The UN Human Rights Committee found Australia in violation of Article 26 of the covenant for denying Dr Fiona Kumari Campbell the ability to obtain a divorce in Australia. Campbell married her same-sex partner in Canada in 2004, but the two are now separated.
The committee said Australia failed to persuade it of the reasonableness, objectivity, and legitimacy of distinguishing same-sex marriages from other types of foreign marriages and giving it differential treatment.
Australia argued that it could not grant access to its divorce mechanisms for same-sex marriages that happened abroad, since this type of marriage is not recognised in the country. However, the committee pointed out that parties of other types of foreign marriages, such as polygamous marriages which are also not recognised in Australia, are being given access to the country’s divorce framework.
“Gilbert + Tobin is very proud to have acted in this matter for our client for over five years to get this landmark decision for her. 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. This decision goes another step closer towards recognising marriage equality as an international human rights issue,” said Michelle Hannon, G+T pro bono partner.
Campbell said that the decision has restored her faith in international law. She also urged the government to act on the ruling.
“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. 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,” Campbell said.
In addition to Hannon, G+T’s team included lawyer Ghassan Kassisieh, who said that the committee again affirmed the fundamental principle that laws cannot discriminate against same-sex couples without compelling reasons, even in divorce.
“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,” he said.
Clancy King, who has since transferred to DLA Piper
in Sydney as a senior associate, also worked on the case. DLA Piper also recently won a landmark case in the committee
Firm’s pro bono arm wins for transgender woman in far-reaching UN case
Legal profession launches human rights framework
Gilbert + Tobin (G+T) has won a landmark decision for an Australian citizen in the UN, which has found Australia in breach of the International Covenant on Civil and Political Rights.