Australian Federal Law declares
marriage can only be entered into between a man
and a woman. If you and your partner can present
opposite-sex birth certificates (one
female
birth certificate and one
male
birth certificate) then you can be
legally married according to Australian
Federal Law.
Your birth certificate is evidence to your
legal-sex.
Men (identified female at birth) who
can present a male
birth certificate have legal evidence
of male
legal-sex for the purposes of
Australia's marriage laws, and this also
satisfies the Commonwealth's guidelines to
marriage celebrants regarding the restriction of
marriage to parties who are legally members of
the opposite sex.
If your partner was born overseas and is not
able to obtain a birth certificate in his
affirmed sex, you may still be able to legally
marry but you will have to seek an appropriate
order from the Family Court of Australia
if the marriage celebrant is not prepared to
perform the marriage without one. Before issuing
such an order, the Family Court will ensure that
your partner is male according to the test laid
down in Re Kevin (see Summary
of ReKevin).
What was the Re Kevin case
about?
This successful legal battle by a
heterosexual Sydney couple, ‘Kevin’
and ‘Jennifer’ who secured the right
to have their marriage legally recognised. Since
Re Kevin, Australian Federal law permits
an Australian man of transsexual history to
enter into a legally binding marriage with their
female partner.
Summary
of the Kevin & Jennifer legal
case
(2001) Justice Chisholm's decision, granting a
 Declaration
of Validity of Marriage was delivered on
12th October 2001.
(2003)
Full Court of the Family Court of Australia
heard the appeal of the Declaration of Marriage
from 2001 and delivered
its decision on 21st February
2003.
Our celebrant/priest/pastor etc says that we
cannot be legally married - what now?
If one of you can present a
male birth
certificate
and the other can present a
female birth
certificate, legally you are no
different to any other heterosexual couple in
Australia.
We suggest that your celebrant/priest/pastor
read the Re Kevin decision - the decision
is publically
available on the Australasian Legal Information
Institute website which is Australian
Federal law. There are circumstances in which a
person who at birth had female gonads,
chromosomes and genitals, nevertheless is a
man at the date of his marriage.
If your celebrant/priest/pastor still refuses
to recognise the legality of your union, then we
can only suggest you seek out another
celebrant/priest/pastor.
You will also have a cause of action in
sex discrimination
against the celebrant.
My partner looks very male but hasn't been
able to change his birth certificate to male.
Is there any way we can be legally
married?
As the law stands, there is no legal
provision for your marriage, if you
both legally hold female
birth-certificates.
It is not sufficient to only "look very male"
- you partner will have to be able to present
legal evidence to his male legal-sex
either by virtue of the birth certificate issued
to him or after a hearing in the Family Court at
which he demonstrates he meets the criteria
established in Re Kevin.
Without either a male birth certificate or an
order of the Family Court (see above), your
partner will not be able to marry you under
Australian law - since according to Australian
Federal Law marriage can only be entered into
between a man and a woman.
Further reading
Marriage
celebrant website provides incorrect advice
Kevin & Jennifer '( 24
September, 2002)
Re
Kevin - Australasian Legal Information
Institute website — (2001)
Re
Kevin - Appeal Dismissed - Australasian
Legal Information Institute website —
(2003)
Summary
of the Kevin & Jennifer Legal
Case
Wallbanks
Legal [website]
When
a man loves a woman Dow, S. (4 May 2003)
The
information contained on this page is not legal
advice. Legal advice is dependent upon the specific
circumstances of each individual. Please consult
with qualified legal professionals for your
personal situation.
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Marriage Information
