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Marriage Equality Bill 2012

TABLE OF PROVISIONSClause Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 23 Definitions 2

PART 2—SAME-SEX MARRIAGE 4

Division 1—Marriageable age 4

4 Application of Division 45 Marriageable age 4

Division 2—Void same-sex marriages 4

6 Grounds on which same-sex marriages are void 4

Division 3—Solemnisation of same-sex marriages 6

7 Application of Division 68 Same-sex marriages to be solemnised by authorised

celebrant 69 Ministers of religion not bound to solemnise same-sex

marriage etc. 610 Notice to be given and declaration made 711 Solemnisation of same-sex marriages 1012 When and where same-sex marriage may be solemnised 1113 Witnesses 1114 Form of ceremony 1115 Certain authorised celebrants to explain nature of marriage

relationship 1216 Certain same-sex marriages not solemnised in accordance

with this Division are invalid 1217 Authorised celebrant to retain notices and declarations 1318 Same-sex marriage certificates 13

Division 4—Offences 15

19 Bigamy 15

PARLIAMENT OF VICTORIA

571PM8B.I-6/6/2012 BILL LC INTRODUCTION 6/6/20121

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Division 5—Second ceremonies 16

20 Second same-sex marriage ceremonies 16

PART 3—DISSOLUTION AND ANNULMENT 20

Division 1—Interpretation 20

21 Definitions 20

Division 2—Proceedings for dissolution or annulment 20

22 Principles to be applied by Supreme Court 2023 Commencement of proceedings for dissolution, nullity or

validity of same-sex marriage 2124 Additional requirements for application for dissolution order 21

Division 3—Dissolution and nullity of same-sex marriage 22

25 Dissolution of same-sex marriage 2226 Meaning of separation 2227 Effect of resumption of cohabitation 2328 Declaration of nullity of same-sex marriage 2329 Court must not make dissolution order if application for

nullity declaration before it 2330 When dissolution order takes effect 2431 Certificate as to dissolution order taking effect 2532 Rescission of dissolution order if parties reconciled 2633 Rescission of dissolution order on ground of miscarriage of

justice 2634 Same-sex re-marriage 26

PART 4—REGISTRATION OF SAME-SEX MARRIAGE CELEBRANTS 27

Division 1—Same-sex marriage celebrants 27

35 Registration of same-sex marriage celebrants 2736 Register of same-sex marriage celebrants 2737 Cancellation of registration 2838 Review of decisions 28

Division 2—Officers of the State of Victoria 29

39 Authorisation of Victorian officers to solemnise same-sex marriage 29

PART 5—GENERAL 30

40 False or misleading statements 3041 Interpreters at same-sex marriage ceremonies 3042 Regulations 30

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PART 6—AMENDMENTS 33

43 Births, Deaths and Marriages Registration Act 1996 3332 How to have marriage registered 33

44 Interpretation of Legislation Act 1984 33═══════════════

ENDNOTES 34

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A Bill for an Act to provide for marriage between adults of the same sex, to make provision for the dissolution of those marriages, to

provide for a registration scheme for same-sex marriage celebrants, to amend the Births, Deaths and Marriages Registration Act 1996 to provide for the registration of same-sex marriages and to amend the

Interpretation of Legislation Act 1984 to provide that marriage includes same-sex marriage and for other purposes.

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The main purposes of this Act are—

(a) to provide for marriage between adults of the same sex;

(b) to provide for the dissolution and annulment of same-sex marriages;

(c) to provide for the registration of same-sex marriage celebrants;

Introduced in the Council by Ms Sue Pennicuik



PARLIAMENT OF VICTORIA

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(d) to amend the Births, Deaths and Marriages Registration Act 1996 to provide for the registration of same-sex marriages;

(e) to amend the Interpretation of Legislation Act 1984 to provide that marriage includes a same-sex marriage.

2 Commencement

This Act comes into operation on the 28th day after the day on which it receives the Royal Assent.

