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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to provide for same sex marriages in this State; to recognise same
sex marriages under corresponding laws; and to make related amendments to the
Births,
Deaths and Marriages Registration Act 1996 and the Wills
Act 1936.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
Division 1—Same sex marriageable
age
4Application of Division
5Same sex marriageable
age
Division 2—Solemnisation of same sex
marriages in South Australia
6Application of Division
7Same sex marriages to be
solemnised by authorised celebrant
8Ministers of religion not bound to solemnise
same sex marriage etc
9Notice to be given and
declaration made
10Same sex marriage may
be solemnised on any day etc
11Witnesses
12Form of
ceremony
13Certain authorised celebrants to explain
nature of same sex marriage relationship
14Certain same sex
marriages not solemnised in accordance with this Part to be invalid
15Authorised
celebrant to retain declarations etc
16Same sex marriage
certificates
17Incorrect same sex marriage
certificates
Division 3—Void same sex
marriages
18Grounds on which same
sex marriages are void
Division 4—Miscellaneous
19Second same sex
marriage ceremonies
Part 3—Dissolution and
annulment
Division 1—Interpretation
20Interpretation
Division 2—Jurisdiction in
matrimonial causes
21Jurisdiction in matrimonial causes
22Principles to be
applied by Supreme Court
23Institution of proceedings
Division 3—Dissolution and nullity of
same sex marriage
24Dissolution of same sex marriage
25Meaning of
separation
26Effect of resumption of
cohabitation
27Nullity of same sex marriage
28Court not to make
decree of dissolution where application for decree of nullity before
it
29Circumstances occurring before commencement of
Act or outside State
30Decree nisi in first instance
31When decree
becomes absolute
32Certificate as to decree absolute
33Rescission of decree
nisi if parties reconciled
34Rescission of decree
nisi on ground of miscarriage of justice
35Same sex re-marriage
Division 1—Ministers
of religion
36Interpretation
37Register
of ministers of religion
38Qualifications for registration under this
Division
39Registrar to register applicant
40Applicant may be
refused registration in certain circumstances
41Removal from
register
42Review of refusal to register or removal from
register
43Change of address etc to be
notified
44Transfer to another State etc
45Furnishing of
information by recognised denominations
46Registrars to furnish
information
Division 2—Officers
of the State
47Authorisation of South Australian officers
etc
Division 3—Same
sex marriage celebrants
48Interpretation
49Registrar of
same sex marriage celebrants
50Register of same sex
marriage celebrants
51Entitlement to be registered as a same sex
marriage celebrant
52Registration as a same sex
marriage celebrant
53Capping of number of same
sex marriage celebrants for 5 years
54Effect of
registration
55Obligations of same sex
marriage celebrants
56Performance reviews
57Disciplinary matters
58Review of
decisions
59Additional functions of
Registrar
60Evidence of registration etc
Part 5—Miscellaneous
61References to
marriage to include same sex marriage etc
62Restrictions on publication of court
proceedings
63False statements or documents
64Falsification of
certificate etc
65Regulations
Part 1—Preliminary
1Amendment
provisions
Part 2—Related
amendments to Births, Deaths and Marriages Registration
Act 1996
2Substitution of section
31
31How to have marriage
registered
Part 3—Related
amendments to Wills Act 1936
3Amendment of section 20A—Effect of
termination of marriage on will
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Same Sex Marriage
Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
adult means a person who has attained the age of
18 years;
authorised celebrant means—
(a) a minister of religion registered under
Part 4
Division 1; or
(b) a person authorised to solemnise marriages by virtue of
Part 4
Division 2; or
(c) a same sex marriage celebrant;
corresponding law means a law of another State or Territory
that provides for same sex marriages and is prescribed by the regulations for
the purposes of this definition;
minister of religion means—
(a) a person recognised
by a religious body or a religious organisation as having authority to solemnise
marriages in accordance with the rites or customs of the body or organisation;
or
(b) in relation to a religious body or a religious organisation in respect
of which
paragraph (a) is not
applicable—a person nominated by—
(i) the head, or the governing authority, in a State or Territory, of that
body or organisation; or
(ii) such other person or authority acting on behalf of that body or
organisation as is prescribed,
to be an authorised celebrant for the purposes of this Act;
ordinarily resident includes habitually resident;
Registrar means the Registrar of Births, Deaths and
Marriages;
same sex marriage means the lawful union of 2 people of
the same sex to the exclusion of all others, voluntarily entered into for
life;
same sex marriage celebrant means person registered under
Part 4
Division 3.
(2) The union of 2 people will be taken to be lawful for the purposes
of the definition of same sex marriage in
subsection (1)
if—
(a) the union was solemnised as a same sex marriage in accordance with
this Act and that same sex marriage is not void under
section 18;
or
(b) the union was solemnised as a same sex marriage in accordance with a
corresponding law of a State or Territory and that same sex marriage is not void
or otherwise unlawful under the law of that State or Territory.
Division 1—Same
sex marriageable age
This Division applies, despite any common law rule of private international
law, in relation to same sex marriages.
A person is of same sex marriageable age if the person has attained the age
of 18 years.
Division 2—Solemnisation
of same sex marriages in South Australia
This Division applies to and in relation to all same sex marriages
solemnised, or intended to be solemnised, in this State.
7—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 same sex marriage takes place.
8—Ministers
of religion not bound to solemnise same sex marriage etc
Nothing in this Part—
(a) imposes an obligation on an authorised celebrant, being a minister of
religion, to solemnise any same sex marriage; or
(b) prevents such an authorised celebrant from making it a condition of
his or her solemnising a same sex marriage that—
(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.
