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CLAUSE NOTES
SAME-SEX MARRIAGE BILL 2012
PART 1 PRELIMINARY
Clause 1: Short Title
This provides the short title to be used when citing the Act for any
legal purpose.
Clause 2: Commencement
The Act commences on a day or days to be proclaimed.
Clause 3: Interpretation
This Clause defines certain terms that are used in the Bill.
Clause 4: Act binds Crown
This Clause specifies that the Crown in right of the State of
Tasmania is bound to the extent that the legislative power of the
Tasmanian Parliament permits.
PART 2 SAME-SEX MARRIAGE
Division 1 Application of Part
Clause 5: Application of Part
This Clause confirms that the provisions in this Bill apply to same-
sex marriages solemnised, or intended to be solemnised, in
Tasmania notwithstanding any common law rule of private
international law applying elsewhere to same-sex marriages.
Division 2 Same-sex marriage
Clause 6: Same-sex marriageable age
This Clause provides that a person has to be at least 18 years old
to be a party to a same-sex marriage.
CA
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Division 3 Void same-sex marriages
Clause 7: Grounds on which same-sex marriages are void
This Clause provides for the circumstances in which same-sex
marriages are void. These include reasons such as when:
one party to a same sex-marriage is already lawfully
married (whether under this Bill or any other Act dealing
with marriage) to another person at the time of his or her
same-sex marriage; and
the parties are within a prohibited relationship which
means by virtue of subclause (2) a relationship between
a person and an ancestor or descendant of that person
or between siblings (whether whole or half-blood).
Subclauses (3) to (5) deal with adoptive relationships placing the
adopted child in the same position as a natural child for the
purpose of prohibited relationships.
Subclause (6) defines `adopted' and `ancestor' for the purpose
of the Clause.
Division 4 Solemnisation of same-sex marriages in Tasmania
Clause 8: Same-sex marriages to be solemnised by authorised
celebrants
This Clause provides that same-sex marriages must be solemnised
by authorised celebrants. The authorisation and registration of
celebrants is dealt with in Part 7 of the Bill.
Subclause (2) allows a celebrant to set conditions that must be
met in order for solemnisation to occur.
Clause 9: Notices to be given and declaration made
Subclause 1 provides that a celebrant must not solemnise a
same-sex marriage unless the celebrant has received:
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a notice of the intention for a same-sex marriage in a
period not less than one month, and not earlier than 18
months, before the same-sex marriage takes place
(Subclause (1a)); and
proof of date and place of birth (Subclause(1b)); and
declaration that each party is not currently married and
that no impediment exits to the same-sex marriage
(Subclause(1c)).
Subclauses 2 and 3 specify how a notice under Subclause 1
should be made.
Subclause 4 allows for a party to a same-sex marriage to provide
a statutory declaration if he or she is unable to provide all the
particulars required to be contained in a notice.
Subclause 5 obliges an authorised celebrant to provide to the
parties to a proposed same-sex marriage information about the
obligations and consequences of the marriage and the
availability of education and counselling.
Subclause 6 specifies how a same-sex marriage may be
solemnised if the authorised celebrant to whom a notice was
given is unable to solemnise the marriage; eg because the
authorised celebrant is ill.
Subclause 7 specifies the format in which declarations under
Subclause 1 are to be made.
Subclause 8 requires a celebrant to satisfy himself or herself that
the parties to a same-sex marriage are who they say they are
and that no false statements have been made in the required
notices and declarations.
Subclause 9 allows errors in notices to be corrected.
Subclause 10 requires parties to produce evidence of any
divorce or the death of their previous spouse if they declare their
status to be divorced, widow or widower.
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Subclause 11 requires that parties must produce evidence of
dissolution of a same-sex marriage or the voiding (nullity) of a
same-sex marriage if they declare their status of their marriage to
be dissolved or void.
Clause 10: Interpreters
This Clause provides for the use of interpreters in connection with
same-sex marriage ceremonies, and specifies the responsibilities
of such interpreters.
Clause 11: Same-sex marriages may be solemnised on any
day, &c
This Clause permits a same-sex marriage to occur on any day, at
any time, and at any place in Tasmania.
Clause 12: Witnesses
This Clause requires at least two adult witnesses to be present at
a same-sex marriage solemnisation (also 2 witnesses must sign the
marriage certificates).
