Marriage Reform – Who gets to say I do?

Marriage Reform – Who gets to say I do?

Same sex marriage has over recent months become one of the hottest news topics. It is a very complex issue with interaction between religion, family, sexuality, personal living arrangements and personal finances, amongst many other things. It is only natural then that there are a myriad of different angles that the subject can be viewed from, and each different view point will be coloured by subject background and values.

One element of the current debate that has been, to some extent, neglected is what the current legal position is, and what the proposed amendments are.

Marriage is regulated in Australia by the Marriage Act 1961 (Cwth). The Act defines marriage as the “union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. This is very neat, short, definition which packs into it many predominantly western, and traditionally Christian values. Not only does the definition make clear that same sex couples cannot be married, but the Act goes further and expressly states that same sex “unions”, one can only assume that the choice not to use the term marriage deliberate, entered into overseas will not be recognised as a marriage in Australia.

There have been numerous attempts to amend the Act. The most recent is a private member’s bill introduced by Bill Shorten, Leader of the Opposition called the Marriage Amendment (Marriage Equality) Bill. It takes a very straightforward approach to amending the Act, by simply amending the definition to substitute “two people” for “a man and a woman”. There are also several minor, consequential wording changes, and provision for regulations to make consequential changes to other Acts as a result of the changed definition.

Opponents of legalising same sex marriages often point to the practical in highlighting why a change isn’t required. It is true that de facto same sex couples do have many of the same rights as married couples in areas such as social security, succession law and workers compensation law, to name but a few. There are problems with this argument, notably there are time requirements for a relationship to be considered de facto, whereas a marriage is valid from the moment registered, as well as the practical problems with people immediately recognising what being married means and it being quickly proven, whereas de facto is not always immediately understood. There is also the powerful symbolic difference of marriage, and indeed for a relationship to be a valid de facto relationship it is an express requirement that the two people not be married.

Other critics of reform point out that the consequences of the changes are not yet fully known. One example cites the situation of a marriage breakdown and child custody. In a heterosexual breakdown, so the argument goes, the mother usually gains greater custody of the children. What happens then when there or two mothers in the relationship, or none at all only fathers? This, with respect, seems to be pretty flimsy, and could easily be dealt with by the Courts applying the same principles they do currently. Another example is that some states ban same sex couples from adopting children, so an amendment to the Act would lead to the strange situation where a couple could be married, but not allowed to adopt. Again, this is seems to be situation that could very easily be dealt with by some simple legislation.

In summary, it is probably fair to say that an amendment to the Act would have more symbolic consequences than practical ones. In saying that it is important not to trivialise the symbolic importance of this step. As anyone who has attended a Court can tell, particularly one where the barristers and judge are robed, symbolism plays a very important role in the law. Perhaps the best way to end this column is to use the words of the extremely well respected and deservedly admired former High Court Judge Michael Kirby AC, CMG who said:
“It’s still a shocking thing really to me that as a person who has served on the highest court and served the country and been a good citizen, had a stable family life, family values, that I’m still a second class citizen in my own country”.

If amending the Act can stop gay people feeling the way Michael Kirby describes, and accomplishes nothing else, it seems like an extremely worthwhile endeavour.

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