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7.8 million people voted YES to gay marriage!! What happens next?

November 28, 2017


7.8 million people, or 61.6% of the 79% of Australians who participated in the postal survey voted YES to gay marriage!!

What happens next?

Well, we are right back where we started – in the Federal Parliament. This will be interesting because the YES result is not legally binding.

Prime Minister, Malcolm Turnbull has vowed that Parliament will pass the bill by Christmas. However, the Federal Politicians only have a few more sitting days left in 2017. Is this really enough time for such historical changes to our legislation?

Marriage in Australia

Here is a bit of history for you. The Marriage Act 1961 (“the Act”) regulates marriage laws in Australia. The Act originally did not define “marriage”. This did not happen until 2004.

In 2004, the Howard Government, or in particular Attorney General Philip Ruddock, introduced the Marriage Amendment Act 2004 (“The Amendment”). The Amendment defined “marriage” as –

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

We can reflect upon the “entered into for life” part of the definition, but that is another topic altogether!

Many say that the introduction of the definition was a reactive response to ensure that same sex marriages were not recognised in Australia after the UK proposed its Civil Partnership Act 2004, which gave same-sex couples the same (or similar) rights as married couples.

What will change?

 Senator Dean Smith, a Liberal Senator for WA, has proposed the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (“the Bill”). The Bill proposes changes to the Act, Civil Law and Justice Legislation Amendment Act 2017; and Sex Discrimination Act 1984. But as a family lawyer, I’ll just focus on the marriage issues for now.

 The goal of the Bill is to remove the current restrictions that limit marriage in Australia. In order to achieve this, the definition of “marriage” as “the union of a man and a woman” will need to be changed to “the union of 2 people”. This will allow two people the freedom to marry, regardless of their sex and gender identity.

More controversially, the Bill aims to allow ministers of religion, religious marriage celebrants, chaplains and bodies established for religious purposes to refuse to solemnise or provide facilities, goods and services for marriages on religious grounds. Interestingly, the UK Marriage (Same Sex Couples) Act 2013 offer the same “protection”.

What does this mean for Family Law?

Nothing much will change in the Family Law sphere.

The Form 3 Divorce Application will have to change to read “Applicant” and “Respondent” rather than “Husband” and “Wife”.

Of course, couples of whatever sexual orientation will still be able to enter into and maintain their de-facto relationships; however, they will also have the freedom to marriage and/or divorce.

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