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The Marriage Act: what is it good for?

In 2004, the Howard LNP government amended the Marriage Act of 1961 to read as follows:

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
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.

Then federal Attorney-General Philip Ruddock introduced the amendment in order to prevent any legal challenges to the concept of marriage as a solely heterosexual institution.

It would be useful if religious organisations opposing marriage equality took note of the origins of this amendment. It did not come from god. It was authored by Philip Ruddock and John Howard.

Then Greens leader Bob Brown described the amendment as “the straight Australia policy.”

There was no plebiscite held on the amendment, and no referendum.

I have yet to be convinced that the state has any role at all to play in the voluntary unions of its citizens, and would prefer to get rid of the Marriage Act altogether rather than just the 2004 amendment.

As it stands, the Act is discriminatory and has no place in a just society. It privileges traditional heterosexual marriage, an institution that functions more in its idealisation than its reality, and whose many and massive failings remain largely unexamined.

We do not need the state to define and control our expressions of love. Of all the situations in which we ought to be able to act with agency and autonomy, this must surely be the most fundamental. All citizens are entitled to enjoy this agency and autonomy, regardless of whom we love.

The fight for marriage equality is also the fight for everyone’s freedom, and our right to live without state intrusion, definition and control of the most deeply intimate aspects of human life.

Do you really want politicians deciding what marriage is?

This article was originally published on No Place For Sheep.

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11 comments

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  1. Barrab

    Unfortunately there does need to be a legal definition of marriage to clarify the end of such arrangements, especially when wills are involved and maybe challenged.

    Marriage has historically been about successions and property protection for following generations.

    It has been forgoton over the the years as we moved from arranged ‘Royal’ marriages to ‘love’ connections where property was involved. The Pre-nuptial agreement could never work without a legal form of union eg: marriage.

  2. Jack Russell

    The thing with the lying rodent was that he had a very unhealthy (perhaps treasonous) political relationship with a religious organisation called the “something” Bretheren (Exclusive I think but not sure, E something anyway) at the time. So no separation of church and state, and some very grubby deals done to appease some very grubby donors – and no reason to think that his behind closed doors amendment of the Marriage Act was all his own idea.

    So, here we are today, with a human rights issue that was deliberately manufactured with spite and malice by a nasty little man who exploited his position in contravention of his Oath of Office as Prime Mininster of Australia.

  3. Carol Taylor

    Barrab, agreed. Without some form of legally binding contract (and much of marriage originates in contract law), there is no way to determine partnerships unless it’s all going to come under de facto law which covers both opposite sex and same sex couples. There remains considerable difficulties should a de facto relationship dissolve as there is not the same protection for the ‘weaker’ half of the couple, contributions to the relationship etc. Without children, many people struggle to even be able to convince a court that they have been in a de facto relationship should the former partner choose to deny it.

  4. Steve Howton

    Marriage, as it stands, is a legal and civil construct. The Act provides for certain rights and responsibilities regarding matters of Probate and the impacts of issues turning on next-of-kin status.

    I, like in many opposite-gender partnerships, spent years caring for a desperately ill partner, but I had to have an enduring Power of Attorney to do so – indeed, even to visit in hospital.

    When he died, that document became null and void immediately, denying me the right to any decisions about the disposition of his remains or estate. Effectively, I was denied the closure needed for healthy grieving – which creates problems years later. Twenty-two years later, I am filled with feelings of unfinished business.

    Many would argue that he should have had a Will. Certainly, he could have had one. However, his legal next-of-kin could easily have that nullified with a half-way competent Probate Lawyer. Moreover, a Will takes time to execute and is, therefore, useless in matters relating to the disposition of the deceased.

    So this is very much more important than mere sexual gratification. This is a life not so very different from everybody else’s, but without legal recognition.

    In Adelaide recently we saw the disgraceful situation where a man was denied the right to attend to the disposition of his deceased husband – a husband recognised at Law in their country of origin. Indeed, the man’s death certificate read, “Never married”.

    Perhaps you are correct inasmuch as there may be no social need for Government intervention in these issues. However, I believe there must be legislative interference in order to strengthen and ratify the legal aspects of marriage.

  5. Terry2

    A woman in a same sex relationship on talk-back radio summed up the situation well .

    She said that she could walk into a shopping mall, grab the first bloke she saw, present at a registry office, get married and all is legal. But if she presented at the same registry office with her partner of twelve years she would be turned away.

    Prior to the Howard/Ruddock amendments to the Marriage Act the common law was the source of guidance and authority as the act was silent on gender. As the common law is organic and has the capacity to evolve with community attitudes and norms, it is interesting to speculate had a case been put before the courts prior to the amendments to the act, it may very well have avoided the situation we find ourselves in.

    Perhaps Howard/Ruddock were getting in before the courts could apply reason and common sense.

  6. townsvilleblog

    i AGREE WITH sHORTEN WHO SAYS ALL WE HAVE TO DO IS DELETE BETWEEN A MAN AND A WOMAN AND SUBSTITUTE BETWEEN THESE TWO PEOPLE AND JOB DONE. sorry, use of Capitals unintended ***

  7. Barrab

    Townsville blog

    The Howard ammendment also added the following: 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. this also needs to be removed

  8. Peter F

    There was good reason for calling JWH our prime miniscule.

  9. Kizhmet

    I also agree with Shorten. Hasnt the high court also ruled it is matter for parliament?

  10. Steve Howton

    Kizhmet – that provision is also covered in Part V Paragraph 51 of the COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT.

    Barrab – for those wondering, you refer to the spiteful and clearly discriminatory Section 88EA of the Marriage Act 1958
    (Version incorporating amendments as at 23 April 2007).

  11. Harquebus

    My opinion is, marriage equality will make the special bond between a man and woman not so special at all. What’s so special about it when every Tom, Dick and Harry can do it and why should politicians have any say in taking it away.
    Many hetero couples feel that they are being robbed.

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