Clause 13: Authorised celebrants to explain nature of same-
sex marriage relationship
This Clause specifies words that must be spoken by a celebrant
before a same-sex marriage is solemnised.
Clause 14: Form of ceremony
This Clause provides for certain formalities to be included in the
form of a ceremony to be used by a celebrant to solemnise a
same-sex marriage.
If a ceremony is conducted by a celebrant who is a minister of
religion, the ceremony may be conducted as required by the
religion to which the minister belongs (Subclause 1).
Subclause 2 provides for the form of words that must be spoken
by the parties to a same-sex marriage if the ceremony is
conducted by a celebrant who is not a minister of religion.
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Subclauses 3 and 4 concern certificates of the same-sex
marriage and their conclusive evidentiary status that the same-
sex marriage was solemnised.
Clause 15: Certain same-sex marriages not solemnised in
accordance with this Part to be invalid
This Clause specifies when the solemnisation of a same-sex
marriage may be invalid and when a defect does not invalidate
the same-sex marriage.
If not solemnised in accordance with the provisions of this part a
same-sex marriage will be invalid except for if the defect is for a
reason specified in Subclauses 2 or 3.
The reasons specified in Subclause 2 are essentially procedural
failings.
If under Subclause 3 the celebrant was not authorised to
solemnise same-sex marriages but the parties believed that he or
she was properly authorised the same-sex marriage is not invalid.
Clause 16: Second same-sex marriages ceremonies
This Clause prohibits persons who are already legally married
going through a second form or ceremony of same-sex marriage
unless certain circumstances apply.
Subclause 2 permits a ceremony when there is doubt about
whether the persons are legally married or there is doubt the
same-sex marriage could be proved in legal proceedings.
Subclauses 3 and 4 provides for the evidence that must be
furnished to support a claim under subclause 2.
Subclause 5 provides that a same-sex marriage taking place
pursuant to subclause 2 is not invalid merely because of a
procedural failing.
Subclause 6 permits parties to an existing legal same-sex
marriage to go through a separate religious ceremony of same-
sex marriage.
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Subclause 7 provides that certain provisions relating to a same-
sex marriage (such as the requirement for notices and
declarations, witnesses, and marriage certificates) are not
required when the ceremony is merely a reaffirmation of the
legal same-sex marriage, as these requirements would have
been met by the solemnisation ceremony of the original same-
sex marriage. The Clause provides that formal certificates of
same-sex marriage are not to be made or issued
Clause 17: Marriage certificates
This Clause provides for same-sex marriage certificates to be
prepared for same-sex marriages.
The Clause specifies requirements for the certificates in terms of
numbers, form, content, signing and timing.
This clause provides that where two official certificates have
been prepared by the same-sex marriage celebrant, and then
one of the certificates must be forwarded to the Registrar within
14 days of the solemnisation of the same- sex marriage
(Subclause 5(a)(i)).
Subclauses 6 and 7 provide for certificates to be completed by
the Registrar if an authorised celebrant dies without having
prepared the certificate or there is some special circumstance.
Clause 18: Incorrect marriage certificates
This Clause permits the Registrar, in certain circumstances,
correcting, or specifying a correction be made to, an incorrect
same-sex marriage certificate.
The Registrar may also requires copies of same-sex marriage
certificate to be delivered to the Registrar is the same-sex
marriage is void.
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Division 5 Offences
Clause 19: Married person not to go through form or
ceremony of same-sex marriage with any person
This Clause makes it an offence for a married person to go
through a form or ceremony of same-sex marriage, and for a
person to go through a form or ceremony of same-sex marriage
with a married person.
Subclauses 2 and 3 provide some defences to the offence.
Subclause 6 permits a person to go through a form or ceremony
of same-sex marriage with his or her spouse.
Clause 20: Marrying persons not of marriageable age, &c
This Clause makes it an offence for a person to go through a form
or ceremony of same-sex marriage with a person who has not
attained 18 years of age.
Clause 21: Solemnising marriage where notice of declaration
not given or made, &c
This Clause specifies some offences arising from defective
procedural matters including contravention of the provisions
about the giving of notices and the making of declarations,
contravention of the provision that prohibits a same-sex marriage
between people who are already married and purported
solemnisation by a person who is not an authorised celebrant.