9—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 not earlier than 18 months before the
date of the same sex marriage and not later than 1 month before the date of
the same sex marriage; and
(b) there has been produced to that authorised celebrant, 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 statutory declaration made by the party or a parent of the party
stating that, for reasons specified in the declaration, it is impracticable to
obtain such a certificate or extract and stating, 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; or
(iii) a passport issued by a government of an overseas country, showing
the date and place of birth of the party; and
(c) each of the parties has made and subscribed before that authorised
celebrant a declaration, in accordance with 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
same sex marriage; and
(iii) such other matters as are prescribed.
(2) A notice under
subsection (1)—
(a) will be in accordance with the prescribed form and contain such
particulars in relation to the parties as are indicated in the prescribed form;
and
(b) must be signed by each of the parties; and
(c) must be signed in the presence of—
(i) an authorised celebrant; or
(ii) a justice of the peace; or
(iii) a commissioner for taking affidavits in the Supreme Court.
(3) However, if the signature of a party to an intended same sex marriage
cannot conveniently be obtained at the time when it is desired to give notice
under this section, a notice duly signed by the other party and otherwise
complying with the provisions of this section will, if it is signed by the
first-mentioned party in the presence of an authorised celebrant before the same
sex marriage is solemnised, be deemed to have been a sufficient
notice.
(4) If a party to an intended same sex marriage is unable, after
reasonable inquiry, to ascertain all of the particulars in relation to that
party required to be contained in a notice under this section, the failure to
include in the notice such of those particulars as the party is unable to
ascertain does not make the notice ineffective for the purposes of this section
if, at any time before the same sex marriage is solemnised, that party furnishes
to the authorised celebrant solemnising the same sex marriage a statutory
declaration as to that party’s inability to ascertain the particulars not
included in the notice and the reason for that inability.
(5) An authorised celebrant must, as soon as practicable after receiving
the notice referred to in
subsection (1),
give to the parties a document in the prescribed form outlining the obligations
and consequences of same sex marriage and indicating the availability of same
sex marriage education and counselling.
(6) If, by reason of the death, absence or illness of an authorised
celebrant to whom a 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, the same sex marriage may be solemnised by any authorised celebrant
who has possession of the notice.
(7) The declarations of the parties required by
subsection (1)
must both be written on the 1 paper and on the same side of that
paper.
(8) 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 given under this section
in relation to the same sex marriage; or
(b) if the authorised celebrant has reason to believe
that—
(i) a notice given under this section; or
(ii) a declaration made and subscribed under this section, or a statutory
declaration made for the purposes of this section, in relation to the same sex
marriage,
contains a false statement or an error or is defective.
(9) An authorised celebrant may permit an error in a notice under this
section 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
may treat the corrected notice as having been originally given in its corrected
form.
(10) If the declaration made by a party under
subsection (1)
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.
10—Same
sex marriage may be solemnised on any day etc
A same sex marriage may be solemnised on any day, at any time and at any
place in South Australia.
A same sex marriage must not be solemnised unless at least 2 persons
who are, or appear to the person solemnising the same sex marriage to be, over
the age of 18 years are present as witnesses.
(1) If a same sex marriage is solemnised by or in the presence of an
authorised celebrant, being 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, not being 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:
“I call upon the persons here present to witness that I, A.B. (or
C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband or
spouse).”,
or words to that effect.
13—Certain
authorised celebrants to explain nature of same sex marriage
relationship
Before a same sex marriage is solemnised by or in the presence of an
authorised celebrant, not being a minister of religion of a recognised
denomination, the authorised celebrant will say to the parties, in the presence
of the witnesses, the words:
“I am duly authorised by law to solemnise same sex marriages
according to the law of South Australia;
Before you are joined in same sex 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;
Same sex marriage, according to law in South Australia, is the lawful union
of 2 persons to the exclusion of all others, voluntarily entered into for
life.”,
or words to that effect.
14—Certain
same sex marriages not solemnised in accordance with this Part to be
invalid
(1) Subject to this section, a same sex marriage solemnised in South
Australia otherwise than in accordance with the preceding provisions of this
Division is not a valid same sex marriage.
(2) A same sex marriage is not invalid by reason of all or any of the
following:
(a) failure to give the notice required by
section 9, or a
false statement, defect or error in such a notice;
(b) failure of the parties, or either of them, to make or subscribe a
declaration as required by
section 9, or a
false statement, defect or error in such a declaration;
(c) failure to produce to the authorised celebrant a certificate or
extract of an entry or a statutory declaration as required by
section 9, or a
false statement, defect or error in such a statutory declaration;
(d) failure to comply with any other requirement of
section 9, or
any contravention of that section;
(e) failure to comply with the requirements of
section 11
or
12.
(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
same sex marriage, at the time the same sex marriage was solemnised, believed
that that person was lawfully authorised to solemnise it, and in such a case the
form and ceremony of the same sex marriage will be deemed to have been
sufficient if they were such as to show an intention on the part of each of the
parties to become thereby the lawfully wedded spouse of the other.
15—Authorised
celebrant to retain declarations etc
An authorised celebrant to whom a declaration is produced under this Act
must retain it in his or her possession until he or she deals with it in
accordance with
section 16.
