Lexi Webster
Marriage is a fundamental social institution that has undergone significant changes in Australia over the years. The definition of marriage in Australia has changed 20 times, with amendments made to the Commonwealth Marriage Act nearly every three years, on average. The most notable recent change to the definition of marriage in Australia occurred in 2017, when the Marriage Amendment (Definition and Religious Freedoms) Act changed the definition of marriage under the Marriage Act 1961, replacing the words a man and a woman with 2 people, thereby legalising same-sex marriage.
| Characteristics | Values |
|---|---|
| Date of change | 9 December 2017 |
| Previous definition | "Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life." |
| Current definition | "The union of 2 people to the exclusion of all others." |
| Previous recognition of foreign marriages | Same-sex marriages performed in a foreign country were not recognised as such in Australia. |
| Current recognition of foreign marriages | All marriages lawfully solemnised overseas may also be recognised as lawful marriages in Australia, irrespective of the sex or gender identity of the spouses. |
| Previous recognition of same-sex marriages | Same-sex marriages were not recognised. |
| Current recognition of same-sex marriages | Same-sex marriages are recognised. |
| Previous laws on forced marriages | N/A |
| Current laws on forced marriages | It is an offence to force someone, with the use of coercion, threat or deception, to marry another person. |
| Previous laws on interracial marriages | Interracial marriages were limited by entrenched racism and the White Australia Policy. |
| Current laws on interracial marriages | Interracial marriages are recognised. |
| Previous laws on rape within marriage | Until 1987, rape within marriage was not prosecuted in Australia. |
| Current laws on rape within marriage | Rape within marriage is considered a crime. |
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What You'll Learn
The Marriage Act 1961
Prior to the 1961 Act, each Australian state and territory administered its own marriage laws. The Act allowed civil ceremonies, and the first civil celebrants were authorised in 1973. By the time the 2002 amendments were introduced, civil celebrants performed over 50% of marriages. The 2002 amendments also provided legislative recognition to civil celebrants and prescribed a regime beyond being "fit and proper" to control the quality and number of celebrants.
Part II (s.10-21) of the Act deals with the marriageable age and the marriage of minors. In the original 1961 Act, the marriageable age was set at 16 for females and 18 for males. However, under section 12, a female aged 14 or 15 or a male aged 16 or 17 could apply to the court for permission to marry. The general marriageable age (without exceptions) was equalised in 1991 by the Sex Discrimination Amendment Act 1991, which raised the marriageable age of females to 18.
Part III, entitled "void marriages", establishes the circumstances in which a marriage is void. A purported marriage is void if either party is already married, the parties are in a prohibited relationship (e.g. direct descendants or siblings), the marriage was not solemnised by an authorised celebrant, or there is no consent. Part IV, entitled "Solemnisation of Marriages in Australia", deals with who is authorised to be a wedding celebrant and the procedures to be followed.
In 2004, the Australian parliament amended the Marriage Act to explicitly define marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". This move was seen as a response to some overseas jurisdictions legalising same-sex marriage. However, in 2017, the definition of "marriage" was changed again, replacing the words "a man and a woman" with "2 people", thereby legalising same-sex marriage in Australia.
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Same-sex marriage legalisation
The definition of marriage in Australia has changed 20 times, with amendments made to the Commonwealth Marriage Act nearly every three years, on average. The legal landscape of marriage has evolved to reflect changing societal norms and values, with the ultimate goal of strengthening equality and human rights.
In 2004, the Australian parliament amended the Marriage Act to explicitly define marriage as a union between a man and a woman. This move was seen as a response to some overseas jurisdictions legalising same-sex marriage. The Howard government's intervention effectively banned the recognition of same-sex marriages in Australia. The Marriage Amendment Act 2004 specified that marriage would be defined as the "union of a man and a woman to the exclusion of all others, voluntarily entered into for life".
However, the tide began to turn in 2017 when the Australian government conducted a nationwide postal survey to gauge public opinion on same-sex marriage. With an overwhelming majority of Australians voting in favour, the Marriage Act was amended once again to redefine marriage as "the union of two people to the exclusion of all others". This change allowed monogamous same-sex marriages and retrospectively recognised same-sex marriages performed in a foreign country, provided that such marriages were permitted in that country.
The legalisation of same-sex marriage in Australia was achieved on 9 December 2017, marking a significant step towards equality. A law legalising same-sex marriage passed the Parliament on 7 December 2017 and received royal assent the following day. This change ensured that couples could be legally married in Australia, regardless of their sex or gender identity.
The journey towards same-sex marriage legalisation in Australia faced several challenges and required persistent advocacy. Between September 2004 and October 2017, there were 22 unsuccessful attempts in the Federal Parliament to legalise or recognise same-sex marriage under federal law. Additionally, the Labor Party experienced internal debates on the issue, with some members publicly opposing the party's initial stance against same-sex marriage. Despite these challenges, the legalisation of same-sex marriage in Australia in 2017 represented a significant milestone in the country's ongoing pursuit of equality for the LGBTQIA+ community.
