An Act to amend certain legislation consequent on the commencement of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth; and for related purposes.
1 Name of Act
This Act is the Miscellaneous Acts Amendment (Marriages) Act 2018.
2 Commencement
This Act commences on the date of assent to this Act.
Schedule 1 Amendment of certain legislation dealing with terms relating to marriage
[1] Clause 61 Errors not to forfeit vote
Omit “A female elector” from clause 61 (2). Insert instead “An elector”.
[2] Clause 61 (2)
Omit “her”. Insert instead “the elector’s”.
Section 4 Definitions
Omit section 4 (2) (d) (i). Insert instead:(i) a person to whom the person is legally married (including a husband or wife of the person), or
Section 49S Meaning of “responsibilities as a carer”
Omit paragraph (a) of the definition of spouse in section 49S (3). Insert instead:(a) a person to whom the person is legally married (including a husband or wife of the person), or
Section 4 Definitions
Omit paragraph (a) of the definition of spouse in section 4 (1). Insert instead:(a) a person to whom the person is legally married (including a husband or wife of the person), or
[1] Sections 68 (e) and 83 (4)
Omit “(whether of the same or the opposite sex)” wherever occurring.
[2] Section 83 Disclosure and misuse of information
Insert at the end of the section:Note—De facto partner is defined in section 21C of the Interpretation Act 1987.
Section 3 Definitions
Omit section 3 (2) (a). Insert instead:(a) a person to whom the person is legally married (including a husband or wife of the person), or
Clause 4 Definitions
Omit paragraph (b) (i) of the definition of eligible pensioner. Insert instead:(i) the surviving spouse (including widow or widower) of a member of the Australian Defence Force or Peacekeeping Forces, or
[1] Section 15B Damages for loss of capacity to provide domestic services
Omit paragraph (a) (i) of the definition of dependants in section 15B (1). Insert instead:(i) the person to whom the claimant is legally married (including a husband or wife of the claimant),
[2] Section 30 Limitation on recovery for pure mental harm arising from shock
Omit paragraph (a) of the definition of spouse or partner in section 30 (5). Insert instead:(a) the person to whom the victim is legally married (including the husband or wife of the victim), or
Schedule 2 Savings and transitional provisions
Omit “of the opposite sex” from clause 27 (9).
Section 7 Construction of Act
Omit section 7 (4) (a). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[1] Section 4 Definitions
Omit paragraph (a) of the definition of spouse in section 4 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[2] Section 75 Powers of coroner in relation to reports or proceedings concerning self-inflicted deaths
Omit “her husband or his wife” from section 75 (3) (b). Insert instead “the person’s spouse”.
Sections 92 and 93
Omit “husband or wife” wherever occurring.Insert instead “spouse (including husband or wife)”.
Section 4 Definitions
Omit paragraph (a) of the definition of spouse in section 4 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
Section 4 Definitions
Omit paragraph (a) of the definition of spouse in section 4 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
Clause 3 Definitions
Omit paragraph (a) of the definition of spouse in clause 3 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
Section 7C Pension in respect of certain children where judge or retired judge dies without leaving a surviving spouse
Omit “husband, wife” wherever occurring.Insert instead “spouse (including husband or wife)”.
Clause 4 Associated persons
Omit the definition of spouse from clause 4 (2). Insert instead:spouse means:(a) the person to whom a person is legally married (including the husband or wife of a person), orbut where more than one person would so qualify as a spouse, means only the last person so to qualify.(b) a de facto partner,Note—De facto partner is defined in section 21C of the Interpretation Act 1987.
Section 15AL Definitions
Omit the definition of dependent widower from section 15AL (1). Insert instead:dependent widower, in relation to a person who dies while a contributor or pensioner, means the person’s widower if he satisfies and continues (except during any period he is married) to satisfy the prescribed dependency test.
[1] Clause 22 Identification of electors
Omit “A female” from clause 22 (6). Insert instead “An elector”.
[2] Clause 22 (6)
Omit “her”. Insert instead “the elector’s”.
