News

05/08/17

UN finds Australia must give overseas same-sex marriages right to divorce

Gilbert + Tobin is delighted to have successfully acted pro bono in a landmark decision of the UN Human Rights Committee finding that Australia must give access to its divorce mechanisms to same-sex couples who have married overseas.

In C v Australia, Gilbert + Tobin brought the petition on behalf of Ms Fiona Kumari Campbell.  Ms Campbell is an Australian citizen who married her same-sex partner of 10 years in Canada in 2004. The women have since separated and Ms Campbell was unable to obtain a divorce because the marriage between the two women was not recognised in Australia. 

In finding Australia in breach of article 26 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee has found Australia could not justify its legal discrimination against same-sex married couples given it grants access to its divorce mechanisms to certain other foreign marriages which it does not otherwise allow, such as polygamous marriages and marriages between certain adolescents.

Michelle Hannon, Pro Bono Partner at Gilbert + Tobin, said: “Gilbert + Tobin is very proud to have acted in this matter for our client for over 5 years to get this landmark decision for her. As the debate over same-sex marriage continues in Australia, same-sex couples who have married overseas are left in legal limbo by their inability to divorce. This decision goes another step closer towards recognising marriage equality as an international human rights issue.”

Dr Fiona Kumari Campbell, Gilbert + Tobin’s client and lead petitioner, said: “After a long wait the Human Rights Committee has restored my faith in the international law system to deliver justice given the absence of an Australian Bill of Rights. The decision legitimises the reality of my marriage and my experience of being treated differently because of the sex of my marriage partner. It acknowledges the incongruence between the dissolution of my marriage in real life and the law. I hope that the government will act to ensure a divorce remedy is available so I can get on with my life and have a consistent marital status irrespective of where I go.”

Gilbert + Tobin Lawyer, Ghassan Kassisieh, who worked on the case said: “The Committee again affirmed the fundamental principle that laws cannot discriminate against same sex couples without compelling reasons, even in the area of divorce. In the 5 years we worked on this case, decision after decision has affirmed that principle in the field of marriage and divorce and now the international human rights system is slowly moving closer to that view too.” 

In a concurring opinion, Committee Member Sarah Cleveland went further than the Committee in saying: “In my view, Australia bears a substantial burden of explaining what valid imperatives require it to treat unequally foreign same-sex and other couples who want to marry or divorce.”

The decision is available here.

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