Sunday, August 5, 2012

How Lara Giddings' proposal could affect the proposed Qld surrogacy restrictions

If Tasmania allows same sex marriage, will those marriages be recognised interstate? Who knows, but in all probability they would be- because of the principle of comity between the States. This is based on a common law doctrine to recognise actions taken in another jurisdiction, such as judgments and laws, and marriages.

This has been seen in the US, where unanimously the highest appeals court in Maryland has recognised a same sex marriage from California to allow the couple to get divorced in Maryland, even though Maryland did not recognise same sex marriage:

Under the common law doctrine of comity, a valid out-of-state marriage will be recognized in Maryland, for purposes of application of its domestic divorce laws, if it is not statutorily prohibited or “repugnant” to Maryland public policy. The “repugnancy” threshold is very high. Maryland statutes do not treat as void expressly foreign same-sex marriages. Rather, a review of Maryland statutes and executive branch policies demonstrates that recognizing valid foreign same-sex marriages is consistent with Maryland public policy. Therefore, the parties’ valid California same-sex marriage is cognizable in this State for purposes of adjudicating a divorce complaint.

This could have enormous implications, because many of our States' discriminatory laws are based on a couple being married. In Queensland, for example, the Government is proposing that surrogacy be open only to those who are married or in heterosexual de facto relationships of greater than 2 years. If a Queensland gay or lesbian couple were to travel to Tasmania, get married, then they might be able to seek surrogacy in Queensland.

Those same sex couples who married overseas wouldn't have the same luck, because the 2004 amendments to the Marriage Act specifically prevented their marriages from being recognised.

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