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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Legalisation of Same Sex Marriage
Consequential Amendments) Bill 2019
A BILL FOR
An Act to amend various Acts to remove gender specific language in relation
to marriage.
Contents
Part 2—Amendment of Births, Deaths and
Marriages Registration Act 1996
4Amendment of section 29I—Application to
change sex or gender identity
5Amendment of section 29O—Application for
identity acknowledgement certificate
Part 3—Amendment of Criminal Law
Consolidation Act 1935
6Amendment of section
78—Bigamy
7Amendment of section 79—Defences in cases
of bigamy
Part 4—Amendment of Electoral
Act 1985
8Amendment of section 70—Errors etc in
roll not to forfeit entitlement to vote
Part 5—Amendment of Evidence
Act 1929
9Amendment of section 16—Parties and their
spouses competent and compellable in civil proceedings
Part 6—Amendment of Family and
Community Services Act 1972
10Amendment of section
6—Interpretation
11Amendment of section 104—Order for
payment of preliminary expenses
14Amendment of section 245—Evidence of
spouses
Part 7—Amendment of Family
Relationships Act 1975
15Amendment of section 8—Presumption as to
parentage
16Amendment of section
10A—Interpretation
17Amendment of section 10C—Rules relating
to parentage
18Amendment of section 10HA—Recognised
surrogacy agreements
Schedule 1—Transitional
provisions
Part 8—Amendment of Judges' Pensions
Act 1971
20Amendment of section 9A—Spouse
entitlement subject to any Family Law determination
21Amendment of section 11—Minimum
pensions
22Amendment of section 17B—Purpose of this
Part
Part 9—Amendment of Law of Property
Act 1936
24Amendment of section 100—Assurance
policy by spouses
Part 10—Amendment of Limitation of
Actions Act 1936
25Amendment of section
3—Interpretation
26Amendment of section 32—Further
provisions as to application of Act to trusts
Part 11—Amendment of Parliamentary
Superannuation Act 1974
27Amendment of section
5—Interpretation
28Amendment of section 7A—Putative
spouses
Part 12—Amendment of Police
Superannuation Act 1990
29Amendment of section 4A—Putative
spouses
Part 13—Amendment of Real Property
Act 1886
30Amendment of section 69—Title of
registered proprietor indefeasible
31Amendment of section 111—Transfer by
registered proprietor to spouse etc
Part 14—Amendment of Relationships
Register Act 2016
13ACertain
registered relationships revoked on recognition of same sex
marriages
Part 15—Amendment of Settled Estates
Act 1880
33Amendment of section 44—Tenants for life
etc may grant leases for 21 years
34Amendment of section 45—Against whom
such leases shall be valid
Part 16—Amendment of
Solicitor-General Act 1972
35Amendment of section 9—Leave on
retirement
Part 17—Amendment of Southern State
Superannuation Act 2009
37Amendment of section 7—Putative
spouses
Part 18—Amendment of Stamp Duties
Act 1923
38Amendment of Schedule 2—Stamp duties and
exemptions
Part 19—Amendment of Superannuation
Act 1988
39Amendment of section 4A—Putative
spouses
Part 20—Amendment of Terrorism
(Preventative Detention) Act 2005
40Amendment of section 35—Contacting
family members etc
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Legalisation of Same
Sex Marriage Consequential Amendments) Act 2019.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Births, Deaths and Marriages Registration
Act 1996
4—Amendment
of section 29I—Application to change sex or gender
identity
Section 29I(3)—delete subsection (3)
5—Amendment
of section 29O—Application for identity acknowledgement
certificate
Section 29O(3)—delete subsection (3)
Part 3—Amendment
of Criminal Law Consolidation
Act 1935
6—Amendment
of section 78—Bigamy
Section 78—delete "his or her wife or husband shall be" and
substitute:
the person's spouse is
7—Amendment
of section 79—Defences in cases of bigamy
Section 79(a)—delete "husband or wife" and substitute:
spouse
Part 4—Amendment
of Electoral
Act 1985
8—Amendment
of section 70—Errors etc in roll not to forfeit entitlement to
vote
Section 70(2)—delete subsection (2) and substitute:
(2) No elector is disqualified from voting under the name appearing in the
roll because the elector's name has been changed by marriage.
