Congratulations to the ACT government for today tabling their Marriage Equality Bill!
The Bill is very inclusive: it permits everyone not covered under the Commonwealth Marriage Act to get married, so couples that are not comprised of “a man and a woman to the exclusion of all others” will be able to get married (and be recognised) in the ACT. This includes same sex couples and/or couples that includes a person that isn’t exclusively one sex.
The “Application” section reads:
6. … This part applies—
(a) in relation to all marriages between 2 adults that are not marriages within the meaning of the Marriage Act 1961 (Cwlth) solemnised, or intended to be solemnised, in the ACT; and
(b) despite any common law rule of private international law.
And the “Eligibility” section reads:
7. … Eligibility for marriage under this Act
A person may be married under this Act only if—
(a) the person is an adult; and
(b) the person is not legally married; and
Note 1 A civil union ends if a party to the civil union marries (see Domestic Relationships Act 1994, s 37PC).
Note 2 A civil partnership ends if a party to the civil partnership marries (see Domestic Relationships Act 1994, s 37H).
(c) the person cannot marry the person’s proposed spouse under the Marriage Act 1961 (Cwlth) because it is not a marriage within the meaning of that Act; and
(d) the person does not have any of the following [family relationships specified] …
The Application section would appear to rule out a conflict with the Commonwealth Marriage Act, although it’s unclear how people who wish to change their gender are affected; as with the NSW proposals, it’s likely that a couple in that situation would have to divorce and remarry under a different Act. Nevertheless, the Bill is a marriage equality bill, rather than a limited scope same-sex marriage bill.
It’s noteworthy that the identity documentary requirement supports a broader range of options than that for federal marriage. It’s also noteworthy that there are some unusual cases for dissolution of a marriage – including if either of the parties to the marriage later marries someone else under a different marriage law.
We understand that the federal government are intending to review the constitutionality of the legislation. The rationale for that review is illuminating, and the consequences will be even more so. Before the election, the Coalition view on marriage equality was for it to be a matter for the party room.