Clause 22: Solemnising marriage where reason to believe
there is a legal impediment
This Clause makes it an offence for a celebrant to solemnise a
same-sex marriage if he or she believes that there is a legal
impediment or that there is a reason the marriage would be void.
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Clause 23: Going through ceremony of marriage before
person not authorised to solemnise it
This Clause makes it an offence to knowingly go through a
ceremony of same-sex marriage before a person not authorised
to solemnise it.
Clause 24: Giving defective notice, &c
This Clause makes it an offence to give a notice or sign a notice
after it has been given if a person knows that the notice contains
a false statement or is defective.
Clause 25: Failure to comply with notice under Section 18
This Clause makes it an offence for a person to not comply with a
notice from a Registrar about a marriage certificate.
Clause 26: Failure by interpreter to furnish certificate, &c
This Clause makes it an offence for an interpreter to not comply
with the provisions that apply to an interpreter whose services are
used at a same-sex marriage (i.e. making the necessary statutory
declaration or furnishing the required certificate) or making a
false statement in such a certificate.
PART 3 DISSOLUTION AND NULLITY OF SAME-SEX MARRIAGE
Clause 27: Jurisdiction in matrimonial causes
This Clause permits the Supreme Court to conduct proceedings
related to dissolution and nullity of same-sex marriages. It also
allows the Supreme Court to declare the validity of a same-sex
marriage, dissolution of a same-sex marriage or annulment of a
same-sex marriage.
Proceedings may be instituted if any party to the proceedings is
an Australian citizen, is ordinarily resident in Australia, or is present
in Australia.
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Clause 28: Institution of proceedings
This Clause provides that proceedings must be instituted by
application to the Supreme Court and that they may be
instituted by either party to the same-sex marriage or jointly by
both parties to the same-sex marriage for a dissolution order or a
decree of nullity.
Clause 29: Application for dissolution order
This Clause provides that an application for a dissolution order is
to be based on the ground that the same-sex marriage has
broken down irretrievably. In determining this the Supreme Court
is to be satisfied that the parties have separated and lived
separately and apart for a continuous period of not less than 12
months immediately preceding the date of filing for a dissolution.
A dissolution order in relation to a same-sex marriage is not to be
made if the Supreme Court is satisfied that there is a reasonable
likelihood of cohabitation being resumed.
Clause 30: Meaning of separation
This Clause recognises that separation may have been caused
by the action or conduct of one of the parties and that
separation may still have occurred despite that the parties have
continued to reside in the same residence or that either party has
rendered some household services to the other.
Clause 31: Effect of resumption of cohabitation
This Clause provides that a resumption of cohabitation on one
occasion for not more than 3 months does not break the
continuity of the separation, but this period of cohabitation does
not count towards the duration of the separation.
Clause 32: Nullity of same-sex marriage
This Clause provides that an application for a decree of nullity is
to be based on the ground that the same-sex marriage is void.
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Clause 33: Supreme Court not to make dissolution order
where application for decree of nullity before it
This Clause provides that if both an application for a decree of
nullity and an application for a dissolution order are before the
Supreme Court, the Court must not make a dissolution order
unless it has first dismissed the application for a decree of nullity.
Clause 34: Circumstances occurring before commencement
of Act or outside Tasmania
This Clause provides that the Supreme Court may recognise
things that may have occurred outside Tasmania that are
relevant to the order or decree sought. For instance that the
parties separated outside Tasmania or any period or period of
separation that occurred outside Tasmania.
Clause 35: When dissolution order takes effect
This Clause provides that a dissolution order takes effect one
month from the making of the order by the Supreme Court,
unless an appeal has been instituted.
A dissolution order does not take effect if one party to the same-
sex marriage dies before it becomes final.
Clause 36: Certificate as to dissolution order
This Clause provides that the Supreme Court Registrar must
prepare a dissolution order in the form of a certificate for the
parties. The certificate of dissolution is evidence of the
dissolution.
Clause 37: Rescission of dissolution order where parties
reconciled
The Clause allows the Supreme Court to rescind a dissolution
order before it takes effect if the parties to the same-sex
marriage reconcile. It provides the parties with one month from
the date of the order to reconcile.
