Chapter 2 History of Marriage Laws in Australia
This chapter provides a history of marriage laws in order to situate the
current bills under scrutiny alongside legal changes that have taken place in
marriage and relationship recognition in Australia since Federation.
It presents a brief overview of progressive changes enacted affecting marriage
laws and a person’s eligibility to marry in Australia. The chapter then reviews
the legal recognition and social standing of relationships other than marriage,
such as opposite-sex and same-sex de facto relationships.
Governments across different jurisdictions have administered marriage
laws in Australia since European settlement. These laws were not immutable. In
fact, at various points in time, governments have seen fit to legislate on
citizens’ eligibility to marry. Those considered minors by today’s standards
were permitted to marry, and restrictions were placed on Indigenous
Australians’ right to marry whom they chose.
Marriage law was first administered in Australia by the British colonies,
which inherited British common law traditions. For some time, the marriage of
convicts was limited to those who exhibited good character; convicts who did
not demonstrate ‘soberness’ or ‘industriousness’ were not permitted to marry.
From Federation in 1901 until 1961, each state and territory was
responsible for regulating marriage. This resulted in a fractured system where
each state and territory had its own marriage law, meaning that the legality of
one’s marriage could change when crossing a border. Sir Garfield Barwick, then Attorney-General,
wrote in 1962 that:
At present there are nine separate systems of marriage law in
the States and these Territories; systems which, although possessing many
features in common, display considerable diversity in principle and detail.
A person’s eligibility to marry could change from one state to another
at different points in time. For example, the marriageable age in Australian
states and territories was the same as the age of consent: 14 for men and 12
for women. However, in 1942, Tasmania raised the marriageable age for men to 18
and for women to 16; Western Australia followed suit in 1956 and South
Australia in 1957.
Another example is the variation in state laws pertaining to Indigenous
Australians which regulated whom they could or could not marry.
Victoria’s Aborigines Protection Act 1869 (Vic) gave the Board
for the Protection of Aborigines the power to refuse marriage applications from
Indigenous Victorians. In Queensland, the Aboriginals
Protection and Restriction of the Sale of Opium Act 1897 (Qld) prohibited
Indigenous woman from marrying anyone other than an Indigenous man without the
permission of an Aboriginal Protector.
In the Northern Territory, which was governed by Commonwealth law, the
Aboriginals Ordinance 1918 restricted marriages between Indigenous women and
non-Indigenous men. For example, the marriage of Indigenous or half-caste women
to non-Indigenous men required legal permission.
In 1961, the Australian Parliament, using its power to legislate with
respect to marriage under Subsection 51(21) of the Constitution, passed the Marriage
Act 1961 (the Marriage Act) to regulate marriage law uniformly
across the country.
The Marriage Act did not include a definition of marriage in Section 5
at the time of promulgation. Senator John Grey Gorton argued at the time that:
I am inclined to think that the reason why marriage has not
been defined previously in legislation of this kind is because it is rather
difficult to do so. Marriage, of course, can mean a number of things. For
instance, it can mean a religious ceremony; it can mean a civil ceremony; and
it can mean a form of living together. There are several meanings covered by
the word ‘marriage’, which are quite different one from the other.
However, Section 46 requires authorised celebrants to explain the nature
of marriage and provides some sample words:
… the authorised celebrant shall say to the parties, in the
presence of the witnesses, the words:
‘I am duly authorised by law to solemnise marriages according
to the law.
Before you are joined in marriage in my presence and 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.
Marriage, according to law in Australia, is the union of a
man and woman to the exclusion of all others, voluntarily entered into for
Or words to that effect.
Senator Gorton elaborated during the second reading debate that:
I want to make it clear that the fact of a celebrant saying
those words, which clause 46 requires him to say, does not have the force of
law to define a marriage in the sense in which the insertion of a definition …
In 2004, the Australian Parliament enacted the Marriage Amendment
Bill 2004, introduced by then Attorney-General Mr Philip Ruddock. The bill
sought to formalise the definition of marriage and to respond to the
legalisation of same-sex marriages in some overseas countries.
The Marriage Amendment Act 2004 inserted the following definition
of marriage into Subsection 5(1) of the Marriage Act:
‘marriage’ means the union of a man and a woman to the
exclusion of all others, voluntarily entered into for life.
In addition, the Marriage Amendment Act 2004 inserted Section
88EA into the Marriage Act to prohibit the recognition in Australia of same-sex
marriages performed in foreign countries.
