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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
SAME-SEX MARRIAGE BILL 2012
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
4. Acts binds Crown
PART 2 - SAME-SEX MARRIAGE
Division 1 - Application of Part
5. Application of Part
Division 2 - Same-sex marriage
6. Same-sex marriageable age
Division 3 - Void same-sex marriages
7. Grounds on which same-sex marriages are void
Division 4 - Solemnisation of same-sex marriages in Tasmania
8. Same-sex marriages to be solemnised by authorised celebrant
9. Notices to be given and declaration made
10. Interpreters at same-sex marriage ceremonies
11. Same-sex marriage may be solemnised on any day, &c.
12. Witnesses
13. Authorised celebrants to explain nature of same-sex marriage
relationship
[Bill 41]-I
14. Form of ceremony
15. Certain same-sex marriages not solemnised in accordance with
this Part to be invalid
16. Second same-sex marriage ceremonies
17. Marriage certificates
18. Incorrect marriage certificates
Division 5 - Offences
19. Married person not to go through form or ceremony of same-sex
marriage with any person
20. Marrying person not of marriageable age, &c.
21. Solemnising same-sex marriage where notice or declaration not
given or made, &c.
22. Solemnising same-sex marriage where reason to believe there is
a legal impediment
23. Going through ceremony of same-sex marriage before person
not authorised to solemnise it
24. Giving defective notice, &c.
25. Failure to comply with notice under section 18
26. Failure by interpreter to furnish certificate, &c.
PART 3 - DISSOLUTION AND NULLITY OF SAME-SEX MARRIAGE
27. Jurisdiction of Supreme Court
28. Institution of proceedings
29. Application for dissolution order
30. Meaning of separation
31. Effect of resumption of cohabitation
32. Nullity of same-sex marriage
33. Supreme Court not to make dissolution order where application
for decree of nullity before it
34. Circumstances occurring before commencement of Act or
outside Tasmania
35. When dissolution order takes effect
36. Certificate as to dissolution order
37. Rescission of dissolution order where parties reconciled
2
38. Rescission of dissolution order on ground of miscarriage of
justice
39. Re-marriage
40. Void same-sex marriage because of marriage
PART 4 - PROCEEDINGS FOR FINANCIAL ADJUSTMENT AND
MAINTENANCE
Division 1 - Preliminary
41. Interpretation
42. Application for adjustment of interests or maintenance
43. Time limit for making application
44. Order to end financial relationship
Division 2 - Adjustment of interest in property
45. Order for adjustment
46. Adjournment because of significant change in circumstances
47. Adjournment because of proceedings in Family Court
48. Deferment of order
49. Death before order made
50. Death after order made
Division 3 - Maintenance
51. Order for maintenance
52. Interim maintenance
53. Cessation of order
54. Notification of change of circumstances
55. Recovery of arrears
56. Variation of order for periodic maintenance
57. Other maintenance orders not to be varied
Division 4 - General
58. Orders of court
59. Execution of instruments
60. Ex parte orders
61. Variation and setting aside of orders
3
PART 5 - FINANCIAL AGREEMENTS
62. Interpretation: Part 5
63. Financial agreements before same-sex marriage
64. Financial agreements during same-sex marriage
65. Financial agreements after dissolution
66. Need for separation declaration for certain provisions of
financial agreement to take effect
67. Whether or when certain other provisions of financial
agreements take effect
68. Requirements with respect to provisions in financial agreements
relating to the maintenance of a party or a child or children
69. Certain provisions in agreements
70. When financial agreements are binding
71. Effect of death of party to financial agreement
72. Termination of financial agreement
73. Circumstances in which court may set aside a financial
agreement or termination agreement
74. Validity, enforceability and effect of financial agreements and
termination agreements
PART 6 - RECOGNITION OF SAME-SEX MARRIAGES UNDER
CORRESPONDING LAWS
75. Same-sex marriages registered under corresponding laws
PART 7 - AUTHORISED CELEBRANTS
Division 1 - Officers of Tasmania
76. Authorisation of Tasmanian officers, &c.
Division 2 - Same-sex marriage celebrants
77. Registrar of same-sex marriage celebrants
78. Register of same-sex marriage celebrants
79. Entitlement to be registered as same-sex marriage celebrant
80. Registration as same-sex marriage celebrant
81. Effect of registration
82. Obligations of each same-sex marriage celebrant
4
83. Performance reviews
84. Disciplinary measures
85. Review of decisions
86. Additional functions of Registrar
87. Registrar not liable for damages
88. Evidence of registration, &c.
PART 8 - MISCELLANEOUS
89. Transactions to defeat claims
90. Interests of other parties
91. Restrictions on publication of court proceedings
92. Regulations
93. Rules of Supreme Court
94. Rules of Magistrates Court
95. Administration of Act
96. Consequential amendments
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
5
6
SAME-SEX MARRIAGE BILL 2012
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
P. R. ALCOCK, Clerk of the House
30 August 2012
(Brought in by the Premier, the Honourable Larissa Tahireh
Giddings and the Leader of the Greens, the Honourable
Nicholas James McKim)
A BILL FOR
An Act to provide for marriage equality by allowing for
marriage between adults of the same sex
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Same-Sex Marriage
Act 2012.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 41] 7
Same-Sex Marriage Act 2012
Act No. of
s. 3 Part 1 - Preliminary
3. Interpretation
In this Act, unless the contrary intention
appears -
applicant includes a cross-applicant and a
petitioner or cross-petitioner;
authorised celebrant means -
(a) a person authorised to solemnise
same-sex marriages by virtue of
Division 1 of Part 7; or
(b) a same-sex marriage celebrant
registered under Division 2 of
Part 7;
dissolution order means an order made under
section 29;
financial agreement - see sections 63, 64 and
65;
proceedings means proceedings 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 person holding office as
Registrar under the Births, Deaths and
Marriages Registration Act 1999;
regulations means regulations made under
section 92;
8
Same-Sex Marriage Act 2012
Act No. of
Part 1 - Preliminary s. 4
rules of court means rules of court made
under section 93 or 94;
same-sex marriage means the lawful union of
two people of the same sex, to the
exclusion of all others, voluntarily
entered into for life;
same-sex marriage celebrant means a person
registered under Division 2 of Part 7;
same-sex marriageable age - see section 6;
termination agreement - see section 72.
4. Acts binds Crown
This Act binds the Crown in right of Tasmania.
9
Same-Sex Marriage Act 2012
Act No. of
s. 5 Part 2 - Same-Sex Marriage
PART 2 - SAME-SEX MARRIAGE
Division 1 - Application of Part
5. Application of Part
(1) This Part applies, notwithstanding any common
law rule of private international law, in relation
to same-sex marriages.
(2) This Part applies to and in relation to all same-
sex marriages solemnised, or intended to be
solemnised, in Tasmania.
Division 2 - Same-sex marriage
6. Same-sex marriageable age
A person is of same-sex marriageable age if the
person has attained the age of 18 years.
Division 3 - Void same-sex marriages
7. Grounds on which same-sex marriages are void
(1) A same-sex marriage is void at the time the
same-sex marriage is entered into if -
(a) either of the parties was, at the time of
the same-sex marriage, lawfully married
to some other person; or
(b) the parties are within a prohibited
relationship; or
10
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 7
(c) by reason of section 15, the same-sex
marriage is not a valid same-sex
marriage; or
(d) the consent of either of the parties was
not a real consent because -
(i) it was obtained by duress or
fraud; or
(ii) that party was mistaken as to the
identity of the other party or as to
the nature of the ceremony
performed; or
(iii) that party was mentally incapable
of understanding the nature and
effect of the same-sex marriage
ceremony; or
(e) 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
11
Same-Sex Marriage Act 2012
Act No. of
s. 7 Part 2 - Same-Sex Marriage
that purpose, the relationship between an
adopted child and the adoptive parent, or each of
the adoptive parents, of the child, is taken to be
or to have been the natural relationship of child
and parent.
(4) For the purposes of this section -
(a) a person who has at any time been
adopted by another person is taken to
remain the adopted child of that other
person notwithstanding that any order by
which the adoption was effected has been
annulled, cancelled or discharged or that
the adoption has for any other reason
ceased to be effective; and
(b) a person who has been adopted on more
than one occasion is taken to be the
adopted child of each person by whom
he or she has been adopted.
(5) For the purposes of 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.
