Marriage in Australia: Difference between revisions

Since December 2017, Australian law has recognised [[same-sex marriage in Australia]] whether entered into in Australia or abroad.<ref>''[[Marriage Amendment (Definition and Religious Freedoms) Act 2017]]''</ref><ref name="ABC News">{{cite web|url=http://www.abc.net.au/news/2017-12-07/same-sex-marriage-bill-passes-house-of-representatives/9235560|title=Same-sex marriage bill passes House of Representatives, paving way for first gay weddings|work=ABC News|date=7 December 2017}}</ref><ref name="abc.net.au">{{cite news|title=When can you lodge your Notice for Intended Marriage?|url=http://www.abc.net.au/news/2017-12-07/when-can-you-lodge-your-notice-for-intended-marriage-forms/9238438|accessdate=7 December 2017|work=ABC News|date=7 December 2017|language=en-AU}}</ref> The original 1961 Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition.<ref name="ReferenceB">The definition is found in ''[[Hyde v Hyde]]'' (1866) {L.R.} 1 P. & D. 130: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".</ref><ref name="Michael 2016">{{Cite journal |last=Michael |first=Quinlan |date=2016|title=Marriage, Tradition, Multiculturalism and the Accommodation of Difference in Australia|url=https://researchonline.nd.edu.au/undalr/vol18/iss1/3/|journal=The University of Notre Dame Australia Law Review |language=en |volume=18|issue=1|issn=1441-9769}}</ref> The [[Marriage Act 1961 (Australia)#Amendments to the Marriage Act|''Marriage Amendment Act 2004'']] defined, for the first time by statute, marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."<ref>{{cite web|url=http://www.comlaw.gov.au/Details/C2004A01361|title=Marriage Amendment Act 2004|work=comlaw.gov.au}}</ref> The 2004 Act also expressly declared same-sex marriages entered into abroad were not to be recognised in Australia. This was in response to a lesbian couple getting married in Canada and applying for their marriage to be recognised in Australia.<ref name="The Guardian">{{cite news |last1=Wall |first1=Louisa |title=Australia's marriage equality process did not have to be so politicised {{!}} Louisa Wall|url=https://www.theguardian.com/commentisfree/2017/oct/14/australias-marriage-equality-process-did-not-have-to-be-so-politicised |accessdate=15 October 2017|work=The Guardian|date=13 October 2017}}</ref> In 2017, the definition of "marriage" was changed, replacing the words "a man and a woman" with "2 people" and therefore allowing monogamous same-sex marriages.<ref>[[Marriage Amendment (Definition and Religious Freedoms) Act 2017|''Marriage Amendment (Definition and Religious Freedoms) Act'']]</ref> The changes also retrospectively recognised same-sex marriages performed in a foreign country, provided that such marriages were permitted under the laws of that foreign country.

The celebrant is required to recite the prescribed words to solemnise the marriage.<ref>Marriage Act 1961, s.46</ref> Otherwise, almost anything is permitted. The civil celebrant is obliged to assist couples to compose or choose an appropriate ceremony and provide a rehearsal if the couple require it.<ref>{{cite web |title=Code of Practice for Marriage Celebrants |url=https://www.ag.gov.au/sites/default/files/2020-03/Code_of_practice_for_marriage_celebrants.pdf |website=Attorney-General of Australia |publisher=Australian Government |access-date=18 August 2023 |ref=Section 5 a}}</ref> For example, it can be at any venue, indoors or outdoors, at any day or time,<ref>Marriage Act 1961, s.43</ref> and follow any tradition or custom, or none at all.

In 2004, the Liberal [[Howard Governmentgovernment]] enacted the ''Marriage Amendment Act 2004'' to expressly ban same-sex marriage in Australia. It defined ''marriage'' as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".

In 2009, the Labor [[Rudd Governmentgovernment (2007–10)|Rudd Governmentgovernment]] enacted the ''[[Family Law Act 2009 (Australia)|Family Law Act 2009]]'', which recognised the property rights of each partner of a [[de facto relationship]], including a same-sex relationship, for the purposes of the ''[[Family Law Act 1975]]''.

The ''[[Marriage Act 1961 (Australia)|Marriage Act 1961]]'' was amended in December 2017 by the ''[[Marriage Amendment (Definition and Religious Freedoms) Act 2017]]'' to amend the definition of marriage and to recognise same-sex marriage in Australia whether entered into in Australia or abroad.<ref name="ABC News"/><ref name="abc.net.au"/> The original Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition.<ref name="ReferenceB"/><ref name="Michael 2016"/> The [[Marriage Act 1961 (Australia)#Amendments to the Marriage Act|''Marriage Amendment Act 2004'']] defined, for the first time by statute, marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."<ref>{{cite web|url=http://www.comlaw.gov.au/Details/C2004A01361|title=Marriage Amendment Act 2004|work=comlaw.gov.au}}</ref> The 2004 Act also expressly declared same-sex marriages entered into abroad were not to be recognised in Australia. This was in response to a lesbian couple getting married in Canada and applying for their marriage to be recognised in Australia.<ref name="The Guardian"/>