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Commission endorses marriage and adoption equality

The Commission has prepared a short paper endorsing marriage equality and a non-discriminatory approach to adoption. The paper summarises case law and legislative debates around marriage equality and adoption in New Zealand in the context of the right to found and form a family.

Case law – same sex marriage

Quilter v Attorney-General: A registrar refused to accept three lesbian couples’ notices of intended marriage because the Marriage Act 1955 did not provide for marriage between persons of the same sex. The couple unsuccessfully took their case to the High Court and then the Court of Appeal, which held in 1998 that this was a matter for Parliament to decide.

Legislative change – Civil Union Bill 2004

The Commission made a joint submission on the Civil Union Bill and the Relationships (Statutory Reference) Bill. It welcomed the bills, and supported civil unions as a way for same-sex relationships to be formally recognised. However, it noted that civil unions alone were insufficient and an amendment to the Marriage Act was needed to ensure the right to marry was fully recognised for all New Zealanders.

The Marriage (Gender Clarification) Amendment Bill 2005

A member’s bill sought to add a provision in the Marriage Act 1955 stating that marriage means a union between a man and a woman and not two persons of the same sex. The bill was defeated at its first reading.

Human Rights in New Zealand 2010

A 2010 Commission report into human rights in Aotearoa noted that anything less than full legal recognition of same-sex relationships is of particular concern for vulnerable couples. These include older people in residential care and/or when a power of attorney is being exercised on someone’s behalf. The report also highlighted the impact restricting marriage to between “men and women” has on trans people. This is because their eligibility to marry, or stay married, is likely to alter if their sex details are changed on a birth certificate. If an intersex person’s sex is recorded as indeterminate it is also unclear whether they are able to marry a man or a woman.

Marriage–Equality – members’ bills

In May and June 2012 respectively, two marriage equality bills were accepted into the members’ ballot. Labour MP Louisa Wall’s (Marriage (Definition of Marriage) Amendment Bill seeks to amend the Act to clarify marriage between two people regardless of sex, sexual orientation or gender identity. It was drawn from the ballot in late July and is likely to have its first reading in August 2012. Green Party MP Kevin Hague’s Marriage (Equality) Amendment Bill provides for same-sex couples to marry in New Zealand and proposes an amendment to the Births, Deaths, Marriages and Relationships Registration Act 1995 to allow someone identifying as transgender or transsexual to marry.

Case law – Adoption

The Adoption Act 1955 allows “two spouses” or any individual to adopt a child. Until a June 2010 High Court decision the term “spouse” had been interpreted as enabling only those couples who are married to jointly adopt. The High Court recognised that “spouses” could include a man and woman in an unmarried, stable and committed relationship. As yet there is no case law enabling same-sex couples to jointly adopt a child.

Restricting the right to adopt to couples who are married or to opposite sex de-facto couples amounts to discrimination under the Human Rights Act and the New Zealand Bill of Rights Act. The Commission recommends amending the Adoption Act to ensure adoption equality that focuses on the best interests of the child, and does not discriminate against parents because of their sex, gender identity, sexual orientation, disability or marital status.

The Commission’s paper notes two proposed members’ bills that would allow same-sex couples to adopt.

Commission position paper on marriage equality and the right to form a family