QUESTIONS AND ANSWERS ON CIVIL UNION AND RELATIONSHIPS (STATUTORY REFERENCES) BILLS

GENERAL QUESTIONS

Why is the government promoting these two Bills?
The law differentiates between people in committed, exclusive and stable relationships depending on their marital status, with a number of legal rights and responsibilities accessible only to married couples. These potentially discriminatory laws expose the government to risks of complaints to the Human Right Commission (HRC), cases before the Human Rights Review Tribunal and litigation. It isn’t fair to deny legal rights to people unable to marry, and establishing civil union in legislation means that Parliament, rather than the judiciary, determines relationship law for New Zealand.

Do these Bills undermine marriage?
No, the Civil Union Bill does not change the Marriage Act 1955. In fact, the institution of marriage remains solely available to a man and a woman. The terms "husband", "wife" and "marriage" are not being removed from any legislation. Where any legislation currently refers to "husband" and "wife" the terms have been retained.

Are these proposals just for same sex couples?
No, civil union will be open to different and same sex couples. The largest group of people affected by the Relationships (Statutory References) Bill will be people in a heterosexual de facto relationship.

Are other countries making similar changes?
Many countries and states have extended or are considering extending the same rights in law to de facto and same-sex couples. Some countries have established provisions to recognise partnerships as civil unions, with some or all of the same rights in law as married couples (Denmark, Finland, Greenland, Iceland, Norway, Sweden, Hungary, France and Germany). A form of civil partnership is under consideration in the United Kingdom. Some countries (the Netherlands and Belgium) have granted same sex couples the right to marry.

Aren’t de facto partners already able to make contracts and write wills to protect their relationship?
No, not all statutory provisions can be overridden by contract. For example, the Burial and Cremation Act 1964 does not recognise de facto partners thus denying a person the right to be buried in the same plot of ground as their deceased partner, and a contract has no effect on that. In addition, preparing contracts for personal matters can be expensive and complex. Private arrangements are open to dispute, which creates uncertainty for the parties and also work for the courts as these disputes are litigated.

How many people will be affected by these Bills?
Around one in five New Zealanders who are living in a relationship have chosen not to marry (in Census 2001 336,591 people identified themselves as having a partner but not legally married). Information extrapolated from the same census indicates 0.6% of people living with a partner (10,134 people) are same sex couples, although this statistic is likely to under-report real numbers as there was no specific question on this point.

How will these bills change laws about children?
Some children are currently not receiving the same protections of the law as others because of the nature of the relationship of the child's parents/caregivers. For example, the Health (Immunisation) Regulations 1993 do not treat de facto partners as "parents" for the purposes of providing information about the immunisation of a child. These laws will be amended. Neither the Civil Union Bill nor the Relationships (Statutory References) Bill alter rules around adoption. Key laws about children are currently being addressed in separate reviews, for example in the Care of Children Bill and the review of the Adoption Act.

CIVIL UNION BILL QUESTIONS:

What differences are there in the structure of marriage and civil union?
The significant difference is that same sex couples are not able to marry. The Civil Union Bill is based on the provisions for marriage but looks different to the Marriage Act to reflect modern legislative drafting styles. The Civil Union Bill is also different in content in several ways, the main differences being:

• The process for appointing and removing celebrants has been simplified;
• Civil unions may be declared void if one of the parties is under 16;
• The penalties for offences have been increased to reflect current penalty regimes; and
• No provision is made for service or proxy civil unions (no service or proxy marriages have occurred for a number of years).

Can someone be in a marriage and a civil union at the same time?
No, people can be in a marriage or a civil union, but not both at the same time. The Civil Union Bill provides that two people cannot enter a civil union if either is already married or in a civil union with another person and amends the bigamy provisions of the Crimes Act to enforce this. A couple who are in a civil union and otherwise able to marry will be able to convert their civil union to a marriage. Equally a couple in a marriage will be able to convert to a civil union. These provisions will not be used by same sex couples as they are unable to marry.