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Clause 38: Rescission of dissolution order on ground of
miscarriage of justice
This Clause provides the Supreme Court with the power to rescind
a dissolution order on application by the parties, or intervention
by the Attorney-General, if it is satisfied that there has been a
miscarriage of justice. Matters that may indicate that there may
have been a miscarriage of justice include fraud, suppression of
evidence and perjury.
Clause 39: Remarriage
The Clause provides that once a dissolution order has been
granted and takes effect (after a month from the making of the
order) the parties are free to re-marry.
Clause 40: Void same-sex marriage because of marriage
The Clause provides that a same-sex marriage is void if either
party to the same-sex marriage marries another person under
law recognised by the Commonwealth.
PART 4 - PROCEEDINGS FOR FINANCIAL ADJUSTMENT AND
MAINTENANCE
Division 1 Preliminary
Clause 41: Interpretation
This Clause defines certain terms that are relevant to this Part.
Court is defined as either the Supreme Court or Magistrates
Court. This recognises that both these courts have jurisdiction in
relation to property matters. The Magistrate Court can hear
matters involving property and financial claims up to the value of
$50,000 and the Supreme Court can make orders in relation to
property and financial matters that are valued over $50,000.
Clause 42: Application for adjustment of interest or
maintenance
This Clause allows parties to a same-sex marriage to apply to the
relevant Court for an order to adjust property interests or to grant
maintenance.
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Such an application is not dependent on a dissolution order
being made. Parties to a same-sex marriage who have
separated may make such applications.
Clause 43: Time limit for making application
The Clause provides that, once a dissolution has been granted or
the same-sex marriage is declared void, the parties to the same-
sex marriage only have 12 months in which to initiate property
and/or maintenance proceedings.
If the court is satisfied that hardship may result from this statutory
bar to claims it may grant leave for an application in respect to
property or maintenance to be made after the 12 months.
Clause 44: Order to end financial relationship
This Clause requires the court to take account of the principle
that it has a duty to end financial relations between the parties
where possible.
Division 2 Adjustment of interest in property
Clause 45: Order for adjustment
This Clause provides that the court may make any order in
respect of property interests that is considers `just and equitable'.
The Clause sets out a number of factors to which the court must
have regard in deciding whether an order is `just and equitable'.
This includes things such as the contributions made by the parties
to the same-sex marriage, both in kind and financial, direct or
indirect, the length of the same-sex marriage and other relevant
matters (as referred to in Clause 51).
Clause 46: Adjournment because of significant change in
circumstances
This Clause allows the court to adjourn financial or property
proceedings where there may be some event or change to the
financial circumstances of the parties in the future that could
impact on the matters currently before the court; e.g. an
imminent windfall gain for one party or loss of employment.
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The Clause sets out the factors that the court may have regard
to when making a decision to adjourn proceedings.
Clause 47: Adjournment because of proceedings in Family
Court
This Clause allows the court to adjourn proceedings in the event
that matters are before the Family Court of Australia. The Family
Court has jurisdiction to hear matters in respect of children and
may deal with de facto property matters under Part V11AB of the
Family Law Act 1975.
Clause 48: Deferment of order
The Clause permits the court to defer the operation of any
property order it makes under Clause 45 until the occurrence of
an event; eg the transfer of real estate at the expiration of lease
or the transfer of a lump sum of money following retirement.
Clause 49: Death before order made
This Clause provides that if one party to the same-sex marriage
dies before an application for property is determined the court
action can continue against the estate. This ensures that any the
surviving party to the same-sex marriage is not adversely
affected by any will or succession that vests property elsewhere.
Clause 50: Death after order made
The Clause provides that if one party has died and a property
order is made in favour or against the party then the court order
may be enforced against the estate of the deceased party.
Division 3 Maintenance
Clause 51. Order for maintenance
This Clause grants the right of a party to a same-sex marriage to
apply for spousal maintenance because the applicants earning
capacity has been affected by the circumstances of the same-
sex marriage or any other reason arising from the same-sex
marriage.
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The Subclauses set out the factors that the court must have
regard to when making a determination in respect of
maintenance. These include income and financial resources of
each party, financial needs and obligations, the responsibilities of
a party to support another person, any order for adjustment
made under Clause 45, whether children are involved and who
cares for the children, the length of the same-sex marriage and
such like.