3 Definitions

In this Act—

adult means a person who has attained the age of 18 years;

authorised celebrant means—

(a) a minister of religion; or

(b) any other person who is authorised by Part 4 to solemnise same-sex marriages;

conjugal status declaration means the declaration required under section 10(1)(c);

marriageable age has the meaning given by section 5;

Marriage Act 1961 means the Marriage Act 1961 of the Commonwealth;

minister of religion has the same meaning as it has in the Marriage Act 1961;

notice of intention to marry means the notice required under section 10(1)(a);

ordinarily resident includes habitually resident;

Registrar means the Registrar of Births, Deaths and Marriages employed under section 5 of

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s. 2

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the Births, Deaths and Marriages Registration Act 1996;

same-sex marriage means the lawful union of two persons of the same sex to the exclusion of all others, voluntarily entered into for life;

same-sex marriage celebrant means a celebrant registered under Division 1 of Part 4.

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s. 3

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PART 2—SAME-SEX MARRIAGE

Division 1—Marriageable age

4 Application of Division

This Division applies, despite any common law rule or private international law, in relation to same-sex marriages.

5 Marriageable age

A person is of marriageable age if the person is an adult.

Division 2—Void same-sex marriages

6 Grounds on which same-sex marriages are void

(1) A same-sex marriage is void if—

(a) either of the parties was, at the time of the marriage, lawfully married to some other person; or

(b) the parties are within a prohibited relationship; or

(c) the marriage is invalid under section 16; or

(d) the consent of either of the parties was not a real consent because—

(i) it was obtained by duress or fraud; or

(ii) that party was mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii) that party was mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e) either of the parties was not of marriageable age.

s. 4Part 6—Amendments



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(2) For the purposes of subsection (1)(b), a prohibited relationship is a relationship—

(a) between a person and an ancestor or descendant of the person; or

(b) between siblings (whether of the whole blood or the half-blood).

(3) Any relationship specified in subsection (2)—

(a) includes a relationship traced through, or to, a person who is or was an adopted child; and

(b) for the purposes of paragraph (a), the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child, is taken to be or to have been the natural relationship of child and parent.

(4) Nothing in subsection (3) makes it lawful for a person to marry someone whom the person could not lawfully have married if that subsection had not been enacted.

(5) For the purposes of this section—

(a) a person who has at any time been adopted by another person is taken to remain the adopted child of that other person despite the fact that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and

(b) a person who has been adopted on more than one occasion is taken to be the adopted child of each person by whom he or she has been adopted.




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(6) In this section—

adopted, in relation to a child, means adopted under the law of any place (whether in Australia or overseas) relating to the adoption of children;

ancestor, in relation to a person, means someone from whom the person is descended, including a parent of the person.

Division 3—Solemnisation of same-sex marriages

7 Application of Division

(1) This Division applies to and in relation to all same-sex marriages solemnised, or intended to be solemnised, in Victoria.

(2) This Division applies to any person in Victoria, whether or not the person is ordinarily resident in Victoria.

8 Same-sex marriages to be solemnised by authorised celebrant

A same-sex marriage must be solemnised by, or in the presence of, an authorised celebrant who is authorised to solemnise same-sex marriages at the place where the marriage takes place.

9 Ministers of religion not bound to solemnise same-sex marriage etc.

Nothing in this Part—

(a) imposes an obligation on an authorised celebrant who is a minister of religion to solemnise any same-sex marriage; or

(b) prevents an authorised celebrant who is a minister of religion from making it a condition of his or her solemnising a same-sex marriage that—




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(i) longer notice of intention to marry than that required by this Act is given; or

(ii) requirements additional to those provided by this Act are observed.

