What changing the Marriage Act actually means

The form for the Australian Marriage Law Postal Survey.
The form for the Australian Marriage Law Postal Survey. Contributed

Love, babies and what is included in sex education have zilch to do with changing the Marriage Act to allow same-sex couples to get hitched.

Any consideration of a law change is not about delivering the national entitlement to love whomever you want to, or shoring up human rights.

Same-sex couples already have that.

What they do not have is access to a legal document that gives instant and equal protection under the Constitution.

They are not able to do that one thing that immediately makes the one they love the go-to person for their medical and financial matters, and gives them joint property, benefits and inheritance rights: marriage.

While it means far more than this for those who marry, under law marriage in Australia is simply a sworn statutory declaration between two people that gives them instant recognition as a pair.

The Marriage Act doesn't mention love, blessings from any god or church, justice or rights.

It just delivers legal acknowledgment of couplehood in a way that de facto and registered relationships don't - not without a fair bit of time, effort, form filling and expense, anyway.

This flies in the face of those in the "no" camp who want same-sex couples to steer clear of marriage, claiming their de facto and registered relationships are recognised in the same way under law.

But that is simply not true.

A marriage certificate - an official statement that a pair has made a promise to each other that has been witnessed by an official and others - is all that is needed to make decisions on the other's behalf on matters such as health and property.

De facto couples and those in registered relationships have to prove their interaction meets interdependent criteria that can vary like the tides.

If those in a civil union split up and want legal intervention in reaching a financial settlement, they have to show they have been in a domestic set-up for at least two years. Marriage means instant qualification for Family Law Court involvement.

Australia's same-sex marriage postal vote , australia post box.. 21 sept 2017
Australia's same-sex marriage postal vote , australia post box.. 21 sept 2017 Trevor Veale

Even the Federal Government itself quibbles over when a civil union gives a couple the keys to the kingdom.

Centrelink considers a couple to be de facto the moment they move in together, but the Department of Immigration and Border Protection only recognises non-marriers if they have documentary evidence of a shared life, fidelity and shared domesticity for at least 12 months.

Marriage is recognised nationally and internationally, where registered relationships or de facto relationships may not be.

The moment a couple marries, they become each other's next of kin without further paperwork. For civil unions, the process involves legal documents drawn up twice: one for each declaring the desire for the other to take care of personal matters.

In assisted reproduction for married couples, both people are automatically parents. For those in civil partnerships, the courts have determined that the parentage depends on whether they can produce evidence that they are in a relationship.

Coalition for Marriage spokesman Dr David van Gend, in an opinion piece published in The Courier-Mail yesterday, claimed that same-sex marriage activists were all about the power to impose their ideology on future generations rather than wanting to share in matrimony.

He muddied the waters by suggesting our children will have LGBTI sex and gender programs thrust upon them in schools if same-sex marriage is allowed.

What a load of hysterical hooey.

people, homosexuality, same-sex marriage and love concept - close up of happy male gay couple with red rose flower holding hands on wedding
people, homosexuality, same-sex marriage and love concept - close up of happy male gay couple with red rose flower holding hands on wedding dolgachov

Allowing same-sex marriage is not going to result in a sudden surge in people who are gay or lead to swings in sexual orientation any more than legalising medicinal cannabis would grow a fresh crop of potheads.


The rules around marriage have changed enormously over time and must continue to evolve.

Until November 1942, the legal age for girls to marry in Australia was 12 and for boys it was 14. Tasmania first raised the ages to 16 and 18 respectively with other states following suit later.

Even in November 1961, when the Marriage Act was born and the marrying age was set nationally at 18, marriage was not defined.

It was given a formal definition in 2004, when the amendment under prime minister John Howard mandated that marriage must be between a man and a woman and that same-sex unions solemnised in other nations would not be recognised here.

Where most people married in churches until 1990, now three quarters of weddings are civil ceremonies.

So let the evolution of marriage continue: give all unrelated, consenting, adult couples who love each other the right to equal and instant protection under the law.


It is time.

Dr Jane Fynes-Clinton is the journalism program co-ordinator at the University of the Sunshine Coast.

News Corp Australia

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