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Marriage Amendment Act 2004
The Marriage Amendment Act 2004 was enacted by the Liberal Howard government in 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".
The Act amended the Marriage Act 1961, which was the first federal law on the matter and set uniform Australia-wide rules for the recognition and solemnisation of marriages. The 1961 Act codified the common-law definition of marriage as a voluntary union between a man and a woman, excluding all other types of relationships. This traditional definition remained unchanged for several decades.
In 2004, amidst growing international recognition of same-sex unions, the Australian parliament amended the Marriage Act to explicitly define marriage as a union between a man and a woman. This move was seen as a response to some overseas jurisdictions legalising same-sex marriage. The Marriage Amendment Act 2004 sought to confirm that unions solemnised overseas between same-sex couples would not be recognised as marriages in Australia.
The stated aim of the 2004 Bill was to 'protect the institution of marriage' and 'reflect the Commonwealth's view that the adoption of children by same-sex couples is undesirable'. However, the tide began to turn in 2017 when the Australian government conducted a nationwide postal survey to gauge public opinion on same-sex marriage. With an overwhelming majority of Australians voting in favour, the Marriage Act was amended again to redefine marriage as "the union of two people to the exclusion of all others". This change legalised same-sex marriage in Australia, marking a significant step towards equality and inclusion.
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Marriage Equality Postal Survey
The Australian Marriage Law Postal Survey, also known as the Marriage Equality Postal Survey, was a nationwide survey conducted in 2017 to gauge public opinion on same-sex marriage. The survey was voluntary, and participants were asked whether they supported changing the law to allow same-sex couples to marry.
The survey was conducted amidst growing international recognition of same-sex unions and pressure on the Australian government to legislate for marriage equality. In 2004, the Liberal Howard government had amended the Marriage Act to explicitly define marriage as "the union of a man and a woman," effectively banning same-sex marriage in Australia. However, by 2017, public opinion had shifted, and a majority of Australians supported marriage equality.
The Marriage Equality Postal Survey received widespread attention and sparked debates across Australia. Several political parties, lobby groups, and prominent individuals voiced their support for or opposition to changing the marriage laws. The "Yes" campaign received support from Labor, the Liberals for Yes campaign, and several minor political parties, as well as lobby groups such as Australian Marriage Equality and GetUp!. On the other hand, the "No" campaign was supported by the Nationals, three minor parties, and groups like the Australian Christian Lobby and the Marriage Alliance, who formed the Coalition for Marriage.
The survey results were announced in November 2017, with an overwhelming majority of Australians voting in favour of marriage equality. Approximately 61.6% of participants approved of changing the law, while 38.4% voted against it. The high turnout of 79.5% was considered a credible reflection of Australian opinion and gave momentum to marriage equality advocates.
Following the survey, the Australian government amended the Marriage Act once again in 2017. The new definition of "marriage" replaced "a man and a woman" with "2 people," thereby legalizing same-sex marriage in Australia and marking a significant step towards equality.
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Interracial marriage limitations
The definition of marriage in Australia has changed 20 times, with the Marriage Act being amended, on average, once every three years. One of the most notable changes came in 2017, when the definition of "marriage" was altered to replace "a man and a woman" with "2 people", thus legalising same-sex marriages.
However, prior to this, interracial marriages in Australia were limited by entrenched racism and the White Australia Policy. This policy, which was in place after World War II, prevented marriages between Australian servicemen and Japanese women. The Australian government refused to sanction these marriages and prevented couples from returning to Australia together, forcing many to migrate to Canada to start their new lives.
During the gold rush in the 1850s, there were around 2,000 legal marriages between white women and migrant Chinese men in Australia's eastern colonies. However, by 1878, this number had decreased to 181, due to widespread rallies by white men who viewed such marriages as a threat to the white race.
Furthermore, Indigenous Australians faced significant restrictions on their freedom to marry. Until the 1960s, they required government permission to marry, and their choices were further limited by state laws. In the late 1950s, Gladys Namagu, an Indigenous Australian woman, was denied permission to marry her white fiancé, Mick Daly, sparking an outpouring of public sympathy.
The infringement of Indigenous Australians' freedom to marry was most prominent in the 1860s in Victoria and continued into the 1930s in Western Australia and Queensland. Authorities exerted control over whom Indigenous people could marry, with Queensland aiming to prevent miscegenation by banning black/white marriages. In Western Australia, the goal was to absorb blacks into the white population by prohibiting black/black unions.
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Frequently asked questions
The definition of marriage in Australia was changed on 9 December 2017.
The definition of marriage was changed from "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life" to "the union of 2 people to the exclusion of all others".
The change in definition was to allow same-sex marriages in Australia.
The change in definition legalised same-sex marriage in Australia, marking a significant step towards equality.
The definition of marriage in Australia has changed 20 times, with an amendment to the Commonwealth Marriage Act nearly every three years.