Clause 52. Interim maintenance
This Clause permits an urgent or interim spousal maintenance
application to be made pending the resolution of other matters.
The court must be satisfied that that there is an immediate need
for financial assistance.
Clause 53. Cessation of order
This Clause provides that where a party dies any maintenance
order ceases to have effect in respect of the other party.
Clause 54. Notification of change of circumstances
This Clause requires the party in whose favour a maintenance
order was granted must notify the other party of any re-marriage
or registered relationship. The purpose of this Clause is to allow
the parties to re-negotiate any maintenance obligations or apply
to the court cease any current duty to pay maintenance.
Clause 55. Recovery of arrears
The Clause provides that even if a maintenance order has
ceased and there are arrears or amounts owing, the party who is
owed the arrears is not barred from applying for and recovering
back payments.
Clause 56. Variation of order for periodic maintenance
Either of the parties to a same-sex marriage may apply to the
court for a variation, discharge, suspension of a current
maintenance order. Subclauses 2 and 3 set out the factors that
the court is to take into account in deciding to increase,
decrease, suspend or discharge a maintenance order.
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Clause 57. Other maintenance orders not to be varied
This Clause provides that lump sum orders for maintenance (a
fixed total amount paid over a period of time as opposed to an
amount paid regularly but for an indefinite and possibly unlimited
period), may not be varied unless one of the conditions in Clause
61 is met; i.e. there has been some fraud, miscarriage of justice or
difficulty with compliance with the lump sum maintenance order.
Division 4 General
Clause 58. Orders of court
This Clause sets out what types of orders that the court may do or
make in respect of dealing with property, maintenance and
making financial adjustment between the parties to a same-sex
marriage where the parties have separated or a same-sex
marriage has been dissolved by the Supreme Court.
These include orders in respect of the sale of transfer of property,
payments of lump sums, consent orders, appointing trustees,
injunctions to restraint or mandate action by parties to preserve
property and financial resources.
Clause 59. Execution of instruments
This Clause gives the court power to appoint an officer of the
court or other person to execute any deed or do anything
necessary to give effect to the order and facilitate the operation
of a deed or instrument.
This is a Clause that is relevant in enforcing certain property
transactions that may be the subject of court orders. For
example if a party to a property matter refuses to sell or transfer
proceeds of a bank account to another party in contravention
of the court order, the court can appoint a person to give effect
to the order and undertake the transaction by signing the
appropriate documents.
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Clause 60. Ex parte orders
This provision permits urgent orders to be made in the absence of
one of the parties to the same-sex marriage in court. This is
relevant in urgent or extreme situations; such as where one party
has control of funds and is about to dispose of them to the
possible detriment of the other party prior to the settlement of
property or maintenance issues.
The court must be satisfied of the urgency of the case and may
give directions as to service of the affected party and future
hearing of the application.
Clause 61. Variation and setting aside of orders
The Clause provides the court with the power to vary or set aside
a property or maintenance order where it is satisfied there has
been miscarriage of justice or other criteria are met. The Clause
sets out the relevant factors in determining whether a
miscarriage of justice has occurred and the like.
The Clause also provides that the court may substitute another
order in lieu of an order it sets aside.
PART 5 FINANCIAL AGREEMENTS
Clause 62. Interpretation:
This Clause sets out definitions relevant to this Part.
Clause 63. Financial agreements before same-sex marriage
This Clause provides that parties contemplating a same-sex
marriage may make a written financial agreement with each
other in respect of how property may be dealt with in the event
of a breakdown of the relationship, maintenance during
marriage, separation and following dissolution and the like.
The financial agreement may involve other parties who have a
vested interest in the property or finances; e.g. relatives, business
partners, insolvency trustee.
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Clause 64. Financial agreements during marriage
This Clause allows parties to a same-sex marriage to enter into a
written financial agreement with each other during the course of
their marriage.
The agreement may refer to things such as how property and
financial resources will be dealt with following the breakdown of
marriage, maintenance of either of the parties to the same-sex
marriage and the like.
This Clause allows such an agreement to be made before or
after the marriage has broken down; i.e. while contentedly
married or after separation but while still married.
Such an agreement will terminate any earlier financial
agreement such as ones made under the previous Clause.
The agreement may include other parties, not just those to the
marriage. This recognises that there may be other interests in the
property or financial resources that are shared by the couple to
the same-sex marriage.