10 Notice to be given and declaration made

(1) Subject to this section, a same-sex marriage must not be solemnised unless—

(a) notice in writing of the intended same-sex marriage has been given in accordance with this section and has been received by the authorised celebrant solemnising the same-sex marriage—

(i) not earlier than 18 months before the date of the marriage; and

(ii) not later than 1 month before the date of the marriage; and

(b) the authorised celebrant has been given, in respect of each of the parties—

(i) an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or

(ii) a passport issued by a government of an overseas country, showing the date and place of birth of the party; or

(iii) a statutory declaration made by the party or a parent of the party stating—

(A) that, for reasons specified in the declaration, it is impracticable to obtain a certificate or extract referred to in subparagaph (i); and




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(B) to the best of the declarant's knowledge and belief, and as accurately as the declarant has been able to ascertain, when and where the party was born; and

(c) each of the parties has made and signed before that authorised celebrant a declaration, in the prescribed form, as to—

(i) the party's conjugal status; and

(ii) the party's belief that there is no legal impediment to the marriage; and

(iii) any other prescribed matters.

(2) A notice of intention to marry must be—

(a) in the prescribed form and include the prescribed particulars; and

(b) signed by each of the parties on the same side of the one piece of paper in the presence of—

(i) an authorised celebrant; or

(ii) a person who may witness the signing of a statutory declaration under section 107A of the Evidence (Miscellaneous Provisions) Act 1958.

(3) If a party to an intended same-sex marriage is unable to sign the notice of intention to marry under subsection (2)(b) by the time that notice is required under this section, a notice of intention to marry duly signed by the other party and otherwise complying with this section is, if it is signed by the first mentioned party in the presence of an authorised celebrant before the same-sex marriage is solemnised, taken to be a sufficient notice.




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(4) A notice of intention to marry is not ineffective for the purposes of this section if—

(a) a party to the intended marriage is unable, after reasonable inquiry, to ascertain all the particulars in relation to that party required to be included in the notice; and

(b) at any time before the same-sex marriage is solemnised, that party provides the authorised celebrant solemnising the same-sex marriage with a statutory declaration—

(i) explaining that party's inability to ascertain the particulars not included in the notice; and

(ii) the reason for that inability.

(5) As soon as practicable after receiving a notice of intention to marry, an authorised celebrant must give the parties a document in the prescribed form outlining—

(a) the obligations and consequences of marriage; and

(b) indicating the availability of marriage education and counselling.

(6) An authorised celebrant may permit an error in a notice of intention to marry—

(a) to be corrected in his or her presence by either of the parties at any time before the same-sex marriage to which it relates has been solemnised; and

(b) for that purpose, the corrected notice is to be treated as having been originally given in its corrected form.




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(7) If a conjugal status declaration made by a party states that that party is a divorced person or a widow or widower, an authorised celebrant must not solemnise the same-sex marriage unless there is produced to him or her evidence of that party's divorce, or of the death of that party's spouse, as the case requires.

11 Solemnisation of same-sex marriages

(1) A same-sex marriage may be solemnised by any authorised celebrant who has possession of the notice of intention to marry if, by reason of the death, absence or illness of the authorised celebrant to whom the notice of intention to marry has been given, or for any other reason, it is impracticable for that person to solemnise the same-sex marriage.

(2) An authorised celebrant must not solemnise a same-sex marriage—

(a) unless the authorised celebrant has satisfied himself or herself that the parties are the parties referred to in the notice of intention to marry in relation to the same-sex marriage; or

(b) if the authorised celebrant has reason to believe that either of the following documents in relation to the same-sex marriage contains a false statement or is defective—

(i) a notice of intention to marry; or

(ii) a conjugal status declaration; or

(iii) a statutory declaration required under section 10.




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12 When and where same-sex marriage may be solemnised

A same-sex marriage may be solemnised—

(a) on any day; and

(b) at any time; and

(c) at any place.

13 Witnesses

A same-sex marriage must not be solemnised unless at least 2 persons who are, or appear to the authorised celebrant to be, adults are present as witnesses.

14 Form of ceremony

(1) If a same-sex marriage is solemnised by or in the presence of an authorised celebrant who is a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.

(2) If a same-sex marriage is solemnised by or in the presence of an authorised celebrant other than a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorised celebrant and the witnesses, the words or words to the effect of—

"I call upon the persons here present to witness that I, [name of party], take thee, [name of other party], to be my lawful wedded spouse (or husband or wife, according to the terms preferred by the parties).".




