“Heartbreak and humiliation” were the opening words of the current affairs show “The 7:30 Report” on the national public broadcaster, the ABC, on Thursday Friday 21, 2016. The story? The tragic accidental death of David Bulmer-Rizzi, one member of a UK same sex couple who were visiting the country.The tragedy was compounded, the report said, by the fact that the South Australian authorities were proposing to issue a death certificate which stated that the deceased was “never married”. But the couple had entered into a same sex marriage under UK law.

The grief of the survivor, Marco Bulmer-Rizzi, and the father of the deceased man, were evident in the show. To lose a loved one in such circumstances is a terrible thing. But as there has already been substantial press coverage of the case, being used for the purpose of supporting legal change in Australia, it seems worthwhile to clarify the purely legal situation. 

Same sex marriage, of course, is not a part of the law of Australia (see this previous post for a review of the current situation here, which has not changed since that was written, except that now it is proposed to hold a referendum or plebiscite on the issue after the next Federal election.)

In addition to it not being a part of Australian domestic law, it is clear at the moment that Australian law does not recognise as a “marriage” a same sex relationship entered into overseas, even in a country which does recognise such a relationship as a marriage. This is made clear by s 88EA of the Marriage Act 1961 (Cth), which provides:

Certain unions are not marriages

                   A union solemnised in a foreign country between:

                     (a)  a man and another man; or

                     (b)  a woman and another woman;

must not be recognised as a marriage in Australia.

To understand how s 88EA operates, we need a slight excursus into the law on recognition of overseas marriages under Australian law.

The General Law on Overseas Marriage Recognition

For many years the question whether a marriage solemnised under a foreign law, would be recognised as valid in Australia, was dealt with under what are called the rules of “private international law”, or sometimes “conflict of laws”. This is an area of the common law which developed over a long period of time through court decisions. To simplify slightly, the common law rules said that the question of “formal” validity (the rules about who should conduct a ceremony, where, when, using what forms etc) should be dealt with by the country where the ceremony took place (the lex loci celebrationis). But the question of “essential” validity (whether the parties had the capacity to marry, had given proper consent, etc) were decided according to the rules of the law of the country where the parties were “domiciled” before the ceremony (the lex domicilii). The notion of “domicile” was that of the country with which the parties had the closest “real” connection, their “home” country in general terms.

The common law is even more complicated than that previous paragraph suggests, but I don’t propose to go into it any further here. Given the increased global mobility of people during the course of the 20th century it became apparent that it would be a good idea to simplify the rules governing recognition of foreign marriages. One initiative to achieve this was a treaty drawn up by a body dealing with private international law issues, the “Hague Conference”. The Hague Convention on Celebration and Recognition of the Validity of Marriages was drawn up in 1978, and came into force in 1991 after ratification by 3 countries, one of whom was Australia. Australia implemented its obligations under the Hague Marriage Convention even before the Convention came into full operation, in 1986, by amending the Marriage Act 1961 (Cth), and in particular by inserting Part VA of the Act, headed “Recognition of Foreign Marriages”.

The rules for recognition of foreign marriages, then, are now contained in Part VA. However, a couple of other things should be noted.

• In 1978 there can be no doubt that the drafters of the Hague Marriage Convention did not intend to deal with the issue of “same sex marriage” (SSM), there being no such thing in existence at the time. However, once SSM started becoming a reality in some countries, the argument was bound to be made by some that the Convention rules would apply to SSM. It was in order to forestall this possibility that the Howard Government arranged for the insertion of s 88EA into Part V, through the Marriage Amendment Act 2004 (Cth). (It is worth noting that this Act was also the one which inserted the current legislative definition of “marriage” into s 5 of the Act, as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” But, contrary to what has sometimes been asserted, this amendment did not change the meaning of marriage under Australian law, it merely clarified what had always been the case. Indeed, those very words were already included in the Act on the day of its first enactment in 1961, contained in s 46(1).)
• While the new statutory rules for recognition are now intended to be the primary rules consulted on the issue, there is a “saving clause”, s 88E(1), which allows a marriage which would have been recognised as valid under the common laws to still be recognised, even if it does not meet the criteria set out in Part VA.