Clause 65. Financial agreements after dissolution order is
made
This Clause allows the parties to enter into a financial agreement
in respect of property and finances following dissolution of their
same-sex marriage.
It allows the parties to a dissolved same-sex marriage to agree to
split the property, deal with maintenance of the other spouse
and such without the need to go to court to seek an order,
although the court may need to ratify the agreement.
It is similar to the preceding Clauses in that other persons (other
than the parties to the same-sex marriage) may be parties to the
agreement. An agreement made under this Clause terminates
any earlier agreement.
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Clause 66. Need for separation declaration for certain
provisions of financial agreement to take effect
The Clause provides that where a financial agreement may be
activated upon the breakdown of a same-sex marriage then the
parties may need to declare in writing that they are separated
and living separately and apart in order for certain clauses of the
financial agreement to take effect.
Clause 67. Whether or when certain other provisions of
financial agreements take effect
This Clause provides that a financial agreement that is binding on
the parties cannot include an obligation of a third party to
contribute to maintenance of a spouse party to the marriage
during the course of the marriage.
The Clause also clarifies that where a financial agreement may
make provision for maintenance, this part of the agreement is of
no force or effect until the marriage breaks down.
Clause 68. Requirements with respect to provisions in
financial agreements relating to the maintenance of a
party or a child or children
This Clause sets out certain requirements that must be set out in
financial agreements in relation to maintenance.
The financial agreement must set out clearly who the party or
children are in respect of the maintenance provision and the
amount or other attribution that is to be made as maintenance
to that party or children.
If these matters are not clearly set out then the agreement may
be void.
Clause 69. Certain provisions in agreements
The Clause provides that a financial agreement made under this
Part cannot exclude or limit the power of a court to make orders
in respect to maintenance of a party to the same-sex marriage in
certain circumstances.
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Subclause 2 takes into account the circumstances of a party to a
same-sex marriage if they are unable to support themselves and
are reliant on an income tested pension, allowance or benefit
then an order for maintenance may be made despite any, and
in addition to, any financial agreement between the parties.
Subclause 3 clarifies that a financial agreement continues to
operate in respect of how the property or finances are to be
dealt with.
Clause 70. When financial agreements are binding
This Clause sets out how to ensure that a financial agreement is
binding.
Subclause 1 sets out a number of preconditions or requirements
that need to be undertaken before the agreement is binding.
These include that the parties must both sign the agreement,
take legal advice and such things.
Subclause 2 declares an agreement to be binding if certain
requirements, as mentioned in Subclause 1, are met and that it
would be unjust not to bind the parties.
The Clause also permits the court to declare a financial
agreement to be binding or not, upon application to the court
for enforcement.
Subclause 5 allows the court to make such order for the
enforcement of a financial agreement as it thinks necessary.
Clause 71. Effect of death of party to financial agreement
This Clause provides that a financial agreement continues to
operate and is binding in favour of one party even if the other
party has died. It then becomes binding on the estate.
Clause 72. Termination of financial agreement
This Clause allows the parties to agree to terminate a financial
agreement, including by making another financial agreement.
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Subclause 2 sets out the preconditions and requirements in order
to make a termination agreement. These include that the
agreement must be signed, and legal advice must be sought
about the advantages and disadvantages and the like before
the agreement is signed..
Subclause 3 declares that a termination agreement will be
binding if certain conditions are met. These include it has been
signed, legal advice has been obtained and the court is satisfied
it would be unjust not to give effect to the agreement.
Subclause 4 permits the court to make a declaration in respect
of a termination agreement, declaring that is binding or not.
Subclauses 5 and 6 provide for the enforcement of the
termination agreement.
Clause 73. Circumstances in which court may set aside a
financial agreement or termination agreement
Subclauses 1 to 3 allows the court to set aside a financial or
termination agreement if it is satisfied of certain criteria, such as
where the agreement was obtained by fraud, or the agreement
was prepared to defeat other interests such as creditors or a new
de-facto partner, it is void or unenforceable, it is impracticable to
enforce or new circumstances have arisen and the like.
Subclause 4 provides the court has powers under an application
to set aside to deal with property and resource as it considers fair
and equitable in to preserve rights of the parties.