12
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 8
Division 4 - Solemnisation of same-sex marriages in
Tasmania
8. Same-sex marriages to be solemnised by authorised
celebrant
(1) A same-sex marriage must be solemnised by an
authorised celebrant.
(2) Nothing in this Act prevents such an authorised
celebrant from making it a condition of his or
her solemnising a same-sex marriage that -
(a) longer notice of intention to marry than
that required by this Act is given; or
(b) requirements additional to those provided
by this Act are observed.
9. Notices 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
one month before the date of the same-
sex marriage; and
13
Same-Sex Marriage Act 2012
Act No. of
s. 9 Part 2 - Same-Sex Marriage
(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 the
Commonwealth or 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 marital status; and
(ii) the party's belief that there is no
legal impediment to the same-sex
marriage; and
14
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 9
(iii) such other matters as are
prescribed.
(2) A notice under subsection (1) -
(a) is to 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 commissioner for declarations
under the Oaths Act 2001.
(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 is, if it is signed by the
first-mentioned party in the presence of an
authorised celebrant before the same-sex
marriage is solemnised, taken to 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
15
Same-Sex Marriage Act 2012
Act No. of
s. 9 Part 2 - Same-Sex Marriage
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 given under
subsection (1), give to the parties a document in
the form approved by the Registrar outlining the
obligations and consequences of same-sex
marriage and indicating the availability of same-
sex marriage education and counselling.
(6) Where, by reason of the death, absence or illness
of an authorised celebrant to whom a notice
under subsection (1) 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 one
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
16
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 9
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.
(11) If the declaration made by a party under
subsection (1) states that that party was a party
to a same-sex marriage that has been dissolved
17
Same-Sex Marriage Act 2012
Act No. of
s. 10 Part 2 - Same-Sex Marriage
or declared void, an authorised celebrant must
not solemnise the same-sex marriage unless
there is produced to him or her evidence of the
dissolution of the same-sex marriage or a
declaration that the same-sex marriage is void.
10. Interpreters at same-sex marriage ceremonies
(1) Subject to this section, where the authorised
celebrant by whom a same-sex marriage is to be
solemnised considers that it is desirable to do so,
the authorised celebrant may use the services of
an interpreter, not being a party to the same-sex
marriage, in or in connection with the ceremony.
(2) An authorised celebrant must not solemnise a
same-sex marriage in or in connection with the
ceremony for which the services of an interpreter
are used unless the authorised celebrant has
received a statutory declaration by the interpreter
stating that the interpreter understands, and is
able to converse in, the languages in respect of
which he or she is to act as interpreter.
(3) A person who has acted as interpreter in or in
connection with a ceremony of same-sex
marriage must as soon as practicable after the
ceremony has been solemnised, furnish to the
authorised celebrant solemnising the same-sex
marriage a certificate signed by the first-
mentioned person, in the prescribed form, of the
faithful performance of the first-mentioned
person's services as interpreter.
18
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 11
11. Same-sex marriage may be solemnised on any day,
&c.
A same-sex marriage may be solemnised on any
day, at any time and at any place in Tasmania.
12. Witnesses
A same-sex marriage must not be solemnised
unless at least 2 persons who have, or appear to
the person solemnising the same-sex marriage to
have, attained the age of 18 years are present as
witnesses.
13. Authorised celebrants to explain nature of same-sex
marriage relationship
Before a same-sex marriage is solemnised by an
authorised celebrant, the authorised celebrant is
to say to the parties, in the presence of the
witnesses, the following words:
"I am duly authorised under the Same-
Sex Marriage Act 2012 made by the
Parliament of Tasmania to solemnise
same-sex marriages".
"Before you are duly wed in my presence
and the presence of these witnesses, I
remind you of the solemn and binding
nature of the relationship into which you
are about to enter".
19
Same-Sex Marriage Act 2012
Act No. of
s. 14 Part 2 - Same-Sex Marriage
"According to the Same-Sex Marriage
Act 2012, this wedding recognises that
you are voluntarily entering into a lawful
and binding union, for life, to the
exclusion of all others".
14. Form of ceremony
(1) If a same-sex marriage is solemnised by an
authorised celebrant, being a minister of religion,
it may be solemnised according to any form and
ceremony recognised as sufficient for the
purpose of the religious body or organisation of
which he or she is a minister.
(2) If a same-sex marriage is solemnised by 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 you,
C.D. (or A.B.), to be my lawful wedded
spouse" -
or words to that effect.
(3) If a same-sex marriage has been solemnised by
an authorised celebrant, a certificate of the same-
sex marriage prepared and signed in accordance
with section 17 is conclusive evidence that the
same-sex marriage was solemnised in
accordance with this section.
20
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 15
(4) Nothing in subsection (3) makes a certificate
conclusive -
(a) where the fact that the same-sex marriage
ceremony took place is in issue, as to that
fact; or
(b) where the identity of a party to the same-
sex marriage is in issue, as to the identity
of that party.
15. Certain same-sex marriages not solemnised in
accordance with this Part to be invalid
(1) Subject to this section, a same-sex marriage
solemnised otherwise than in accordance with
sections 8 to 14 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
21
Same-Sex Marriage Act 2012
Act No. of
s. 16 Part 2 - Same-Sex Marriage
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 12 or 13.
(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 is taken to have been sufficient if they
were such as to show an intention on the part of
each of the parties to become by the
solemnisation the lawfully wedded spouse of the
other.
16. Second same-sex marriage ceremonies
(1) Except in accordance with this section -
(a) persons who are already parties to a valid
same-sex marriage with each other must
not go through a form or ceremony of
same-sex marriage with each other; and
(b) an authorised celebrant must not purport
to solemnise a same-sex marriage
between persons who -
22
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 16
(i) inform the first-mentioned person
that they are parties to a valid
same-sex marriage with each
other; or
(ii) who the first-mentioned person
knows, or has reason to believe,
are already parties to a valid
same-sex marriage with each
other.
(2) If -
(a) two persons have gone through a form or
ceremony of same-sex marriage with
each other; and
(b) there is a doubt -
(i) whether those persons are parties
to a valid same-sex marriage with
each other; or
(ii) 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 two persons wish to go through a form or
ceremony of same-sex marriage with each other
in pursuance of subsection (2), they must furnish
23
Same-Sex Marriage Act 2012
Act No. of
s. 16 Part 2 - Same-Sex Marriage
to the person by whom the form or ceremony is
to 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 an Australian legal
practitioner, being a certificate endorsed
on the statutory declaration, that, on the
facts stated in the declaration, there is, in
his or her opinion, a doubt as to one of
the matters specified in subsection (2)(b).
(4) The person by whom a form or ceremony of
same-sex marriage is performed in pursuance of
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 in
pursuance of 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 is taken to prevent two
persons who are already parties to a valid same-
sex marriage with each other from going through
a religious ceremony of same-sex marriage with
each other where those persons have -
24
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 16
(a) produced to the person by whom 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 parties to a valid
same-sex marriage with each
other.
(7) The provisions of sections 9, 12, 17 and 18 do
not apply to or in relation to a religious
ceremony of same-sex marriage in accordance
with subsection (6) and the person by whom the
ceremony is performed is not to -
(a) prepare or issue in respect of it any
certificate of same-sex marriage under
this Act; or
(b) issue any other document to the parties in
respect of the ceremony unless the
parties are described in the document as
25
Same-Sex Marriage Act 2012
Act No. of
s. 17 Part 2 - Same-Sex Marriage
being already parties to a valid same-sex
marriage with each other.
(8) A person who is not an authorised celebrant does
not commit an offence against section 21 by
reason only of his or her having performed a
religious ceremony of same-sex marriage
between parties who have complied with the
requirements of subsection (6).
17. 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) Notwithstanding subsection (1)(b), the
regulations may provide that an authorised
celebrant who is a person authorised to
solemnise same-sex marriages by virtue of
Division 1 of Part 7 is to prepare only one
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 have, or
26
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 17
appear to the authorised celebrant to have,
attained 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 declaration
made by the parties under section 9.
(5) The authorised celebrant must hand the
certificate referred to in subsection (1)(a) to one
of the parties to the same-sex marriage on behalf
of the parties, and -
(a) if two 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 statutory
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 one official certificate has been
prepared, retain that certificate and deal
with it in accordance with the
regulations.
