The Marriage Act 1961 is an Act of the Parliament of Australia which governs legal marriage in Australia. It does not deal with the legal dissolution of marriage (divorce). Marriage is a Commonwealth power under section 51(xxi) of the Australian Constitution[1], but prior to 1961 states and territories administered marriage law.
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Part I of the Act deals with preliminary matters.
The most important of these is the definition of ‘marriage’. Prior to 2004, marriage was not defined in the act. The Marriage Legislation Amendment Act 2004 inserted a definition into s5(1) of the act, that reads:
The 2004 amendment addressed the issue of gay marriage in Australia. Prior to the enactment of the 2004 Amendment Act there was uncertainty as to whether the Marriage Act 1961 allowed gay marriage. Furthermore, there was uncertainty as to whether the 1961 Act ‘covered the field’ so as to preclude gay marriage. If the 1961 Act did not cover the field then states could 'fill in the gap' to legally recognize gay marriage in that state. On the other hand, some have argued that, as the breadth of Commonwealth legislation power is limited to powers in Section 51 of the Australian Constitution, the federal Parliament may not have power to legislate in relation to gay marriage as ‘marriage’ in s51(xxi) means heterosexual unions. If that is the case then it is arguable that the states may still have a residual power in relation to gay unions.
It is generally accepted that for the time being, the Marriage Act 1961 excludes the possibility of gay marriage in Australia.
Part IA authorises the government to make grants to approved organisations for marriage counselling.
Part II (s10-21) deals with the marriageable age and the marriage of minors. In the original 1961 Act, the marriageable age was set at 16 for girls and 18 for boys. The age was equalised in 1991 by the Sex Discrimination Amendment Act 1991[2] by raising the marriageable age of girls to 18. In ‘exceptional circumstances’ the marriage of persons under 18 but over 16 may be authorised by a court. Part II establishes the procedures required in this instance.
Part III entitled ‘void marriages’ establishes the circumstances in which a marriage is void. To preserve the validity of past marriages, this part is divided into years based on when amendments to this act were introduced.
A current purported marriage is void if:
Part IV is a large part dealing with the ‘Solemnization of Marriages in Australia’. It deals with who is authorised to be a wedding celebrant, and the procedures to be followed. It also contains a division on marriages by foreign diplomatic or consular officers.
Division one deals with authorised celebrants. Under the current Act three types of celebrants are allowed: ministers of religion, State and Territory officers, and (civil) marriage celebrants.
Under Subdivision A, a register is kept of ministers of religion (s27) of ‘recognised’ denominations (s26). The only requirements for registration is that the person is a minister of religion[2] who is nominated by their denomination and is resident in Australia and over 21 years (s29). A minister will be registered (s30) unless the registrar refuses registration because there are sufficient ministers of that denomination, the minister is ‘not a fit and proper person’, or will not devote sufficient time to the functions of a minister of religion (s31). In general, the act establishes a broad scheme which recognises a religious wedding ceremony that is conducted by a registered minister.
Subdivision B (Section 39) preserves the power of ‘state and territory officers’, allowing people who register marriages (under a state law) to also solemnize marriages (i.e. registry marriages).
Subdivision C deals with ‘marriage celebrants’, or the authorisation of people to conduct civil ceremonies. Section 39B allows the register to be kept and sections 39D-E are procedural and seek to set up processes to control the number of celebrants.
This section was introduced by the Marriage Amendment Act 2002, after an Attorney-General inquiry into the Civil Celebrants Program. Prior to the passage of this amendment the authorisation of celebrants was entirely contained in s39, which had a s39(2) allowing the recognition of other ‘fit and proper persons’ as civil marriage celebrants, religious celebrants outside a recognised denomination, and celebrants with special community needs.
The original 1961 act therefore allowed civil ceremonies, and the first civil celebrants were authorised in 1973. By the time the amendments were introduced civil celebrants performed over 50% of marriages. The changes therefore provide legislative recognition to civil celebrants, and prescribe a regime beyond being ‘fit and proper’ in order to control the quality and number of celebrants.
Section 39C now lists a number of requirements to be registered as civil celebrant, in addition to being over 18 and ‘fit and proper’. The register will take into account: knowledge of the law, a commitment to advising about relationship counselling, good community standing, criminal record, the existence of a conflict of interest or benefit to business, and ‘any other matter’.
Section 39G imposes ‘obligations’ on civil celebrants. These include professional development and an adherence to a code of practice.
Section 39H, I, and J set up a review of celebrants and a disciplinary system.
Significantly, subdiv C deals only with marriage celebrants (civil or not a recognised religion), not with ministers of religion which are governed by subdiv A. As a result, ministers of religion are not necessarily subject to the same obligations nor code of practice.
Part IV Div 2 then deals with the technical requirements of a marriage conducted by an authorised celebrant (as set out in Div 1). It applies to all marriages solemnised in Australia. Marriages must be solemnized by an authorised celebrant, as established in Div 2.
