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Should Australia legally recognise same-sex marriages validly performed overseas?

By Paula Gerber - posted Thursday, 24 July 2014

In the latest poll on whether same-sex couples should be allowed to marry, a staggering 72% of Australians think they should be allowed to wed, while 77% think Coalition MPs should be granted a conscience vote. Despite the overwhelming majority of Australians being in favour of marriage equality, the Abbott Government remains staunchly opposed to amending the Marriage Act 1961 to allow all couples to marry, regardless of sexual orientation or gender identity/expression.

There is however, some sign that there may be a softening of successive Federal Governments' staunch opposition to same-sex couples marrying. The thawing began in 2012, when then Attorney General Nicola Roxon announced that Australians seeking to enter into a same-sex marriage overseas could now apply for a 'Certificate of No Impediment to Marriage'. Previously such certificates were only issued to heterosexual couples, which effectively prevented same-sex couples from taking part in overseas marriage ceremonies.

A further thawing became apparent in March of this year, when the Abbott Government announced that it had no objection to officers from the British High Commission solemnising same-sex marriages on consular grounds in Australian cities if at least one person of the marrying couple is a British national.


Abbott's stance on allowing same-sex couples to marry in foreign consulates in Australia is in stark contrast to the position adopted by former Prime Minister Julia Gillard. In 2010, she refused to all Portugal to perform same-sex weddings in its diplomatic posts in Australia after that country legalised same-sex marriage.

As a result of Abbott's non-objection to the British High Commission officiating over same-sex weddings on Australian soil, the first gay couple to marry outside of Britain, under Britain's marriage equality laws, took place in Sydney on 27 June 2014.

The next logical step for the Government to take is to recognise these marriages as valid marriages in Australia. Currently s88EA of the Marriage Act expressly prohibits the Australian Government recognising an overseas same-sex marriage as a marriage. The Recognition of Foreign Marriages Bill 2014 seeks to remove this prohibition from the Marriage Act. The Bill has been proposed by Senator Sarah Hansen-Young, and in May 2014, the Senate referred the Bill to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 3 September.

Australia would not be the first country to legally recognise overseas same-sex marriages while not allowing such marriages to take place at home. The following countries have all gone down this path:

  1. Aruba, Curacao and Sint Maarten (collectively the Netherlands Antilles or the Dutch Caribbean);
  2. Israel;
  3. Japan;
  4. Italy; and
  5. Malta.

In none of these countries has the sky fallen in!


Australia has previously attempted to pass legislation recognising overseas same-sex marriages. In June last year, a similar Bill was defeated in the Senate (44-28 votes). Given the significant advancements in marriage equality around the world since then, the time may be right to try again. In just one year we have seen the following developments:

Tables of countries that allow same sex marriage

Perhaps the rapid advances in legalising same-sex marriage around the world makes it easier for Australia to take the next baby step towards marriage equality, namely respecting marriages legally entered into overseas by same-sex couples.

Such a move is consistent with our international human rights commitments not to discriminate against people on the basis of sexual orientation or gender identity and would bring Australia a little bit closer to fully respecting the rights of lesbian, gay, bisexual, transgender and intersex persons.

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About the Author

Paula Gerber is Deputy Director of the Castan Centre for Human Rights Law and an Associate Professor at the Monash University Faculty of Law. She specialises in international human rights law generally, with a particular focus on children's rights and gay rights, including same-sex marriage. She tweets @DrPaulaGerber

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