27
Same-Sex Marriage Act 2012
Act No. of
s. 18 Part 2 - Same-Sex Marriage
(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 Registrar thinks it necessary to
do so, the Registrar 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
Registrar 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 certificate of same-sex marriage previously
forwarded in pursuance of this section.
18. Incorrect marriage certificates
(1) If the Registrar is satisfied, by statutory
declaration or otherwise, that any particular in a
certificate of same-sex marriage prepared and
signed under section 17 is incorrect, the
Registrar 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
28
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 19
(b) in the case of a certificate that has been
forwarded to the Registrar, certify 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, the Registrar 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 Registrar 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, the
Registrar may, by notice in writing served on a
party to the same-sex marriage, require the party
to deliver or forward to the Registrar, 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 17(5), to be
handed to a party to the same-sex marriage.
Division 5 - Offences
19. Married person not to go through form or
ceremony of same-sex marriage with any person
(1) A person who is married must not go through a
form or ceremony of same-sex marriage with
any person.
29
Same-Sex Marriage Act 2012
Act No. of
s. 19 Part 2 - Same-Sex Marriage
Penalty: Imprisonment for a term not exceeding
5 years.
(2) It is a defence to a prosecution for an offence
against subsection (1) if the defendant proves
that -
(a) at the time of the alleged offence, the
defendant believed that his or her spouse
was dead; and
(b) the defendant's spouse had been absent
from the defendant for such time and in
such circumstances as to provide, at the
time of the alleged offence, reasonable
grounds for presuming that the
defendant's spouse was dead.
(3) For the purposes of subsection (2), proof by a
defendant that the defendant's spouse had been
continually absent from the defendant for the
period of 7 years immediately preceding the date
of the alleged offence and that, at the time of the
alleged offence, the defendant had no reason to
believe that the defendant's spouse had been
alive at any time within that period is sufficient
proof of the matters referred to in
subsection (2)(b).
(4) To avoid doubt, section 14 of the Criminal Code
(mistake of fact) does not apply in relation to the
matters mentioned in subsections (2) and (3).
(5) A person must not go through a form or
ceremony of same-sex marriage with a person
who is married, knowing, or having reasonable
30
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 20
grounds to believe, that the latter person is
married.
Penalty: Imprisonment for a term not exceeding
5 years.
(6) It is not an offence against this section for a
person to go through a form or ceremony of
same-sex marriage with that person's own
spouse.
(7) In a prosecution for an offence against this
section, the defendant's spouse is a competent
and compellable witness for either the
prosecution or the defence.
(8) In a prosecution for an offence against this
section, the fact that, at the time of the alleged
offence, a person was married is not to be taken
to have been proved if the only evidence of the
fact is the evidence of the other party to the
alleged marriage.
20. Marrying person not of marriageable age, &c.
A person must not go through a form or
ceremony of same-sex marriage with a person
who is not of marriageable age.
Penalty: Imprisonment for a term not exceeding
5 years.
31
Same-Sex Marriage Act 2012
Act No. of
s. 21 Part 2 - Same-Sex Marriage
21. Solemnising same-sex marriage where notice or
declaration not given or made, &c.
(1) An authorised celebrant must not solemnise a
same-sex marriage under Division 4 of Part 2 in
contravention of section 9 or 12.
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
(2) A person must not solemnise a same-sex
marriage in contravention of section 10.
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
(3) A person must not solemnise a same-sex
marriage if that person is not an authorised
celebrant.
Penalty: Fine not exceeding 500 penalty units
or imprisonment for a term not
exceeding 2 years, or both.
(4) An authorised celebrant must not, otherwise than
in accordance with section 16, purport to
solemnise a same-sex marriage between persons
who inform the authorised celebrant that they are
already legally married to each other or who the
authorised celebrant knows, or has reason to
believe, are already legally married to each
other.
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Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 22
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
22. Solemnising same-sex marriage where reason to
believe there is a legal impediment
An authorised celebrant must not solemnise a
same-sex marriage, or purport to solemnise a
same-sex marriage, if the authorised celebrant
has reason to believe that there is a legal
impediment to the same-sex marriage or if the
authorised celebrant has reason to believe the
same-sex marriage would be void.
Penalty: Fine not exceeding 500 penalty units
or imprisonment for a term not
exceeding 2 years, or both.
23. Going through ceremony of same-sex marriage
before person not authorised to solemnise it
A person must not go through a form or
ceremony of same-sex marriage with another
person -
(a) knowing that the person solemnising the
same-sex marriage is not authorised to
solemnise it; and
(b) having reason to believe that the other
party to the same-sex marriage believes
that the person solemnising the same-sex
marriage is so authorised.
33
Same-Sex Marriage Act 2012
Act No. of
s. 24 Part 2 - Same-Sex Marriage
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
24. Giving defective notice, &c.
A person must not give notice to an authorised
celebrant under section 9, or sign a notice under
that section after it has been given, if, to the
knowledge of that person, the notice contains a
false or misleading statement or an error or is
defective.
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
25. Failure to comply with notice under section 18
(1) A person on whom a notice under section 18 has
been duly served must not fail to comply with
the notice.
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
(2) Subsection (1) does not apply if the person has a
reasonable excuse.
26. Failure by interpreter to furnish certificate, &c.
A person who has acted as interpreter at the
solemnisation of a same-sex marriage must not -
34
Same-Sex Marriage Act 2012
Act No. of
Part 2 - Same-Sex Marriage s. 26
(a) fail to comply with section 10; or
(b) intentionally make a false or misleading
statement in a certificate under that
section.
Penalty: Fine not exceeding 150 penalty units
or imprisonment for a term not
exceeding 6 months, or both.
35
Same-Sex Marriage Act 2012
Act No. of
s. 27 Part 3 - Dissolution and Nullity of Same-Sex Marriage
PART 3 - DISSOLUTION AND NULLITY OF SAME-
SEX MARRIAGE
27. Jurisdiction of Supreme Court
(1) Proceedings under this Part are to be instituted in
the Supreme Court.
(2) Proceedings -
(a) between the parties to a same-sex
marriage, or by the parties to a same-sex
marriage, for a -
(i) dissolution order in relation to a
same-sex marriage; or
(ii) decree of nullity of same-sex
marriage; or
(b) for a declaration as to the validity of -
(i) a same-sex marriage; or
(ii) a dissolution in relation to a
same-sex marriage; or
(iii) the annulment of a same-sex
marriage -
may be instituted if any party to the proceedings
is an Australian citizen and is ordinarily resident
in Tasmania at the relevant date.
(3) In subsection (2), relevant date, in relation to
proceedings, means -
36
Same-Sex Marriage Act 2012
Act No. of
Part 3 - Dissolution and Nullity of Same-Sex Marriage s. 28
(a) if the application instituting the
proceedings is filed in the Supreme
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.
28. Institution of proceedings
(1) Except as otherwise prescribed by the
regulations or the rules of court, proceedings
under this Part are to be instituted by application
to the Supreme Court.
(2) Proceedings under this Part for -
(a) a dissolution order in relation to a same-
sex marriage; or
(b) a decree of nullity of a same-sex
marriage -
may be instituted by either party to the same-sex
marriage or jointly by both parties to the same-
sex marriage.
29. Application for dissolution order
(1) An application under this Part for a dissolution
order in relation to a same-sex marriage is to be
based on the ground that the same-sex marriage
has broken down irretrievably.
37
Same-Sex Marriage Act 2012
Act No. of
s. 30 Part 3 - Dissolution and Nullity of Same-Sex Marriage
(2) Subject to subsection (3), in a proceeding
instituted by an application under subsection (1),
the ground is taken to have been established, and
a dissolution order in relation to same-sex
marriage may be made, if, and only if, the
Supreme Court is 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 the filing of
the application for a dissolution order in relation
to the same-sex marriage.
(3) 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.
30. Meaning of separation
(1) The parties to a same-sex marriage may be held
to have separated notwithstanding that the
cohabitation was brought to an end by the action
or conduct of one 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 notwithstanding that they have
continued to reside in the same residence or that
either party has rendered some household
services to the other.
