Submission to the Marriage Equality Amendment Bill 2010 Alternate proposal: Repeal the Commonwealth Marriage Act

In this submission, I will first show that the Commonwealth Marriage Act is legally and socially redundant and has no positive purpose. I will then show that there are good reasons to repeal the Commonwealth Marriage Act. For these reasons, I suggest that the committee recommends that the Commonwealth Marriage Act to be repealed.

Why the Commonwealth Marriage Act is redundant.

The following arguments can be made for the retention of a Commonwealth Marriage Act (1) Marriage must be defined by an act of the Commonwealth parliament. Without an act of parliament, marriage can not exist. (2) The Commonwealth Marriage Act confers certain legal rights and responsibilities particular to married relationships. (3) The Commonwealth Marriage Act strengthens the institution of marriage. (4) If we abolish the Commonwealth Marriage Act, people will be allowed to marry their dog. I will address these points one at a time.
1) Marriage must be defined by an act of the Commonwealth parliament. Without an act of parliament, marriage can not exist.

For the majority of Australias history as a federated nation, the Commonwealth did not have a marriage act. It was only in 1961 that the Commonwealth first passed a marriage act. Yet marriages before 1961 were valid, indeed, many members of parliament would have parents and grandparents still happily married despite the Marriage Act not existing at the time. These marriages without legislative support are just as valid as the marriages of today. Until very recent history, marriage largely existed as a function of family, church, and recently in our legal tradition, common law. There is no requirement for Commonwealth legislation for a valid marriage, and we have living examples of married couples who today have a valid marriage without the help of the Commonwealth Marriage Act.
2) The Commonwealth Marriage Act confers certain legal rights and responsibilities particular to married relationships.

Until 2008, this was the case, and would have been a valid legal argument for the retention of the marriage act. Married couples were treated differently to non-married couples in a wide variety of ways, such as superannuation and other benefits. This is no longer the case. In 2008 the government passed both the Same-Sex Relationships (Equal Treatment in Commonwealth LawsSuperannuation) and Same-Sex Relationships (Equal Treatment in Commonwealth LawsGeneral Law Reform) Act 2008 bills. The purpose of both these acts was to ensure that non-married same-sex couples have the same rights and responsibilities as married couples. The government intends this to be the

case. Indeed, the idea that non-married same-sex couples have the same legal rights and responsibilities as married couples is accepted by all major political parties in parliament today. As a result, the Commonwealth Marriage Act does not confer any legal rights and responsibilities that are particular to married couples. Abolishing the Marriage Act would not change legal rights and responsibilities for married couples, except in trivial ways. Indeed, this is current government policy with bi-partisan support.
3) The Commonwealth Marriage Act strengthens the institution of marriage.

To accept this, one would have to accept that marriages performed before the introduction of the Commonwealth Marriage Act of 1961 are weaker than marriages performed after the act. I think its ludicrous to suggest that marriages performed before 1961 were weaker, or only made stronger when the Commonwealth Marriage Act was passed. Indeed, perhaps the converse is true. Since the introduction of the Commonwealth Marriage Act in 1961, divorce rates have skyrocketed, and increasingly couples are cohabituating and delaying marriage or simply not getting married at all. There is no evidence that the Commonwealth Marriage Act has strengthened marriage, and based on trends since 1961, theres an argument to be made that it has weakened it.
4) If we abolish the Commonwealth Marriage Act, people will be allowed to marry their dog.

The Commonwealth Marriage Act does nothing to prevent people from marrying their dog. There is no offence provision regarding it, it simply does not recognise such marriages. The only criminal sanction the marriage act places is on people who have a ceremony of marriage whilst already married, or to someone underage. However, the act defines marriages as between a man and a woman. As a result there is no criminal sanction against a married man holding a marriage ceremony with another man, or two boys holding a marriage ceremony. Perhaps perversely, whilst a man could have marriage ceremony with a 16 year old boy without breaking the law, a woman having same ceremony with the same 16 year old boy would be eligible for prosecution. In summary, the marriage act does nothing to stop men from holding marriages with other men, or their pets. The offenses are limited to opposite-sex bigamy and opposite-sex underage marriages, and in any case these would be unlikely to be prosecuted unless there is an attempt to register such marriages. However, as pointed out above, there is no need to register such marriages, as government policy is that married and non-married couples have the same rights anyway.

Objections to the marriage act

It has been shown that the Marriage Act, at best, has no purpose. However, one could argue that without reasons to repeal the act, there is no need to change the status quo. However, there are negatives of keeping the act, and I will list these below.
1) Complicates legal matters.

Having two systems, marriage and de-facto, with the same set of rules, complicates legislation and administration without any benefit. Separate departments may deal with marriage and de-facto registration and recording, and other departments will just have to recombine that information, because the legislation states that such relationships will be treated the same anyway. Government agencies already have processes in place to deal with un-married same and opposite sex couples, as well as relationships with registered marriages. Removing the marriage act would reduce the procedures required, as government departments would only need one set of procedures for all couples, not separate ones for married and un-married couples. Whilst the above seems quite hypothetical, the discussion in part 4 above shows the absurdity this can cause. That is, a man holding a marriage ceremony with an underage boy is legal but with an underage girl is illegal. This is a result of these two systems interacting in unusual ways, and despite government policy making attempting to make them equal there are always unintended consequences.
2) Assumes the government has power to forbid marriage.

If one argues that the government should have the power to legislate regarding who can get married, it necessarily means that the government should have the power to forbid people from getting married. Whilst most will agree that the government should have the power to prevent children under the age of 18 from being married, should the government be permitted to prevent mixed-race couples from getting married? The Marriage Act makes marriage like a licence, a drivers licence for example, only provided to people if they meet the conditions the state stipulates. I question whether the state should have the power to withdraw marriage, or make it more difficult to get married, like it does a drivers licence. In addition, from a religious perspective, the Bible describes marriage as being a union between man, woman, and god. However, the Marriage Act inserts the state strongly into marriage, and one could argue that doing so pushes away God. There are strong religious reasons for opposing state regulation of marriage, and it has been shown that such regulation has no secular benefit.

Conclusion The benefits of abolishing the marriage act.

As long as the debate over the Marriage Act remains a two sided choice between permitting or forbidding same-sex marriages, there will be no satisfactory solution. Either same-sex couples will be upset that they do not have equal rights to marry or, if the argument is resolved in the other way, some religious groups and community members will be upset that a definition of marriage against their teachings is being forced on them. However, to even suggest this is a two sided argument is simplistic. Should people be allowed to get remarried after a divorce, if that divorce was not a legitimate one to the satisfaction of that church? Should a young couple be permitted marry on the spur of the moment after knowing each other for only a short period? There are not just two definitions of marriage; there are hundreds, formed by various religious groups and social institutions over thousands of years. One definition in the Marriage Act is unlikely to satisfy the significant number of churches in Australia, let alone the entire Australian community. Considering there is no longer any legal effect of marriage, there is no strong reason to legally define it. Marriage may be an important social institution, but so is religion and family, yet we do not need to define these in legislation for them to remain strong. No matter which way the government defines marriage, there will be nothing achieved except upsetting and offending some people and groups, and complicating legal matters. There is no longer a legal and social reason to define marriage and any such attempts, unsurprisingly, just produce argument and anger. We should abolish the Commonwealth Marriage Act.