Shadow Footprints

Separate but Equal? The NZ Civil Union Bill

I oppose the proposed Civil Union Bill as it wants to keep gays as second class citizens.

The Civil Union Bill proposes to:

1. create a system of registration and dissolution of civil unions between adult partners of relationships "in the nature of marriage", for same-sex and different-sex couples;
2. establish two tiers of state recognition of adult partnerships: marriage, and civil union. (De facto couples will remain a third tier, with the existing (lesser) range of legal rights and responsibilities, in recognition of de facto couples' decision not to marry or enter a civil union);
3. standardise the statutory provision of rights and responsibilities for couples who are married or in a civil union;
4. standardise the limited range of rights and responsibilities for all de facto couples, whether same-sex or different-sex;
5. provide legal recognition of next-of-kin status for civil union partners;
6. establish criteria for eligibility (including restrictions) to enter a civil union, comparable to the eligibility criteria for marriage; and
7. provide for administrative formalities for civil unions and next-of-kin as part of the statutory role of the Registrar-General of Births, Deaths, and Marriages

On the surface this looks good as the rights of marriages and civil unions will be the same in New Zealand, but it doesn't stop future laws applying to marriages and excluding civil unions.

It is not the intention of the Civil Union Bill to include domestic partners (such as legislation in New South Wales, which includes relationships between siblings, flatmates etc). To clarify the Bill's intention, civil unions will be defined by the common legal definition of being "in the nature of marriage".

I do not like the wording of this. As has been seen abroad, for some people the nature of marriage means one man and one woman. We need to get that perception changed, and this bill does not do that.

The Civil Union Bill preserves the status and perceived sanctity of marriage under the Marriage Act 1955. The registration of civil unions will operate in parallel with the registration of marriages. The Civil Union Bill will have no effect on the Marriage Act 1955.

This is saying "separate but equal". To the back of the bus guys, no drinking out of the white man's water fountain, you have your own fountain (that the white man is allowed to drink out of too, as this bill allows heterosexual civil unions also).

International Application and Recognition of Civil Unions / Same-Sex Marriage
The Family Proceedings Act 1980 regulates New Zealand's legal recognition of relationships from other jurisdictions, e.g. although bigamy and polygamous marriages are prohibited in New Zealand, existing polygamous marriages from other cultures are accepted for some purposes under New Zealand law. The legal effect of same-sex marriages or civil unions outside New Zealand will be legally recognised in New Zealand on a case-by-case basis, and noted in a schedule to the proposed Bill.
It is recognised that the registration of same-sex relationships or same-sex marriages from other countries will require a New Zealand response, regardless of whether the Civil Union Bill is passed. For example, a Dutch same-sex couple may marry in the Netherlands and emigrate to New Zealand; or a New Zealand citizen may meet a same-sex partner in Hungary, register their partnership and then return to New Zealand as a registered couple.

The legal effect of New Zealand civil unions will only be recognised internationally to the extent that other countries choose to legally recognise New Zealand civil unions (including same-sex unions). It is possible that New Zealand may develop reciprocal recognition agreements with other countries in terms of their registered partnership or same-sex marriage models. For example, Denmark, Norway, Greenland, Sweden and Iceland have a regional agreement to legally recognise registered partnerships from each others' countries.

Foreign same-sex marriages will be recognised on a case by case basis? So a Canadian couple needs to go to the courts to have their marriages recognised before immigration lets them visit? Not that I expect NZ immigration to be so zealous it will still be a possibility. It may be that the marriage of a couple of Canadians is recognised, but what will happen if a couple of Kiwis go to Canada and get married? Will their marriage be recognised? If heterosexual they will be, but this bill allows for a same-sex marriage to not be accepted. The bill describes how a foreign civil union will be recognised, but leaves marriage on a case by case basis. What does that serve? Especially as existing polygamous marriages from other cultures are accepted for some purposes under New Zealand law.

Why does the Civil Union Bill allow for the registration of different-sex couples?
There are two key reasons for including different-sex couples:

1. It is imperative from a rights perspective that this recognition model does not discriminate by reason of sexual orientation; and it avoids possible social stigma of being perceived as a "gay" marriage model.
2. It provides a choice that could meet the needs of 230,000 de facto couples, who may wish to be legally recognised, but not as a "married" couple.

It would be inconsistent with human rights protections to deny different-sex couples access to civil unions as a choice of relationship recognition, by reason of their sex or sexual orientation. The gender of each partner to a relationship is, legally speaking, irrelevant to a vehicle of public recognition and the conferment of statutory entitlements.

You're telling me it is inconsistent with human rights protections to deny different-sex couples access to civil unions as a choice of relationship recognition, by reason of their sex or sexual orientation but it is consistent to deny same-sex couples access to marriage as a choice of relationship recognition?

In New Zealand there are over 230,000 de facto (different-sex) relationships - relationships in the nature of marriage. There are likely to be a wide range of reasons why this significant number of couples choose not to marry, including philosophical or religious reasons. Some couples may feel uncomfortable with the idea because of past experiences with marriage, or ambivalence about the more traditional elements of marriage, such as church weddings, economic dependence assumptions, and gendered roles.

Although these couples get all the benefits of a de-facto marriage we need to create civil unions for them? Marriage in New Zealand is not restricted to church weddings, many couples marriage without a church involved, and church marriages need the state's recognition of a marriage before conferring any benefits.

As for economic dependence assumptions, marriages in church usually use the phrase "husband and wife" instead of "man and wife. A church wedding does not make people assume the wife will give up her job and be economically dependent on her husband.

Does the phrase "gendered roles" mean that people assume the wife will be doing all the cooking and cleaning. I know couples where both work and the husband does most of the cooking, usually because he is the better cook. Some couples like the traditional gender roles, but it doesn't mean that people assume every married couple follow them.

None of these is a good reason to create civil unions as a separate thing from marriage, for couples of either orientation.

Civil unions can provide a modern, secular model of relationship registration that deals with the conferment of statutory entitlements without social, religious, and emotional accompaniments. This option is likely to appeal to de facto couples who would otherwise not choose to marry. Overseas experience of relationship registration models has shown that those models that have included different-sex couples have proven most popular.

Without social accompaniments? Without emotional accompaniments? If that is the intent then why not do what New south Wales did with domestic partners? As for the religious accompaniments, not everyone assumes a marriage is in church. If this is the issue, then the marriage act needs to be altered to require church weddings.

One of the effects of this bill will be to decrease the number of couples getting married. Science Fiction authors have written about limited-term renewable marriages. These civil unions will, with some adjustments, fit that, but is that what we want? Dissolution of a contract/marriage is already in our laws, do we need to add civil unions for this purpose?

Same-sex marriage will happen. We can either create legislation now to cater for it, we can create legislation now to avoid it, and create more legislation in the future to cater for it, and deal with the status of civil union couples at that time. Trying to ignore it will not succeed. We need to oppose this bill, limited rights means it will take longer to get full rights, and providing civil unions is a waste of the legislative process and money.

- shadowfoot,