16—Same
sex marriage certificates
(1) If an
authorised celebrant solemnises a same sex marriage, the authorised celebrant
must—
(a) prepare a
certificate of the same sex marriage, in accordance with the prescribed form,
for the purpose of issue to the parties to the same sex marriage; and
(b) prepare 2
official certificates of the same sex marriage in accordance with the prescribed
form.
(2) Despite
subsection (1)(b),
the regulations may provide that the person for the time being holding or acting
in a specified office may prepare only 1 official certificate under that
paragraph.
(3) Immediately after the solemnisation of the same sex marriage, the
authorised celebrant, each of the parties to the same sex marriage and
2 witnesses of the same sex marriage who are, or appear to the authorised
celebrant to be, over the age of 18 years must sign each of the
certificates so prepared.
(4) One of the
official certificates or the official certificate, as the case may be, must be
on the reverse side of the paper bearing the declarations made by the parties
under
section 9(1).
(5) The authorised
celebrant must hand the certificate referred to in
subsection (1)(a)
to 1 of the parties to the same sex marriage on behalf of the parties,
and—
(a) if 2 official certificates have been prepared—
(i) within 14 days after the solemnisation of the same sex marriage,
forward the official certificate to which
subsection (4)
applies, together with the notice under
section 9 and
any declarations relating to the same sex marriage that are in his or her
possession, to the Registrar; and
(ii) retain the other official certificate and deal with it in accordance
with the regulations; or
(b) if only 1 official certificate has been prepared—retain
that certificate and deal with it in accordance with the regulations.
(6) If the
authorised celebrant dies without having prepared and signed the certificates of
the same sex marriage, or where by reason of other special circumstances the
Minister thinks it necessary to do so, the Minister may, if satisfied that the
same sex marriage was duly solemnised, prepare and sign the certificates with
such modifications as are appropriate.
(7) A certificate prepared and signed by the Minister under
subsection (6)
has the same force and effect as if it had been prepared and signed, in
accordance with this section, by the authorised celebrant.
(8) The regulations may make provision for and in relation to the
furnishing of a substitute certificate in the event of the loss or destruction
of a same sex marriage certificate previously forwarded under this
section.
17—Incorrect
same sex marriage certificates
(1) If an
authorised officer is satisfied, by statutory declaration or otherwise, that any
particular in a certificate of same sex marriage prepared and signed under
section 16 is
incorrect, the authorised officer may—
(a) in the case of
a certificate that has been handed to a party to the same sex marriage or
retained by the authorised celebrant—correct the certificate;
and
(b) in the case of a certificate that has been forwarded to the
Registrar—certify to the Registrar that a specified correction is
necessary.
(2) For the
purposes of exercising his or her powers under
subsection (1)(a)
in relation to a certificate, an authorised officer may, by notice in writing
served on a party to the same sex marriage, or the authorised celebrant, as the
case requires, require the party or the authorised celebrant to produce or
forward the certificate to the authorised officer within a period (not being
less than 7 days from the date of service of the notice) specified in the
notice.
(3) If a same sex
marriage has been solemnised, or purports to have been solemnised, under this
Part, and the same sex marriage is void, an authorised officer may, by notice in
writing served on a party to the same sex marriage, require the party to deliver
or forward to the authorised officer, within a period (not being less than
7 days from the date of service of the notice) specified in the notice, the
certificate required, by
section 16(5),
to be handed to a party to the same sex marriage.
(4) A notice referred to in
subsection (2)
or
(3) may be served by
post.
(5) In this section—
authorised officer means a person authorised by the Minister
to perform the functions of an authorised officer under this section.
Division 3—Void
same sex marriages
18—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 same sex marriage,
lawfully married to some other person; or
(b) either of the parties subsequently becomes lawfully married to some
other person under the Marriage Act 1961 of the Commonwealth;
or
(c) the parties are within a prohibited relationship; or
(d) by reason of
section 14 the
same sex marriage is not a valid same sex marriage; or
(e) 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 same sex marriage ceremony; or
(f) either of the parties was not of same sex marriageable age,
and not otherwise.
(2) Same sex
marriages of parties within a prohibited relationship are same sex
marriages—
(a) between a person and an ancestor or descendant of the person;
or
(b) between siblings of the same sex (whether of the whole blood or the
half-blood).
(3) Any
relationship specified in
subsection (2)
includes a relationship traced through, or to, a person who is or was an adopted
child, and, for that purpose, the relationship between an adopted child and the
adoptive parent, or each of the adoptive parents, of the child, will be deemed
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 a person whom the first-mentioned 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 will be
deemed 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 1 occasion will be
deemed to be the adopted child of each person by whom he or she has been
adopted.
(6) In this section—
adopted, in relation to a child, means adopted under the law
of any place (whether in or out of Australia) relating to the adoption of
children;
ancestor, in relation to a person, means any person from whom
the first-mentioned person is descended including a parent of the
first-mentioned person.
19—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) a person who is authorised by this Act to solemnise same sex marriages
must not purport to solemnise a same sex marriage between persons who inform the
first-mentioned person that they are already legally married to each other or
whom the first-mentioned person knows or has reason to believe to be already
legally married to each other.
(a) 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
(i) whether those persons are legally married to each other; or
(ii) where the form or ceremony of same sex marriage took place outside
Australia—whether the same sex marriage would be recognised as valid by a
court in Australia; or
(iii) whether their same sex marriage could be proved in legal
proceedings,
those persons may, subject to this section, 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.
(3) If
2 persons wish to go through a form or ceremony of same sex marriage with
each other under
subsection (2),
they must furnish to the person by whom, or in whose presence, the form or
ceremony is to take place or be performed—
(a) a statutory declaration by them 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 in which they went
through that form or ceremony; and
(b) a certificate by a 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 1 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 on each certificate
issued in respect of it.
