Pregnant Man Cannot Divorce Wife

by Peter Magee on June 14, 2013

Peter Magee

Yes you read that correctly. Thomas Beatie was born female. Despite his double mastectomy and testosterone hormone therapy, Beatie had retained the ability to conceive children. He married a woman in Hawaii in 2003. At the time that Beatie married his wife in Hawaii, neither same-sex marriage nor same-sex civil unions were legal. He therefore must have married in Hawaii as a male.

After relocating to Arizona the marriage then broke down and Beatie sought a divorce. The problem? Arizona did not recognise that Beatie was legally a male when he married and as a result, Arizona law considered the marriage a same-sex marriage which is not recognised in Arizona. If the couple were not recognised as being married, there was no marriage to dissolve by way of divorce.

So what would happen in Australia? Unlike the USA, our family law system is a federal system, not state by state. If a marriage is validly entered into anywhere in Australia, then it can be dissolved by a divorce anywhere in Australia.

But what about couples that were married outside of Australia and now living in Australia, who wish to divorce?

This is an especially relevant time to consider this question, since same-sex marriage was legalised in New Zealand.

Section 88EA of the Marriage Act indicates that a union solemnised in a foreign country between (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia. Therefore, a same-sex marriage from New Zealand or elsewhere is not recognised in Australia and cannot be dissolved by way of an Australian divorce.

Something to consider then:
Can a person that identifies as being bisexual be married in New Zealand to a person of the same sex, and in Australia to a person of the opposite sex at the same time, and not attract the laws of bigamy?


If you would like advice in relation to a separation from your spouse or partner feel free to contact us at Armstrong legal on 9261 4555 for your initial obligation free appointment.

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