Subclauses 5 and 6 also makes provision for what happens if a
party dies before proceeding are completed under this Clause.
The proceedings may continue against the estate if the court is
satisfied that this is appropriate.
Clause 74. Validity, enforceability and effect of financial
agreements and termination agreements
This Clause sets out the overarching principles that the court must
take into account when dealing with the validity, enforceability
and effect of financial agreements, including termination
agreements.
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The Clause specifically applies the principles of law and equity in
relation to contract law to the determination of any validity,
enforcement or effect of contract of a financial or termination
agreement.
PART 6 RECOGNITION OF SAME-SEX MARRIAGES UNDER
CORRESPONDING LAWS
Clause 75. Same-sex marriages registered under
corresponding laws
This Clause permits the State of Tasmanian to recognise same-sex
marriages from other Australian jurisdictions.
PART 7 AUTHORISED CELEBRANTS
Division 1 Officers of Tasmania
Clause 76. Authorisation of Tasmanian officers, &c.
This Clause provides that the Registrar of Births, Deaths and
Marriages may solemnise same-sex marriages.
Subclauses 2 and 3 allows the Minister responsible for the Same-
Sex Marriage Act to authorise State Service officers or employees
to solemnise same-sex marriage ceremonies subject to any
conditions.
Division 2 Same-sex marriage celebrants
Clause 77. Registrar of Same-Sex Marriage Celebrants
The Registrar of Births, Deaths and Marriages is to also act as the
Registrar of same-sex marriage celebrants and has the power to
do all things necessary or convenient in connection with that
function.
Subclause 2 permits the Registrar to delegate any of the
Registrar's function or powers in respect to same-sex marriage
celebrants to another person, but not the Registrar's power of
delegation.
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Clause 78. Register of Same-Sex Marriage Celebrants
Subclause 1 requires the Registrar to maintain a register of
authorised same-sex marriage celebrants.
Subclause 2 requires that the register be kept in such a way that
the Registrar thinks appropriate, including by electronic means.
Subclause 3 and 4 provides that the register may be open for
inspection and information contained in the register may be
disseminated in any other way the Registrar thinks appropriate.
Clause 79. Entitlement to be registered as a same-sex
marriage celebrant
Subclause 1 states that a person is only entitled to be registered
as a same-sex marriage celebrant if that person -
is aged over 18;
has appropriate skills and experience; and
is a fit and proper person.
Subclause 2 sets out the relevant criteria that the Registrar must
take into account in determining whether a person is a fit and
proper person.
Clause 80. Registration as a same-sex marriage celebrant
This Clause sets out the process for a person to apply to the
Registrar to be a same-sex marriage celebrant.
Subclause 1 requires an applicant to give the Registrar an
application form, statutory declarations as required and the
prescribed fee.
Subclauses 2 to 6 deal with the processes undertaken by the
Registrar in deciding to register a person or not as an authorised
same-sex marriage celebrant.
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If the Registrar of same-sex marriage celebrants decides not to
register a person as a same-sex marriage celebrant, the Registrar
must inform the applicant in writing of that decision and the
reasons for it. A person refused registration has the right under
this Act to apply for review of the decision.
Clause 81. Effect of registration
This Clause provides that once a person is registered as a same-
sex marriage celebrant he or she is able to solemnise same-sex
marriages in Tasmania.
Clause 82. Obligations of each same-sex marriage celebrant
The Clause requires same-sex marriage celebrants to conduct
themselves in accordance with a code of practice, to be
prescribed in regulations, and undertake professional
development. There is also an onus on the same-sex marriage
celebrant to notify the Registrar of any changes to his or her
registration details.
Clause 83. Performance reviews
This Clause requires the Registrar to conduct performance
reviews of same-sex marriage celebrants within 5 years of their
registration.
Subclause 4 sets out what the Registrar may take into account
when conducting a performance review.
Subclause 5 provides that the Registrar must not determine that a
same-sex marriage celebrant's performance was not satisfactory
unless he or she has given the same-sex marriage celebrant an
opportunity to make representations about such a decision.
Clause 84. Disciplinary measures
This Clause permits the Registrar to take disciplinary measures
against a same-sex marriage celebrant for a number of reasons
such as: a determination that their performance is not
satisfactory, as a result of a complaint that has been made and
upheld, or providing false information in the same-sex marriage
celebrant's application.
