A Recent History of the Marriage Act 1961

In light of the recent marriage postal survey, it has become apparent that there is widespread uncertainty regarding the origins of the current legal definition of marriage. Prior to the 2004 amendments, the Marriage Act 1961 contained no definition or mention of the limitations of the institution of marriage, or the exclusion of some foreign marriages.

Whether the definition of marriage was previously assumed or not, the Howard Government of 2004 codified a definition within the current rendition of the Marriage Act with the backbone of the Marriage Amendment Act 2004 (The Amendment Act). This legislation, which entered into force on 16 August 2004, defined the institution of marriage within the interpretation section housed in section 5 as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

The Amendment Act also created a provision stating that same-sex marriages formalised overseas were not to be recognised upon entry to Australia. Contained in section 88EA, the provision states “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.”

As these amendments were debated, the definition and exclusion received significant support from both major parties, and only attracted opposition from a few Greens Party Members of Parliament who advocated for the legislation to explicitly legalise same-sex marriage.

Having received a number of minor amendments since 2004, the Marriage Act currently in force still contains the same definition of marriage. The Amendment Act was not made following a plebiscite or postal survey. They were able to be made legitimately through the regular Parliamentary process of passage through the two Houses.

As the marriage postal survey nears its conclusion, the wording of the Marriage Act is sure to be debated once again on the floor of Parliament.

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