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15 Certain authorised celebrants to explain nature of marriage relationship

Before a same-sex marriage is solemnised by or in the presence of an authorised celebrant other than a minister of religion, the authorised celebrant must say to the parties, in the presence of the witnesses, the words or words to the effect of—

"I am authorised by law to solemnise same-sex marriages according to law.

Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

Marriage, according to law in Victoria, is the lawful union of 2 persons to the exclusion of all others, voluntarily entered into for life.".

16 Certain same-sex marriages not solemnised in accordance with this Division are invalid

(1) Subject to this section, a same-sex marriage solemnised otherwise than in accordance with this Division is not a valid marriage.

(2) A same-sex marriage is not invalid by reason of all or any of the following—

(a) failure to give a notice of intention to marry;

(b) a false statement, defect or error in a notice of intention to marry;

(c) failure of the parties, or either of them, to make or sign a conjugal status declaration;

(d) a false statement, defect or error in a conjugal status declaration;




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(e) failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 10;

(f) a false statement, defect or error in a statutory declaration under section 10;

(g) failure to comply with any other requirement of section 10 or 11, or any contravention of that section;

(h) failure to comply with the requirements of section 13 or 14.

(3) A same-sex marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it.

(4) If subsection (3) applies, the form and ceremony of the same-sex marriage is taken to have been sufficient if the form and ceremony demonstrated an intention on the part of each of the parties to become the lawfully wedded spouse of the other.

17 Authorised celebrant to retain notices and declarations

An authorised celebrant to whom a notice of intention to marry or conjugal status declaration is given must retain it in his or her possession until he or she deals with it in accordance with section 18.

18 Same-sex marriage certificates

(1) If an authorised celebrant solemnises a same-sex marriage, the authorised celebrant must—

(a) prepare a certificate of the marriage, in the prescribed form, to give to the parties to the marriage; and




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(b) prepare 2 official certificates of the marriage in the prescribed form.

(2) Immediately after the solemnisation of the marriage, the authorised celebrant, each of the parties to the marriage and the 2 witnesses under section 13 must sign each of the certificates.

(3) One of the official certificates must be on the reverse side of the paper bearing the conjugal status declarations.

(4) The authorised celebrant must hand the certificate referred to in subsection (1)(a) to one of the parties to the marriage on behalf of the parties, and—

(a) within 14 days after the solemnisation of the same-sex marriage, forward the official certificate referred to in subsection (3), together with the notice of intention to marry and conjugal status declarations to the Registrar; and

(b) retain the other official certificate and deal with it in accordance with the regulations (if any).

(5) If the authorised celebrant dies without having prepared and signed the certificates of the marriage, or if due to other special circumstances the Minister administering this Act thinks it necessary to do so, the Minister administering this Act may, if satisfied that the marriage was duly solemnised, prepare and sign the certificates with any appropriate modifications.

(6) A certificate prepared and signed by the Minister under subsection (5) has the same force and effect as if it had been prepared and signed, in accordance with this section, by the authorised celebrant.




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Division 4—Offences

19 Bigamy

(1) A person who is married must not go through a form or ceremony of same-sex marriage with any person.

Penalty: Level 6 imprisonment (5 years maximum).

(2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that—

(a) at the time of the alleged offence, the defendant believed that his or her spouse was dead; and

(b) the defendant had reasonable grounds for the belief under paragraph (a), having regard to the time for which the defendant's spouse had been absent from the defendant and the circumstances of that absence.

(3) For the purposes of subsection (2), the following proof by a defendant is sufficient proof of the matters referred to in subsection (2)(b)—

(a) the defendant's spouse had been continually absent from the defendant for the period of 7 years immediately preceding the date of the alleged offence; and

(b) at the time of the alleged offence, the defendant had no reason to believe that the defendant's spouse had been alive at any time within that period.




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(4) A person (person 1) must not go through a form or ceremony of same-sex marriage with a person (person 2) who is married if person 1 knows, or has reasonable grounds to believe, that person 2 is married.

