Same-sex couples left in ‘legal limbo’

By Emma Ryan|07 August 2017

As debate around same-sex marriage heats up again, Gilbert + Tobin has reinforced the importance of recognising marriage equality as an international human rights issue.

The firm recently acted pro bono in what’s being described as a landmark decision of the UN Human Rights Committee, which found that Australia must give access to its divorce mechanisms to same-sex couples who married overseas.

In the matter C v Australia, Gilbert + Tobin brought forward the petition on behalf of Fiona Kumari Campbell.

According to a statement from the firm, 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,” a statement from Gilbert + Tobin said.

Speaking further, Gilbert + Tobin pro bono partner Michelle Hannon said the firm is proud to have acted for Ms Campbell in this matter, which is over five years in the making.

“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,” Ms Hannon said.

“This decision goes another step closer towards recognising marriage equality as an international human rights issue.”

Gilbert + Tobin lawyer Ghassan Kassisieh, who worked on the case, echoed a similar sentiment.


“The committee again affirmed the fundamental principle that laws cannot discriminate against same sex couples without compelling reasons, even in the area of divorce,” he said.

“In the five 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.”

Meanwhile, Ms Campbell 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,” she said.

“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.”

The Turnball government announced yesterday that it would take its same-sex marriage plebiscite bill to the Senate this week. If the bill passes, the plebiscite will take place on 25 November.

It was also disclosed that if the Senate votes down the plebiscite bill, the Turnball government will go ahead with a non-compulsory postal vote, which will cost approximately $122 million. The postal plebiscite will wrap up by November 15.  

Same-sex couples left in ‘legal limbo’
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