Notice needs to be given at least 1 month before the marriage. Section 42 sets out the requirements of this form of notice etc. This is one of the most important requirements for people intending to marry and is dealt with on the marriage registry sections of most state government sites.
Section 43 clarifies that a marriage may be solemnized at any time and day.
Section 44 requires 2 witnesses over 18 (or who appear to the celebrant as over 18) to be present.
Section 45 and 46 set out the form of ceremony and sets out that:
“I am duly authorized by law to solemnize marriages according to law”; and “Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.”; and “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”; or words to that effect.
Section 47 allows ministers of religion to refuse to solemnize marriages or to require addition (e.g. religious membership) requirements
Section 48 deals with the situation of marriages not conducted in accordance with the requirements. The section seeks to preserve the validity of marriages. In effect, a failure to comply with technical requirements (e.g. of words) will not invalidate a marriage. However, a marriage must be solemnized by an authorised celebrant unless there was a reasonable mistaken belief.
Section 50 deals with marriage certificates and section 51 with incorrect certificates.
Part VA deals with recognition of foreign marriages.
This division reflects the Act's tendency to seek to uphold the validity of marriages. Marriages will be recognised if they were valid in the country where they were performed if the marriage would be legal under Australian law. The foreign marriage certificate is proof of marriage and marriages need not be registered. Section 88EA however provides that marriages performed in another country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.
As a marriage must be legal under Australian law, a foreign marriage will not be recognised if a person was already married (or the overseas divorce is not recognised in Australia), a person was under 18 (subject to some exceptions), the persons were siblings or parent/child, or there was duress or fraud.
On 27 May 2004, approximately two months after the UK proposed its Civil Partnership Act 2004, the then federal Attorney-General Philip Ruddock introduced the Marriage Amendment Bill 2004[3], to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act.[4] In June 2004, the bill passed the House of Representatives. On 12 August 2004, the Senate passed the amendment by 38 votes to 6. The bill subsequently received royal assent, becoming the Marriage Amendment Act 2004.[5][6]
The amendment specifies the following:
Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
Certain unions are not marriages. 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.[7]
Ruddock and other Liberals argued that the bill was necessary to protect the institution of marriage, by ensuring that the common law definition was put beyond legal challenge.[8]
The Labor shadow Attorney-General Nicola Roxon on the same day the amendment was proposed said that the Labor Opposition would not oppose the section of the legislation amending the Marriage Act. The bill was supported by Labor policy. Labor argued that the amendment did not affect the legal situation of same-sex relationships, merely putting into statute law what was already common law.
The Family First and Christian Democratic parties supported the bill. The bill was also supported by the Nationals.
Despite having support of the major parties the bill was bitterly contested by sections of the community, human rights groups and some minor political parties. The Australian Greens opposed the bill, calling it the "Marriage Discrimination Act". The Australian Democrats also opposed the bill. Democrat Senator Andrew Bartlett stated that the legislation devalues his marriage, and Greens Senator Bob Brown referred to John Howard and the legislation as "hateful".[9][10] Brown was asked to retract his statements, but refused. Bob Brown also quoted as Australia having a "straight Australia policy".
Not all of Labor was in support of the bill. During the bill's second reading, Anthony Albanese, Labor MP for Grayndler said, "what has caused offence is why the government has rushed in this legislation in what is possibly the last fortnight of parliamentary sittings. This bill is a result of 30 bigoted backbenchers who want to press buttons out there in the community."[11]
In the runup to the 2007 federal elections, there was speculation that the Labor Party might change or reverse the same-sex marriage ban provided by the Marriage Amendment Act 2004. The Labor Party appears to have ruled out changing the bill. On 21 March 2007, Labor MP Tanya Plibersek, herself married, told The Sydney Morning Herald, "Labor does not support changing the Marriage Act to allow same-sex marriage".[12] On 10 August 2007 Kevin Rudd, later Prime Minister, as reported by the AM radio program said, "I have a pretty basic view on this, as reflected in the position adopted by our party, and that is, that marriage is between a man and a woman."[13] Rudd repeated his opposition to same-sex marriage in an interview with radio host Kyle Sandilands on 23 October 2007,[14] but is fully supportive of a national registry for both opposite-sex and same-sex partnerships.
In the run-up to the 2010 federal election, the Labor Party under new leader and prime minister Julia Gillard re-asserted their opposition to gay marriage. After the election, the Greens successes in the Senate and the House of Representatives, giving them balance of power in one house and a rare member in the other, has led them lobby for gay marriage. The PM Julia Gillard has indicated she would like to see a non binding conscious vote on marriage equality among ALP members of parliament, however due to the nature of a hung parliament it would unlikely pass. She also reaffirmed her view opposing marriage equality[15]
Frank Bates, The History of Marriage and the Modern Law
Proposal to Reform the Civil Marriage Celebrants Programme
Discussion Paper on Civil Celebrants Programme (October 1997)
Bills Digest on the Marriage Amendment Act 2002
Recognition of Foreign Marriages