Penalty: Level 6 imprisonment (5 years maximum).

(5) It is not an offence against this section for a person to go through a form or ceremony of same-sex marriage with that person's own spouse.

(6) In a prosecution for an offence against this section, the spouse of the accused person is a competent and compellable witness for either the prosecution or the defence.

(7) In a prosecution for an offence against this section, the fact that, at the time of the alleged offence, a person was married must not be taken to have been proved if the only evidence of the fact is the evidence of the other party to the alleged marriage.

Division 5—Second ceremonies

20 Second same-sex marriage ceremonies

(1) Except in accordance with this section—

(a) persons who are already legally married to each other must not go through a form or ceremony of same-sex marriage with each other; and

(b) an authorised celebrant must not purport to solemnise a same-sex marriage between persons—

(i) who inform the authorised celebrant that they are already legally married to each other; or




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(ii) whom the authorised person knows or has reason to believe to be already legally married to each other.

(2) Subject to this section, 2 persons may go through a form or ceremony of same-sex marriage with each other as if they had not previously gone through a form or ceremony of same-sex marriage with each other if—

(a) those 2 persons have gone through a form or ceremony of same-sex marriage with each other, whether before or after the commencement of this Act; and

(b) there is a doubt—

(i) whether those persons are legally married to each other; or

(ii) if the form or ceremony of same-sex marriage took place outside Victoria—whether the same-sex marriage would be recognised as valid by a court in Victoria; or

(iii) whether their same-sex marriage could be proved in legal proceedings.

(3) If 2 persons wish to go through a form or ceremony of same-sex marriage with each other under subsection (2), they must each give to the person by whom, or in whose presence, the form or ceremony is to take place or be performed—

(a) a statutory declaration stating that they have previously gone through a form or ceremony of same-sex marriage with each other and specifying the date on which, the place at which and the circumstances under which they went through that form or ceremony; and




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(b) a certificate by an Australian legal practitioner, being a certificate endorsed on the statutory declaration, that, on the facts stated in the declaration, there is, in his or her opinion, a doubt as to one of the matters specified in subsection (2)(b).

(4) The person by whom or in whose presence a form or ceremony of same-sex marriage takes place or is performed under subsection (2) must make an endorsement in accordance with the regulations (if any) on each certificate issued in respect of that ceremony.

(5) A same-sex marriage which takes place under subsection (2) is not invalid by reason of any failure to comply with the requirements of subsection (3) or (4).

(6) Nothing in this Act prevents 2 persons who are already legally married to each other from going through a religious ceremony of same-sex marriage with each other in Victoria if those persons have—

(a) produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing same-sex marriage; and

(b) given that person a statement in writing, signed by them and witnessed by that person, that—

(i) they have previously gone through a form or ceremony of same-sex marriage with each other; and

(ii) they are the parties mentioned in the certificate of same-sex marriage produced with the statement; and




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(iii) they have no reason to believe that they are not legally married to each other or, if their same-sex marriage took place outside Victoria, they have no reason to believe that it would not be recognised as valid in Victoria.

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PART 3—DISSOLUTION AND ANNULMENT

Division 1—Interpretation

21 Definitions

In this Part—

appeal includes an application for a rehearing;

applicant includes a cross-applicant;

dissolution order means an order made by the Supreme Court under section 25(3) for dissolution of a same-sex marriage;

dissolution proceeding means a proceeding commenced under section 23(a);

nullity declaration means a declaration by the Supreme Court of nullity of a same-sex marriage under section 28(2);

proceeding means a proceeding in a court, whether between parties or not, and includes a cross proceeding or an incidental proceeding in the course of or in connection with a proceeding.

Division 2—Proceedings for dissolution or annulment

22 Principles to be applied by Supreme Court

In the exercise of its jurisdiction under this Act, the Supreme Court must have regard to—

(a) the need to promote, preserve and protect the institution of same-sex marriage as the union of 2 persons of the same sex to the exclusion of all others voluntarily entered into for life; and

(b) the need to ensure safety from family violence; and




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(c) the means available for assisting parties to a same-sex marriage to consider reconciliation or the improvement of their relationship with each other.