31. Effect of resumption of cohabitation
(1) For the purposes of proceedings for a dissolution
order in relation to a same-sex marriage, if, after
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Same-Sex Marriage Act 2012
Act No. of
Part 3 - Dissolution and Nullity of Same-Sex Marriage s. 32
the parties to the same-sex marriage separated,
they resumed cohabitation on one occasion but,
within a period of 3 months after the resumption
of cohabitation, they again separated and after
that separation lived separately and apart up to
the date of the filing of the application, the
periods of living separately and apart before and
after the period of cohabitation may be
aggregated as if they were one continuous
period, but the period of cohabitation is not to be
taken to be part of the period of living separately
and apart.
(2) For the purposes of subsection (1), a period of
cohabitation is taken to have continued during
any interruption of the cohabitation that, in the
opinion of the Supreme Court, was not
substantial.
32. Nullity of same-sex marriage
An application under this Part for a decree of
nullity of same-sex marriage is to be based on
the ground that the same-sex marriage is void.
33. Supreme Court not to make dissolution order
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
dissolution order in relation to that same-sex
marriage are before the Supreme Court, the
Supreme Court must not make a dissolution
order in relation to the same-sex marriage unless
39
Same-Sex Marriage Act 2012
Act No. of
s. 34 Part 3 - Dissolution and Nullity of Same-Sex Marriage
it has dismissed the application for a decree of
nullity of the same-sex marriage.
34. Circumstances occurring before commencement of
Act or outside Tasmania
An order or a decree may be made, or refused,
under this Part by reason of facts and
circumstances notwithstanding that those facts
and circumstances, or some of them, took place
before the commencement of this section or
outside Tasmania.
35. When dissolution order takes effect
(1) Subject to this section, a dissolution order made
under this Part takes effect by force of this
section at the expiration of a period of one
month from the making of the order.
(2) A dissolution order does not take effect by force
of this section if either of the parties to the same-
sex marriage has died before the dissolution
order takes effect.
(3) If an appeal is instituted before the dissolution
order, unless reversed or rescinded, takes effect
by force of this section, the dissolution order
takes effect -
(a) at the expiration of a period of one month
from the day on which the appeal is
determined or discontinued; or
(b) on the day on which the dissolution order
would have taken effect under
40
Same-Sex Marriage Act 2012
Act No. of
Part 3 - Dissolution and Nullity of Same-Sex Marriage s. 36
subsection (1) if no appeal had been
instituted -
whichever is the later.
36. Certificate as to dissolution order
(1) If a dissolution order takes effect, the Supreme
Court Registrar must prepare and file a
memorandum of the fact and of the date on
which the dissolution order took effect.
(2) If a dissolution order has taken effect, any
person is entitled, on application to the Supreme
Court Registrar, to receive a certificate signed by
the Supreme Court Registrar that the dissolution
order has taken effect.
(3) A certificate given under subsection (2) is, in all
courts and for all purposes, evidence of the
matters specified in the certificate.
37. Rescission of dissolution order where parties
reconciled
Notwithstanding anything contained in this Part,
if a dissolution order has been made in relation
to a same-sex marriage, the Supreme Court may,
at any time before the order takes effect, upon
the application of the parties to the same-sex
marriage, rescind the dissolution order on the
ground that the parties have become reconciled.
41
Same-Sex Marriage Act 2012
Act No. of
s. 38 Part 3 - Dissolution and Nullity of Same-Sex Marriage
38. Rescission of dissolution order on ground of
miscarriage of justice
If a dissolution order has been made in
proceedings under this Part but has not taken
effect, the Supreme Court may, on the
application of a party to the proceedings, or on
the intervention of the Attorney-General, and 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 dissolution order and, if it thinks fit, order
that the proceedings be re-heard.
39. Re-marriage
If a dissolution order under this Part in relation
to a same-sex marriage has taken effect, a party
to the same-sex marriage may marry again under
this Act.
40. Void same-sex marriage because of marriage
A same-sex marriage is void if either party to the
same-sex marriage marries another person under,
or recognised by, a law of the Commonwealth.
42
Same-Sex Marriage Act 2012
Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 41
PART 4 - PROCEEDINGS FOR FINANCIAL
ADJUSTMENT AND MAINTENANCE
Division 1 - Preliminary
41. Interpretation
In this Part -
court means the Supreme Court or the
Magistrates Court, as the case may
require;
marriage includes a void marriage under
section 7 or section 40.
42. Application for adjustment of interests or
maintenance
(1) A party to a same-sex marriage may apply to a
court for an order for the adjustment of interests
with respect to the property of either or both of
the parties or for the granting of maintenance, or
both.
(2) The application may be made whether or not any
other application for any order, remedy or relief
is or may be made under this Act or any other
Act or law.
43. Time limit for making application
(1) If a same-sex marriage has been dissolved under
this Act, an application to a court for an order
under section 42(1) is to be made before the
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Same-Sex Marriage Act 2012
Act No. of
s. 44 Part 4 - Proceedings for Financial Adjustment and Maintenance
expiration of the period of 12 months from the
day on which they ceased to be married under
this Act.
(2) If a same-sex marriage is void or is declared
void, an application to a court for an order under
section 42(1) is to be made before the expiration
of the period of 12 months from the day on
which the marriage becomes void or is declared
void.
(3) A court, at any time before or after the expiration
of the period referred to in subsection (1), may
grant leave to a party to apply to the court for an
order if greater hardship would be caused to the
applicant if that leave were not granted than
would be caused to the respondent if that leave
were granted.
44. Order to end financial relationship
In proceedings for an order, a court, so far as is
practicable, is to make an order that -
(a) finally determines the financial
relationship between the parties; and
(b) avoids further proceedings between the
parties.
Division 2 - Adjustment of interest in property
45. Order for adjustment
(1) On an application by a party for an order for the
adjustment of interests in respect of the property
44
Same-Sex Marriage Act 2012
Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 45
of either or both the parties, a court may make
any order it considers just and equitable having
regard to -
(a) the financial and non-financial
contributions made directly or indirectly
by or on behalf of either or both of the
parties to the acquisition, conservation or
improvement of any of the property; and
(b) the financial resources of either or both
of the parties; and
(c) the contributions, including any
contributions made in the capacity of
homemaker or parent, made by a party to
the welfare of the other party or to the
welfare of the family constituted by the
parties and one or more of -
(i) a child of the parties; or
(ii) a child accepted by either or both
the parties into the household of
the parties, whether or not the
child is a child of either of the
parties; and
(d) the nature and duration of the
relationship; and
(e) any relevant matter mentioned in
section 51.
(2) A court may make an order in respect of
property whether or not it has declared the title
45
Same-Sex Marriage Act 2012
Act No. of
s. 46 Part 4 - Proceedings for Financial Adjustment and Maintenance
or rights of a party to a same-sex marriage in
respect of the property.
46. Adjournment because of significant change in
circumstances
(1) Without limiting the power of a court to grant an
adjournment in relation to any proceedings
before it, if, on an application by a party for an
order under section 45, the court is of the
opinion that -
(a) there is likely to be a significant change
in the financial circumstances of either or
both of the parties and that, having
regard to when that change is likely to
take place, it is reasonable to adjourn the
proceedings; and
(b) an order that the court could make with
respect to the property of either or both
of the parties, if that significant change
occurs, is more likely to do justice
between the parties than an order that the
court could make immediately with
respect to the property of either or both
of the parties -
the court, if requested by either party, may
adjourn the application for a specified period.
(2) Before adjourning an application under
subsection (1), the court may make any order it
considers appropriate with respect to the
property of either or both of the parties.
46
Same-Sex Marriage Act 2012
Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 47
(3) A court, in forming an opinion for the purposes
of subsection (1), may have regard to -
(a) any change in the financial circumstances
of a party that may occur because of the
vesting in either or both of the parties, or
the use or application in or towards the
purposes of either or both of the parties,
of a financial resource of either or both
of the parties; and
(b) any other circumstances the court
considers appropriate.
47. Adjournment because of proceedings in Family
Court
(1) Without limiting the power of a court to grant an
adjournment in relation to any proceedings
before it, the court may adjourn the hearing of
the application for an order under section 45 if,
before the court has made a final order to adjust
interests with respect to the property of either or
both parties, proceedings in relation to the
property are commenced in the Family Court of
Australia.
(2) If the hearing of an application for an order is
adjourned under subsection (1), either party may
apply to the court for the hearing of the
application to proceed.
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Same-Sex Marriage Act 2012
Act No. of
s. 48 Part 4 - Proceedings for Financial Adjustment and Maintenance
48. Deferment of order
If a court is of the opinion that a party, in respect
of the property of whom an order is made under
section 45, is likely to become entitled to
property that may be applied in satisfaction of
the order, the court may defer the operation of
the order until the date or the occurrence of an
event specified in the order.