Section 4 Definitions
Omit paragraph (a) of the definition of spouse in section 4 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[1] Section 1.4 Definitions
Omit paragraph (a) of the definition of spouse in section 1.4 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[2] Section 3.26 Statutory benefits for loss of capacity to provide gratuitous domestic services
Omit paragraph (a) (i) of the definition of dependants in section 3.26 (5). Insert instead:(i) a person to whom the claimant is legally married (including a husband or wife of the claimant),
Section 3 Definitions
Omit paragraph (a) of the definition of spouse in section 3 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
Section 3 Definitions
Omit paragraph (a) of the definition of spouse. Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
Section 3 Definitions
Omit paragraph (a) of the definition of spouse in section 3 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[1] Section 101 Errors not to forfeit vote
Omit “female”.
[2] Section 101
Omit “her”. Insert instead “the elector’s”.
Section 2 Rules for determining existence of partnership
Omit “the widow, widower” from section 2 (1) (3) (c).Insert instead “the surviving spouse (including widow or widower)”.
Section 2 Definitions
Omit the definition of spouse from section 2 (1). Insert instead:spouse of a prescribed person (within the meaning of section 3) who has died means the surviving spouse of the prescribed person.
[1] Section 1 Name of Act, commencement and definitions
Omit “widow or widower, as the case may be,” from the definition of spouse in section 1 (2).Insert instead “surviving spouse (including widow or widower)”.
[2] Sections 20 (5) and 23 (4)
Omit “widow or widower” wherever occurring. Insert instead “surviving spouse”.
Schedule 3 Prescribed expressions and authorisations for prescribed powers of attorney
Omit “wife, husband” from paragraph (a) of the definition of relative in clause 1 (3).Insert instead “spouse (including wife or husband)”.
Clause 17 Interpretation
Omit paragraph (a) of the definition of spouse in clause 17 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[1] Section 3 Definitions
Insert after section 3 (4):(5) Notes included in this Act do not form part of this Act.
[2] Section 32 Cessation of order—generally
Insert at the end of the section:Note—Certain marriages other than those between a man and woman were legally recognised on 9 December 2017 because of Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth.
[3] Section 62 Effect of Property (Relationships) Legislation Amendment Act 1999
Omit “, which by law must be between persons of the opposite sex,”.
Section 212 Interlock exemption orders
Omit the note to section 212 (5) (c). Insert instead:Note—For example, the offender’s spouse is the registered operator of the only vehicle to which the offender has access and the spouse refuses consent to installation of an interlock device in it; the offender owns a chauffeur-driven limousine business and seeks exemption from installing an interlock device in cars used in the business.
Section 3 Definitions
Omit the definition of spouse from section 3 (1). Insert instead:spouse of a deceased employee or deceased former employee means the surviving spouse of the employee or former employee.
Section 3 Definitions
Omit the definition of spouse from section 3 (1). Insert instead:spouse of a deceased contributor or deceased former contributor means the surviving spouse of the contributor or former contributor.
Clause 3 Definitions
Omit “widow or widower” from the definition of spouse.Insert instead “surviving spouse (including widow or widower)”.
[1] Section 54 Persons entitled to inspect will of deceased person
Omit “(whether of the same or the opposite sex)” from section 54 (2) (c).
[2] Section 57 Eligible persons
Omit “wife or husband” wherever occurring. Insert instead “spouse”.
Section 3 Definitions
Omit “widow or widower, as the case may be,” from the definition of Spouse in section 3 (1).Insert instead “surviving spouse (including widow or widower)”.
Section 51 Assignment of policies of assurance to the Board in certain cases
Omit “husband or wife” from section 51 (1).Insert instead “spouse (including husband or wife)”.
Section 45 Protective trusts
Omit paragraph (a) of the definition of spouse in section 45 (11). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
Rule 1.19 Assignment of business to Equity Division
Omit “husband and wife” from rule 1.19 (c).Insert instead “spouses (including husband and wife)”.
Clause 211 Definitions
Omit “widow or widower” from paragraph (b) (i) of the definition of eligible pensioner in clause 211 (1).Insert instead “surviving spouse (including widow or widower)”.
[1] Section 85 Payments to NSW Trustee for benefit of beneficiary
Omit “a widow or widower” from section 85 (3).Insert instead “a surviving spouse (including widow or widower)”.
[2] Section 85 (3) and (4)
Omit “the widow or widower” wherever occurring. Insert instead “the surviving spouse”.
[3] Schedule 6 Savings, transitional and other provisions
Omit “wife or husband” from clause 4 (1) (b) (i) in Part 4.Insert instead “spouse (including wife or husband)”.
