Marriage equality comes to NSW – the harmonisation of NSW Legislation to align with the amended Marriage Act 1961 (Cth)

With the passing of the Miscellaneous Acts Amendment (Marriages) Bill 2018 (NSW) (the Bill) on 6 June 2018, New South Wales has become the first state or territory to harmonise its legislation with the amended Marriage Act 1961 (Cth) (the Marriage Act) which gives same-sex couples the right to marry, whilst also recognising legally valid same-sex marriages solemnised overseas.

The Bill will amend 53 New South Wales Acts and Regulations. These amendments can be broadly summarised as follows:

  • Schedules 1, 2 and 6 of the Bill update terminology relating to marriage and parentage across a range of legislation. These terms include spouse, relatives, dependants, married and step parent.
  • Schedule 3 of the Bill would remove the restriction on married individuals who have undergone gender transitional surgery from having their change of sex recorded on the Births, Deaths and Marriages Register. Previously, the law required a married person to divorce before they were able to register a change of sex.
  • Schedule 4 of the Bill extends the exceptions to the hearsay rule in evidence to same-sex couples. The exception that the hearsay rule does not apply to evidence of reputation, concerning whether a man and a woman cohabiting at a particular time were married to each other at that time, now simply applies to any two people.
  • Schedules 5 and 7 of the Bill impact the revocation of enduring guardianship appointments and registration of relationships involving married same-sex couples.

As the overarching purpose of the Bill is to bring NSW in line with the Commonwealth position, the amendments are predominately technical in nature, and focus on changes to language and definitions.

The Bill proposes that gender-inclusive or gender-neutral language is adopted. For example, across several New South Wales Acts, a ‘spouse’ will be defined as ‘a person to whom the person is legally married (including husband or wife of the person)’. Furthermore, references to phrases similar to ‘a husband and wife’ will be replaced with, for example, ‘spouses (including a husband and wife)’. Parentage presumptions will be tackled with phrases such as ‘the mother, the father’ being replaced by ‘the parent (including the mother or father)’. The amendment to the hearsay rule in Schedule 5 of the Bill would replace the words ‘a man and a woman’ with ‘2 people’.

The Bill reflects the practical legislative implications of marriage equality and illustrates how embedded the former concept of marriage was in the state’s legislation. The Bill is currently awaiting assent, and the Miscellaneous Acts Amendments (Marriages) Act 2018 (NSW) will come into effect on the date of assent.