23 Commencement of proceedings for dissolution, nullity or validity of same-sex marriage

One or both parties to a same-sex marriage under Part 2 may apply to the Supreme Court in accordance with this Part for—

(a) a dissolution order;

(b) a nullity declaration;

(c) a declaration as to the validity of the marriage.

24 Additional requirements for application for dissolution order

(1) An application for a dissolution order must not, without the leave of the Court under subsection (2), be filed within the period of 2 years after the date of the same-sex marriage unless the application is accompanied by a certificate—

(a) stating that the parties to the marriage have considered a reconciliation, with the assistance of a counsellor or counselling organisation; and

(b) signed by that counsellor or on behalf of that organisation, as the case may be.

(2) If the Supreme Court is satisfied that there are special circumstances by reason of which the hearing of an application for a dissolution order should proceed in the absence of a certificate referred to in subsection (1), the Supreme Court may grant leave for the application to be filed.




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Division 3—Dissolution and nullity of same-sex marriage

25 Dissolution of same-sex marriage

(1) An application for a dissolution order must be based on the ground that the same-sex marriage has broken down irretrievably.

(2) Subject to subsection (4), in a dissolution proceeding, the ground under subsection (1) has been established if the parties separated and have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the dissolution proceeding.

(3) If satisfied that the ground under subsection (1) has been established, the Supreme Court must make a dissolution order, unless subsection (4) applies.

(4) If the Supreme Court is satisfied that there is a reasonable likelihood of cohabitation being resumed, it must not make a dissolution order.

26 Meaning of separation

(1) The parties to a same-sex marriage may be taken to have separated despite the fact that the cohabitation was brought to an end by the action or conduct of only one of the parties.

(2) The parties to a same-sex marriage may be held to have separated and to have lived separately and apart despite the fact that—

(a) they have continued to reside in the same residence; or

(b) either party has rendered some household services to the other.




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27 Effect of resumption of cohabitation

(1) For the purposes of a dissolution proceeding, if, 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 then 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 must not be taken to be part of the period of living separately and apart.

(2) For the purposes of subsection (1), a period of cohabitation is taken to have continued during any interruption of the cohabitation that, in the opinion of the Supreme Court, was not substantial.

28 Declaration of nullity of same-sex marriage

(1) An application for a nullity declaration must be based on the ground that the same-sex marriage is void.

(2) If the Supreme Court is satisfied, on an application under section 23(b), that a same-sex marriage is void under this Act, it must make a declaration that the same-sex marriage is nullified.

29 Court must not make dissolution order if application for nullity declaration before it

If both an application for a nullity declaration and an application for a dissolution order are before the Supreme Court, the Supreme Court must not make a dissolution order unless it has dismissed the application for a nullity declaration.




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30 When dissolution order takes effect

(1) Subject to this section, a dissolution order takes effect, by force of this section, on the later of—

(a) the expiration of a period of one month from the making of the dissolution order; or

(b) a date specified in any other order made under this section.

(2) On its own motion or on the application of either or both of the parties to a dissolution proceeding, the Trial Division of the Supreme Court or the Court of Appeal may—

(a) having regard to the possibility of an appeal or further appeal—make an order extending the period at the expiration of which a dissolution order takes effect; 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 a dissolution order will take effect.

(3) If an appeal is commenced (whether or not it is the first appeal) before a dissolution order takes effect, then, despite any order in force under subsection (2) at the time of the commencement of the appeal but subject to any order made after the commencement of the appeal, the dissolution order, unless reversed or rescinded, takes effect by force of this section, at the later of—

(a) the expiration of a period of one month from the date on which the appeal is determined or discontinued; or

(b) the date on which the dissolution order would have taken effect under subsection (1) if no appeal had been commenced.




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(4) Despite subsections (1), (2) and (3), if either of the parties to the same-sex marriage has died, a dissolution order does not take effect.

