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TASMANIA
SAME-SEX MARRIAGE
(DISSOLUTION AND ANNULMENT)
BILL 2005
CONTENTS
PART 1 - Preliminary
1.Short title
2.Commencement
3.Interpretation
4.Act to bind the Crown
PART 2 Jurisdiction in matrimonial causes
5. Jurisdiction in matrimonial causes
6. Principles to be applied by Supreme Court of Tasmania
7. Institution of proceedings
Part 3 Dissolution and nullity of same-sex marriage
8. Dissolution of same-sex marriage
9. Meaning of separation
10. Effect of resumption of cohabitation
11. Nullity of same-sex marriage
12. Court not to make decree of dissolution where application of
decree of nullity before it
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13 Circumstances occurring before commencement of Act or outside
Australia
14 Decree nisi in first instance
15 When decree becomes absolute
16. Certificate as to decree absolute
17. Rescission of decree nisi where parties reconciled
18. Rescission of decree nisi on grounds of miscarriage of justice
19. Same-Sex Re-marriage
20. Rules of Court
21. Regulations
22. Administration of Act
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(page required for printing purposes)
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SAME-SEX MARRIAGE (DISSOLUTION AND
ANNULMENT) BILL 2005
(Brought in by Nicholas James McKim MHA)
A BILL FOR
An Act providing for the dissolution and annulment of same-
sex marriages.
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and
consent of the Legislative Council and House of Assembly, in Parliament assembled, as
follows:
Part 1--Preliminary
1 Short title
This Act may be cited as the Same-Sex Marriage (Dissolution & Annulment) Act
2005.
2 Commencement
This Act commences on a day to be proclaimed.
3 Interpretation
(1) In this Act, and unless the contrary intention appears:
appeal includes an application for a re-hearing.
applicant includes a cross-applicant and, in relation to proceedings for dissolution of
a same-sex marriage instituted before the commencement of this Act, includes a
petitioner or cross-petitioner.
approved same-sex marriage counselling organisation has the meaning given by
subsection 20(1).
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approved same-sex marriage mediation organisation has the meaning given by
subsection 20(2).
decree means decree, judgment or order, and includes a decree nisi and an order
dismissing an application or refusing to make a decree or order.
financial matters, in relation to the parties to a same-sex marriage, means matters
with respect to:
(a) the maintenance of one of the parties; or
(b) the property of those parties or of either of them.
income tested pension, allowance or benefit means a pension, allowance or benefit
prescribed, or included in a class of pensions, allowances or benefits prescribed, for
the purposes of this definition.
made, in relation to a decree, being a judgment, means given.
matrimonial cause means:
(a) proceedings between the parties to a same-sex marriage, or by the parties to a
same-sex marriage, for a decree of:
(i) dissolution of same-sex marriage; or
(ii) nullity of same-sex marriage; or
(b) proceedings for a declaration as to the validity of a same-sex marriage or of the
dissolution or annulment of a same-sex marriage by decree or otherwise.
ordinarily resident includes habitually resident.
proceedings means a proceeding in a court, whether between parties or not, and
includes cross-proceedings or an incidental proceeding in the course of or in
connection with a proceeding.
proceedings for principal relief means proceedings under this Act of a kind referred
to in paragraph (a) or (b) of the definition of matrimonial cause in this subsection.
Registrar means in relation to the Supreme Court of Tasmania the Principal
Registrar, a Registrar, or a Deputy Registrar of the Court;
same-sex marriage has the same meaning as in the Same-Sex Marriage Act 2005.
separation order means a decree, not being a decree of dissolution or nullity of
same-sex marriage or for a judicial separation, having the effect of relieving a party
to a same-sex marriage from any obligation to cohabit with the other party to the
same-sex marriage.
4 Act binds Crown
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This Act binds the Crown in right of Tasmania, and so far as the legislative power of
Parliament permits, in all its other capacities.
Part 2 - Jurisdiction in matrimonial causes
5 Jurisdiction in matrimonial causes
(1) Subject to this Part, a matrimonial cause may be instituted under this Act in the
Supreme Court of Tasmania.
(2) Proceedings for a decree of dissolution of a same-sex marriage may be instituted
under this Act if that same-sex marriage took place in Tasmania pursuant to the
Same-Sex Marriage Act 2005.
(3) Proceedings of a kind referred to in the definition of matrimonial cause in
subsection 3(1), other than proceedings for a decree of dissolution of same-sex
marriage may be instituted under this Act if:
(a) in the case of proceedings between the parties to a same-sex marriage or
proceedings of a kind referred to in paragraph (b) of that definition in relation
to a same-sex marriage--either party to the same-sex marriage is an Australian
citizen, is ordinarily resident in Australia, or is present in Australia, at the
relevant date; and
(b) in any other case--any party to the proceedings is an Australian citizen, is
ordinarily resident in Australia, or is present in Australia, at the relevant date.