49. Death before order made
(1) If, before an application under section 45 is
determined, either party to the application dies,
the application may be continued by or against
the legal personal representative of the deceased
party.
(2) A court may make an order in respect of
property if of the opinion that -
(a) it would have adjusted interests in
respect of property if the deceased party
had not died; and
(b) notwithstanding the death of the
deceased party, it is still appropriate to
adjust those interests.
(3) Any order may be enforced on behalf of, or
against, the estate of the deceased party.
50. Death after order made
If a party to a proceeding for an order under
section 45 dies after the order is made in favour
48
Same-Sex Marriage Act 2012
Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 51
of, or against, that party, the order may be
enforced on behalf of, or against, the estate of
the deceased party.
Division 3 - Maintenance
51. Order for maintenance
(1) On an application by a party to a same-sex
marriage for an order for maintenance, a court
may make the order if satisfied that the applicant
is unable to support himself or herself
adequately because -
(a) the applicant's earning capacity has been
adversely affected by the circumstances
of the same-sex marriage; or
(b) of any other reason arising in whole or in
part from the circumstances of the same-
sex marriage.
(2) In determining whether to make the order and in
fixing any amount to be paid under the order, a
court is to have regard to the following:
(a) the income, property and financial
resources of each party (including the
rate of any pension, allowance or benefit
paid, payable or entitled to be paid to
either party) and the physical and mental
capacity of each party for appropriate
gainful employment;
(b) the financial needs and obligations of
each party;
49
Same-Sex Marriage Act 2012
Act No. of
s. 51 Part 4 - Proceedings for Financial Adjustment and Maintenance
(c) the responsibilities of either party to
support any other person;
(d) the terms of any order made or proposed
to be made under section 45;
(e) any payments provided for the
maintenance of a child in the care and
control of either party;
(f) whether either party has the care and
control of a child of the party who is
under 18;
(g) the age and state of health of each party;
(h) the standard of living that is reasonable
for each party in all the circumstances;
(i) the extent to which the payment of
maintenance to the party whose
maintenance is under consideration
would increase the earning capacity of
the party by enabling the party -
(i) to undertake a course of
education or training; or
(ii) to establish a business; or
(iii) otherwise to obtain adequate
income;
(j) the extent to which the party whose
maintenance is under consideration has
contributed to the income, earning
capacity, property and financial resources
of the other party;
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Same-Sex Marriage Act 2012
Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 52
(k) the length of the relationship;
(l) the extent to which the same-sex
marriage has affected the earning
capacity of the party whose maintenance
is under consideration;
(m) whether either party is cohabitating with
another person and the financial
circumstances relating to the
cohabitation;
(n) the terms of any order made or proposed
to be made in relation to the property of
the parties;
(o) under Division 2 or the Family Law Act
1995 of the Commonwealth the terms of
any financial agreement that is binding
on the parties to the same-sex marriage;
(p) any other fact or circumstances the court
considers relevant.
(3) In making an order for maintenance, a court is to
disregard any entitlement of the party whose
maintenance is under consideration to an
income-tested pension, allowance or benefit.
52. Interim maintenance
If, on an application by a party for an order for
maintenance, it appears to a court that the
applicant is in immediate need of financial
assistance but it is not practicable in the
circumstances to determine immediately if any
51
Same-Sex Marriage Act 2012
Act No. of
s. 53 Part 4 - Proceedings for Financial Adjustment and Maintenance
order should be made, the court may order the
payment by the other party, pending the disposal
of the application, of any periodic sum or other
sums the court considers reasonable.
53. Cessation of order
An order for maintenance ceases to have effect -
(a) on the death of the party in whose favour
the order was made; or
(b) on the death of the party against whom
the order was made.
54. Notification of change of circumstances
If a party marries, remarries or registers a deed
of relationship under this or any other Act, as the
case may be, that party is to notify the party
against whom a maintenance order was made of
the date of the marriage, remarriage or
registration as soon as practicable.
55. Recovery of arrears
The provisions of this Division do not affect the
recovery of any arrears due under an order for
maintenance when the order ceases to have
effect.
52
Same-Sex Marriage Act 2012
Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 56
56. Variation of order for periodic maintenance
(1) On an application by a party in respect of whom
an order has been made for periodic
maintenance, a court may -
(a) subject to subsection (2), discharge the
order; or
(b) suspend the operation of the order wholly
or in part until -
(i) a further order; or
(ii) a fixed time; or
(iii) the happening of a future event;
or
(c) revive wholly or in part the operation of
an order suspended under paragraph (b);
or
(d) subject to subsection (2), vary the terms
of the order.
(2) A court is not to make an order discharging an
order or increasing or decreasing an amount
payable under an order unless satisfied that it is
justifiable to do so because, since the order was
made or last varied -
(a) the circumstances of the party in whose
favour the order was made have changed;
or
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s. 57 Part 4 - Proceedings for Financial Adjustment and Maintenance
(b) the circumstances of the party against
whom the order was made have changed;
or
(c) the cost of living has changed.
(3) In satisfying itself for the purposes of
subsection (2)(c), a court is to have regard to any
changes occurring during the relevant period in -
(a) the Consumer Price Index (All Groups
Index) issued by the Australian
Statistician; or
(b) a group of prescribed numbers or
prescribed amounts relating to the price
of goods and services issued by the
Australian Statistician, other than those
set out in the Index referred to in
paragraph (a).
(4) A court, in considering the variation of an order,
is not to have regard to a change in the cost of
living unless at least 12 months have elapsed
since the order was made or last varied.
(5) An order increasing or decreasing the amount of
a periodic sum payable under an order may be
expressed to be retrospective to any date the
court thinks fit.
(6) For the purposes of this section, a court is to
have regard to the provisions of section 51.
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Act No. of
Part 4 - Proceedings for Financial Adjustment and Maintenance s. 57
57. Other maintenance orders not to be varied
Subject to section 61, an order for maintenance,
other than for periodic maintenance, is not to be
varied.
Division 4 - General
58. Orders of court
(1) Without derogating from any other power of a
court under this or any other Act or law, a court,
in exercising its powers under this Part, may do
any one or more of the following:
(a) order the transfer of property;
(b) order the sale of property and the
distribution of the proceeds of sale in any
proportions it thinks fit;
(c) order that any necessary deed or
instrument be executed and that any
documents of title be produced or any
other things be done as are necessary to
enable an order to be carried out
effectively or to provide security for the
performance of an order;
(d) order payment of a lump sum, whether in
one amount or by instalments;
(e) order payment of a weekly, fortnightly,
monthly, yearly or other periodic sum;
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(f) order that payment of any sum ordered to
be paid be wholly or partly secured in
any manner the court directs;
(g) appoint or remove trustees;
(h) make an order or grant an injunction for
either or both of the following purposes:
(i) for the protection of, or otherwise
relating to, the property or
financial resources of either or
both of the parties to an
application;
(ii) to aid enforcement of any other
order made in respect of an
application;
(i) impose terms and conditions;
(j) make an order by consent;
(k) make an order in the absence of a party;
(l) make any other order or grant any other
injunction (whether or not of the same
nature as those mentioned in this
subsection) that it considers just and
equitable.
(2) A court, in relation to an application, may make
any order or grant any remedy or relief -
(a) that it is empowered to make or grant
under this or any other Act or law; and
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(b) under this Part, in addition to or in
conjunction with making any other order
or granting any other remedy or relief
that it is so empowered to make or grant.
59. Execution of instruments
(1) If a person refuses or fails to comply with a
direction in an order to execute a deed or
instrument, or a court thinks it necessary to
exercise the powers conferred on it under this
subsection, the court may appoint an officer of
the court or other person -
(a) to execute a deed or instrument in the
name of the person to whom the
direction was given; and
(b) to do anything necessary to give validity
and operation to the deed or instrument.
(2) The execution of the deed or instrument by the
person appointed under subsection (1) is as valid
as if it were executed by the person directed by
the order to execute it.
(3) A court may make any order it thinks just
relating to the payment of the costs and expenses
of, and incidental to, the preparation of the deed
or instrument and its execution.
