If Australia’s denial of same-sex divorce is discriminatory under international law, what about denial of same-sex marriage?

by Dr Anita Mackay

On 3 August 2017 the United Nations Human Rights Committee (“the Committee”) found that Australia’s denial of divorce to a citizen who had entered into a same-sex marriage overseas (in Canada) was discriminatory (C v Australia). This denial was held to violate Article 26 of the International Covenant on Civil and Political Rights (“ICCPR”) which provides that “all persons should be equal before the law and are entitled without discrimination to the equal protection of the law” and prohibits discrimination on certain grounds, such as race and sex.  The Committee has previously held (in 1994) that discrimination on the basis of sexual orientation is encompassed within sex discrimination.


In order to establish a violation of Article 26 there are two steps.  The first is to show differential treatment between two comparable groups.  The second is to show that there is no reasonable justification for this differential treatment.


In C v Australia, the Committee looked at the application of divorce law to two other types of marriage that, while legal in some countries, are not recognised in Australia: polygamous marriage, and marriage where one or both parties were between the ages of 16 and 18 at the time. (Parties must be 18 years of age or older to marry in Australia.)  It then compared the situation in these cases to that of same-sex couples legally married in another country,


The Committee heard that Australia does allow a person who entered into a polygamous marriage or an under-age marriage overseas to divorce under Australian law [3.3]. Australia does not, however, allow a person who entered into a same-sex marriage overseas to divorce.


Australia justified this differential treatment to the Committee by arguing that those in a polygamous marriage are entitled to divorce “to enable parties … access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce” and “[a]s to foreign marriages of persons between 16 and 18 years, [Australia] states that once the parties attain the age of 16 the marriage could be considered valid under Australian law” [9.5]. (In “exceptional” and “unusual” circumstances a judicial officer may grant permission for people between the ages of 16 and 18 to marry in Australia).


The Committee was unconvinced by these justifications.  They said that the justification given for allowing people in polygamous marriage to divorce could also be given for allowing people who entered into a same-sex marriage overseas to divorce [9.6].


The Committee therefore found that Australia is treating overseas same-sex marriage less favourably than these other types of marriage that are also not allowed in Australia and this was based on sexual orientation.  They found that “in the absence of more convincing explanations” for differential treatment, this was discrimination on the basis of sexual orientation and violated Article 26 of the ICCPR [9.6].


What does this mean for same-sex marriage?


The Committee’s views in C v Australia are significant because it shines the spotlight on one of the many ways in which discrimination on the basis of sexual orientation is occurring and demonstrates that this violates a treaty (the ICCPR) that Australia and many other countries are party to.  The Committee did not, however, consider whether Australia’s failure to recognise overseas same-sex marriages – or indeed to allow same-sex marriage to be entered into here – is discriminatory.  The finding nevertheless does raise the question as to how the Committee might now respond to an individual communication raising these issues.


The Committee has not considered whether the right to marry, which is contained in Article 23 of the ICCPR[1] (not Article 26 under which prohibits discrimination), includes a right to same-sex marriage since 2002. On that occasion the Committee held that Article 23 was intended to “recognise as marriage only the union between a man and a woman wishing to marry each other” [8.2]. The Committee reached this view in response to an individual communication brought by two lesbian couples who were not allowed to get married in New Zealand (Joslin v New Zealand) (New Zealand has since legalised same-sex marriage – in 2013).


It is significant, however, that the parties in Joslin argued that not being allowed to marry violated several other Articles in the ICCPR, including Article 26, in addition to Article 23. The Committee, however, found that because there was no right to same-sex marriage under Article 23 there was no need to consider Article 26 or other Articles of the ICCPR [8.3]. The relevance of Article 26 to same-sex marriage per se is thus yet to be considered by the Committee.


There is one indication from the Committee in August 2017 that leaves the door open for this argument to be brought.   In a concurring individual opinion in C v Australia, Committee member Cleveland made the following observation about the right to marry contained in Article 23: “nothing in the text of article 23’s affirmative protection of the right of “men and women” to marry grammatically excludes same-sex marriage, as the European Court of Human Rights has recognized regarding similar text. Nor has the relationship between article 23 and the Covenant’s non-discrimination prohibitions been addressed in the Australian context” [10].


A number of commentators consider that the Committee might reach a different conclusion if they were in fact to consider the application of Article 26 to the denial of same-sex marriage.  For example, Gerber et al write “if forced to consider the right to non-discrimination in relation to marriage, the [Committee’s] opinion may reflect the growing consensus that marriage should be open to all coupes regardless of gender composition”.[2]

This argument is bolstered by decisions by domestic courts since 2002 in countries that have found denial of same-sex marriage breaches rights to non-discrimination that are worded similarly to Article 26 of the ICCPR.  A good example is Canada.


The Canadian courts, including the Supreme Court, have also given detailed consideration to the justifications given for differential treatment based on sexual orientation provided in order to deny same-sex couples the right to marry and rejected them all.[3]  Same-sex marriage has been legal in Canada since 2005.


Justifications for differential treatment have also been rejected by the South African Constitutional Court and the US Supreme Court. Same-sex marriage has been legal in South Africa since 2006 and inthe United States since 2015.


The Committee’s views about denial of same-sex divorce violating the prohibition of discrimination on the basis of sexual orientation found in Article 26 of the ICCPR would seem to add further weight to this line of thinking. There is certainly scope to argue that if Article 26 is taken into account then a different conclusion may be reached by the Committee to that reached in Joslin 15 years ago .


Interested in hearing more?


Dr Mackay will present a paper entitled “Reinterpreting the right to marry under international law” on Wednesday 20 September 2017 from 11.45am – 1pm.  This draws on an article co-authored with Dr Oscar Roos from Deakin University that will be published in the George Washington International Law Review in September.

[1] Article 23 provides “the right of men and women of marriageable age to marry and found a family shall be recognised”.

[2] Paula Gerber, Kristine Tay and Adiva Sifris, ‘Marriage: A Human Rights for All?’ (2014) 36 Sydney Law Review 643, 654.

[3] See, for example, Halpern et al v Attorney-General of Canada et al (2003) 65 OR (3d) 161 (CA).

La Trobe Academic