Insights and inspiration
Locked in Matrimony
20 February 2015
Marriage is defined in the Marriage Act, for Australian Commonwealth Law, to mean the union of a man and a woman to the exclusion of all others voluntarily entered into for life.
So far, the Commonwealth Government has resisted all attempts to change the law to permit gay marriage.
Some states have tried to do so. What would happen to divorce if they succeeded? So far, the HIgh Court has overruled the attempts.
What if, for example, NSW were to pass a law permitting same sex marriage? Suppose that the law survived a challenge by the Commonwealth Government in the High Court. Suppose then that the couple, after a decent or indecent interval, split up and wanted a divorce.
Divorce is something that only Commonwealth law can provide under the Family Law Act. The Commonwealth would not recognise the marriage so could not grant a divorce. The possibility is that this couple will be married forever, or until the law changes.
If you think this is fanciful, this is exactly what has happened in New York. Unlike Australia, the US does not have Federal legislation about divorce. Each state does its own thing. Some states, including New York, have allowed same sex marriage. People came from states where same sex marriages were not allowed, just to get married in New York.
There was no residential qualification, or any other qualification based on geography, that they needed to pass to get married. But there is, if they want to get divorced. Their own states cannot divorce them because according to their own states, they are not married. New York can divorce them but only if one of them has lived there for a year. Not everybody can afford to do that, so there, too, until the law changes, some couples might be locked in matrimony.
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