Cheat Sheet Marriage
It is unlikely that you will get a whole essay question on marriage (though you could
probably get close to writing one), but it’s extremely useful for a range of theme-
based questions.
You must know the section on same-sex marriage (marriage equality) for the
Contemporary Issue of Same Sex Relationships
Like all areas of family law, the law has evolved to reflect the changing values of
society with regard to marriage, however, it has often done this very slowly,
particularly with marriage equality.
Key legislation
Marriage Act 1961 (Cth)
Some key features
Defines marriage (though this was only incorporated into the legislation in 2004), and then was
amended in 2017 to allow for same-sex marriage
Outlines the requirements for a valid marriage. This includes:
o Must meet the definition of a valid marriage
o Being of marriageable age (18+ unless permission sought from the courts)
o Not having a prohibited degree of relationship (eg siblings)
o Must give 1 month notice of marriage
o Must meet the requirements for a valid marriage ceremony (eg 2 witnesses, licenced
marriage celebrant)
Cases that demonstrate the intervention of the court when marriages are not valid:
o Kreet v Sampir [2011] – the Family Court handed down a decision that an arranged marriage
where Ms Kreet was forced to marry an Indian man under duress, was void.
o In a 2015 NSW case, a father was jailed for 6 years after marrying his 12-year-old daughter
in a Muslim ceremony to a 26-year-old (who was jailed for 7.5 years non-parole period, 10
year maximum). She then fell pregnant. The father was charged with ‘intentionally
procuring a child under 14 for unlawful sexual activity’, while the ‘husband’ was charged
with persistent sexual abuse of a child.
o Under the Commonwealth Criminal Code Act 1995 (Cth), forcing somebody to get married is a crime
in Australia, and is punishable by up to nine years in prison, or up to 25 years in prison if a child is
taken overseas for forced marriage. This change was introduced in 2013. The AFP has specialised
teams to investigate forced marriage. These teams work in collaboration with State and Territory
police to ensure potential forced marriage offences are fully investigated. Link to good 2022 article
The Definition of Marriage – A history
First defined in the British case Hyde v Hyde and Woodmansee [1866] which defined marriage as:
The union of a man and woman, to the exclusion of all others, voluntarily entered into for life.
Was NOT included in the original Marriage Act 1961 (Cth) – THIS IS IMPORTANT. Instead the
common law precedent set in Hyde v Hyde was used by the courts.
Was ADDED to the Marriage Act in a highly political and contentious move in 2004 with the
Marriage Legislation Amendment Act 2004 (Cth). This was largely in response to a growing
number of Australian same-sex couples marrying overseas and then claiming to be married once
back in Australia. Attorney-General, Phillip Ruddock, said at the time that the bill arose from
‘significant community concern about the possible erosion of the institution of marriage’. The Act
was therefore amended to include the definition, AND, insert the following change:
“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.”
In 2017, after years of often quite nasty debate, the definition of marriage was changed in the
Marriage Act 1961 (Cth) to recognise the legality of same-sex marriages. The definition now
states:
“The union of TWO PEOPLE to the exclusion of all others, voluntarily entered
into for life.”
This was created through the passing of the:
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
Marriage Equality
In 2004, the Federal government amended the Marriage Act 1961 (Cth) to insert the definition of
marriage with the express purpose of preventing same-sex couples marrying overseas and then
seeking recognition for this union in Australia.
In the following years, despite growing legal recognition across the world and polls indicating
overwhelming support for marriage equality, there were 22 unsuccessful attempts to recognise
same-sex marriage in the Federal parliament.
16 countries, including New Zealand, had legally admitted the equal right of marriage before
Australia
In an effort to end this ongoing debate, in 2017 the Federal government initiated a ‘postal survey’
which asked the Australian voting public to voluntarily respond to the question: "Should the law
be changed to allow same-sex couples to marry?”. This survey cost the government $122 million
In response to a 61.6% ‘Yes’ vote, the parliament passed the Marriage Amendment (Definition
and Religious Freedoms) Act 2017 (Cth) establishing marriage equality in Australia.
This change altered the definition of marriage to be the union of two people (as opposed to the
union of a man and a woman), and thereby recognised the union of same-sex couples to be a
‘marriage’.
The process by which this legislative reform occurred came under considerable criticism from
many advocates of the LGBTQI community. In particular, organisations such as Reach Out
Australia and Lifeline, reported significant increases in the number of people seeking their services
during this period owing to the impact the often vitriolic debate was having on their mental
health.
While the passing of laws to recognise the right of same sex couples to marry was a significant and
long overdue reform of Australian law, the process by which this amendment was arrived at was
highly questionable in its effectiveness in providing justice.
Non-Legal Measures and Marriage Equality
NGOS
Australian Marriage Equality and the Gay and Lesbian Rights Lobby played a large role in the
marriage equality debate. Australian Marriage Equality was established in 2004 in response to the
Federal government’s insertion of the definition of marriage into the Marriage Act 1961 (Cth), only
serving to highlight the length of time required to bring about reform that provided justice for
same-sex couples in this area. Through their extensive advocacy, education and effective social
media campaigns in particular, change was finally realised.
HOWEVER: arguably, the very slow pace of change in this area of the law in Australia, does serve
to highlight the effectiveness of other NGOs such as the Australian Christian Lobby in blocking this
progression. The ACL was a powerful voice and influence over the last 2 decades in preventing an
easy path to marriage equality in Australia, demonstrating the power that NGOs can have on the
legal system and the achievement of just outcomes. Their voice dominated the views of
parliament in the years leading up to the final legislative reform, as demonstrated by the fact that
for many years, opinion polls had indicated broad support across the country for the recognition
of same-sex marriage, and yet, 22 unsuccessful attempts were made to pass the law prior to 2017.
Media
Social media played a crucial role in the marriage equality debate.
LGBTQI+ groups made extensive use of Facebook and Twitter to promote the campaige for
marriage equality
The Get-Up online ‘It’s Time’ campaign video was an integral part of influencing the debate.
Watch it here (it’s honestly a terrific ad)
The importance of Marriage being under Commonwealth Law
Owing to the powers outlined in the Australian Constitution, marriage is an exclusive power of the
Federal Government.
This means that only they are able to make laws in regards to marriage.
At the time the Constitution was written, de facto relationships weren’t even given a thought and
so are not mentioned in the Constitution. Laws regarding de factos are therefore residual powers
which reside with the states. This makes the laws regarding families difficult to implement and has
created a number of problems over the years, particularly when it comes to children. For the most
part, the states have handed over their powers regarding family relationships (particularly where
children are involved) to the Federal government.
This division of powers has also created issues recently with same-sex marriage. In 2013, the ACT
government passed the Marriage Equality (Same Sex) Act 2013 (Cth), but these laws were
challenged in the High Court by the Federal Government. The High Court unanimously struck down
the ACT law deciding it was unconstitutional.
Possible Marriage Paragraphs
Marriage – Requirements of a Valid Marriage
L Marriage Act 1961 (Cth)
Definition
Cases
E Child marriage
Theme
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Marriage – Marriage equality
Theme
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