(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 will be taken to prevent 2 persons who are
already legally married to each other from going through a religious ceremony of
same sex marriage with each other in Australia where 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) furnished to 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
(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 Australia, they
have no reason to believe that it would not be recognised as valid in
Australia.
Part 3—Dissolution
and annulment
In this Division—
appeal includes an application for a re-hearing;
applicant includes a cross-applicant;
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;
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;
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;
registrar means the registrar of the Supreme Court.
Division 2—Jurisdiction
in matrimonial causes
21—Jurisdiction
in matrimonial causes
(1) Subject to this Part, a matrimonial cause may be instituted under this
Act in the Supreme Court.
(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 South
Australia pursuant to
Part 2.
(3) Proceedings of a
kind referred to in the definition of matrimonial cause in
section 20, 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.
22—Principles
to be applied by Supreme Court
The Supreme Court must, 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 2 people 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
(c) the means available for assisting parties to a same sex marriage to
consider reconciliation or the improvement of their relationship to each
other.
(1) Proceedings under this Part must be instituted by application to the
Supreme Court.
(2) Proceedings under this Part 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 may 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;
and
(b) signed by that person or on behalf of that organisation, as the case
may be.
(4) Despite
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 despite the fact 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, if the Court makes a declaration under
paragraph (b), the
application will be taken to have been duly filed and everything done pursuant
to that application will 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) Despite
subsections (3) and
(4), a respondent may, in
an answer to an application, include an application for any decree or
declaration under this Part.
Division 3—Dissolution
and nullity of same sex marriage
24—Dissolution
of same sex marriage
(1) An application under this Act for a decree of dissolution of a same
sex marriage must 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 will be held to have
been established, and a decree of dissolution of the same sex marriage will be
made, if, and only if, the Court is satisfied that the parties 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 must not be made if the Court is satisfied that
there is a reasonable likelihood of cohabitation being resumed.
(1) The parties to a same sex marriage may be held to have separated
despite the fact that the cohabitation was brought to an end by the action or
conduct of 1 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 despite the fact that they have continued to
reside in the same residence or that either party has rendered some household
services to the other.
26—Effect
of resumption of cohabitation
(1) For the purposes of
proceedings for a decree of dissolution of same sex marriage, if, after the
parties to the same sex marriage separated, they resumed cohabitation on
1 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 1 continuous period, but the period of cohabitation will 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 will be taken to have continued during any interruption
of the cohabitation that, in the opinion of the court, was not
substantial.
27—Nullity
of same sex marriage
An application under this Part for a decree of nullity of same sex marriage
must be based on the ground that the same sex marriage is void.
28—Court
not to make decree of dissolution where application for decree of nullity before
it
If 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 must 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.
29—Circumstances
occurring before commencement of Act or outside State
A decree may be made, or refused, under this Part by reason of facts and
circumstances despite the fact that those facts and circumstances, or some of
them, took place before the commencement of this Act or outside this
State.
30—Decree
nisi in first instance
A decree of dissolution of same sex marriage under this Part will, in the
first instance, be a decree nisi.
31—When
decree becomes absolute
(1) Subject to this
section, a decree nisi made under this Part 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) If 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) If an appeal is instituted (whether or not it is the first appeal)
before a decree nisi has become absolute, then, despite 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 will 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 relating to—
(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 33 or
34 for rescission of the
decree or an appeal or application for permission to appeal arising out of such
an application.
(6) For the purposes of this section, if an application for permission to
appeal is granted, the application will be taken not to have been determined or
discontinued so long as an appeal is pending.
32—Certificate
as to decree absolute
(1) If a decree nisi becomes absolute, the registrar must prepare
and file with the Supreme Court Registry and with the Registrar of Births Deaths
and Marriages a memorandum of the fact and of the date on which the decree
became absolute.
(2) If a decree
nisi has become absolute, any person is entitled, on application to the
registrar, 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
Registrar of Births, Deaths and Marriages.
33—Rescission
of decree nisi if parties
reconciled
Despite anything contained in this Part, if 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, on the application of the
parties to the same sex marriage, rescind the decree on the ground that the
parties have become reconciled.
34—Rescission
of decree nisi on ground of miscarriage of
justice
If a decree nisi has been made but has not become absolute, the
Court 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.
If a decree of dissolution of same sex marriage under this Part has become
absolute, a party to the same sex marriage may marry again.
Division 1—Ministers
of religion
In this Division—
register means the register maintained by the Registrar in
accordance with
section 37.
37—Register
of ministers of religion
(1) The Registrar is to maintain a register of ministers of religion
ordinarily resident in this State who are entitled to registration under this
Division.
(2) The register may be kept in any way the Registrar thinks appropriate,
including by electronic means.
(3) The register may be made available for inspection in any way the
Registrar thinks appropriate.
(4) All information contained in the register must be made available on
the Internet.
(5) Any or all of the information contained in the register may also be
disseminated in any other way the Registrar thinks appropriate, including by
electronic means.
38—Qualifications
for registration under this Division
Subject to this Division, a person is entitled to registration under this
Division if—
(a) the person—
(i) is a minister of religion of a recognised denomination; and
(ii) is nominated for registration under this Division by that
denomination; and
(iii) is ordinarily resident in Australia; and
(iv) has attained the age of 21 years; or
(b) the person is registered under Part 4 Division 1
Subdivision A of the Marriage Act 1961 of the
Commonwealth.
