Marriage Act 1961 (Australia)

The Australian Marriage Act 1961 is a law made by the Australian Parliament which regulates the rules for the recognition throughout Australia of marriages. The 1961 Act has been amended a number of times. The Act applies uniformly throughout Australia, and States and Territories are precluded from making any law inconsistent with the Act. Australian marriage law does not recognise any other forms of marriage, including traditional Aboriginal marriages,^[1] same-sex marriages, nor polygamous marriages, but has since 2009 recognised de facto relationships.^[2]

Definition of marriage

Before the Marriage Amendment Act 2004 there was no definition of marriage in the 1961 Act, and the definition was based in the common law. The 2004 Amendment incorporated the common law definition of marriage into the Act as:

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.^[3]

Marriageable age

Marriageable age and the marriage of minors is dealt with in Part II (s10-21). In the original 1961 law, marriageable age was set at 16 for females and 18 for males, but the age was equalised in 1991 by the Sex Discrimination Amendment Act 1991^[4] which raised the marriageable age of females to 18. If there are 'unusual and exceptional circumstances’, the marriage of one person aged 16 or 17 to another aged over 18 is possible, subject to the consent of the younger person's parents and authorisation by a court. Part II establishes the procedures required in this instance. Prior to the 1991 change, the 'unusual and exceptional circumstances' procedures applied to a girl aged 14 or 15 (wanting to marry a male aged 18 or above) or a male aged 16 or 17 (wanting to marry a female aged 16 or above).^[5] For many years, courts have refused to accept the applicant's state of pregnancy as a pressing consideration in deciding whether to allow the marriage.^[6]

Void marriages

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 purported marriage is void if:

• either party is already married (bigamy, polygamy).
• the parties are in a prohibited relationship: direct descendants or siblings, including adopted (by law) relationships.
• the marriage was not solemnized by an authorised celebrant (as in Part IV, Div 2).
• there is no consent, for example due to duress, fraud, mistake as to identity, mistake as to nature of ceremony, mental incapacity, or below marriageable age in Part II.

Solemnization of marriages in Australia

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.

Authorised celebrants

Division 1 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.

Religious ministers

Under Subdivision A, a register is kept of ministers of religion (s.27) of ‘recognised’ denominations (s26). The only requirements for registration is that the person is a minister of religion^[7] 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.

Registry office marriages

Subdivision B (s.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).

Civil celebrants

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.

Sections 39H, I, and J set up a review of celebrants and a disciplinary system.

Significantly, Subdivision C deals only with marriage celebrants (civil or not a recognised religion), not with ministers of religion which are governed by Subdivision A. As a result, ministers of religion are not necessarily subject to the same obligations or code of practice.

Recognition of foreign marriages

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.

Other sections

• Marriages by Foreign Diplomatic or Consular Officers (Division 3 of Part IV): there are currently no Australian diplomatic or consular officers appointed to solemnise marriages overseas under Australian law.
• Marriages of Members of the Defence Force Overseas: Part V of the act deals with marriages of members of the Defence Force overseas.
• Legitimation of children (Part VI) The Act legitimises children if their parents marry, including some recognised foreign marriages, or result from a void marriages.
• Offences (Part VII): e.g. bigamy, marrying a person below marriageable age (child marriages), a celebrant solemizing a marriage when believe legal impediment etc.
• Miscellaneous provisions in Part IX – interpreters, publication of lists of celebrants, etc.
• Section 111A removed the ability to seek to recover damages for breach of contract where a promise to marry (an engagement) did not lead to marriage.

Marriage education

Part IA authorises the government to make grants to approved organisations for marriage counselling.

Marriage Amendment Act 2004

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,^[8] to incorporate the common law definition of marriage into the Marriage Act 1961 and the Family Law Act.^[9] This bill was meant to clarify the meaning of the term 'marriage' in the Marriage Act because the Act had lacked a definition up till that time. 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.^[10][11]

Terms of the amendments

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.^[12]

Support for the bill

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.^[13]

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.

Opposition to the bill

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".^[14][15] Brown was asked to retract his statements, but refused. Bob Brown is also quoted as saying Australia has 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."^[16]

Current status of the Marriage Amendment Act

In the run-up to the 2007 federal election, 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".^[17] 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."^[18] Rudd repeated his opposition to same-sex marriage in an interview with radio host Kyle Sandilands on 23 October 2007,^[19] 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 same-sex 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, led them lobby for same-sex marriage. Julia Gillard allowed a free vote on the issue in 2012 and it did not pass. She also reaffirmed her personal view opposing same-sex marriage.^[20]

In May 2013, the then backbencher Kevin Rudd announced he had changed his position based on personal experience and the fact that his children had long thought him "an unreconstructed dinosaur" for not supporting marriage equality legislation. He went on to say that "I believe the secular Australian state should be able to recognise same sex marriage" while opposing any compulsion for churches to marry same-sex couples if that was not their wish. On his return to the office of Prime Minister in June 2013, PM Kevin Rudd has become the first Australian Prime Minister to be an open supporter of changing the Marriage Act to include Same-Sex couples.

Current Prime Minister Malcolm Turnbull supports same-sex marriage and has committed to a national plebiscite on the issue. Opposition Leader Bill Shorten also supports same-sex marriage, though has committed to passing legislation in favour of same-sex marriage if elected at the next election.

Same-sex marriage in the ACT

In October 2013, same-sex marriage was legalised in the ACT. The ACT legislation was, however, struck down by the High Court for being constitutionally invalid.^[21] This was due to the current definition of the term 'marriage' in the amended Marriage Act, which excludes all types of marriage other than that between one man and one woman.

See also

• Celebrant (Australia)
• Marriage Act
• Marriage in Australia
• Recognition of same-sex unions in Australia

References

External sources

• Marriage Act 1961 on Austlii
• 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