(4) In subsection (3), relevant date, in relation to proceedings, means:
(a) if the application instituting the proceedings is filed in a court--the date on
which the application is so filed; or
(b) in any other case--the date on which the application instituting the
proceedings is made.
6 Principles to be applied by Supreme Court of Tasmania
The Supreme Court of Tasmania shall, in the exercise of its jurisdiction under this
Act, have regard to:
(a) the need to promote, preserve and protect the institution of same-sex marriage
as the union of two people of the same sex to the exclusion of all others
voluntarily entered into for life;
(b) the need to ensure safety from family violence; and
(c) the means available for assisting parties to a same-sex marriage to consider
reconciliation or the improvement of their relationship to each other.
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7 Institution of proceedings
(1) Proceedings under this Act shall be instituted by application to the Supreme Court of
Tasmania;
(2) Proceedings under this Act for a decree of dissolution of same-sex marriage or
nullity of same-sex marriage may be instituted by either party to the same-sex
marriage or jointly by both parties to the same-sex marriage.
(3) An application for dissolution of a same-sex marriage shall not, without the leave of
the court granted under subsection (4), be filed within the period of 2 years after the
date of the same-sex marriage unless there is filed with the application a certificate:
(a) stating that the parties to the same-sex marriage have considered a
reconciliation, with the assistance of a counsellor or counselling organisation.
(b) signed by that person or on behalf of that organisation, as the case may be.
(4) Notwithstanding subsection (3), if the court is satisfied that there are special
circumstances by reason of which the hearing of an application for dissolution of a
same-sex marriage should proceed notwithstanding that the parties have not
considered a reconciliation with assistance of the kind referred to in subsection (3),
the court may:
(a) if the application has not been filed--give leave for the application to be filed;
or
(b) if the application has been filed--at any time before or during the hearing of
the application, declare that it is so satisfied;
and, where the court makes a declaration under paragraph (b), the application shall
be deemed to have been duly filed and everything done pursuant to that application
shall be as valid and effectual as if the court had, before the application was filed,
given leave under paragraph (a) for the application to be filed.
(5) Notwithstanding subsections (3) and (4), a respondent may, in an answer to an
application, include an application for any decree or declaration under this Act.
Part 3--Dissolution and nullity of same-sex marriage
8 Dissolution of same-sex marriage
(1) An application under this Act for a decree of dissolution of a same-sex marriage
shall be based on the ground that the same-sex marriage has broken down
irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the
ground shall be held to have been established, and a decree of dissolution of the
same-sex marriage shall be made, if, and only if, the court is satisfied that the parties
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separated and thereafter lived separately and apart for a continuous period of not less
than 12 months immediately preceding the date of the filing of the application for
dissolution of same-sex marriage.
(3) A decree of dissolution of same-sex marriage shall not be made if the court is
satisfied that there is a reasonable likelihood of cohabitation being resumed.
9 Meaning of separation
(1) The parties to a same-sex marriage may be held to have separated notwithstanding
that the cohabitation was brought to an end by the action or conduct of one only of
the parties.
(2) The parties to a same-sex marriage may be held to have separated and to have lived
separately and apart notwithstanding that they have continued to reside in the same
residence or that either party has rendered some household services to the other.
10 Effect of resumption of cohabitation
(1) For the purposes of proceedings for a decree of dissolution of same-sex marriage,
where, after the parties to the same-sex marriage separated, they resumed
cohabitation on one occasion but, within a period of 3 months after the resumption
of cohabitation, they again separated and thereafter lived separately and apart up to
the date of the filing of the application, the periods of living separately and apart
before and after the period of cohabitation may be aggregated as if they were one
continuous period, but the period of cohabitation shall not be deemed to be part of
the period of living separately and apart.
(2) For the purposes of subsection (1), a period of cohabitation shall be deemed to have
continued during any interruption of the cohabitation that, in the opinion of the
court, was not substantial.
11 Nullity of same-sex marriage
An application under this Act for a decree of nullity of same-sex marriage shall be
based on the ground that the same-sex marriage is void.
12 Court not to make decree of dissolution where application for decree of nullity
before it
Where both an application for a decree of nullity of a same-sex marriage and an
application for a decree of dissolution of that same-sex marriage are before a court,
the court shall not make a decree of dissolution of the same-sex marriage unless it
has dismissed the application for a decree of nullity of the same-sex marriage.
