Same-sex marriage passed into law
The traditional definition of marriage comes from Hyde v Hyde, an 1866 English case that defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others”. While much has been said in the media recently of the Howard Government’s decision to introduce an exclusive definition of marriage into the Marriage Act, the Hyde v Hyde definition of marriage had been the definition of marriage in Australia since 1866. The Howard Government’s 2004 amendment, while provocative, especially in hindsight, did nothing to actually change the law.
The 2017 amendment, among other things, changed this definition of marriage. While marriage was previously exclusive to ‘a man and a woman’, the definition has been changed to allow marriage between ‘2 people’. In full, the definition now reads:
marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.
In addition to this definitional change, the Marriage Act has also been amended to allow religious marriage celebrants to opt out of officiating a marriage if it is against their religious beliefs or would otherwise offend their religion. This means that a religious marriage celebrant cannot be found to be discriminating against same-sex couples if they refuse to officiate a same-sex marriage. Despite this, many religious celebrants and churches have already come forward publically and said they are looking forward to officiating same-sex marriages.
This religious protection seems to be a fair balance between legitimate competing interests. While it may mean some religious same-sex couples may not be able to marry in a church of their denomination, it protects religious celebrants from practicing against their teachings. To not allow this choice would be akin to forcing someone to work against their will.
In terms of actual family law rights regarding parenting and financial matters, not much will change. The provisions for de facto relationships in the Family Law Act are in near-identical terms to those regarding marriage. This change is more about being recognised as equal and not having to be labelled as ‘de facto’ while heterosexual couples can be ‘married’. The first same-sex marriage in Australia can occur on 9 January 2018 while same-sex marriages already officiated overseas are now recognised in Australia.
The information posted on this blog represents our opinion and should not be taken as legal advice.