18/04 Legislation 14: Marry Go Round- NZBOR Act in Practice
NZBOR Act maintains Parliament as the supreme power- while it gives
these rights, it reserves the right to limit them according to other
legislature and what is “reasonable” in a democratic society.
Issue: marriage is not defined anywhere in the marriage act.
In 1994, 3 lesbian couples were refused marriage license by the
Registrar of Births Deaths and Marriages.
These couples registered a grievance at the court due to this refusal,
believing that there was a conflict in their decision and the law.
Marriage Act 1995:
23. Notice of Marriage- (1) Where 2 persons intend to marry in NZ, one
of them shall give notice in the prescribed form to a registrar.
(2) The person giving notice shall appear personally before the registrar
and shall make a statutory declaration in the prescribed form that the
several particulars set forth in the notice are true, that he believes that the
marriage is not prohibited by section 15 of this Act, and that there is no
other lawful impediment to the intended marriage.
Formal marriage gives set of rights and responsibilities different to those
of unmarried couples: no rights to inherit property, adopt, receive
pension on the others death, could not resist the obligation to give
evidence against their partner in court.
Traditionally families are made up of a heterosexual couple and their
descendants. There was no recognised need to define this in law.
Until recently, there has never been a suggestion that homosexual
couples should be allowed the same rights as heterosexual married
couples, though there has been a progression in rights of unmarried
couples living together (since the 1970s).
Only in 1992 was it recognised that same sex relationships, for some
limited purposes, should have similar rights to married couples.
Attorney–General v Family Court at Otahuhu [1995]
A person who had had a sexual reassignment from male to female, and
then had contracted a marriage with a male.
Issue: was that a valid marriage?
“Marriage was the union of a man and a woman, evidenced by a
ceremony countenanced by the state.”- entirely uncontroversial. Gender is not an issue of birth- different approach to precedent in UK.
English court ruled that the sex you are born with is that which you will
remain for life.
Ellis J upheld a marriage between a male, and another male who had
had sexual reassignment surgery- an extremely forward looking way of
thinking. Though, it still provides that at the time when you marry,
there are still two opposite genders.
Can two people of the same gender/sex contract a marriage?
Basic argument of the applicants here- what the judge has to
decide.
NEW ZEALAND BILL OF RIGHTS ACT 1990:
6. Interpretation consistent with the Bill of Rights to be preferred-
Wherever an enactment can be given a meaning that is consistent with the
rights and freedoms contained in this Bill of Rights, that meaning shall be
preferred to any other meaning.
19. Freedom from discrimination- Everyone has the right to freedom from
discrimination on the grounds of discrimination in the Human Rights Act
1993
HUMAN RIGHTS ACT 1993
21. Prohibited grounds of discrimination- For the purposes of this Act, the
prohibited grounds of discrimination are-…
(m) Sexual orientation, which means heterosexual, homosexual, lesbian or
bi-sexual orientation.
Plaintiffs arguing that when you are interpreting marriage in the marriage
act, you must do it with regard to the Human Rights Act, as well as s 6-
“wherever an enactment can be given a meaning consistent… that meaning
should be preferred”- therefore to avoid discrimination should rule that
same sex marriages should be permissible.
Decision:
Nothing in the review of other jurisdictions helped the judge. Though
there had been some progress in the writing of certain acts in New Zealand
that showed social progress on the matter. E.g. recognition in the domestic
violence act- starting development in the modern view, but is that enough
to stretch it into the context of marriage.
1. Judge looks at context of Act itself:
a. Rules of consanguinity and affinity- there is a list at the back of
the marriage act telling you who you cannot marry- people you are either connected to by blood or marriage. List for both men
and women, which seems to suggest that Parliament is thinking
about marriage as being between opposite sexes. Gender non-
specificity- by using the Interpretation Act that where the
masculine is used, the feminine is equally implied and vice
versa. This Judge says “he” meaning “she” only applies where
only one gender is used. When Parliament has given the two in
juxtaposition, they intended to refer to both sexes.
b. The Vow: Formal r
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