Lawyer offers to help distraught NO voting couple to divorce

Author
Newstalk ZB Staff,
Section
World,
Publish Date
Friday, 17 November 2017, 6:28AM
Michael Tiyce, of Tiyce & Lawyers, said he is here to help (Photo \ Supplied)
Michael Tiyce, of Tiyce & Lawyers, said he is here to help (Photo \ Supplied)

A Sydney lawyer has offered his pro-bono support to a straight couple who said they would divorce if Australia legislated for same-sex marriage.

Michael Tiyce, from Sydney family law firm Tiyce & Lawyers, told news.com.au he wanted to help Canberra couple Nick and Sarah Jensen keep their promise to Australia, "because, quite simply, they are going to need it".

On Wednesday, the Australian Bureau of Statistics announced 62 per cent of Australians had voted Yes in the same-sex marriage postal survey.

The state with the highest Yes vote was the Australian Capital Territory where three out of four of the Jensen's neighbours voted in favour of same-sex marriage.

The Jensen's made a nationwide stir when, in 2015, they pledged to dissolve their marriage, despite being very much in love, if gay couples were also allowed to wed.

"My wife and I just celebrated our 10th wedding anniversary but later this year we may be getting a divorce," Mr Jensen wrote in Canberra City News.

"My wife and I, as a matter of conscience, refuse to recognise the government's regulation of marriage if its definition includes the solemnisation of same sex couples."

Despite his decision to divorce, Mr Jensen said it wouldn't be the traditional break up.

"After our divorce, we'll continue to live together, hopefully for another 50 years. And, God willing, we'll have more children. We'll also continue to refer to each other as 'husband' and 'wife' and consider ourselves married by the Church and before God."

Now, with same-sex marriages possibly just weeks away, many are wondering if the Jensen's are still determined to go de facto.

Mr Tiyce said he was only too happy to step into the breach in a complex case and assist the couple in their darkest hour. He noted "Jesus hated divorce, remember," but wanted to help the deeply religious couple anyway.

"I see it as a call for help, hence my offer.

"My firm does quite a bit of pro bono work in family law each year in the gay, lesbian and trans community, I thought offering assistance to Nick and Sarah would be an excellent way of reaching out across communities with my family law expertise, because quite simply they are going to need it."

Given divorce is only acceptable under certain conditions, the Jensen's decoupling is going to be a challenge, said Mr Tiyce.

"The Family Law Act [states] the only ground for divorce is that the marriage has broken down irretrievably. That means that there is no reasonable chance that the parties will resume their marital relationship."

He also said a couple need to be separated for a continuous period of 12 months before filing for divorce.

"As I understand the position taken by Nick and Sarah, they intend to divorce, but still remain together and have more children. That makes things a bit tricky as they will be unable to establish the consortium vitae has ended.

"Continuing to present as husband and wife to the world would, in my opinion, make it impossible for them to establish that their relationship was at an end.

"This is a situation known as 'wedlock' which is mostly experienced currently by gay couples who married overseas but cannot always divorce upon separation in Australia because their marriage post 2004 is not recognised here.

"I understand that may be even more uncomfortable for Nick and Sarah hence my offer to help them out of the institution they support keeping closed to gays," he said.

"The application may be doomed to failure but it is worth giving it a burl."

In the wake of the gay marriage vote, the Jensen's are keeping their powder dry on the future of their relationship.

Mr Jensen declined to tell news.com.au how, or indeed if, the divorce plans were progressing. But talking to the Mail Online earlier this week he said "we just need to see the legislation and if it all goes that way."

"Then we know what situation we're in and what we're going to do."

Following Mr Jensen's public divorce announcement, 100,000 people signed up to attend a Facebook event called 'Celebrating Nick and Sarah Jensen's divorce'.

 

Following the City News article, Mr Jensen penned a piece for the Bible Society answering some of the questions he'd received over his odd divorce announcement.

To those who asked if divorce was a sin, Mr Jensen said the couple didn't consider disbanding their "state marriage" a sin as they would still consider themselves wed "under God."

He admitted he and his wife had not met the 12-month separation rule to apply for a divorces but said they meant an easier way to split was needed.

"This is a minor problem, however, if a simple 'annulment' option was available in any legislation for conscientious objectors such as ourselves. If this wasn't available then perhaps a larger legal challenge could be made," he said.

"Some have painted our act as simply a petty tantrum, a toddler's reaction who doesn't want to share and will simply take his toys home if he can't win," he said.

But Mr Jensen denied he was a sore loser on the issue of marriage.

"This decision is not due to any dislike of any people, same sex attracted or not, but simply around how we understand marriage as defined by God."

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