(5) In this section—

appeal, in relation to a dissolution order, means—

(a) an appeal relating to—

(i) the dissolution order; or

(ii) an order under this section in relation to the proceedings in which the dissolution order was made; or

(b) an application under section 32 or 33 for rescission of the dissolution order or an appeal or application for leave to appeal arising out of such an application.

(6) For the purposes of this section, if an application for leave to appeal is granted, the application must be taken not to have been determined or discontinued so long as an appeal is pending.

31 Certificate as to dissolution order taking effect

(1) If a dissolution order takes effect, the prothonotary must prepare and file with the Supreme Court Registry and with the Registrar a memorandum of the fact and of the date on which the dissolution order took effect.

(2) If a dissolution order takes effect, any person is entitled, on application to the prothonotary, to receive a certificate signed by the prothonotary that the dissolution order has taken effect.




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32 Rescission of dissolution order if parties reconciled

(1) If the parties to a same-sex marriage in respect of which a dissolution order has been made have become reconciled before the dissolution order takes effect, they may apply to the Supreme Court to rescind the dissolution order.

(2) The Supreme Court may make an order rescinding a dissolution order applied for under subsection (1), despite anything to the contrary in this Part, on the ground that the parties have become reconciled.

33 Rescission of dissolution order on ground of miscarriage of justice

(1) If a dissolution order has been made but has not taken effect, the Supreme Court may, if it is satisfied that there has been a miscarriage of justice by reason of fraud, perjury, suppression of evidence or any other circumstance—

(a) rescind the dissolution order; and

(b) if the Supreme Court thinks fit, order that the proceedings be re-heard.

(2) A rescission order under subsection (1) may be made—

(a) on the application of a party to the dissolution proceedings; or

(b) on the intervention of the Attorney-General.

34 Same-sex re-marriage

If a dissolution order has taken effect, a party to the same-sex marriage may marry again.

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PART 4—REGISTRATION OF SAME-SEX MARRIAGE CELEBRANTS

Division 1—Same-sex marriage celebrants

35 Registration of same-sex marriage celebrants

(1) A marriage celebrant within the meaning of the Marriage Act 1961 may apply to the Registrar to be registered as a same-sex marriage celebrant under this Act.

(2) An application under subsection (1) must be—

(a) in writing in the prescribed form (if any); and

(b) accompanied by evidence of the person's registration as a marriage celebrant under the Marriage Act 1961; andExample

A certified copy of a certificate of registration as a marriage celebrant under the Marriage Act 1961.

(c) accompanied by the prescribed fee (if any).

(3) On application by a person under subsection (1), the Registrar must register the applicant as a same-sex marriage celebrant, unless in the Registrar's opinion the person is not a suitable person to be registered as a same-sex marriage celebrant.

36 Register of same-sex marriage celebrants

(1) The Registrar must keep a register of persons registered as same-sex marriage celebrants.

(2) The register may be kept in any form the Registrar determines, including in electronic form.




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(3) The register must include the following information for each same-sex marriage celebrant—

(a) the person's full name;

(b) the person's address and contact details;

(c) the date the person was registered;

(d) if the person's registration is cancelled or the person otherwise ceases to be registered—the date the registration ceased.

(4) The register may also include any other information the Registrar considers appropriate.

(5) Despite anything to the contrary in this section, a person's address and contact details and any other information included in the register about the person under subsection (4) must not be available for public inspection unless the person consents.

37 Cancellation of registration

The Registrar may cancel a person's registration as a same-sex marriage celebrant if—

(a) the person ceases to hold a registration as a marriage celebrant under the Marriage Act 1961; or

(b) the Registrar considers that the person is no longer a suitable person to be a same-sex marriage celebrant.

38 Review of decisions

(1) A person whose interests are affected by either of the following decisions of the Registrar may apply to VCAT for review of the decision—

(a) a decision to refuse to register a person as a same-sex marriage celebrant under section 35; or




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(b) a decision to cancel a person's registration as a same-sex marriage celebrant under section 37.

