed the Marriage Equality (Same-Sex) Bill 2013 and references to ‘person’ were changed to ‘persons of the same sex’. The ACT government stated that these changes more clearly defined the scope of MEA and better protected it from constitutional challenge. However this change excludes persons who identify as intersex from entering into a marriage under the MEA and effectively postpones their claim for marriage equality.
Apart from the requirement that the parties must be of the same sex and unable to marry under Commonwealth Act, marriage under the MEA substantially mirrors marriage under the Commonwealth Act. The eligibility criteria of the MEA includes that a person cannot already be in a legally recognised relationship with anyone other than the person that they intend to marry, they must be an adult, and cannot be in a prohibited relationship with the other person (s 7). Parties must lodge a statement of intention to marry (s 9). Where the ceremony is conducted by an authorised celebrant who is not a minister of religion, the words required to be spoken during the ceremony emphasise the solemn, binding, life-long and exclusionary nature of the marriage relationship (ss 12,13). An authorised celebrant who is also a minister of religion is not required to solemnise a marriage under the MEA (s 12(2)). While the MEA does not make bigamy an offence as the Commonwealth Act does, the other legal consequences are similar. The eligibility criteria in relation to the second marriage will not be satisfied and will be void (s 21).
The MEA also includes provisions for dissolution that are similar to those in the Family Law Act 1975 (Cth). For the dissolution of a marriage conducted under the MEA, there must be an ‘irretrievable breakdown of the relationship’ evidenced by ‘12 months separation’ (s 25). A marriage under the MEA will come to an end when one of the persons is subsequently married under the Commonwealth law or a similar law in another jurisdiction (s 33). This implies a hierarchy in the different ‘marriage’ statutes that suggest that the MEA is a step towards marriage equality, but perhaps not the final destination.
A person’s eligibility to apply for marriage under the MEA does not require ACT residence, allowing same-sex couples living in other jurisdictions to wed in the nation’s capital. However, the marriage ceremony must be conducted in the ACT (s 12). But there is unlikely to be a rush of weddings, and not only because the uncertainty of the High Court challenge is likely to cause interested parties to hesitate. Now that the MEA has entered into force, parties will need to lodge a statement of intention to marry with a celebrant and wait a minimum of one month (s 9(1),(2)). Should weddings occur before the constitutional challenge is resolved, the MEA provides for remarriage if there are questions about the marriage’s validity (s 18).
ANNE MACDUFF teaches law at ANU Law School.