In 2009, Senator Sarah Hanson-Young (Greens) introduced the Marriage
Equality Amendment Bill 2009 in the Senate, which sought to eliminate exclusionary
references to sexual orientation and gender identity in the Marriage Act. The
bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs
for inquiry and report, and was subsequently defeated in the Senate at the
Second Reading Stage on 25 February 2010.
Senator Hanson-Young then introduced a similar bill, the Marriage
Equality Amendment Bill 2010. The bill was again referred to the Senate
Standing Committee on Legal and Constitutional Affairs for inquiry, and the
report will be tabled on 25 June 2012.
In 2012, the Marriage Amendment Bill 2012 (the Jones Bill) and the Marriage
Equality Amendment Bill 2012 (the Bandt/Wilkie Bill) were introduced into the
House of Representatives, and referred to this Committee for inquiry and report.
Relationships other than marriage
De facto relationships
Many people in Australia live together in marriage-like relationships
without formalising the relationship through a marriage ceremony with a
registrar, celebrant or minister of religion. These relationships are defined
as de facto relationships for the purposes of law.
According to the Family Law Act 1975 (Cth), the definition of a
de facto relationship is one where:
n the two persons are
not legally married to each other;
n the two persons are not
related by family; and
n the two persons have
a relationship as a couple living together on a genuine domestic basis.
The last condition is determined by proving aspects of the relationship
such as duration, the existence of a sexual relationship, care of children,
cohabitation, mutual commitment, public recognition, and sharing of property
and finances. If the relationship is registered under a state or territory
relationship register, the partnership is automatically considered to be a de
facto relationship without having to prove any of the above aspects.
In the 1980s, Australian state and territories began amending their legislation
to provide de facto couples with similar rights to married couples. In terms of
family and employment benefits and property settlement, de facto couples were
treated as if they were married.
Same-sex de facto relationships
From the end of the 1990s, states and territories also began to extend these
rights to same-sex de facto couples to remove discrimination based on sexual
orientation in relationships.
In 2007, the Human Rights and Equal Opportunity Commission (now the
Australian Human Rights Commission) conducted an inquiry into discrimination
against people in same-sex relationships.
The resulting report identified 58 Commonwealth laws that denied same‑sex
de facto couples some financial and work-related entitlements that are
afforded to opposite-sex de facto or married couples.
The following year, acting on a 2002 referral of power from the states, the Australian
Government introduced reforms to remove the discriminations in the identified
pieces of legislation.
There no longer exist legal differences to the status of same-sex and
opposite-sex de facto couples under Commonwealth law.
Relationship registers and civil unions
De facto couples, both same-sex and opposite-sex, can register formally their
relationships in Tasmania, Victoria, New South Wales, Australian Capital
Territory (ACT) and Queensland. These states, with the exception of Victoria,
recognise relationships registered in the other states.
The benefit of registering a relationship is to obtain proof of the
relationship, similar to having a marriage certificate. Couples in a registered
relationship do not have to prove their de facto status, as described above.
Registering a relationship may be attractive to same-sex couples who do not
have the option of obtaining a marriage certificate.
Civil unions are conducted only in the ACT and Queensland. Civil union
legislation provides for a ceremony to declare a civil partnership in addition
to providing for relationship registration. On Tuesday, 12 June, the Queensland
premier announced amendments to the Civil Partnerships Act 2011 (Qld)
that would remove the option of a state-sanctioned ceremony.
Civil unions are available to both same-sex and opposite-sex couples in
Queensland, but only to same-sex couples in the ACT.
Civil union ceremonies must be conducted by an official civil notary,
and eligibility requirements are similar to those prescribed in the Marriage
Act, i.e. that notice of declaration must be given in a certain time period, neither
party is already married or in a civil partnership, or is in a prohibited
relationship with the other party. Civil union legislation also provides for
formal termination of the civil partnership.
The difference between marriage and other relationships
De facto, registered or civil union relationships do not equate to
marriage. Although the vast majority of state and federal legislation apply
equally to couples regardless of marital status and sexual orientation, there
remain a few areas in which non-married couples are disadvantaged due to their
lack of marital status, such as providing proof of relationship.
Whereas opposite-sex de facto or registered couples can choose to marry
and avail themselves of the full rights that come with a marriage certificate,
same-sex couples are prohibited by law to choose this option.
The Jones and Bandt/Wilkie Bills seek to change the Marriage Act to
enable same-sex couples to marry if they so wish.
The debate around same-sex marriage rights is not limited to legal issues.
Although solely a legal contract in Australia, marriage is a religious
institution for many that is closely entwined with religious tradition,
ceremony and meaning. It is also a symbolic social contract, reflecting
Australia’s values about relationships and families, the meaning of the
institution of marriage, and equality. These issues are discussed in the next