UN finds that Australia breaches right to equality in same-sex divorce

United Nations Human Rights Committee – Views adopted by the Committee under article 5(4) of the Optional Protocol (CCPR/C/119/D/2216/2012)

Summary

The UN Human Rights Committee has held that Australia violated the International Covenant on Civil and Political Rights by failing to provide access to divorce proceedings for same-sex couples married overseas. The Committee reasoned that the differential treatment of same-sex couples as compared with overseas polygamous and adolescent marriages (between persons aged from 16 to 18 years) constituted discrimination under article 26 of the Covenant.

Facts

Ms C was in a same sex relationship with Ms A. In 2004, they married under the Canadian marriage laws. By the end of 2004 the couple had separated. Ms C was left with care of their daughter.

Ms C wished to obtain a divorce order in Queensland dissolving her Canadian marriage. An application for divorce under the Family Law Act 1975 (Qld) requires the relevant relationship to be recognised as a "marriage". Section 5(1) of the Marriage Act 1961 (Cth) defines marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".

The Marriage Act also recognises the validity in Australia of marriages solemnised overseas in accordance with local laws (in some cases, even if the marriage could not be entered into in Australia). However, under section 88EA of the Marriage Act, that recognition does not extend to same sex couples. Further, Ms C could not apply for divorce in Canada because she had not lived there for at least one year.

Due to the futility of applying for a divorce in Australia, and the fact that the requirement for Ms C to relocate to Canada for at least one year would be manifestly unreasonable, Ms C made a communication to the Committee under the Optional Protocol to the Covenant. She argued that the denial of access to divorce orders in Australia for same-sex couples married abroad constituted discrimination in contravention of article 14(1) (equality before courts) and article 26 (equality before the law) of the Covenant. The Committee focussed exclusively on article 26.

Decision

Majority opinions

(a)   Admissibility

The majority of the Committee first considered a threshold issue of admissibility. The State party (Australia) argued that because foreign same-sex marriages are not recognised in Australia, Ms C's communication required Australia to provide a remedy for an action that has no legal effect within its jurisdiction. Further, she claimed potential future consequences outside of Australia in support of her complaint (being practical difficulties encountered when travelling to jurisdictions where she is recognised as legally married to Ms A). As a result, she lacked victim status under article 1 of the Optional Protocol and her claim was inadmissible.

The Committee disagreed. Ms C's claim also identified consequences occurring within the jurisdiction of Australia resulting from the lack of access to divorce proceedings for same-sex couples. Those consequences included uncertainty in relation to:

• the ability to enter into future legal relationships in Australia;
• arrangements for the welfare of dependent children; and
• the effect of any future recognition of an unofficially defunct marriage on succession and intestacy.

In addition, the Committee referred to research showing that such laws may contribute to negative mental health outcomes for non-heterosexual people. Accordingly, Ms C's claim was admissible.

(b)   Merits

Turning to the merits of the case, the Committee pointed out that foreign polygamous and adolescent marriages have access to divorce proceedings in Australia, notwithstanding that such marriages cannot be entered into in Australia. The fact that same-sex marriages do not have such access was held to constitute differential treatment.

Australia argued the differential treatment was reasonable, objective and served a legitimate purpose because its position on the recognition of foreign marriages reflected its domestic laws and policy. The Committee responded that "compliance with domestic law does not in and of itself establish the reasonableness, objectiveness, or legitimacy" of differential treatment.

According to the Committee, Australia had failed to explain why the reasons for recognising the exceptions for foreign polygamous and adolescent marriages (i.e. access to family law courts) did not apply equally to foreign same-sex marriages. Therefore, the Committee concluded that the differential treatment of foreign same-sex marriages amounted to discrimination violating article 26 of the Covenant.

In a separate concurring decision, Committee member Sarah Cleveland held that it was unnecessary to focus on the differential treatment of same-sex as opposed to polygamous or adolescent marriages. That was because the denial of divorce proceedings to same-sex couples married overseas was discriminatory independent of that comparison. Ms Cleveland reasoned that the treatment of "monogamous same-sex unions between consenting, unrelated, adults, which otherwise are fully protected in Australia" as analogous to bigamous, incestuous, nonconsensual and underage marriages (all prohibited by the Marriage Act) was not reasonable, objective or for a legitimate aim.

(c)   Conclusion

The Committee requested that within 180 days Australia provide information about the effective remedy it will grant Ms C (including reparations) and the steps it will take to prevent similar violations in the future and to review its laws in accordance with the Committee's decision.

Dissenting opinions

There were two dissenting opinions. In the first, Yadh Ben Achour argued that the Convention did not protect same-sex marriage. Article 23 protects 'the right of men and women of marriageable age to marry' (Mr Achour's emphasis). Mr Achour interpreted that language as establishing heterosexuality as a requirement for a valid marriage. Ms Cleveland addressed this assertion by pointing out that nothing in article 23 grammatically excludes same-sex marriage.

Ms Anja Seibert-Fohr and Ms Photini Pazartzis also departed from the majority in a joint opinion. They argued that the vulnerability of adolescents and women in polygamous relationships makes their situation relevantly different from that of a same-sex couple. Ms C was able to enter into a formal separation deed regarding property matters and had access to remedies under the parenting provisions of the Family Law Act. She could, if she wished, enter into a new legal relationship under the Relationships Act 2011 (Qld). The position is different for parties to polygamous and adolescent marriages which are legally recognised in Australia, and therefore require access to divorce proceedings. This seems to be inconsistent with Ms C's concern (apparently accepted by the majority) that given her legal status overseas she would not be able to enter into a future legal relationship in Australia.

Commentary

Following this decision, the Government may decide to repeal section 88EA of the Marriage Act (and associated provisions), with the effect that same-sex marriages solemnised in a foreign country will be recognised in Australia in the same way as foreign polygamous and adolescent marriages.

The Government is unlikely to take any action until the upcoming postal plebiscite on same-sex marriage is conducted and its result determined. In the event of a "yes" vote – assuming parliament proceeds to legalise same-sex marriage – this issue around same-sex divorce will also be dealt with. If the Australian public votes "no", the Government may still repeal section 88EA, as that would be the minimum action necessary to prevent future violations of the Covenant.

The Government may also simply refuse to act on the Committee's views. However, if it did so, it would face increased pressure and possibly condemnation from the UN and members of the international community.

The full text of the decision can be found here.

James Clyne is a Managing Associate and Jonathon Holborn is a Law Graduate at Allens.