Will existing marriage celebrants have to perform civil unions?
No. Marriage celebrants will be able to choose to perform civil union ceremonies but will not be required to. As with marriage, people will be able to apply to Births, Deaths and Marriages (Internal Affairs) to be appointed as a civil union celebrant.

Will people who enter a civil union receive a certificate and be able to change their surnames?
Yes. All civil unions will be registered under the Births, Deaths and Marriages Registration Act 1995 (BDMR Act). Amendments will be made to the BDMR Act to require documentation for registering and dissolving civil unions, including civil union certificates. The same convention that applies to changing surnames upon marriage will apply to people entering a civil union.

How will overseas civil unions be recognised?
Civil Unions entered into under another country’s legislation will not be recognised in New Zealand. The Bill establishes civil union for New Zealand. Only civil unions entered into under the Bill will be registered or recognised under New Zealand law. Civil union does not have the universality of marriage and there is wide variation in the forms of civil union and relationship registration available overseas.

Why are different sex couples able to choose to marry or enter a civil union?
Civil union is a new form of recognised relationship. In developing the Civil Union Bill the government is subject to the anti-discriminatory standards set out in human rights legislation. There is no justification for discriminating in the Civil Union Bill between different and same sex couples. In addition, some different sex couples may wish to have their relationship legally recognised but not marry.

RELATIONSHIPS (STATUTORY REFERENCES) BILL:

What legislation does the Bill amend?
The Bill amends over 1,000 provisions across more than 100 separate statutes covering a range of subject areas including commerce, education, health, taxation and social assistance. A number of significant relationship laws have previously been amended to recognise de facto relationships, for example, the Property (Relationships) Act 1976, so many of the amendments being made are technical or administrative.

What legislation does the Bill not amend?
The Bill does not amend legislation currently being reviewed by government agencies or where there is legislation already before Parliament. Existing reviews include citizenship, guardianship, evidence, friendly societies and credit unions, insolvency and property. These reviews will address any discrimination that arises in those areas of law.

The Bill also does not amend apparently discriminatory laws where they can be justified. For example under s7 of the Births, Deaths and Marriages (Prescribed Information and Forms) Regulations 1995 registrars must record a deceased person’s marital status, but not whether they were in a de facto relationship. This provision enables surviving spouses to prove they are legally free to remarry. Entering a de facto relationship does not require proof that a former partner is dead or has legally terminated the relationship through divorce. Consequently de facto couples face no adverse discrimination from this provision and it is not being extended.

When will the Bill come into force?
The Bill should be passed by the end of this year. Most of the changes will apply immediately, but some have later start dates. It is intended that civil unions will be in place six months after the Bill is passed, leaving time for regulations, forms and other implementation details to be put in place. Significantly, changes that impose financial obligations or remove financial entitlements will not apply to de facto couples until two years after the Bill is enacted, giving people time to adjust their affairs. This approach only affects social assistance and taxation legislation. People who enter a civil union will be affected by the proposed changes upon registering their relationship, having entered this relationship knowingly.

Why are de facto couples included as they have made a decision not to formalise their relationship?
Including de facto couples in the Bill is necessary to remove risks that laws are discriminatory on the basis of relationship status. De facto couples are already recognised in many statutes. However, people in a stable and long-term de facto relationship would generally be surprised to learn of the limits on their ability to make decisions for each other. In addition, vulnerable people in de facto relationships currently receive only limited protection. Most of the amendments extend a benefit to de facto couples. Any negative impacts for de facto couples occur where an advantage they currently receive over married couples is being removed.

How will the Bill grant ‘next of kin’ status?
Where legislation defines next of kin in a discriminatory way, this discrimination is being removed. For example, Regulation 7 of the Cremation Regulations 1973 specifies that only near relatives may apply for the cremation of a body and the definition of “near relative” is limited to the wife or husband of the deceased, as well as the deceased’s family members. The Bill will amend this provision to include the deceased’s civil union or de facto (same or different sex) partner.