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Divorce and separationGeneral family law blogs

Trans divorce reform gathers pace

By June 12, 2018October 26th, 2021No Comments

When the Australian public voted for marriage equality last year, they voted for fairness and for the removal of discrimination. And the laws continue to be slowly tweaked around the country to ensure that trans and gender diverse people are able to live with the dignity afforded all other Australians.

“Updating state laws following the historic achievement of marriage equality,” is how NSW Liberal MP Don Harwin puts the process. Reforming outdated birth certificate laws is a step in that direction. Victoria and New South Wales are now the latest states to pass legislation to stop the forced divorce of transgender people. which is expected to affect thousands of people. The trans divorce legislation should be in force by October this year.

It’s expected that the other states and territories will follow suit, given they have 12 months to change their laws in accordance with federal marriage equality laws.  South Australia and the Australian Capital Territory had already changed their laws before December. At the moment, a bill is before the Queensland parliament.

Transgender people have been able to change their birth certificates after a gender transition since about 2002. But the federal Marriage Act legislation did not allow this if you were a trans person and married. Previously, if one member of a heterosexual couple had a gender transition and changed their birth certificate, the couple were forced to divorce.

Couples who had successfully navigated one member’s gender transition found that despite their support and commitment to their marriage, on paper they were now required to divorce if they wanted their birth certificate updated to reflect their new gender.

While the gay marriage debate was settled by the postal vote, these little anomalies in the law, such as the trans divorce problem, have continued to be felt by those affected. And until the various anomalies are fixed, full marriage equality for trans and gender divorce people has not been achieved.

The trans and gender diverse community has therefore heartily welcomed the news that married individuals will no longer have to file for divorce after their gender has been changed on their birth certificate. The importance of the trans divorce reforms is the positive impact on day to day lives of transgender people, advocates say. One transgender woman was quoted as saying:

“Society makes us jump over all these hoops and hurdles and there’s this thought, ‘What happens if I get to the end of this, and this person I love so much, I’ll have to divorce?'”

And, highlighting the relevance of a birth certificate reflecting the correct gender:

“The birth certificate is used in so many different aspects of the rest of your life, to prove your identity, to prove your gender. But it’s also that final celebration of finally becoming your true gender.”

More reform is needed and expected. Mr Harwin points to the need to remove the requirement that exists in most states for trans people to have sterilising surgery before being legally able to change their sex. He said:

“Importantly these changes include removing the unmarried requirement for people transitioning sex or gender. Up until now, couples have cruelly and unfairly had to face the prospect of divorce when one partner transitions sex or gender.

“More still needs to be done to support the trans community, including removing the need for forced surgical intervention before a person can update their identity documents including birth certificates.”

Aside from trans divorce law changes, further changes are anticipated to be required to amend the Births Death and Marriages Act.

As Victoria’s Minister for Equality, Martin Foley, has said: “People fundamentally…get the notion of a fair go.”

Source: ABC

Star Observer

Our recent blog on transgender custody issues

Do you need assistance with a LGBTIQ family law matter?  We have extensive experience in same-sex couple family law issues and can advise you. Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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