39—Registrar
to register applicant
(1) Subject to this Division, the Registrar must, on application in
accordance with the regulations, by a person who is entitled to registration
under this Division, register that person in the register.
(2) The particulars set out in an application for registration under this
Division must be verified by the applicant by statutory declaration.
40—Applicant
may be refused registration in certain circumstances
The Registrar may refuse to register an applicant if, in the opinion of the
Registrar—
(a) there are already registered under this Division sufficient ministers
of religion of the denomination to which the applicant belongs to meet the needs
of the denomination in the locality in which the applicant resides; or
(b) the applicant is not a fit and proper person to solemnise marriages;
or
(c) the applicant is unlikely to devote a substantial part of his or her
time to the performance of functions generally performed by a minister of
religion.
(1) Subject to this
section, the Registrar must remove the name of a person from the register if he
or she is satisfied that—
(a) the person has requested that his or her name be so removed;
or
(b) the person has died; or
(c) the denomination by which that person was nominated for registration,
or in respect of which that person is registered, no longer desires that that
person be registered under this Division or has ceased to be a recognised
denomination; or
(i) has been guilty of such contraventions of this Act or the regulations
as to show him or her not to be a fit and proper person to be registered under
this Division; or
(ii) has been making a business of solemnising marriages for the purpose
of profit or gain; or
(iii) is not a fit and proper person to solemnise marriages; or
(e) the person is, for
any other reason, not entitled to registration under this Division.
(2) The Registrar must
not remove the name of a person from the register under this section on a ground
specified in
subsection (1)(d) or
(e)
unless—
(a) the Registrar has, in accordance with the regulations, served on the
person a notice in writing—
(i) stating the Registrar’s intention to do so on that ground
unless, not later than a date specified in the notice and being not less than
21 days from the date of service of the notice, the person satisfies the
Registrar that the person’s name should not be removed from the register;
and
(ii) informing the person that any representations made to the Registrar
before that date will be considered by the Registrar; and
(b) the Registrar has considered any representations made by the person
before the date specified in the notice; and
(c) the removal takes place within 14 days after the date specified
in the notice.
(3) If notice is served on a person under
subsection (2), that
person must not solemnise a same sex marriage unless and until—
(a) the person is notified by the Registrar that the Registrar has decided
not to remove the person’s name from the register; or
(b) a period of 14 days has elapsed from the date specified in the
notice under
subsection (2) and
the person’s name has not been removed from the register; or
(c) the person’s name, having been removed from the register, is
restored to the register.
42—Review
of refusal to register or removal from register
(1) An application may
be made to the District Court for a review of a decision of a
Registrar—
(a) refusing to register a person who has applied for registration under
this Division; or
(b) removing the name of a person from the register under
section 41.
(2) If the Court sets aside a decision refusing to register a person or a
decision to remove the name of a person from the register, the Registrar must
immediately register the person, or restore the name of the person to the
register, as the case requires.
(3) For the purposes of the making of an application under
subsection (1), if a
person has made application for registration under this Division and, at the
expiration of a period of 3 months from the day on which the application
was made, the person has not been registered and has not been notified by the
Registrar that that person’s application has been refused, the Registrar
will be taken to have decided, on the last day of that period, not to register
that person.
43—Change
of address etc to be notified
(1) If a person
registered under this Division—
(a) changes his or her name, address or designation; or
(b) ceases to exercise, or ceases to be entitled to exercise, the
functions of a minister of religion of the denomination by which he or she was
nominated for registration or in respect of which he or she is
registered,
the person must, within 30 days, notify the Registrar of that fact in
accordance with the regulations.
(2) The Registrar may, on receiving notification of a change of name,
address or designation under
subsection (1) or if
the Registrar is otherwise satisfied that the particulars shown in the register
in respect of a person are not correct, amend the register
accordingly.
44—Transfer
to another State etc
(1) If a person whose
name is included in the register is ordinarily resident in another State or
Territory, the Registrar must, subject to this section, remove the name of that
person from the register.
(2) If the name of a person referred to in
subsection (1) is
not included in the register and that person is ordinarily resident in this
State, the Registrar may enter the name of that person in the
register.
45—Furnishing
of information by recognised denominations
The regulations may make provision for, and in relation to, the furnishing
to the Registrar by each recognised denomination of—
(a) information as to matters affecting the right to registration under
this Division of persons who are so registered as ministers of religion of that
denomination; and
(b) an annual list of persons registered under this Division as ministers
of religion of that denomination who are exercising the functions of a minister
of religion of that denomination.
46—Registrars
to furnish information
The Registrar must, if the Chief Executive of the Attorney-General's
Department so requests, furnish to the Chief Executive—
(a) a list of ministers of religion registered by the Registrar under this
Division during the period specified in the request, showing the full name,
designation, residential or postal address and religious denomination of each
minister; and
(b) particulars of any other alterations to the register made during that
period.
Division 2—Officers
of the State
47—Authorisation
of South Australian officers etc
(1) The Registrar may solemnise same sex marriages in this
State.
(2) The Minister may,
by instrument in writing, authorise other officers of the State to solemnise
same sex marriages.
(3) An authorisation under
subsection (2) is
subject to such conditions (if any) as are specified in the
instrument.
Division 3—Same
sex marriage celebrants
In this Division—
register means the register maintained by the Registrar in
accordance with
section 50.