Part 5—Amendment
of Evidence
Act 1929
9—Amendment
of section 16—Parties and their spouses competent and compellable in civil
proceedings
Section 16—delete "husbands and wives" and substitute:
spouses
Part 6—Amendment
of Family and Community Services
Act 1972
10—Amendment
of section 6—Interpretation
Section 6(2)—delete subsection (2) and substitute:
(2) For the purposes of this Act, where a marriage exists between
2 persons, whether the marriage is monogamous or polygamous, the persons
will, if the marriage is lawful and valid in the place in which it was
solemnised, be regarded as spouses.
11—Amendment
of section 104—Order for payment of preliminary
expenses
Section 104(1)(a)—delete "husband" wherever occurring and substitute
in each case:
spouse
12—Amendment
of section 140—Evidence of mother as to paternity of child born outside
marriage etc not to be accepted without corroboration except in certain
cases
Section 140—delete "husband" wherever occurring and substitute in
each case:
spouse
13—Amendment
of section 211—Power to make provisional order against person resident in
reciprocating country
Section 211(1)(a) and (b)—delete paragraphs (a) and (b) and
substitute:
(a) against a person for the maintenance of the person's spouse;
or
14—Amendment
of section 245—Evidence of spouses
Section 245—delete "wife or husband" and substitute:
spouse
Part 7—Amendment
of Family Relationships
Act 1975
15—Amendment
of section 8—Presumption as to parentage
(1) Section 8(1)—after "her marriage" insert:
or qualifying relationship
(2) Section 8(1)—after "the marriage" insert:
or qualifying relationship
(3) Section 8(1)—delete "husband or domestic partner or former
husband or domestic partner" and substitute:
spouse or partner or former spouse or partner
(4) Section 8(2)—delete subsection (2) and substitute:
(2) In this section—
qualifying relationship has the same meaning as in Part
2A.
16—Amendment
of section 10A—Interpretation
(1) Section 10A(1), definition of married woman or
wife—delete the definition
(2) Section 10A(1), definition of qualifying
relationship—after "identity)" insert:
, and includes a relationship that is registered under the
Relationships
Register Act 2016
(3) Section 10A(2)—delete subsection (2) and substitute:
(2) A reference in this Part to the spouse of a woman is,
where the woman has a lawful spouse but is living with another person as that
person's partner on a genuine domestic basis, to be construed as a reference to
the person with whom she is living and not the lawful spouse.
(4) Section 10A(3)—delete "domestic" wherever occurring
17—Amendment
of section 10C—Rules relating to parentage
(1) Section 10C(3)—delete "husband or domestic" wherever occurring
and substitute in each case:
spouse or
(2) Section 10C(3)(b)(i)—delete "husband or male domestic" and
substitute:
male spouse or
(3) Section 10C(3a)—delete subsection (3a)
(4) Section 10C(4)(b)—delete "husband" and substitute:
spouse
(5) Section 10C(4)(b)—delete "domestic"
(6) Section 10C(5)(b)—delete "husband" and substitute:
spouse
(7) Section 10C(6)—delete "husband or domestic partner" and
substitute:
woman's spouse, or partner with whom she is in a qualifying
relationship,
(8) Section 10C(6)—delete "a woman" and substitute:
the woman
18—Amendment
of section 10HA—Recognised surrogacy agreements
(1) Section 10HA(1), definition of husband—delete the
definition
(2) Section 10HA(1), definition of married
woman—delete the definition
(3) Section 10HA(1), definition of Minister—delete the
definition and substitute:
qualifying relationship has the same meaning as in Part
2A.
(4) Section 10HA—after subsection (1) insert:
(1a) A reference in this Part to the spouse of a woman is,
where the woman has a lawful spouse but is living with another person as that
person's partner on a genuine domestic basis, to be construed as a reference to
the person with whom she is living and not the lawful spouse.
