Dear Ms Brain
I refer to your e-mail correspondence to the Prime Minister, the Hon John Howard MP, received on 10 January 2006 concerning the recognition of marriages where one of the parties is a transsexual person. He has referred your letter to me for reply as I have the portfolio responsibility for the Marriage Act 1961.
Whether or not a marriage is valid is determined at the time the marriage takes place. If the parties to a marriage are a man and a woman at the date of the marriage them, if there are no other grounds for invalidity, the marriage will be valid. Events that occur after the date of the marriage cannot affect that validity, so if one of the parties to the marriage changes their gender the validity of the marriage is not affected. If the two parties wish to remain married they are able to do so.
As you have stated in your letter, the legislation in the States and Territories which provides for a change in the birth registration for appropriate individuals who have changed their gender can only be used by people who are unmarried. Registration of births is a matter for the States and Territories and it is not appropriate for me to comment on their legislation. You may wish to raise your concerns with the ACT Attorney-General, Mr Jon Stanhope MLA.
I hope this information is of assistance to you.
It most certainly has been of assistance. "Events that occur after the date of the marriage cannot affect that validity". This means that I now have advice that a change of gender after a marriage has been contracted cannot be contrary to the Marriage Act, an argument put forward by the ACT Attorney General as an excuse for why the law is framed as it is. No matter what they do or don't do, the validity of the marriage is unaffected by events subsequent to the event of marriage itself.
If I interpret it correctly, this is a very important document indeed.
Now to contact John Stanhope..... and maybe light a few fires...
You have to love a country where someone can write to the Prime Minister, and actually get a reply that's not just a form letter.