49—Registrar
of same sex marriage celebrants
The Registrar will act as the Registrar of same sex marriage celebrants and
is to perform those functions and has power to do all things necessary or
convenient to be done for or in connection with the performance of those
functions.
50—Register
of same sex marriage celebrants
(1) The Registrar is to maintain a register of same sex marriage
celebrants.
(2) The register may be kept in any way the Registrar thinks appropriate,
including by electronic means.
(3) The register may be made available for inspection in any way the
Registrar thinks appropriate.
(4) All information contained in the register must be made available on
the Internet.
(5) Any or all of the information contained in the register may also be
disseminated in any other way the Registrar thinks appropriate, including by
electronic means.
51—Entitlement
to be registered as a same sex marriage celebrant
(1) A person is only entitled to be registered as a same sex marriage
celebrant if—
(a) the person is an individual and the Registrar is satisfied that the
person—
(i) is an adult; and
(ii) has all the qualifications or skills determined to be necessary by
the Registrar in accordance with regulations made for the purposes of this
paragraph; and
(iii) is a fit and proper person to be a same sex marriage celebrant;
or
(b) the person is registered under Part 4 Division 1
Subdivision C of the Marriage Act 1961 of the
Commonwealth.
(2) In determining whether the Registrar is satisfied that the person is a
fit and proper person to be a same sex marriage celebrant, the Registrar must
take into account—
(a) whether the person has sufficient knowledge of the law relating to the
solemnisation of same sex marriages by same sex marriage celebrants;
and
(b) whether the person is committed to advising couples of the
availability of relationship support services; and
(c) whether the person is of good standing in the community; and
(d) whether the person has been convicted of an offence, punishable by
imprisonment for 1 year or longer, against a law of the Commonwealth, a
State or a Territory; and
(e) whether the person has an actual or potential conflict of interest
between his or her practice, or proposed practice, as a same sex marriage
celebrant and his or her business interests or other interests; and
(f) whether the person’s registration as a same sex marriage
celebrant would be likely to result in the person gaining a benefit in respect
of another business that the person owns, controls or carries out; and
(g) whether the person will fulfil the obligations under
section 55;
and
(h) any other matter the Registrar considers relevant to whether the
person is a fit and proper person to be a same sex marriage celebrant.
52—Registration
as a same sex marriage celebrant
(1) A person may apply
to be registered as a same sex marriage celebrant by giving the
Registrar—
(a) a completed application in the prescribed form; and
(b) any statutory declarations required by the form.
(2) The Registrar must deal with applications in the order in which they
are received.
(3) In dealing with an application, the Registrar—
(a) must have regard to the information in the application; and
(b) may have regard to other information in his or her possession;
and
(c) is not required to seek further information.
(4) The Registrar must
register a person as a same sex marriage celebrant if—
(a) the person has applied in accordance with
subsection (1);
and
(b) the Registrar is satisfied that the person is entitled to be
registered as a same sex marriage celebrant.
(5) The Registrar must not register a person as a same sex marriage
celebrant in any circumstances other than those specified in
subsection (4).
(6) The Registrar registers a person as a same sex marriage celebrant by
entering in the register of same sex marriage celebrants all details relating to
the person that are required by regulations made for the purposes of this
subsection.
(7) If the Registrar registers a person as a same sex marriage celebrant,
the Registrar must notify the person in accordance with regulations made for the
purposes of this subsection.
(8) If the Registrar decides not to register a person as a same sex
marriage celebrant after dealing with the person’s application, the
Registrar must inform the applicant in writing of—
(a) the decision; and
(b) the reasons for it; and
(c) the person’s right under this Part (if any) to apply for review
of the decision.
53—Capping
of number of same sex marriage celebrants for 5 years
(1) The Registrar must
not register a person as a same sex marriage celebrant if doing so would cause
the breach of any applicable limit on the number of same sex marriage celebrants
determined in accordance with regulations made for the purposes of this
subsection.
(2)
Subsection (1)
ceases to have effect at the end of the period of 5 years after this
section commences.
A person who is registered as a same sex marriage celebrant may solemnise
same sex marriages at any place in the State.
55—Obligations
of same sex marriage celebrants
A same sex marriage celebrant must—
(a) conduct himself or herself in accordance with the Code of Practice for
same sex marriage celebrants prescribed by regulations made for the purposes of
this section; and
(b) undertake all professional development activities required by the
Registrar in accordance with regulations made for the purposes of this section;
and
(c) notify the Registrar, in writing, within 30 days
of—
(i) a change that results in the details entered in the register in
relation to the person no longer being correct; or
(ii) the occurrence of an event that might have caused the Registrar not
to register the person as a same sex marriage celebrant if the event had
occurred before the person was registered.
(1) The Registrar must regularly review each same sex marriage
celebrant’s performance to determine whether the Registrar considers that
the same sex marriage celebrant’s performance is satisfactory.
(2) The first review must be completed within 5 years of the same sex
marriage celebrant being registered and must cover the period between
registration and the end of the review, and each later review must be completed
within 5 years of the previous review and must cover the period since the
previous review.
(3) In reviewing the performance of a same sex marriage celebrant, the
Registrar—
(a) must consider the matters prescribed by regulations made for the
purposes of this subsection; and
(b) may have regard to information in his or her possession, but is not
required to seek further information.
