Family Law Section

New Zealand Law Society

SUBMISSIONS ON THE CIVIL UNION BILL

1. General Comment

There is a sector of society which wishes to have gay marriages (requiring amendment to the Marriage Act). There is also a sector which strongly opposes that. The Civil Union Bill is a compromise between those two competing sectors. As with any compromise, there is a risk of confusion in the law. The Family Law Section (the Section), wants to minimise any potential anomalies. The law relating to marriage has evolved over a number of centuries. The law relating to civil unions requires careful consideration.

1.1 International Aspects

The Government will need to address the international consequences of the Bill. Otherwise there may be serious, and potentially criminal, implications for individuals.

For example, a New Zealander may enter a civil union and then go abroad and get married to someone else. The civil union may not be an obstacle to the marriage, but he or she would be a bigamist in New Zealand if they had not had their civil union dissolved.

The Section also notes that a person in a civil union who wants to marry someone else outside New Zealand has an advantage over a person who has the same wish but is married. The married person would have to obtain a dissolution, including of course the required two year separation, before remarrying abroad. However, if the civil union was not recognised in that country they could marry immediately.

Also, other countries may have registered de facto relationships, rather than civil unions. Will they be obstacles to a civil union in New Zealand?

• That the international implications of the Bill be considered.

 2. Clauses 17 and 18 — Converting between marriage and civil union

The Section notes the apparent ease with which a heterosexual couple will be able to switch from a civil union to a marriage and back again. Clause 17(3) appears to mean that a married heterosexual couple can end their marriage just by issuing a notice under section 11 saying they wish to convert it into a civil union. The difference between that way of ending a marriage compared to conventional dissolution proceedings is startling.

This is of particular concern in the international context. A married person could convert their marriage to a civil union to remove an obstacle to another marriage elsewhere in the world.

Recommendation

• The Section has no particular recommendation to make on this point but considers it may be worth further consideration.

 3. Clauses 19 and 20 — Consent for persons aged 16 or 17

Clause 20 states that if a person, whose consent to a civil union is required, refuses to give that consent a Family Court Judge may do so instead. This is meant to refer to a situation where a person aged 16 or 17 wishes to join in a civil union but their guardian, whose consent is required, refuses to agree. Without clarification the clause would technically include a situation where if a young person him or herself refused to consent to their own civil union then a Judge could do so on their behalf. Clearly it is not the intention of the clause that young people can be joined in a civil union against their will.

Recommendation

• that clause 20(1) be amended by adding the words underlined, as follows:

20(1) If a person whose consent to a civil union is required under section 19 refused to give that consent, a Family Court Judge, may, on application, consent to the civil union, and that consent has the same effect as if it had been given by the person who refused to give consent.

• that section 19 of the Marriage Act also be amended in the same way to correct the defect.

4. Clause 4 - Schedule 2 - Prohibited Degrees of Relationship

Schedule 2 lists all the relationships in Schedule 2 of the Marriage Act 1955. These have however been amended to combine those for men and women in one list, and refers to civil unions rather than marriage.

In the Section’s view the list in the Bill and the lists in the Act are out of date. This is an appropriate opportunity for the Act to be amended as well as the Bill, so that they are in accordance with each other and more accurately reflect reality.

The Section cannot see any good reason to prohibit marriages or civil unions between the persons listed from number 8 to number 15 inclusive in Schedule 2 of the Bill. It is not uncommon for marriages to take place within some of the prohibited degrees described in number 8 to number 15. It seems likely that from time to time there will also be civil unions between these persons.

In the Section’s view the couple should only be considered to be within the prohibited degrees of marriage or civil union if the relationship would put them at risk of criminal allegations.

Recommendations

• that the list in Schedule 2 be amended by deleting 8 to 15 inclusive,
• that the Marriage Act 1955 be amended by replacing the lists of forbidden marriages in the Schedule 2 with the list, amended as per the recommendation above, from Schedule 2 of the Civil Union Bill.

David Burns

Chair

4.8.04