(5) Section 10HA(2a)(a)(i)—delete "a married woman, her husband" and
substitute:
married or in a qualifying relationship, her spouse or partner (as the case
may be)
(6) Section 10HA(2a)(g)(i)—delete "her husband or partner (if any)"
and substitute:
, if she is married or in a qualifying relationship, her spouse or partner
(as the case may be)
(7) Section 10HA(2a)(k)—delete "her husband or partner (if any)" and
substitute:
, if she is married or in a qualifying relationship, her spouse or partner
(as the case may be)
(8) Section 10HA(2a)(k)—delete "husband" second occurring and
substitute:
spouse
(9) Section 10HA(6)(c)—delete "relevant, her husband or partner" and
substitute:
she is married or in a qualifying relationship, her spouse or partner (as
the case may be)
After section 15 insert:
Schedule 1—Transitional
provisions
1—Transitional provisions (Statutes Amendment
(Legalisation of Same Sex Marriage Consequential Amendments)
Act 2019)
(1) A reference to a husband in section 10C(3) as in force
immediately before the commencement of the amending Act will, during the
prescribed period, be taken to have been a reference to a spouse.
(2) To avoid doubt, a partner of a woman who was taken to be a father or
co-parent of a child born as a result of the woman's pregnancy in consequence of
a fertilisation procedure under section 10C(3a) as in force immediately
before the commencement of the amending Act will continue to be taken to be the
father or co-parent (as the case may be) of that child notwithstanding the
repeal of section 10C(3a) by the amending Act.
(3) A female spouse or partner of a surrogate mother may only be a party
to a recognised surrogacy agreement for the purposes of
section 10HA(2a)(a)(i) as amended by the amending Act if that agreement was
entered into after the commencement of this clause.
(4) In this section—
amending Act means the
Statutes
Amendment (Legalisation of Same Sex Marriage Consequential Amendments)
Act 2019
;
prescribed period means the period commencing on the
recognition day and ending on the day before the amending Act
commenced;
recognition day means the day on which Part 1 of
Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms)
Act 2017 of the Commonwealth commenced.
Part 8—Amendment
of Judges' Pensions
Act 1971
20—Amendment
of section 9A—Spouse entitlement subject to any Family Law
determination
Section 9A—after "spouse" insert:
or domestic partner
21—Amendment
of section 11—Minimum pensions
Section 11(2)—delete "widow" and substitute:
surviving spouse or domestic partner
22—Amendment
of section 17B—Purpose of this Part
Section 17B—after "spouses" insert:
or domestic partners
23—Amendment
of section 17K—Pension not payable to spouse or domestic partner on death
of Judge if split has occurred
Section 17K—after "spouse" wherever occurring insert:
or domestic partner
Part 9—Amendment
of Law of Property
Act 1936
24—Amendment
of section 100—Assurance policy by spouses
Section 100(1)—delete subsection (1) and substitute:
(1) A policy of
assurance effected by a person on the person's own life, and expressed to be for
the benefit of the person's spouse or children, or of the person's spouse and
children, or any of them, creates a trust in favour of the objects named in the
policy.
(1a) The money payable under a policy referred to in
subsection (1)
will not, so long as any of the trust remains unperformed, form part of
the estate of the insured, or be subject to the insured's debts.
Part 10—Amendment
of Limitation of Actions
Act 1936
25—Amendment
of section 3—Interpretation
Section 3(1), definition of person through whom another person
claims—delete "husband" and substitute:
spouse
26—Amendment
of section 32—Further provisions as to application of Act to
trusts
Section 32(1)(b)—delete "shall run against a married woman entitled
in possession for her separate use, whether with or without a restraint upon
anticipation, but"
Part 11—Amendment
of Parliamentary Superannuation
Act 1974
27—Amendment
of section 5—Interpretation
Section 5(1), definition of spouse pension, (a)—delete
"widow or widower" and substitute:
surviving spouse
28—Amendment
of section 7A—Putative spouses
(1) Section 7A(1)(a)—delete "he or she is, on that date,
cohabitating with the other person as his or her wife or husband de facto" and
substitute:
the person is, on that date, cohabiting with the other person as that
person's de facto spouse
(2) Section 7A(1)(b)—delete paragraph (b)
Part 12—Amendment
of Police Superannuation
Act 1990
29—Amendment
of section 4A—Putative spouses
(1) Section 4A(1)(a)—delete "he or she is, on that date,
cohabitating with the other person as his or her wife or husband de facto" and
substitute:
the person is, on that date, cohabiting with the other person as that
person's de facto spouse
(2) Section 4A(1)(b)—delete paragraph (b)
Part 13—Amendment
of Real Property
Act 1886
30—Amendment
of section 69—Title of registered proprietor
indefeasible
Section 69(g)—delete paragraph (g)
31—Amendment
of section 111—Transfer by registered proprietor to spouse
etc
Section 111—delete "wife or husband" and substitute:
spouse
Part 14—Amendment
of Relationships Register
Act 2016
After section 13 insert:
13A—Certain registered relationships revoked on
recognition of same sex marriages
(1) This section applies to a registered relationship existing immediately
before the recognition day if a person in the registered relationship was party
to a recognised same sex marriage on the recognition day.