60. Ex parte orders
(1) In the case of urgency and on application made
to it, a court may make or grant the following:
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(a) an ex parte order under section 52;
(b) an ex parte order or ex parte injunction
for either or both of the purposes
specified in section 58(1)(h).
(2) An application under this section is to be made -
(a) orally or in writing; or
(b) in any form the court considers
appropriate.
(3) If an application is not made in writing, the court
is not to make an order or grant an injunction
under subsection (1) unless, because of the
extreme urgency of the case, it considers that it
is necessary to do so.
(4) The court may give any directions with respect
to the filing of a written application, the service
of the application and the further hearing of the
application it thinks fit.
(5) An order made or injunction granted under
subsection (1) operates or applies until a
specified time or the further order of the court as
specified in the order.
(6) If a court makes an order or grants an injunction
under subsection (1), it may give directions with
respect to -
(a) the service of the order or injunction and
any other documents it thinks fit; and
(b) the hearing of an application for a further
order.
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61. Variation and setting aside of orders
If, on the application of a person in respect of
whom an order referred to in section 45 or 51 is
made, a court is satisfied that -
(a) there has been a miscarriage of justice
because of fraud, duress, suppression of
evidence, the giving of false evidence or
any other circumstances; or
(b) it is impracticable for the order or part of
the order to be carried out; or
(c) a person failed to carry out an obligation
imposed on the person by the order -
the court may vary or set aside the order and
make another order in substitution for the order
set aside.
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PART 5 - FINANCIAL AGREEMENTS
62. Interpretation: Part 5
In this Part -
dealt with includes the meaning given by
section 69(3);
marriage includes a void marriage under
section 7 or section 40;
spouse party means a person who is a party to
a same-sex marriage in respect of which
a financial agreement is made under this
Part.
63. Financial agreements before same-sex marriage
(1) If -
(a) persons who are contemplating entering
into a same-sex marriage with each other
make a written agreement with respect to
any of the matters mentioned in
subsection (3); and
(b) the agreement is expressed to be made
under this section -
the agreement is a financial agreement.
(2) Persons may make the financial agreement with
one or more other persons.
(3) The matters referred to in subsection (1)(a) are
the following:
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(a) how, in the event of the breakdown of
the same-sex marriage all or any of the
property or financial resources of either
or both of the parties at the time when
the agreement is made, or at a later time
and before dissolution, is to be dealt
with;
(b) the maintenance of either of the parties -
(i) during the same-sex marriage; or
(ii) after dissolution of the same-sex
marriage; or
(iii) both during the same-sex
marriage and after dissolution.
(4) A financial agreement made as mentioned in
subsection (1) may also contain -
(a) matters incidental or ancillary to those
mentioned in subsection (3); and
(b) other matters.
(5) A financial agreement (the new agreement)
made as mentioned in subsection (1) may
terminate a previous financial agreement
(however made) if all of the parties to the
previous agreement are parties to the new
agreement.
64. Financial agreements during same-sex marriage
(1) If -
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(a) the parties to a same-sex marriage make
a written agreement with respect to any
of the matters mentioned in
subsection (3); and
(b) the agreement is expressed to be made
under this section -
the agreement is a financial agreement.
(2) The parties to the same-sex marriage may make
the financial agreement with one or more other
persons.
(3) The matters referred to in subsection (1)(a) are
the following:
(a) how, in the event of the breakdown of
the same-sex marriage, all or any of the
property or financial resources of either
or both of the spouse parties at the time
when the agreement is made, or at a later
time and during the same-sex marriage,
is to be dealt with;
(b) the maintenance of either of the spouse
parties -
(i) during the same-sex marriage; or
(ii) after dissolution of the same-sex
marriage; or
(iii) both during the same-sex
marriage and after dissolution.
(4) For the avoidance of doubt, a financial
agreement under this section may be made
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before or after the same-sex marriage has broken
down.
(5) A financial agreement made as mentioned in
subsection (1) may also contain -
(a) matters incidental or ancillary to those
mentioned in subsection (3); and
(b) other matters.
(6) A financial agreement (the new agreement)
made as mentioned in subsection (1) may
terminate a previous financial agreement
(however made) if all of the parties to the
previous agreement are parties to the new
agreement.
65. Financial agreements after dissolution
(1) If -
(a) after a dissolution order is made in
relation to a same-sex marriage (whether
it has taken effect or not), the parties to
the former same-sex marriage make a
written agreement with respect to any of
the matters mentioned in subsection (3);
and
(b) the agreement is expressed to be made
under this section -
the agreement is a financial agreement.
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(2) The parties to the former same-sex marriage may
make the financial agreement with one or more
other persons.
(3) The matters referred to in subsection (1)(a) are
the following:
(a) how all or any of the property or
financial resources that either or both of
the parties to the same-sex marriage had
or acquired during the former same-sex
marriage is to be dealt with;
(b) the maintenance of either of the spouse
parties to the former same-sex marriage.
(4) A financial agreement made as mentioned in
subsection (1) may also contain -
(a) matters incidental or ancillary to those
mentioned in subsection (3); and
(b) other matters.
(5) A financial agreement (the new agreement)
made as mentioned in subsection (1) may
terminate a previous financial agreement
(however made) if all of the parties to the
previous agreement are parties to the new
agreement.
66. Need for separation declaration for certain
provisions of financial agreement to take effect
(1) A financial agreement that is binding on the
parties to the agreement, to the extent to which it
deals with how, in the event of the breakdown of
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the same-sex marriage, all or any of the property
or financial resources of either or both of the
parties to the same-sex marriage -
(a) at the time when the agreement is made;
or
(b) at a later time and before the termination
of the same-sex marriage by
dissolution -
are to be dealt with, is of no force or effect until
a separation declaration is made.
(2) Subsection (1) ceases to apply if -
(a) the marriage of the spouse parties is
dissolved; or
(b) either or both of them die.
(3) A separation declaration is a written declaration
that complies with subsections (4) and (5), and
may be included in the financial agreement to
which it relates.
(4) The declaration must be signed by at least one of
the spouse parties to the financial agreement.
(5) The declaration must state that -
(a) the spouse parties have separated and are
living separately and apart at the
declaration time; and
(b) in the opinion of the spouse parties
making the declaration, there is no
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reasonable likelihood of cohabitation
being resumed.
(6) In this section -
declaration time means the time when the
declaration was signed by a party to the
financial agreement.
67. Whether or when certain other provisions of
financial agreements take effect
(1) A financial agreement that is binding on the
parties to the agreement, to the extent to which it
provides for a third party to contribute to the
maintenance of a spouse party during the same-
sex marriage, is of no force or effect.
(2) A financial agreement that is binding on the
parties to the agreement to the extent to which it
provides for matters covered by section 63(4)(b)
or section 64(5)(b), is of no force or effect unless
and until the same-sex marriage breaks down.
68. Requirements with respect to provisions in financial
agreements relating to the maintenance of a party
or a child or children
A provision of a financial agreement that relates
to the maintenance of a spouse party to the
agreement or a child or children is void unless
the provision specifies -
(a) the party, or the child or children, for
whose maintenance provision is made;
and
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(b) the amount provided for, or the value of
the portion of the relevant property
attributable to, the maintenance of the
party, or of the child or each child, as the
case may be.
69. Certain provisions in agreements
(1) No provision of a financial agreement excludes
or limits the power of a court to make an order in
relation to the maintenance of a party to a same-
sex marriage if subsection (2) applies.
(2) This subsection applies if the court is satisfied
that, when the agreement came into effect, the
circumstances of the party to the same-sex
marriage were such that, taking into account the
terms and effect of the agreement, the party to
the same-sex marriage was unable to support
himself or herself without an income-tested
pension, allowance or benefit.
(3) To avoid doubt, a provision in an agreement
made as mentioned in section 63(1),
section 64(1) or section 65(1) that provides for
property or financial resources owned by a
spouse party to the agreement to continue in the
ownership of that party is taken, for the purposes
of that section, to be a provision with respect to
how the property or financial resources are to be
dealt with.