The effect of s 88EA

With that background, then, the effect of s 88EA is clear. It prevents any same sex union solemnised in a foreign country from being recognised as a marriage in Australia. Note that it does this absolutely- it does not simply say that such a union cannot be recognised under the Part VA “Hague Convention” rules; the wording operates as a blanket prohibition on recognition of same sex unions as marriages in Australia for any purpose. Hence it will also exclude any purported operation of the residual common law rules under s 88E. It will also, it seems to me, operate to exclude any State legislation which might purport to treat an overseas same sex union as a “marriage”. It does this because the topic of “marriage” is a head of Commonwealth power under the Constitution (and, if further support is needed, so is the topic of “external affairs”.) Hence s 88EA seems clearly valid, and will pursuant to s 109 of the Constitution over-ride inconsistent State law.

State Law on Death Certificates

How, then, does this square with the suggestions in media reports that the Premier of South Australia will “fix” the problem that arose in this case? The situation seems to be as follows.

The registration law of South Australia, the Births Death and Marriages Registration Regulations 2011 (SA), provides for the content of death certificates in reg 10. Clause 10(1)(h) requires inclusion, for a deceased person over the age of 16 years, of a record of “his or her marital status at the time of death.” The term “marital status” is not otherwise defined in the Regulations, or the Act under whose authority they are made. Hence it seems likely that the interpretation that has been taken is that the term only includes the common forms of “marital status” which are based historically on legally authorised heterosexual relationships.

The claim made in press reports that the law in some other States is different may be illustrated from the law of NSW. In that State the Births Death and Marriages Registration Regulation 2011 (NSW) provides for the content of a death certificate in cl 15. Under cl 15(h) details are to include “whether, immediately before death, the deceased was married, divorced, widowed or in a de facto relationship or had never married”. The phrase “de facto relationship” will include same sex partners, by virtue of the general definition of that term in s 21C of the Interpretation Act 1987 (NSW), which applies to all NSW legislation. It is also interesting to note that s 4A of the Births Death and Marriages Registration Act 1995 (NSW) seems designed to achieve a similar result, extending the operation of the registration legislation to those who would be eligible to have their relationships registered under the Relationships Register Act 2010 (NSW), which would include same sex couples.

It seems, then, that in NSW it would have been possible to have the notation “in a de factor relationship” made on the death certificate, perhaps with a footnote referring to the UK ceremony. It seems now to be suggested by the South Australian Premier that this sort of approach will be followed in that State in the future.

What is clear, however, is that neither NSW nor SA would be entitled to record the status of the deceased as “married” while the law of Australia is as stated above. Claims that some States already “recognise” overseas same sex marriages are misleading: entry into an overseas same sex marriage may provide good evidence for a State to regard the parties as in a “de facto relationship”, but the High Court of Australia made it clear in its decision in The Commonwealth v Australian Capital Territory [2013] HCA 55 that the question of whether a relationship is a “marriage” or not is one for Federal law, not for State or Territorial laws.

In the anguish of grief it is understandable that Mr Bulmer-Rizzi should feel the refusal to record the UK marriage as a “personal attack”. But it was not intended as such; it was simply the application of the current law of the State and the Commonwealth. Naturally a case like this generates strong feelings, and there have already been a number of press claims that the case provides reasons for a change of the Australian law of marriage. Without wishing to minimise the loss suffered by the family, this post has simply been an attempt to clarify the legal issues.

As with previous claims in relation to the Tasmanian law surrounding rights after death, radical change to marriage law is not needed to accommodate appropriate recognition of relationships.  Such recognition was already possible if the law of the State had been amended to so provide, as it has been in other States, and will be possible in the future without a radical re-definition of the meaning of marriage.