New Zealand

Cases

New Zealand's Supreme Court held that marriage statute which did not allow for same-sex "marriage" are not invalid. Quilter v. Attorney General, CA 200/96 (N.Z. 1997) (for case summary click here).

Background Memorandum

Date: December 17, 1999

I. Legal Background

Though issues involving same-sex couples had arisen earlier, the current context for the issue of same-sex “marriage” in New Zealand arises out of two legislative enactments. The first is the Human Rights Act which has prohibited discrimination based on “sexual orientation” in employment, public accommodations, housing, education and provision of goods and services, since 1993. The second is the 1990 Bill of Rights Act which “affirms the right to freedom from discrimination on the grounds set out in the Human Rights Act of 1993.” Section 151 of the Human Rights Act provides that the Act does not override other legislation until December 31, 1999 . At that point, it will be left to courts to decide whether the Act will override specific legislation, unless the Human Rights Amendment Bill is passed, in which case legislation could exempt some laws from the effect of the Act.

Recently there have been a few important cases regarding same-sex couples decided under these provisions. In one, a court held that a same-sex partner could be a “step-parent” liable to pay child support under the Child Support Act. In another, a same-sex partner of a child’s biological mother sought to adopt the child but was denied based on the holding that the adoption was not in the child’s best interests (not on the “sexual orientation” of the applicant). In addition, the Cabinet amended New Zealand ’s immigration policy in December 1998 to allow same-sex couples to have the same immigration status as opposite-sex cohabitating couples.

II. Quilter v Attorney General

The case most on-point is Quilter v Attorney General, CA 200/96 (for case summary, click here), decided in 1997 by the Court of Appeal of New Zealand . In that case, the court was faced with a challenge to the denial of marriage licenses to three lesbian couples, relying on New Zealand ’s gender-neutral marriage law. The court held that different treatment does not necessarily constitute discrimination, that the New Zealand marriage law does not allow same-sex “marriage” and that the Bill of Rights Act does not require recognition of same-sex “marriage.” The court also noted that the decision to recognize same-sex “marriage” should be left to the legislature.

Subsequently the plaintiffs forwarded a Communication to the United Nations Human Rights Committee seeking a statement that New Zealand is breaching its obligations to Human Rights under various international conventions, where it is currently pending.

III. Ministry of Justice: Consistency 2000 Project

The Ministry of Justice has launched a Consistency 2000 project which has identified a number of laws where same-sex couples are treated differently than opposite-sex couples and is soliciting general comments on possible responses to the inconsistencies in treatment. The deadline for submissions in 31 March 2000 . The Ministry is seeking comments on 16 questions, which deal with whether same-sex couples should be allowed to marry, register for a domestic partnership-like status, adopt, be joint parents, have parental leave, and other legal benefits.

Notes:

1. See Robin Mackenzie, Transsexuals’ Legal Status and Same Sex Marriage in New Zealand: M v M 7 Otago Law Review 556 (1992)(noting M v M—where the marriage law was an issue but expressly not decided because status of transsexual was dispositive, and L v L—where the “marriage” between two men was invalid because of lack of consummation and same-sex “marriage” issue was avoided).

2. Ministry of Justice, Same-Sex Couples and the Law—Backgrounding the Issues 3 (August 1999).

3. Id at 10 (citing A v R [1999] High Court, Hamilton AP93/96).

4. Id. at 14 (citing Re an Application by T [1998] NZFLR 769).

5. Id. at 17.

6. Id. at 3, 8.

7. Nigel C. Christie, New Zealand’s Same-Sex Marriage Case Reaches the United Nations Human Rights Committee (paper delivered at Legal Recognition of Same-Sex Partnerships, July 3, 1999, on file with Marriage Law Project).

8. Ministry of Justice, Discussion Paper: Same-Sex Couples and the Law (August 1999).