(4) The Registrar must not determine that a same sex marriage
celebrant’s performance in respect of a period was not satisfactory
unless—
(a) the Registrar has, in accordance with the regulations, given the same
sex marriage celebrant a written notice—
(i) stating the Registrar’s intention to make the determination
unless, before the date specified in the notice (which must be at least
21 days after the date on which the notice was given), the same sex
marriage celebrant satisfies the Registrar that the same sex marriage
celebrant’s performance in respect of the period was satisfactory;
and
(ii) informing the same sex marriage celebrant that any representations
made to the Registrar before that date will be considered by the Registrar;
and
(b) the Registrar has considered any representations made by the same sex
marriage celebrant before the date specified in the notice; and
(c) the determination is made in writing within 14 days after the
date specified in the notice.
(1) The Registrar may only take disciplinary measures against a same sex
marriage celebrant if the Registrar—
(a) is satisfied that the same sex marriage celebrant is no longer
entitled to be registered as a same sex marriage celebrant; or
(b) is satisfied that the same sex marriage celebrant has not complied
with an obligation under
section 55;
or
(c) has determined in writing that the same sex marriage celebrant’s
performance in respect of a period was not satisfactory; or
(d) is satisfied that it is appropriate to take disciplinary measures
against the same sex marriage celebrant after considering a complaint in
accordance with the complaints resolution procedures established under
section 59(c);
or
(e) is satisfied that the same sex marriage celebrant’s application
for registration was known by the same sex marriage celebrant to be false or
misleading in a material particular.
(2) The only disciplinary measures that the Registrar may take against a
same sex marriage celebrant are to—
(a) caution the same sex marriage celebrant in writing; or
(b) in accordance with regulations made for the purposes of this
subsection, require the same sex marriage celebrant to undertake professional
development activities determined in writing by the Registrar; or
(c) suspend the same sex marriage celebrant’s registration for a
period (the suspension period) of up to 6 months by
annotating the register to include—
(i) a statement that the registration is suspended; and
(ii) the dates of the start and end of the suspension period; or
(d) deregister the same sex marriage celebrant by removing his or her
details from the register.
(3) If the Registrar suspends a same sex marriage celebrant’s
registration for a particular period,
section 54 does not
apply in respect of the same sex marriage celebrant during the period.
(4) If the Registrar decides to take disciplinary measures against a same
sex marriage celebrant, the Registrar—
(a) must give the same sex marriage celebrant written notice
of—
(i) the decision; and
(ii) the reasons for it; and
(iii) the disciplinary measure that is being taken; and
(iv) the same sex marriage celebrant’s right under
section 58 to apply
for review of the decision; and
(b) may inform the community, in any way the Registrar thinks appropriate,
including by electronic means, that the disciplinary measure is being taken
against the same sex marriage celebrant.
(1) An application may
be made to the District Court for a review of a decision of the
Registrar—
(a) not to register a person as a same sex marriage celebrant (unless a
ground for the decision was that the Registrar would breach
section 53 by
registering the person); or
(b) to suspend a person’s registration as a same sex marriage
celebrant; or
(c) to deregister a same sex marriage celebrant.
(2) For the purposes of both the making of an application under
subsection (1) and
the operation of the District Court in relation to such an application,
if—
(a) a person has made application for registration as a same sex marriage
celebrant under
section 52;
and
(b) at the end of 3 months after the day on which the application was
made, the person has not been—
(i) registered; or
(ii) notified by the Registrar that that person’s application has
been refused,
the Registrar is taken to have decided, on the last day of the 3 month
period, not to register that person as a same sex marriage celebrant.
(3) The Registrar must take such action as is necessary to give effect to
the Court’s decision (even if doing so at the time the action is taken
would cause a breach of a limit under
section 53).
59—Additional
functions of Registrar
The Registrar must—
(a) amend the register in accordance with the regulations; and
(b) keep records relating to same sex marriage celebrants, and the
register, in accordance with the regulations; and
(c) establish
complaints resolution procedures, in accordance with the regulations, to resolve
complaints about the solemnisation of marriages by same sex marriage celebrants;
and
(d) perform any additional functions specified by the
regulations.
60—Evidence
of registration etc
A certificate, signed by the Registrar, stating that, at a specified time,
or during a specified period—
(a) a person was registered as a same sex marriage celebrant; or
(b) a person’s registration as a same sex marriage celebrant was
suspended; or
(c) a person was not registered as a same sex marriage
celebrant,
is prima facie evidence of that fact.
61—References
to marriage to include same sex marriage etc
Unless the contrary intention appears, for the purposes of the law of the
State—
(a) a reference in any Act or instrument to marriage will include a
reference to same sex marriage; and
(b) a reference in any Act or instrument to the parties to a marriage
(whether described as husband and wife or in any other way) will include a
reference to the parties to a same sex marriage; and
(c) a reference in any Act or instrument to a marriage certificate will
include a reference to a same sex marriage certificate under this Act.
Example—
For example, the references to a person who is married or to a person's
husband or wife in Part 3 Division 15 of the Criminal
Law Consolidation Act 1935 (dealing with the offence of bigamy)
would include a reference to a person who is a party to a same sex marriage as
well as a person who is married under the Marriage Act 1961 of the
Commonwealth.
