Marriage equality advocates have called on all states to repeal laws forcing couples to divorce if one partner seeks legal recognition of their gender reassignment.
The call comes as legislation is tabled today to end the forced divorce requirement in New South Wales, South Australia and Tasmania today.
Australian Marriage Equality national director, Rodney Croome, said,
“These laws are cruel to transgender Australians and their partners, and demeaning of the solemn marriage vows these couples have made.”
“Being married is something which can sustain a relationship through the gender reassignment of one of the partners, yet here we have the government forcing an end to that marriage.”
“All those MPs who have expressed support for marriage as an institution should support the removal of these laws because it is about keeping married couples together.”
“Australian Marriage Equality encourages MPs in NSW, SA and Tasmania to take the lead and support this important legislation, and encourages other states to follow.”
Legislation to end forced transgender divorce will be introduced today in NSW by Greens MLC, Mehreen Faruqi, and Independent MLA, Alex Greenwich, in South Australia by Greens MLC, Tammy Franks, and by Greens MHA, Nick McKim, in Tasmania.
Mr Croome said there should be no constitutional obstacles to amending state laws to end forced divorce because the Marriage Act only regulates who goes in to a marriage and is silent on gender reassignment.
A fact sheet is included below.
For more information contact Rodney Croome on 0409 010 668.
Author: Rodney Croome
Publication: AME Media Release
Date: 16 October 2014
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BRIEFING NOTE
Ending forced divorce for transgender Australians
State law requires forced divorce
Nearly all Australian states and territories have established legislation that prevents the recognition of a change of sex when a person is married. The only exception is the ACT.
This means some couples where one partner is transgender are forced to divorce before that partner’s new gender is registered and recognised officially.
While the Commonwealth Marriage Act requires marriage to take place between a man and a woman, there is nothing in the Act that prevents the on-going recognition of a marriage when one person changes gender.
Why the law needs to change
It is already difficult enough for a couple to negotiate the gender change of one partner, without the added burden of being forced to divorce.
The state has no right to force the divorce of two people who have made solemn and lawful vows of lifelong commitment.
The requirement that a person must not be married in order to record a change of gender may be inconsistent with the federal Sex Discrimination Act 1984 .The SDA prohibits discrimination on the ground of marital status in a wide range of areas of public life.
Forced divorce can also require individuals to perjure themselves in court by claiming an ‘irretrievable breakdown’ of their marriage to obtain a divorce.
The law outside Australia
There are a number of other countries which do not require transgender people to divorce in order for their change of gender to be recognised. They include, New Zealand, Canada, the Netherlands, Germany, Austria, Lithuania and a number of US states.