(2) An application for review must be made within 28 days after the later of—

(a) the day on which the decision is made;

(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

Division 2—Officers of the State of Victoria

39 Authorisation of Victorian officers to solemnise same-sex marriage

(1) The Registrar may solemnise same-sex marriages in Victoria.

(2) The Minister, by instrument, may authorise other officers of Victoria to solemnise same-sex marriages.

(3) An authorisation under subsection (2) is subject to any conditions specified in the instrument.

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PART 5—GENERAL

40 False or misleading statements

A person must not, in purported compliance with this Act or the regulations, knowingly give information or make a statement that is false or misleading in a material particular.

Penalty: 60 penalty units.

41 Interpreters at same-sex marriage ceremonies

(1) Subject to this section, if an authorised celebrant solemnising a same-sex marriage under Division 3 of Part 2 considers that it is appropriate to do so, the authorised celebrant may use the services of a person who is not a party to the same-sex marriage as an interpreter in, or in connection with, the ceremony.

(2) An authorised celebrant must not solemnise a same-sex marriage in, or in connection with, the ceremony of which the services of an interpreter are used unless the interpreter has given the authorised celebrant a statutory declaration stating that the interpreter understands, and is able to converse in, the languages in respect of which he or she is to act as interpreter.

(3) An interpreter who has acted in, or in connection with, a ceremony of same-sex marriage must, immediately after the ceremony has taken place, give the authorised celebrant a certificate signed by the interpreter, in the prescribed form, of the faithful performance of the interpreter's services as interpreter.

42 Regulations

(1) The Governor in Council may make regulations for or with respect to—




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(a) prescribing fees, or a basis for calculating fees, for the purposes of this Act;

(b) prescribing forms for the purposes of this Act;

(c) prescribing matters in relation to the furnishing of a substitute certificate in the event of the loss or destruction of a certificate of a same-sex marriage previously forwarded to the Registrar;

(d) providing for the establishment of central records of orders made under Part 3 of this Act and for the notification of orders to the Registrar;

(e) generally prescribing any other matter or thing required or permitted to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or limited application;

(b) may differ according to differences in time, place or circumstance;

(c) may provide for the reduction, waiver or refund, in whole or in part, of the fees prescribed by the regulations;

(d) may impose a penalty not exceeding 20 penalty units for a contravention of the regulations;

(e) may confer a discretionary authority or impose a duty on a specified person or body or class of persons or bodies;

(f) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person;




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(g) may provide in a specified case or class of cases for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations whether unconditionally or on specified conditions and either wholly or to such an extent as is specified.

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PART 6—AMENDMENTS

43 Births, Deaths and Marriages Registration Act 1996

For section 32 of the Births, Deaths and Marriages Registration Act 1996 substitute—

"32 How to have marriage registered

A person may have a marriage registered by lodging with the Registrar a certificate of the marriage under—

(a) the Marriage Act 1961 of the Commonwealth or, if the marriage was solemnised before the commencement of that Act, the evidence of the marriage required by the Registrar; or

(b) the Marriage Equality Act 2012.".

44 Interpretation of Legislation Act 1984

In section 38 of the Interpretation of Legislation Act 1984 insert the following definitions—

"marriage includes a same-sex marriage under the Marriage Equality Act 2012;

married includes married under the Marriage Equality Act 2012;

spouse means a person to whom the person is married;".

═══════════════

See:Act No.43/1996.Reprint No. 3as at21 July 2011.LawToday:www.legislation.vic.gov.au

s. 43

See:Act No.10096.Reprint No. 10as at20 May 2010and amendingAct Nos10/2010, 11/2010, 13/2010, 64/2010, 70/2010, 72/2010 and 80/2011.LawToday:www.legislation.vic.gov.au

Part 6—Amendments



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ENDNOTES

By Authority. Government Printer for the State of Victoria.

Endnotes



marriage equality bill 2012 - legislation.vic.gov.aufile/571pm8bi1.docx · web viewocpc-vic, word...

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