On 25 October 2011, a Bill was introduced into the Queensland Parliament to provide for legal recognition and registration of relationships between couples (regardless of the gender).

This is the first occasion in which legislation for "civil partnerships" has been introduced to Queensland and aims to bring that State in line with Tasmania, Victoria, the Australian Capital Territory and New South Wales. Civil partnerships will enable two parties, regardless of their sex, to have their relationship publically recognised and registered.

The Bill has prompted vigorous debate in the Legislative Assembly about the necessity for this legislation.  Given the similarities in language and substance between the Bill and the Marriage Act 1961, it begs the question: is this marriage by another name?

Associate Andrew McCormack looks to answer this question in this alert.

Key aspects of the Bill

The objects of the Civil Partnerships Bill of 2011 include:

• providing for the legal recognition of relationships of couples, regardless of their sex, by the registration of the relationship with the Registry of Births, Deaths and Marriages;
• allowing couples the option of "making a declaration of their intention" to enter into a civil partnership before a civil partnership notary, prior to the registration of their civil partnership;
• enabling a process to terminate a civil partnership;
• allowing the recognition of civil relationships registered in other states as civil partnerships in Queensland; and
• creating civil partnership notaries who are responsible for officiating at civil partnership declarations and providing information to the Registrar of Births, Deaths and Marriages regarding civil partnerships.

Civil partnerships

The idea of civil partnerships is not a new concept to Australia, with Tasmania being the first state to introduce a register for civil partnerships in 2004. Progressively, states such as Victoria (2008), the Australian Capital Territory (2008) and New South Wales (2010) have introduced legislation to enable civil partnerships to be registered. The Family Law Courts (Family Court of Australia and Federal Magistrates Court) recognise (for the purposes of determining de facto relationships) a civil partnership where it has been registered in a State or Territory to enable the Court to determine when a de facto relationship has commenced or ended.

Criteria for entering into a civil partnership

According to the Bill, a person will only be able to enter into a civil partnership if the person is:

• not married;
• not already in a civil partnership; and
• not in a prohibited relationship with another person. [1]

To be eligible to enter into a civil partnership, one partner must live in the State of Queensland.

How to enter a civil partnership

A person will be able to enter into a civil partnership (where two adults in a relationship are regarded as a couple) either by:

• registering their relationship at the Registry of Births, Deaths and Marriages; or
• making a declaration of civil partnership before a civil partnership notary and later have their relationship registered at the Registry of Births, Deaths and Marriages.

As noted above, given that a person can enter into a civil partnership regardless of sex, the civil partnership declaration may appear to be analogous to a wedding ceremony. Couples are required to give a notice of intention to enter into a civil partnership no earlier than 12 months and not later than 10 days before entering into that agreement. The Marriage Act 1961 provides for notice to be given one month and one day before a wedding takes place. Once the declaration has been made, the civil partnership notary is required to provide to the Registrar General a written notice that a declaration has been made and this enables the Registrar to enter the civil partnership in the Registry.  This is similar to the provisions of the Marriage Act 1961 that places the same requirements on a minister of religion or a civil marriage celebrant to notify the Registrar that a wedding has taken place.

Civil partnership notary is a new and somewhat curious expression for a person able to officiate at a civil partnership declaration.  It appears from the Bill that civil partnership notaries have the similar role and function of a civil marriage celebrant, as the criteria for their appointment as set out in the Bill is very similar to the criteria set out in the Marriage Act 1961 for civil marriage celebrants.

Unlike the UK legislation, the Bill is silent as to whether a minister of religion can act as a civil partnership notary. Obviously, some religious denominations have their own views about civil partnerships and these vary greatly.  In the United Kingdom, civil celebrants who officiate at civil partnerships are prevented by legislation from being ministers of religion.  In fact, a civil partnership ceremony in the United Kingdom cannot have any connection to religion whatsoever.

Cooling off period

Once a declaration of a civil partnership has been made, there is a "cooling off period" of 10 days that applies. Under the proposed legislation, one party to the civil partnership can withdraw the application for registration of the partnership within that period. There is no similar provision under the Marriage Act 1961 about having what one could regard as "second thoughts" after entering into a marriage.

Terminating a civil partnership

A civil partnership is automatically terminated under the legislation if:

• one of the civil partners dies; or
• one of the civil partners becomes married.

Either one or both of the parties to a civil partnership can make an application to the District Court of Queensland to terminate the civil partnership.

The Court can terminate a civil partnership based on affidavit evidence if:

• one party states that the civil partnership has broken down to the point where a reconciliation is unlikely; and
• where the civil partners have lived separately and apart for a period of 12 months.

The "grounds" for terminating a civil partnership are exactly the same as the grounds for seeking a divorce application for a marriage under the Family Law Act 1975.

Conclusion

Given the analogous provisions between civil partnerships and marriages, it would appear that the distinction is becoming increasingly blurred to the point where there is no discernable difference. A civil partnership will be recognised as a de facto relationship for the purposes of Part VIIIAB of the Family Law Act, which already provides for the termination of property settlement and financial support for de facto spouses. The Bill has been referred to the Legal Affairs, Police, Corrective Services and Emergency Services Committee of the Assembly for public comment on the Bill to enable the community to make submissions about the proposed legislation. Public comments and submissions are due by 4 November 2011. The committee is due to report back to the Parliament by 21 November 2011 after having undertaken its consultation process.

Should you wish to obtain further information or clarification on the Civil Partnerships Bill 2011, please contact HopgoodGanim's Family Law Team.

Geoff Wilson, Partner
Tel +61 7 3024 0360
g.wilson@hopgoodganim.com.au

Freda Wigan, Partner
Tel +61 7 3024 0356
f.wigan@hopgoodganim.com.au

Andrew McCormack, Associate
Tel +61 7 3024 389
a.mccormack@hopgoodganim.com.au

[1] Prohibited relationships refer to those relationships normally considered unlawful by common law including relationships with a lineal ancestor, descendent, sibling or half sibling.