62—Restrictions
on publication of court proceedings
(1) A person who
publishes in a newspaper or periodical publication, by radio broadcast or
television or by other electronic means, or otherwise disseminates to the public
or to a section of the public by any means, any account of any proceedings, or
of any part of any proceedings, under this Act that identifies—
(a) a party to the proceedings; or
(b) a person who is related to, or associated with, a party to the
proceedings or is, or is alleged to be, in any other way concerned in the matter
to which the proceedings relate; or
(c) a witness in the proceedings,
is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
(2) A person who, except as permitted by the applicable rules of court,
publishes in a newspaper or periodical publication, by radio broadcast or
television or by other electronic means, or otherwise disseminates to the public
or to a section of the public by any means (otherwise than by the display of a
notice in the premises of the court) a list of proceedings under this Act,
identified by reference to the names of the parties to the proceedings, that are
to be dealt with by a court is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
(3) Without limiting the generality of
subsection (1),
an account of proceedings, or of any part of proceedings, referred to in that
subsection is to be taken to identify a person if—
(a) it contains any particulars of—
(i) the name, title, pseudonym or alias of the person; or
(ii) the address of any premises at which the person resides or works, or
the locality in which any such premises are situated; or
(iii) the physical description or the style of dress of the person;
or
(iv) any employment or occupation engaged in, profession practised, or
calling pursued, by the person or any official or honorary position held by the
person; or
(v) the relationship of the person to identified relatives of the person
or the association of the person with identified friends or identified business,
official or professional acquaintances of the person; or
(vi) the recreational interests, or the political, philosophical or
religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or
with which the person is otherwise associated,
being particulars that are sufficient to identify that person to a member
of the public, or to a member of the section of the public to which the account
is disseminated, as the case requires; or
(b) in the case of a written or televised account or an account by other
electronic means, it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other
electronic means, it is spoken in whole or in part by the person and the
person’s voice is sufficient to identify that person to a member of the
public, or to a member of the section of the public to which the account is
disseminated, as the case requires.
(4) Proceedings for an offence against this section must not be commenced
except by, or with the written consent of, the Director of Public
Prosecutions.
(5) This section does not apply to or in relation to—
(a) the communication, to persons concerned in proceedings in any court,
of any pleading, transcript of evidence or other document for use in connection
with those proceedings; or
(b) the communication of any pleading, transcript of evidence or other
document to—
(i) a body that is responsible for disciplining members of the legal
profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the
legal profession of a State or Territory, being proceedings before a body that
is responsible for disciplining members of the legal profession in that State or
Territory; or
(c) the communication, to a body that grants assistance by way of legal
aid, of any pleading, transcript of evidence or other document for the purpose
of facilitating the making of a decision as to whether assistance by way of
legal aid should be granted, continued or provided in a particular case;
or
(d) the publishing of a notice or report in pursuance of the direction of
a court; or
(e) the publication by the court of lists of proceedings under this Act,
identified by reference to the names of the parties, that are to be dealt with
by the court; or
(f) the publishing of any publication bona fide intended primarily for use
by the members of any profession, being—
(i) to a person who is a member of a profession, in connection with the
practice by that person of that profession or in the course of any form of
professional training in which that person is involved; or
(ii) to an individual who is a party to any proceedings under this Act, in
connection with the conduct of those proceedings; or
(iii) to a person who is a student, in connection with the studies of that
person; or
(g) publication of accounts of proceedings, where those accounts have been
approved by the court.
(6) In this section—
Court includes an officer of a court investigating or dealing
with a matter in accordance with this Act, the regulations or the rules of
court;
electronic means includes—
(a) in the form of data, text or images by means of guided or unguided, or
both guided and unguided, electromagnetic energy; and
(b) in the form of speech by means of guided or unguided, or both guided
and unguided, electromagnetic energy, where the speech is processed at its
destination by an automated voice recognition system.
63—False
statements or documents
A person who makes a false or misleading statement or representation in a
declaration, application or other document under this Act, knowing it to be
false or misleading in a material particular, is guilty of an offence.
Maximum penalty: $10 000.
64—Falsification
of certificate etc
(1) A person must not forge or falsify a certificate or other document
under this Act.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) The Registrar may impound a certificate or other document purporting
to be a certificate or other document under this Act which the Registrar has
reason to believe has been forged or falsified.
(1) The Governor
may make such regulations as are contemplated by this Act or as are necessary or
expedient for the purposes of this Act.
(2) Without limiting the generality of
subsection (1),
the regulations may—
(a) fix fees to be paid in respect to any matter under this Act and
regulate the payment, recovery or refund of fees (including by providing that an
application will be taken not to have been duly made unless or until the
relevant application fee is paid); and
(b) provide for the service of documents; and
(c) create offences (punishable by a fine not exceeding $2 500) for
contravention of, or non-compliance with, a provision of this Act or a
regulation.
(3) Regulations under this Act—
(a) may be of general application or limited application;
(b) may make different provision according to the matters or circumstances
to which they are expressed to apply;
(c) may provide that a matter or thing in respect of which regulations may
be made is to be determined according to the discretion of the Minister or the
Registrar.
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Related amendments to Births, Deaths
and Marriages Registration Act 1996
Section 31—delete the section and substitute:
31—How to have marriage
registered
A person may have a marriage registered by lodging with the Registrar a
certificate of the marriage (whether under the Same
Sex Marriage Act 2013 or the Marriage Act 1961 of the
Commonwealth) or, if the marriage was solemnised before the commencement of the
Marriage Act 1961 of the Commonwealth, the evidence of the marriage
required by the Registrar1.
Note—
1 Lodging
of the certificate will be done by the authorised celebrant - see the Same
Sex Marriage Act 2013 and the Marriage Act 1961 of the
Commonwealth.
Part 3—Related amendments to Wills
Act 1936
3—Amendment
of section 20A—Effect of termination of marriage on
will
Section 20A(3)(a)(i) and (ii)—after "Family Law Act" wherever
occurring insert:
or the Same
Sex Marriage Act 2013