[1] Section 3 Definitions
Omit “a husband or wife of the person” from paragraph (a) of the definition of Spouse in section 3 (1).Insert instead “a person to whom the person is legally married”.
[2] Section 3 (1), definition of “Spouse”
Omit paragraph (b) (i). Insert instead:(i) a person to whom the person is legally married, or
[1] Section 4 Definitions
Omit “wife or husband” from the definition of member of a family in section 4 (1).Insert instead “spouse (including wife or husband)”.
[2] Section 4 (1), definition of “spouse”
Omit “a husband or wife of the person” from paragraph (a).Insert instead “a person to whom the person is legally married (including a husband or wife)”.
[3] Section 4 (1), definition of “spouse”
Omit paragraph (b) (i). Insert instead:(i) a person to whom the person is legally married (including a husband or wife), or
Schedule 2 Amendment of certain legislation dealing with terms relating to parentage
[1] Dictionary
Omit the definition of married. Insert instead:married means:(a) two persons who are legally married to one another, or(b) two Aboriginal or Torres Strait Islander persons who are living together in a relationship that is recognised as a marriage according to the traditions of an Aboriginal community or Aboriginal or Torres Strait Islander group to which they belong.
[2] Dictionary, definition of “step parent”
Omit “birth parent or adoptive parent” from paragraph (a).Insert instead “birth parent, parent or adoptive parent”.
[3] Sections 68 (c), 72 (3) (c) and 73 (4) (c)
Omit “the mother, the father” wherever occurring.Insert instead “the parent (including the mother or father)”.
[1] Clause 46 Assessment of applicants for adoption
Omit “a husband and wife or by de facto partners” from clause 46 (6).Insert instead “a couple”.
[2] Clause 46 (6)
Omit “either of them”. Insert instead “a person of the couple”.
[1] Section 13
Omit the section. Insert instead:13 Rights of surviving parent as to guardianship(1) On the death of a parent of a minor (the deceased parent), a surviving parent of the minor is, subject to the provisions of this Act, to be a guardian of the minor, either alone or jointly with any guardian appointed by the deceased parent.(2) Where no guardian has been appointed by the deceased parent, or if the guardian or guardians appointed by the deceased parent is or are dead or refuses or refuse to act, the court may, if it thinks fit, appoint a guardian to act jointly with the surviving parent of the minor.
[2] Section 14 Power of parents to appoint guardians
Omit section 14 (1) and (2). Insert instead:(1) The parent (including a mother or father) of a minor may by deed or will appoint any person to be guardian of the minor after his or her death.
[3] Section 14 (3)
Omit “the mother or father, as the case may be,”.Insert instead “the surviving parent (including the mother or father, as the case may be)”.
[4] Section 14 (3)
Omit “the mother or father” where secondly and thirdly occurring.Insert instead “the surviving parent”.
[5] Section 14 (4)
Omit “the mother or father” wherever occurring. Insert instead “the surviving parent”.
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):spouse includes a spouse under a void or voidable marriage.
[2] Section 3 (2)
Omit “father and mother” wherever occurring.Insert instead “parents (including father and mother)”.
[3] Section 5 All children are of equal status
Omit “the person’s father and mother (or either of them)” from section 5 (1).Insert instead “the person’s parents (or either of the person’s parents)”.
[4] Section 9 Presumptions of parentage arising from marriage
Omit “husband” wherever occurring. Insert instead “spouse”.
[5] Section 14 Presumptions of parentage arising out of use of fertilisation procedures
Omit “married woman” wherever occurring in section 14 (1) and (6).Insert instead “woman who is married to a man”.
[6] Section 14 (1A)
Insert “who is married to or” after “a woman”.
[7] Section 14 (5A)
Insert “spouse or” after “pregnancy of her”.
Schedule 3 Amendment of Births, Deaths and Marriages Registration Act 1995 No 62
[1] Section 32B Application to alter register to record change of sex
Omit “and” at the end of section 32B (1) (b) and omit section 32B (1) (c).
[2] Section 32B
Omit “and” at the end of section 32B (2) (b) and omit section 32B (2) (c).
[3] Section 32D Alteration of register
Omit section 32D (3).
[4] Section 32DA Application to register change of sex
Omit section 32DA (1) (d).
[5] Section 32DA (2) (d)
Omit the paragraph.