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70. When financial agreements are binding
(1) Subject to subsection (2), a financial agreement
is binding on the parties to the agreement if, and
only if -
(a) the agreement is signed by all parties;
and
(b) before signing the agreement, each
spouse party was provided with
independent legal advice from an
Australian legal practitioner about the
effect of the agreement on the rights of
that party and about the advantages and
disadvantages, at the time that the advice
was provided, to that party of making the
agreement; and
(c) either before or after signing the
agreement, each spouse party was
provided with a signed statement by the
Australian legal practitioner stating that
the advice referred to in paragraph (b)
was provided to that party (whether or
not the statement is annexed to the
agreement); and
(d) a copy of the statement referred to in
paragraph (c) that was provided to a
spouse party is given to the other spouse
party or to an Australian legal
practitioner acting for the other spouse
party; and
(e) the agreement has not been terminated
and has not been set aside by a court.
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(2) A financial agreement is binding on the parties
to the agreement if -
(a) the agreement is signed by all parties;
and
(b) one or more of subsection (1)(b), (c) and
(d) are not satisfied in relation to the
agreement; and
(c) a court is satisfied that it would be unjust
and inequitable if the agreement were not
binding on the spouse parties to the
agreement (disregarding any changes in
circumstances from the time the
agreement was made); and
(d) the court makes an order under
subsection (3) declaring that the
agreement is binding on the parties to the
agreement; and
(e) the agreement has not been terminated
and has not been set aside by a court.
(3) For the purposes of subsection (2)(d), a court
may make an order declaring that a financial
agreement is binding on the parties to the
agreement, upon application (the enforcement
application) by a spouse party seeking to
enforce the agreement.
(4) To avoid doubt, section 74 applies in relation to
the enforcement application.
(5) A court may make such orders for the
enforcement of a financial agreement that is
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binding on the parties to the agreement as it
thinks necessary.
71. Effect of death of party to financial agreement
A financial agreement that is binding on the
parties to the agreement continues to operate
despite the death of a party to the agreement and
operates in favour of, and is binding on, the legal
personal representative of that party.
72. Termination of financial agreement
(1) The parties to a financial agreement may
terminate the agreement only by -
(a) including a provision to that effect in
another financial agreement as
mentioned in section 63(5), section 64(6)
or section 65(5); or
(b) making a written agreement (a
termination agreement) to that effect.
(2) Subject to subsection (3), a termination
agreement is binding on the parties if, and only
if -
(a) the agreement is signed by all parties to
the agreement; and
(b) before signing the agreement, each
spouse party was provided with
independent legal advice from an
Australian legal practitioner about the
effect of the agreement on the rights of
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that party and about the advantages and
disadvantages, at the time that the advice
was provided, to that party of making the
agreement; and
(c) either before or after signing the
agreement, each spouse party was
provided with a signed statement by the
Australian legal practitioner stating that
the advice referred to in paragraph (b)
was provided to that party (whether or
not the statement is annexed to the
agreement); and
(d) a copy of the statement referred to in
paragraph (c) that was provided to a
spouse party is given to the other spouse
party or to the Australian legal
practitioner acting for the other spouse
party; and
(e) the agreement has not been set aside by a
court.
(3) A termination agreement is binding on the
parties if -
(a) the agreement is signed by all parties to
the agreement; and
(b) one or more of subsection (2)(b), (c) and
(d) are not satisfied in relation to the
agreement; and
(c) a court is satisfied that it would be unjust
and inequitable if the agreement were not
binding on the spouse parties to the
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agreement (disregarding any changes in
circumstances from the time the
agreement was made); and
(d) the court makes an order under
subsection (4) declaring that the
agreement is binding on the parties to the
agreement, upon application (the
enforcement application) by a spouse
party seeking to enforce the agreement;
and
(e) the agreement has not been set aside by a
court.
(4) For the purposes of subsection (3)(d), a court
may make an order declaring that a termination
agreement is binding on the parties to the
agreement, upon application (the enforcement
application) by a spouse party seeking to
enforce the agreement.
(5) To avoid doubt, section 74 applies in relation to
the enforcement application.
(6) A court may, on an application by a person who
was a party to the financial agreement that has
been terminated, or by any other interested
person, make such order or orders (including an
order for the transfer of property) as it considers
just and equitable for the purpose of preserving
or adjusting the rights of persons who were
parties to that financial agreement and any other
interested persons.
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73. Circumstances in which court may set aside a
financial agreement or termination agreement
(1) A court may make an order setting aside a
financial agreement or a termination agreement
if, and only if, the court is satisfied that -
(a) the agreement was obtained by fraud
(including non-disclosure of a material
matter); or
(b) a party to the agreement entered into the
agreement -
(i) for the purpose, or for purposes
that included the purpose, of
defrauding or defeating a creditor
or creditors of the party; or
(ii) with reckless disregard of the
interests of a creditor or creditors
of the party; or
(c) a party to the agreement entered into the
agreement -
(i) for the purpose, or for purposes
that included the purpose, of
defrauding another person who is
a party to a de facto relationship
with a spouse party; or
(ii) for the purpose, or for purposes
that included the purpose, of
defeating the interests of that
other person in relation to any
possible or pending application
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for an order or declaration in
relation to the de facto
relationship; or
(iii) with reckless disregard of those
interests of that other person; or
(d) the agreement is void, voidable or
unenforceable; or
(e) in the circumstances that have arisen
since the agreement was made it is
impracticable for the agreement or a part
of the agreement to be carried out; or
(f) since the making of the agreement, a
material change in circumstances has
occurred (being circumstances relating to
the care, welfare and development of a
child of the same-sex marriage) and, as a
result of the change, the child or, if the
applicant has caring responsibility for the
child (as defined in subsection (3)), a
party to the agreement will suffer
hardship if the court does not set the
agreement aside; or
(g) in respect of the making of a financial
agreement, a party to the agreement
engaged in conduct that was, in all the
circumstances, unconscionable.
(2) For the purposes of subsection (1)(b) -
creditor, in relation to a party to the
agreement, includes a person who could
reasonably have been foreseen by the
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party as being reasonably likely to
become a creditor of the party.
(3) For the purposes of subsection (1)(f), a person
has caring responsibility for a child if -
(a) the person is a parent of the child with
whom the child lives; or
(b) a parenting order under the Family Law
Act 1975 of the Commonwealth provides
that -
(i) the person is a parent of the child
with whom the child lives; or
(ii) the person has parental
responsibility for the child.
(4) A court may, on an application by a person who
was a party to the financial agreement that has
been set aside, or by any other interested person,
make such order or orders (including an order
for the transfer of property) as it considers just
and equitable for the purpose of preserving or
adjusting the rights of persons who were parties
to that financial agreement and any other
interested persons.
(5) An order under subsection (1) or (4) may, after
the death of a party to the proceedings in which
the order was made, be enforced on behalf of, or
against, as the case may be, the estate of the
deceased party.
(6) If a party to proceedings under this section dies
before the proceedings are completed -
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(a) the proceedings may be continued by or
against, as the case may be, the legal
personal representative of the deceased
party and the applicable rules of court
may make provision in relation to the
substitution of the legal personal
representative as a party to the
proceedings; and
(b) if the court is of the opinion -
(i) that it would have exercised its
powers under this section if the
deceased party had not died; and
(ii) that it is still appropriate to
exercise those powers -
the court may make any order that it
could have made under subsection (1) or
(4); and
(c) an order under paragraph (b) may be
enforced on behalf of, or against, as the
case may be, the estate of the deceased
party.
74. Validity, enforceability and effect of financial
agreements and termination agreements
The question whether a financial agreement or a
termination agreement is valid, enforceable or
effective is to be determined by the court
according to the principles of law and equity that
are applicable in determining the validity,
enforceability and effect of contracts and
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purported contracts, and, in proceedings relating
to such an agreement, the court -
(a) subject to paragraph (b), has the same
powers, may grant the same remedies
and must have the same regard to the
rights of third parties as the Supreme
Court has, may grant and is required to
have in proceedings in connection with
contracts or purported contracts, being
proceedings in which the Supreme Court
has original jurisdiction; and
(b) has power to make an order for the
payment, by a party to the agreement to
another party to the agreement, of
interest on an amount payable under the
agreement, from the time when the
amount became or becomes due and
payable, at a rate not exceeding the rate
prescribed by the applicable rules of
court; and
(c) in addition to, or instead of, making an
order or orders under paragraph (a) or
(b), may order that the agreement, or a
specified part of the agreement, be
enforced as if it were an order of the
court.
