The Australian Government refuses to issue same-sex partners with the certificate they need to marry in some countries overseas. The certificate is called a Certificate of Non-Impediment to Marriage (CNI). It is issued to opposite-sex partners as a matter of course.
CNIs are required in several countries including the Netherlands and Norway, although the Netherlands waives the requirement for Australians in same-sex relationships (Norway has no waiver making it almost impossible for Australian same-sex partners to marry in that country).
The Australian Government justifies its discriminatory practice on the basis that overseas same-sex marriages are not recognised in Australia. However, this is not what CNIs are for. A CNI is issued to inform another government if an Australian applying to marry under that government’s laws is of marriageable age and is not already married in Australia.
The Australian Government policy is a distortion of the proper role of CNIs for no other purpose than to make it harder for Australians to marry overseas.
For more information on CNIs, scroll down for the relevant section of AME’s submission to the 2009 Senate inquiry into marriage equality and the recommendation from that inquiry in favour of issuing CNIs to same-sex partners.
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1. An extract from AME’s submission to the 2009 Senate inquiry into marriage equality
It is currently Australian Government policy not to grant Certificates of No-impediment to Marriage (CNIs) to Australians entering same-sex marriages overseas.
Since the end of 2005 we have received a steady stream of complaints from Australians seeking to marry their same-sex partners overseas for whom the Government’s refusal to provide a CNI has caused immense frustration. These complaints include one from Peter Kakucska whose case has received media attention[1]. As the case of Mr Kakucska illustrates, this refusal makes it more difficult for Australian same-sex partners to enter marriages in countries which require CNIs before marriages are solemnised. It has also caused immense frustration for other governments. We understand that the Dutch Government has responded by waiving the CNI requirement for Australians entering same-sex marriages. We have been told the only other nationality it does this for is Zimbabweans. The Committee may wish to verify this.
The Australia Government’s stated reason for not providing same-sex partners with CNIs is that same-sex marriages are not recognised in Australia.
However, our understanding is that CNIs are issued to establish that there is no impediment to an Australian marrying overseas, not to establish there is no impediment to the recognition in Australia of the marriage they intend entering.
This is confirmed by the documentation publicly available[2]. For example, the application form for an Australian CNI asks the applicant to confirm they are not already married to another person in Australia. It does not ask if they seek to enter a same-sex marriage. It asks if they are already in “a prohibited relationship”. But this cannot be construed to include a same-sex marriage because (a) they are not yet in a married relationship, and (b) same-sex marriages are not prohibited in Australia, simply not recognised.
Our understanding of the role of CNIs is also supported by the international experience. Other governments request CNIs from Australia to ascertain whether there are impediments to them solemnising marriages involving Australian citizens. Chief amongst such impediments are whether the Australian citizens in question are already married in Australia and are of marriageable age. Foreign governments are aware of the discriminatory nature of Australian law, and are not seeking further information about such discrimination because it is not relevant to them.
We note that when the issuing of CNIs to same-sex partners became a public issue the Department of Foreign Affairs and Trade website was changed to state,
“Certificates of No Impediment to Marriage are issued by the Department of Foreign Affairs and Trade through overseas missions and state and territory offices to Australian citizens seeking to marry overseas. Certificates of No Impediment to Marriage are not a requirement of Australian law. They are issued purely at the request of overseas countries seeking to ensure that a marriage involving one or two Australian citizens, celebrated in that overseas country, will also be recognised as a valid marriage by Australian authorities.”[3]
As we note above this is incorrect.
We assume the justification for the current policy is recognising the existence of overseas same-sex marriages, and/or facilitating their solemnisation, is somehow to condone or endorse them.
This is both incorrect as a principle of law and policy, and an insufficient reason to deny one group of Australians their rights as citizens.
Our Recommendation
We recommend that the Government reform Australia’s policy on CNIs so that they are issued to same-sex partners who intend to marry on the same basis as they are issued to different-sex partners who intend to marry.
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2. An extract from the report of the 2009 Senate inquiry into marriage equality recommending the removal of discrimination in the issuing of CNIs
5.5 As discussed in chapter 3, Government policy apparently favours declining to issue a certificate of non-impediment (CNI) to same-sex couples seeking to marry overseas.[1]
5.6 The Smartraveller website, administered by the Department of Foreign Affairs and Trade (the Department), in respect of marrying overseas, states that:
Certificates of No Impediment to Marriage are issued by the Department of Foreign Affairs and Trade through overseas missions and state and territory offices to Australian citizens seeking to marry overseas. Certificates of No Impediment to Marriage are not a requirement of Australian law. They are issued purely at the request of overseas countries seeking to ensure that a marriage involving one or two Australian citizens, celebrated in that overseas country, will also be recognised as a valid marriage by Australian authorities.[2]
5.7 However, Australian Marriage Equality submits that:
…our understanding is that CNIs are issued to establish that there is no impediment to an Australian marrying overseas, not to establish there is no impediment to the recognition in Australia of the marriage they intend entering. This is confirmed by the documentation publicly available. For example, the application form for an Australian CNI asks the applicant to confirm they are not already married to another person in Australia. It does not ask if they seek to enter a same-sex marriage. It asks if they are already in ‘a prohibited relationship’. But this cannot be construed to include a same-sex marriage because (a) they are not yet in a married relationship, and (b) same-sex marriages are not prohibited in Australia, simply not recognised. Our understanding of the role of CNIs is also supported by the international experience. Other governments request CNIs from Australia to ascertain whether there are impediments to them solemnising marriages involving Australian citizens. Chief amongst such impediments are whether the Australian citizens in question are already married in Australia and are of marriageable age.[3]
5.8 Notwithstanding the Department’s injunctions to the contrary, it remains far from settled for the committee that the usual purpose of a CNI is to establish recognition of an impending marriage in a person’s home country. Indeed, it seems to the committee that a CNI is most likely to be used by a foreign country to establish that two people are not currently married to other people, are of marriageable age, and are not closely related. Furthermore, the committee can see no necessary connection between the issuance of a CNI and an implied undertaking by the Australian Government to recognise a marriage conducted overseas.
5.9 Put simply, absent circumstances such as those listed above, a decision by a sovereign nation to allow marriage between a couple of the same sex should be a matter for that nation, and not a matter against which Australia should throw up bureaucratic barriers.
Recommendation
5.10 The committee recommends that the Department of Foreign Affairs and Trade issue Certificates of Non-Impediment to couples of the same sex on the same basis as they are issued for couples of different sexes.
[1] Szego, J, “Gays hit in overseas nuptial bid”, The Age, January 14 2006. http://www.theage.com.au/news/national/gays-hit-in-overseas-nuptial-bid/2006/01/13/1137118970292.html
[2] See http://www.smartraveller.gov.au/no_impediment_marriage_form.pdf