[6] Section 32DC Decision to register change of sex
Omit section 32DC (3).
Schedule 4 Amendment of Evidence Act 1995 No 25
[1] Section 73 Exception: reputation as to relationships and age
Omit “a man and a woman” from section 73 (1) (b). Insert instead “2 people”.
[2] Schedule 2 Savings, transitional and other provisions
Insert after Part 4:Part 5 Provisions consequent on the enactment of the Miscellaneous Acts Amendment (Marriages) Act 201826 Application of amendment to section 73—exception to the hearsay rule for evidence concerning relationshipThe amendment to section 73 made by the Miscellaneous Acts Amendment (Marriages) Act 2018 applies in relation to evidence adduced on or after the commencement of this Part, whether the proceedings are commenced before, on or after that commencement.
Schedule 5 Amendment of Guardianship Act 1987 No 257
[1] Section 3 Definitions
Omit paragraph (a) of the definition of spouse in section 3 (1). Insert instead:(a) the person to whom a person is legally married (including the husband or wife of a person), or
[2] Section 6HA Automatic revocation of appointment by marriage of appointer
Insert at the end of the section:Note—See section 6HC for certain appointments taken not to have been revoked on the recognition of same sex marriages.
[3] Section 6HC
Insert after section 6HB:6HC Certain appointments not revoked on recognition of same sex marriages(1) This section applies to an appointment of a person as an enduring guardian that:(a) was made by a person who at the time of making the appointment was party to a marriage that had been solemnised and that marriage was a recognised same sex marriage on the recognition day, and(b) was in force immediately before the recognition day, and(c) was revoked by the operation of section 6HA on the recognition day because of the recognised same sex marriage of the person who made the appointment.(2) An appointment to which this section applies is taken not to have been revoked by the operation of section 6HA.(3) However, subsection (2) does not apply if the appointment to which this section applies was made by a person who made a subsequent appointment on or after the recognition day but only from the day on which that subsequent appointment was made.(4) Anything done or omitted to be done by a person, whose appointment as an enduring guardian is an appointment to which subsection (2) applies, that would have been lawful if this section applied at the time concerned, is taken to be (and always to have been) lawful.(5) In this section:recognised same sex marriage means a marriage that:(a) was solemnised before the recognition day, and(b) was recognised in Australia as valid on the recognition day because of Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth, and(c) would not have been recognised apart from that Part.recognition day means the day on which Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth commenced.
Schedule 6 Amendment of Married Persons (Equality of Status) Act 1996 No 96
[1] Section 5 Spouses can sue each other in tort
Omit “A husband and wife each has”.Insert instead “Spouses (including a husband and wife) each have”.
[2] Section 9 Spouses as beneficiaries
Omit “A husband and wife” and “the husband and wife”.Insert instead “Spouses (including a husband and wife)” and “the spouses”, respectively.
[3] Schedule 3, heading
Omit the heading. Insert instead:Schedule 3 Savings, transitional and other provisions
[4] Schedule 3
Omit clause 1 (1). Insert instead:(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
[5] Schedule 3
Insert after Part 2:Part 3 Provisions consequent on enactment of the Miscellaneous Acts Amendment (Marriages) Act 20184 Savings and transitional regulations for any amended instrument(1) The regulations under the following Acts may contain provisions of a savings or transitional nature consequent on the enactment of the amending Act:(a) an Act amended by the amending Act,(b) an Act under which an instrument is made if that instrument is amended by the amending Act.(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the amending Act or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.(4) This clause does not limit any power under an Act to make regulations of a savings or transitional nature.(5) In this clause, amending Act means the Miscellaneous Acts Amendment (Marriages) Act 2018.
Schedule 7 Amendment of Relationships Register Act 2010 No 19
Section 10A
Insert after section 10:10A Certain registrations revoked on recognition of same sex marriages(1) This section applies to a registered relationship existing immediately before the recognition day if a person in the registered relationship was party to a recognised same sex marriage on the recognition day.(2) To avoid doubt, the registration of a registered relationship to which this section applies was revoked on the recognition day.(3) In this section:recognised same sex marriage means a marriage that:(a) was solemnised before the recognition day, and(b) was recognised in Australia as valid on the recognition day because of Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth, and(c) would not have been recognised apart from that Part.recognition day means the day on which Part 5 of Schedule 1 to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 of the Commonwealth commenced.