The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)(Marriage Amendment Act) which came into force on 9 December 2017 legalises same-sex marriage in Australia.

In brief the Marriage Amendment Act contains amendments to the Marriage Act 1961 (Cth) (Marriage Act) and other relevant legislation.  Some of the most significant amendments are listed below:

The main amendments to the Marriage Act include:

  • Creating a legal framework to “allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; andto allow equal access to marriage while protecting religious freedom in relation to marriage”;
  • Changing the definition of “authorised celebrant”, which now includes a minister of religion, a person authorised to solemnise marriages, a marriage celebrant, a religious marriage celebrant, a chaplain and an officer, other than a chaplain, authorised by the Chief of the Defence Force;
  • Redefining marriage by omitting the words “a man and a woman” and substituting “2 people”;
  • Revising the laws in relation to the identification, rights and obligations of religious marriage celebrants;
  • Providing for ministers of religion, religious marriage celebrants and religious organisations to refuse to solemnise marriages and provide goods and services based on holding certain religious beliefs; and
  • Repealing section 88EA which previously did not recognise unions between “a man and another man; or a woman and another woman”.

TheMarriage Amendment Actalso contains amendments to the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) by amending subsection 40(2A) to enable a minister of religion, a religious marriage celebrant or a chaplain in the Defence Force to refuse to solemnise a marriage in any of the applicable circumstances outlined in the Marriage Act.

The Marriage Amendment Act also provides for the recognition of same-sex marriages that were solemnised in Australia, its external territories and same-sex marriages performed outside of Australia.

What impact does the Marriage Amendment Act have on Family Law?

The Marriage Amendment Act provides for amendments to the Family Law Act 1975 (Cth) (Family Law Act).  The amendments made to the Family Law Act largely constitute substituting gender specific phrases with gender neutral phrases, i.e. from “a man and a woman”, or “the husband or the wife” to “2 people” and “party to the marriage” respectively.

How will the amendmentsinstituted by the Marriage Amendment Act impact married same-sex couples?

While the Family Law Act previously recognised that de facto relationships included same-sex couples it is nonetheless sometimes more difficult for someone in a de facto relationship to show that they have standing to make a financial application as they first need to prove that they lived with their partner on a ‘genuine domestic basis’.  Accordingly, an applicant would need to prove to the Court that they were in a de facto relationship before the Court could then proceed to hear the substance of the financial application.

The amendments also mean that same-sex couples who are married in a foreign jurisdiction will now be able to divorce in Australia.  Previously same-sex couples who married in a foreign jurisdiction were not able to divorce in Australia as the marriage was not ‘valid’ under Australian law.