C. v. Australia

In C. v. Australia, Human Rights Committee (UN Human Rights Committee, ICCPR), C., a dual citizen of Australia and the United Kingdom, lived in a same-sex relationship with A. in Victoria and later Queensland. The couple agreed to have a child, with C. as the birth mother. They later traveled to Canada, where they were legally married. Shortly after, the couple separated. C., who remained the sole caregiver of the child, lost contact with A. and sought to formally dissolve the marriage. Her reasons for seeking a divorce included the desire to remarry or enter a civil partnership, to avoid liability for any of A.'s debts, and to prevent legal recognition of A. as her spouse in jurisdictions where their Canadian marriage might be recognized, such as when traveling internationally.

At the time, Australian law, specifically section 5(1) of the Marriage Act 1961 (Cth), defined marriage exclusively as the union of a man and a woman. Section 88EA further prohibited the recognition of same-sex marriages solemnized overseas. Because of this, C. could not apply for divorce in Australia. She was also unable to divorce in Canada or the UK due to residency requirements in those jurisdictions. C. brought a communication before the UN Human Rights Committee, claiming that Australia’s refusal to provide access to divorce proceedings for same-sex couples validly married abroad amounted to discrimination based on sexual orientation. She relied on article 26 (equality before the law), article 14(1) (equal access to courts and tribunals), and article 2(3) (right to an effective remedy) of the International Covenant on Civil and Political Rights (ICCPR).

The Committee found that Australia’s legal framework denied C. access to divorce solely because of her sexual orientation and the non-recognition of her same-sex marriage. It noted that other non-recognized marriages (such as polygamous marriages) were granted access to the family law system in Australia for practical purposes. Australia failed to justify why a similar accommodation was not extended to same-sex marriages. The Committee concluded that this constituted unlawful discrimination under article 26. It found that the differential treatment was not based on reasonable and objective criteria and violated C.’s rights. The Committee held that Australia was obligated under article 2(3) of the Covenant to provide C. with an effective remedy, including full reparation and access to divorce proceedings. It also called on Australia to review its laws to prevent similar violations in the future and to report back on implementation within 180 days. 

This legal barrier has since been removed. Following the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), Australia now recognizes same-sex marriages. Under the amended Marriage Act, same-sex couples married overseas can now access divorce and other family law remedies on the same terms as opposite-sex couples.

Topics

Geographical location

Keywords

Year

  • 2017

External URL

Court

Type

Jurisdiction