Same-Sex Couples in Australia: A Right to Divorce But What of Marriage?

On 3 August 2017, the Human Rights Committee (HRC) of the United Nations handed down a landmark ruling that Australia had breached its international human rights obligations because it did not allow same-sex couples in Australia to divorce, when they had legally married overseas. This decision comes at a time when the political temperature on the same-sex marriage debate in Australia is heating up.

While it is clear from the HRC decision that same-sex couples in Australia have a right to divorce, it is less clear whether they have a right to marriage and whether Australia will recognise it. Under the Marriage Act 1961 (Cth), marriage is currently defined as “the union of a man and a woman”. This definition was introduced in 2004 under then-Prime Minister John Howard. Before then, same-sex couples could allegedly marry.

A Right to Divorce

Fiona Kumari Campbell from Queensland approached the HRC in 2012, when she found that Australian law would not allow her to divorce her same-sex spouse, whom she had legally married in Canada. She sought a ruling that Australia had breached the International Covenant on Civil and Political Rights (ICCPR) by denying her access to a divorce.

Campbell married her partner in 2004 in Canada, yet after returning to Australia later that year, the couple separated. The estranged couple has not been in contact since 2006, which led to Campbell eventually seeking a formal divorce. Given the strict residency requirements in Canada for a divorce application to be granted, plus the fact that her spouse is “missing in action”, Campbell was left without an effective remedy of divorce.

Before the HRC, Campbell argued that Australia’s refusal of access to divorce was an act of discrimination based on her sexual orientation, thereby contravening ICCPR articles 14(1) and 2(1) by denying her equal access to courts, and article 26 by denying her equality before the law. Ultimately, the HRC found that married same-sex couples are treated in a discriminatory manner by Australia, in breach of ICCPR article 26. This finding made it unnecessary to examine whether discrimination occurred under articles 14(1) and 2(1).

Generally, Australia permits divorce for foreign marriages. In its decision, the HRC points out that Australian law allows people who have entered a polygamous marriage overseas to get divorced, even though polygamy is banned in Australia. However, same-sex couples are denied the same right. Consequently, the HRC has found that Australia did not base this differential treatment on reasonable and objective criteria, and had failed “to provide a reasonable justification” for the underlying reasons.

Australia is now required by the ICCPR to provide an effective remedy to Campbell, by granting her request to divorce.


A Right to Marry?

Rodney Croome, a spokesperson for LGBTI advocacy group Just Equal, states that Campbell’s case demonstrates that banning same-sex marriage is also a breach of human rights. Yet the status of same-sex marriage under international human rights law is not so clear-cut.

The position of the Australian Human Rights Commission (AHRC) is that same-sex marriage is a right. Specifically, the AHRC asserts that the principle of equality means that civil marriage should be available to all couples, regardless of sex, sexual orientation or gender identity.

However, in the 2002 case of Joslin v New Zealand, the HRC found that “a mere refusal to provide for marriage between homosexual couples” does not violate the State Party’s obligations under the ICCPR” (at [8.2]-8[.3]). Although the decision means that the ICCPR does not impose a positive obligation on States to permit same-sex marriage, it does not prevent the recognition of same-sex marriage either.

Legal application is the main difference between Campbell and Joslin. Whilst the former turns on the principle of equality in ICCPR article 26, the latter is based on a narrow interpretation of the language in ICCPR article 23(2). That article states that “[t]he right of men and women of marriageable age to marry and to found a family shall be recognized”.

Times have changed since 2002, when only the Netherlands had legalised same-sex marriage. At present, 23 nations have followed suit, including the likes of the USA, Ireland and Brazil. Other nations buck the trend towards legalisation, such as Australia.

After its proposal for a plebiscite was rejected twice in the Senate, the Australian Government has forged ahead with plans to conduct a postal plebiscite on marriage equality. Specifically, the Australian Bureau of Statistics (ABS) will collect data from eligible voters on whether they think that the definition of “marriage” should be changed to allow two people, regardless of gender, to marry.

This approach is highly contentious, with two legal challenges before the High Court of Australia on these key legal issues:

  1. Whether Finance Minister Mathias Cormann has the authority to appropriate $122 million for the plebiscite, and
  2. Whether it is constitutional for the ABS to seek the opinion of the Australian public, instead of collecting “statistical information”.

 Parties will be heard before the High Court on 5 and 6 September, while ABS has given an undertaking to not mail out the surveys before 12 September. For the foreseeable future, the debate on same-sex marriage in Australia is not going anywhere.