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13 Circumstances occurring before commencement of Act or outside Australia
A decree may be made, or refused, under this Part by reason of facts and
circumstances notwithstanding that those facts and circumstances, or some of them,
took place before the commencement of this Act or outside the State ofTasmania.
14 Decree nisi in first instance
A decree of dissolution of same-sex marriage under this Act shall, in the first
instance, be a decree nisi.
15 When decree becomes absolute
(1) Subject to this section, a decree nisi made under this Act becomes absolute by force
of this section at the expiration of a period of 1 month from the making of the decree
or from the making of an order under this section, whichever is the later.
(2) Where a decree nisi has been made in any proceedings, the court of first instance
(whether or not it made the decree), or the Full Court if an appeal has been instituted,
may, either before or after it has disposed of the proceedings or appeal, and whether
or not a previous order has been made under this subsection:
(a) having regard to the possibility of an appeal or further appeal, make an order
extending the period at the expiration of which the decree nisi will become
absolute; or
(b) if it is satisfied that there are special circumstances that justify its so doing,
make an order reducing the period at the expiration of which the decree nisi
will become absolute.
(3) Where an appeal is instituted (whether or not it is the first appeal) before a decree
nisi has become absolute, then, notwithstanding any order in force under
subsection (2) at the time of the institution of the appeal but subject to any such
order made after the institution of the appeal, the decree nisi, unless reversed or
rescinded, becomes absolute by force of this section:
(a) at the expiration of a period of 1 month from the day on which the appeal is
determined or discontinued; or
(b) on the day on which the decree would have become absolute under
subsection (1) if no appeal had been instituted;
whichever is the later.
(4) A decree nisi shall not become absolute by force of this section where either of the
parties to the same-sex marriage has died.
(5) In this section, appeal, in relation to a decree nisi, means:
(a) an appeal or application for a re-hearing relating to:
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(i) the decree nisi; or
(ii) an order under this section in relation to the proceedings in which the
decree nisi was made; or
(b) an application under section 17 or 18 for rescission of the decree or an appeal
or application for leave to appeal arising out of such an application.
(6) For the purposes of this section, where an application for leave to appeal, or for a
re-hearing, is granted, the application shall be deemed not to have been determined
or discontinued so long as an appeal is pending.
16 Certificate as to decree absolute
(1) Where a decree nisi becomes absolute, the Registrar of the Supreme Court of
Tasmania shall prepare and file with the Supreme Court of Tasmania Registry and
with the Tasmanian Registrar of Births Deaths and Marriages a memorandum of the
fact and of the date upon which the decree became absolute.
(2) Where a decree nisi has become absolute, any person is entitled, on application to
the Registrar of the court by which the decree was made, to receive a certificate
signed by the Registrar that the decree nisi has become absolute.
(3) A certificate given under subsection (2) is, in all courts and for all purposes,
evidence of the matters specified in the certificate.
(4) The regulations may provide for the establishment of central records of decrees
made under this Act and for the notification of decrees to the Tasmanian Registrar of
Births, Deaths and Marriages.
17 Rescission of decree nisi where parties reconciled
Notwithstanding anything contained in this Part, where a decree nisi has been made
in proceedings for a decree of dissolution of same-sex marriage, the court may, at
any time before the decree becomes absolute, upon the application of the parties to
the same-sex marriage, rescind the decree on the ground that the parties have
become reconciled.
18 Rescission of decree nisi on ground of miscarriage of justice
Where a decree nisi has been made but has not become absolute, the court by which
the decree was made may, on the application of a party to the proceedings, or on the
intervention of the Attorney-General, if it is satisfied that there has been a
miscarriage of justice by reason of fraud, perjury, suppression of evidence or any
other circumstance, rescind the decree and, if it thinks fit, order that the proceedings
be re-heard.
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19 Same-Sex Re-marriage
Where a decree of dissolution of same-sex marriage under this Act has become
absolute, a party to the same-sex marriage may marry again.
20. Rules of Court
The judges of the Court or a majority of them may make rules of court with respect
to
(a) the way in which applications under this Act may be made to the Court; or
(b) service on appropriate persons of copies of documents lodged with a registry of
the Court under this Act.
21. Regulations
The Governor may make regulations for the purposes of this Act except in respect of
any matter for which rules of court may be made under section 20.
22. Administration of Act
Until provision is made in relation to this Act by order under section 4 of the
Administrative Arrangements Act 1990
(a) the administration of this Act is assigned to the Attorney-General; and
(b) the department responsible to the Attorney-General in relation to the
administration of this Act is the Department of Justice and Industrial Relations.
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