(2) The registration of a registered relationship to which this section
applies was, by force of this section, revoked on the recognition day.
(3) If the Registrar becomes aware that a registered relationship was
revoked under this section, the Registrar must note that fact in the
Register.
(4) In this section—
recognised same sex marriage means a marriage
that—
(a) was solemnised before the recognition day; and
(b) was recognised in Australia as valid on the recognition day because of
Part 5 of Schedule 1 to the Marriage Amendment (Definition and
Religious Freedoms) Act 2017 of the Commonwealth; and
(c) would not have been recognised apart from that Part;
recognition day means the day on which Part 5 of
Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms)
Act 2017 of the Commonwealth commenced.
Part 15—Amendment
of Settled Estates
Act 1880
33—Amendment
of section 44—Tenants for life etc may grant leases for
21 years
(1) Section 44—delete ", either in his own right or in the right of
his wife"
(2) Section 44—delete "; and also any person entitled to the
possession or to the receipt of the rents and profits of any unsettled estates
in right of a wife who is seized in fee"
34—Amendment
of section 45—Against whom such leases shall be valid
(1) Section 45—delete "against the wife of any husband granting such
lease of estates to which he is entitled in right of such wife, and"
(2) Section 45—delete "wife or husband (as the case may be)" and
substitute:
spouse
Part 16—Amendment
of Solicitor-General
Act 1972
35—Amendment
of section 9—Leave on retirement
Section 9(6), definition of members of the
family—delete "widow or widower" and substitute:
surviving spouse
36—Amendment
of section 10—Pension rights of Solicitor-General and application of
Judges' Pensions
Act 1971
Section 10(2)—delete "widow" and substitute:
surviving spouse
Part 17—Amendment
of Southern State Superannuation
Act 2009
37—Amendment
of section 7—Putative spouses
(1) Section 7(1)(a)—delete "he or she is, on that date, cohabitating
with the other person as his or her wife or husband de facto" and
substitute:
the person is, on that date, cohabiting with the other person as that
person's de facto spouse
(2) Section 7(1)(b)—delete paragraph (b)
Part 18—Amendment
of Stamp Duties
Act 1923
38—Amendment
of Schedule 2—Stamp duties and exemptions
(1) Schedule 2, Part 2, clause 16, item 23(2), definition of
prescribed person, paragraph (e)—delete "widow" and
substitute:
surviving spouse
(2) Schedule 2, Part 2, clause 16, item 23(2), definition of
prescribed person, paragraph (e)—delete "his" and
substitute:
their
Part 19—Amendment
of Superannuation
Act 1988
39—Amendment
of section 4A—Putative spouses
(1) Section 4A(1)(a)—delete "he or she is, on that date,
cohabitating with the other person as his or her wife or husband de facto" and
substitute:
the person is, on that date, cohabiting with the other person as that
person's de facto spouse
(2) Section 4A(1)(b)—delete paragraph (b)
Part 20—Amendment
of Terrorism (Preventative Detention)
Act 2005
40—Amendment
of section 35—Contacting family members etc
Section 35(3), definition of family member, (a)—delete
", de facto spouse or same sex partner" and substitute:
or de facto spouse