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Subclauses 2 to 4 set out what kind of disciplinary actions may be
taken, such as a written caution, direction to undertake
professional development, suspension for up to 6 months, or de-
registration, as well as notice provisions, a right to written reasons
for a decision and a right of review.
Clause 85. Review of decisions
This Clause provides for a review process that may be
undertaken in respect of any disciplinary action taken by the
Registrar in respect to a same-sex marriage celebrant. The
Clause provides for reviews to the made to the Magistrates
Courts (Administrative Appeals Divisions).
Subclause 2 sets a period after which the Registrar is taken to
have decided not to register a person, if that person has not
been registered as a same-sex marriage celebrant or notified
that their application has been refused.
Subclause 3 provides that the Registrar must take such action as
is necessary to give effect to the court's decision.
Clause 86. Additional functions of the Registrar
This Clause obliges the Registrar to do things such as amending
the same-sex marriage celebrant register as necessary, keep
proper records relating to same-sex marriage celebrants, setting
up a complaints resolution procedure and perform any
additional functions as specified in the regulations.
Clause 87. Registrar not liable for damages
This Clause provides statutory officer immunity to the Registrar of
same-sex marriage celebrants.
Clause 88. Evidence of registration, &c.
This Clause provides judicial and other recognition for certificates
signed by the Registrar of same-sex marriage celebrants about a
person's registration as a same-sex marriage celebrant (or not).
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PART 8 MISCELLANEOUS
Clause 89. Transactions to defeat claims
This Clause is aimed at preventing parties from doing acts aimed
at defeating an existing or anticipated order arising from a court
proceeding taken under this Act (i.e. hiding assets or income).
Subclause 2 deals with the power of the court to take action
where an earlier order of the court may have been defeated.
The court may order that other property or proceeds be
transferred to another party to adjust the property interest fairly or
pay costs.
Subclause 3 gives the court power to deal with colluding parties,
genuine purchasers of property that may be subject to court
action under this Act or other interested parties.
Clause 90. Interest of other parties
This Clause allows the court in exercising its powers to have
regard to the interests of genuine purchasers or other persons
and make orders that are proper for the protection of genuine
purchasers or other persons.
Clause 91. Restrictions on publication of court proceedings
This Clause restricts, in relation to court proceedings under the Bill,
the publication of information that identifies a party to
proceedings, 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
is a witness in the proceedings.
Subclause 2 provides that it is an offence for a person, unless
permitted to do so by the rules of a court, who published or
broadcasts a list of proceedings, identifying the names of the
parties.
Subclause 3 provides guidance about what sort of information is
likely to be considered as identifying a person.
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Subclause 4 requires that proceedings for an offence under this
Clause must not be commenced except by, or with the written
consent of, the Director of Public Prosecutions.
Subclause 5 specifies in what circumstances publication of
identifying information may be appropriate.
Clause 92. Regulations
This Clause provides the power to make regulations, including
prescribing fees.
Clause 93. Rules of Supreme Court
This Clause provides for the Supreme Court to make rules of court
for the way proceedings under this Act will be managed.
Clause 94. Rules of Magistrates Court
This Clause provides the Magistrates Court to make rules of court
for the way proceedings under this Bill will be managed.
Clause 95. Administration of Act
This Clause assigns portfolio responsibility of this Act to the
Department of Justice under the Minister for Justice.
Clause 96. Consequential amendments
This Clause provides for consequential amendments to other
Acts. The amendments are specified in Schedule 1.
SCHEDULE 1 CONSEQUENTIAL AMENDMENTS
Births, Deaths and Marriages Registration Act 1999
This Schedule provides for consequential amendments to the
Births, Deaths and Marriages Registration Act 1999.
New sections (31A, 31B and 31C) are to be inserted into the
Births, Deaths and Marriages Registration Act. These sections will
provide for the registration of same-sex marriages, in particular
that:
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If a same-sex marriage is solemnised in the State, the
marriage must be registered under the Same-Sex Marriage
Act 2012;
A person may have a same-sex marriage registered by
lodging with the Registrar a certificate of the marriage
under the Same-Sex Marriage Act; and
A same-sex marriage may be registered by including the
marriage certificate as part of the Register, or including
particulars of the marriage in the Register.