In 1961 the Commonwealth Government enacted the Marriage Act, which set out the various requirements before a marriage in Australia, either religious or secular, is valid. It also dealt with other issues including when marriages are void, and Australia’s obligations under the Hague Convention on Celebration and Recognition of the Validity of Marriages.
Interestingly, the Marriage Act did not contain a definition of the word “marriage”. Over the years, some High Court cases dealt with what constitutes a marriage. A judicial view emerged that “marriage” is a concept which is to be defined and measured from time to time against evolving attitudes and trends in society.
In 2004 the Commonwealth Government introduced a definition of “marriage” contained in Section 5 of the Marriage Act as follows:-
“marriage” means the union of man and woman to the exclusion of all others, voluntarily entered into for life.
Prior to the amendment to the Marriage Act in 2004 defining “marriage”, and leading up to a federal election, a case came before the Family Court of Australia at Melbourne involving two same sex couples who married overseas. Both couples sought a declaration that their marriages are valid in Australia. The Commonwealth Attorney-General intervened in this case and opposed the declaration that was sought. At that time, the Marriage Act contained provision giving effect to Australia’s obligations under the Hague Convention on Celebration and Recognition of the Validity of Marriages. Specifically, it contained a provision that foreign marriages validly entered into at the local place of ceremony would be recognised as valid in Australia.
Along with the amendment to Section 5 of the Marriage Act in 2004 creating a definition of “marriage”, the Commonwealth Government also enacted a new Section 88EA of the Marriage Act providing 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.
As a result of the new definition of “marriage” and the new Section 88EA of the Marriage Act, the case before the Family Court of Australia at Melbourne concerning the validity of the foreign same sex marriages was withdrawn.
In 2009, in the Commonwealth Senate the Australian Greens Party introduced a Private Members Bill, namely the Marriage Equality Amendment Bill 2009. Specifically, the Bill sought to amend the Marriage Act by the amending the definition of “marriage” is Section 5 as follows:
“Marriage” means the union of 2 people, regardless of their sex, sexuality, or gender identity, voluntarily entered into for life.
It also sought to repeal Section 88EA of the Marriage Act.
The Marriage Equality Amendment Bill 2009 was never passed as law, and as such the prohibition of same sex marriage remains in Australia.
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.