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s. 75 Part 6 - Recognition of Same-Sex Marriages Under Corresponding Laws
PART 6 - RECOGNITION OF SAME-SEX
MARRIAGES UNDER CORRESPONDING LAWS
75. Same-sex marriages registered under
corresponding laws
(1) The parties to a same-sex marriage that is
registered under a corresponding law are taken
to be parties to a same-sex marriage that is
registered under Part 5A of the Births, Deaths
and Marriages Registration Act 1999
(2) In this section -
corresponding law means a law of another
Australian jurisdiction that substantially
corresponds to the provisions of this Act
or is prescribed as a corresponding law.
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PART 7 - AUTHORISED CELEBRANTS
Division 1 - Officers of Tasmania
76. Authorisation of Tasmanian officers, &c.
(1) The Registrar may solemnise same-sex
marriages.
(2) The Minister may, by instrument in writing,
authorise other State Service officers or State
Service employees 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 2 - Same-sex marriage celebrants
77. Registrar of same-sex marriage celebrants
(1) The Registrar is to 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.
(2) The Registrar may delegate to any person any of
the Registrar's functions or powers under this
Division, other than this power of delegation.
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78. 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) 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.
79. Entitlement to be registered as same-sex marriage
celebrant
(1) A person is only entitled to be registered as a
same-sex marriage celebrant if the person is an
individual and the Registrar is satisfied that the
person -
(a) has attained the age of 18 years; and
(b) has the appropriate skills and experience;
and
(c) is a fit and proper person to be a same-
sex marriage celebrant.
(2) In determining whether the Registrar is satisfied
that the person is a fit and proper person to be a
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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 of good standing in
the community; and
(c) whether the person has been convicted of
an offence, punishable by imprisonment
for one year or longer, against a law of
the Commonwealth, a State or Territory;
and
(d) 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
(e) 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
(f) whether the person will fulfil the
obligations under section 82; and
(g) any other matter the Registrar considers
relevant to whether the person is a fit and
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proper person to be a same-sex marriage
celebrant.
80. Registration as 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; and
(c) the prescribed fee.
(2) In dealing with an application, the Registrar -
(a) must have regard to the information in
the application; and
(b) may have regard to any other information
in his or her possession; and
(c) may seek any further information.
(3) 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 peson is
entitled to be registered as a same-sex
marriage celebrant.
(4) The Registrar registers a person as a same-sex
marriage celebrant by entering in the register of
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same-sex marriage celebrants all details relating
to the person that are required by the regulations.
(5) If the Registrar registers a person as a same-sex
marriage celebrant, the Registrar must notify the
person in writing.
(6) 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 Act to apply
for review of the decision.
81. Effect of registration
A person who is registered as a same-sex
marriage celebrant may solemnise same-sex
marriages at any place in Tasmania.
82. Obligations of each same-sex marriage celebrant
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 the
regulations; and
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(b) undertake all professional development
activities required by the Registrar in
accordance with the regulations; 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.
83. Performance reviews
(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.
(3) Each later review must be completed within 5
years of the previous review and must cover the
period since the previous review.
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(4) In reviewing the performance of a same-sex
marriage celebrant, the Registrar -
(a) must consider the matters prescribed by
the regulations; and
(b) may have regard to any information in
his or her possession; and
(c) may seek any further information.
(5) 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
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(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.
84. Disciplinary measures
(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 82; 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 86(c); or
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(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 the regulations,
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 of same-sex
marriage celebrants 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 of same-sex marriage
celebrants.
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(3) If the Registrar suspends a same-sex marriage
celebrant's registration for a particular period,
section 81 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) any disciplinary measure that is
being taken; and
(iv) any same-sex marriage
celebrant's right under section 85
to apply for review of the
decision; and
(b) may inform the community, in any way
the Registrar thinks appropriate,
including by electronic means, the
disciplinary measure or measures being
taken against the same-sex marriage
celebrant.
85. Review of decisions
(1) An application may be made to the Magistrates
Court (Administrative Appeals Division) for a
review of a decision of the Registrar -
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(a) not to register a person as a same-sex
marriage celebrant; 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 Magistrates Court
(Administrative Appeals Division) in relation to
such an application, if -
(a) a person has made application for
registration as a same-sex marriage
celebrant under section 80; and
(b) at the end of the period 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 the
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.
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86. Additional functions of Registrar
The Registrar must -
(a) amend the register of same-sex marriage
celebrants in accordance with the
regulations; and
(b) keep records relating to same-sex
marriage celebrants, and the register of
same-sex marriage celebrants, 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 in the regulations.
87. Registrar not liable for damages
The Registrar is not liable to an action or other
proceeding for damages in respect of anything
done, or omitted to be done, in good faith in -
(a) the exercise or performance; or
(b) the purported exercise or performance -
of powers or functions under this Act.
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88. Evidence of registration, &c.
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.
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PART 8 - MISCELLANEOUS
89. Transactions to defeat claims
(1) If a court is satisfied that an existing or
anticipated order in a proceeding under this Act
is likely to be defeated by the making of a
document or disposition by a party to the
proceeding, the court may set aside or restrain
the making of the document or disposition.
(2) If a court is satisfied that an existing or
anticipated order in a proceeding under this Part
was defeated by the making of a document or
disposition by a party to the proceeding, the
court may order that -
(a) any property dealt with by the document
or disposition be applied towards, or
charged with, payment of -
(i) an amount payable under an order
adjusting interests in the property
of one or more of the parties to
the proceeding; or
(ii) costs; or
(b) the proceeds of a sale be paid into court
to satisfy its order.
(3) A court may order a party or a person acting in
collusion with a party to pay the costs of any
other party, or of a genuine purchaser or other
interested person, of and incidental to any
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document or disposition or the setting aside or
restraining of the document or disposition.
(4) For the purpose of this section -
(a) something is made by a person if the
thing is made by or on behalf of, or by
direction or in the interests of, the
person; and
(b) it does not matter that the document or
disposition is intended to defeat the order
concerned.
90. Interests of other parties
In exercising its powers under this Part, a court
is to -
(a) have regard to the interests of a genuine
purchaser or other person interested; and
(b) make an order that is proper for the
protection of such a purchaser or person.
91. 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
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(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 punishable, upon
conviction, by imprisonment for a term not
exceeding one 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
punishable, upon conviction, by imprisonment
for a term not exceeding one 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
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(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
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(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) Subsections (1), (2), (3) and (4) do 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
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(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
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(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) Applicable rules of court made for the purposes
of subsection (2) may be of general or specially
limited application or may differ according to
differences in time, locality, place or
circumstance.
(7) 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
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the speech is processed at its
destination by an automated
voice recognition system.
92. Regulations
(1) The Governor may make regulations for the
purposes of this Act except in respect of any
matter for which rules of court may be made
under section 93 or 94.
(2) Regulations may be made so as to apply
differently according to matters, limitations or
restrictions, whether as to time, circumstance or
otherwise, specified in the regulations.
(3) The regulations may -
(a) provide that a contravention of, or a
failure to comply with, any of the
regulations is an offence; and
(b) in respect of such an offence, provide for
the imposition of a fine not exceeding 50
penalty units.
(4) The regulations may prescribe fees in relation to
matters arising under this Act.
(5) The regulations may authorise any matter to be
from time to time determined, applied or
regulated by any person or body specified in the
regulations.
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93. Rules of Supreme Court
The judges of the Supreme Court or a majority
of them may make rules of court with respect
to -
(a) the way in which applications under this
Act may be made to the Court; or
(b) service on appropriate persons of copies
of documents lodged with a registry of
the Court under this Act.
94. Rules of Magistrates Court
The magistrates or a majority of them may make
rules of court with respect to -
(a) the way in which applications under this
Act may be made to the court; or
(b) service on appropriate persons of copies
of documents lodged with a registry of
the court under this Act.
95. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Justice; and
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(b) the department responsible to that
Minister in relation to the administration
of this Act is the Department of Justice.
96. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
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SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
Section 96
Births, Deaths and Marriages Registration Act 1999
1. After section 31, the following Part is inserted:
PART 5A - REGISTRATION OF SAME-SEX
MARRIAGES
31A. Cases in which registration of marriage is
required
If a same-sex marriage is solemnised in
the State, the marriage must be registered
under this Act.
31B. How to have same-sex marriage registered
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 2012.
31C. Registration of same-sex marriage
A same-sex marriage may be registered
by -
(a) including the marriage certificate
as part of the Register; or
(b) including particulars of the
marriage in the Register.
102 Government Printer, Tasmania