4

In Australia:

  1. Same sex marriage is not currently legal. This extends even to same sex marriages from other countries, which "must not be recognised as a marriage in Australia".

  2. At both the federal and state levels, there is broad support for officially changing your gender.

  3. There is case law affirming the marriage of a transman and a woman as valid.

But how does Australia law consider a marriage between two persons, who at the time of their marriage were officially identified as a man and a woman, but subsequently one of whom transitioned?

If they officially change their gender, and so are considered by law to be that new gender, is their marriage, which is now effectively a same sex marriage, still considered a valid marriage?

Or, in the states with civil unions, would the couple now be considered only to be in a civil union rather than a marriage? (And for the states without civil unions, would they be considered to be in only a de facto relationship?)

3

There is a report about a male-to-female transgender woman here: http://www.abc.net.au/radionational/programs/lawreport/2017-06-27/8651398#transcript

She managed to do the following: 1. While legally being a male, she got a preliminary passport as a woman so she could travel to Thailand, have an operation, and not run into trouble returning with a male passport and a female body. 2. While legally still being male, but with a female body, she married a woman in Australia. That was fine because legally she was male. 3. She has received a passport as a female. 4. She was refused a change of her birth certificate as long as she is married.

So the current state is: She is (in fact, biologically) a woman. She is married to a woman in Australia. That marriage is perfectly legal, however, it is officially a marriage between a man and a woman. She has a woman's passport. The Australian government cannot and doesn't want to do anything to make her marriage illegal. BUT she cannot change her birth certificate without getting divorced first, and if she got divorced and changed her birth certificate, she couldn't remarry the same woman, or any other woman.

  • So the birth certificate and passport don't have to match! Very interesting. I guess this would be because of different state vs federal laws. – curiousdannii Jul 27 '17 at 9:54
  • The article says this is because totally different parts of the law / government are responsible. One part responsible for passports, one part responsible for anything family related, like marriage and birth certificates. And these guys insist that marital status and birth certificate must match. – gnasher729 Jul 27 '17 at 12:43
2

The current state of the law in NSW is that a person who is currently married cannot legally change their gender. See this ABC Law Report programme.

  • Interesting. I know of a case which implies this is not the case in Queensland. – curiousdannii Jul 25 '17 at 23:13
  • @curiousdannii Before same sex marriage was legalized, there were a smattering of cases where it happened anyway, because the officials didn't care about legal prohibitions and none of the parties appealed or challenged the validity of the marriage. This could be what you are seeing in Queensland. – ohwilleke Jul 26 '17 at 0:15
  • 1
    @ohwilleke Same sex marriage was legalized in Australia? Surely that would have been on the news somewhere? – Dale M Jul 26 '17 at 0:20
  • @DaleM Not in Australia, in the places where it was subsequently legalized. – ohwilleke Jul 26 '17 at 0:22
  • gnasher729 has given a better summary of the ABC Law Report story, which indicates that passport gender changes are allowed while married, but not birth certificate changes. – curiousdannii Jul 27 '17 at 10:04

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