Marriage Equality and Same-Sex Marriage in Australia

Same sex marriage cartoon
Tania Sakla - Family Lawyer

Tania Sakla - Family Lawyer

Same-Sex Marriage and Marriage Equality in Australia  

Definition of marriage

The Marriage Act 1961 (Cth) defines marriage is the union of two people, to the exclusion of all others, voluntarily entered into for life.

Same-sex marriage

In 2017, after the Australian marriage law postal survey in December 2017, where 61.6% of Australians voted in favour of same-sex marriage, the Marriage Act 1961 (Cth) was amended to allow same-sex couples to marry. The definition of marriage was changed from being the union of a man and a woman, to the exclusion of all others, voluntarily entered into for life. 

After the 2017 postal survey, the Marriage Amendment (Same-Sex Marriage) Bill was enacted which changed the definition of marriage to being the union of two people, to the exclusion of all others, voluntarily entered into for life. 

The effect of this amendment is that gay and lesbian couples can now get married. If they were married overseas in a country such as New Zealand, then their international marriage will be recognised in Australia.

same sex marriage

The history behind same-sex marriage in Australia

Before the passing of the Marriage Amendment (Same-Sex Marriage) Bill, by the Coalition government in 2017, same-sex marriage had been a controversial topic in Australian politics for a number of years.  Same-sex marriage advocates argued that they should be afforded the same rights as those in heterosexual relationships or marriages.

Given Australia was settled by the British in 1788, the nation adopted a lot of the laws that the UK had. The impact of this was that sodomy laws that applied in the UK, also applied in Australia. 

In the 1800s, the punishment for homosexuality was the death penalty. In 1899 the punishment was downgraded to life imprisonment which was still a horrific punishment for gay men living in Australia. The punishment for homosexuality in Victoria was the death penalty until 1949. Gay men were still harassed by the police until the late 1980s. 

Gay relationships were legalised in Queensland in 1991; and in 2020, Queensland became the first Australian state to ban conversion therapy.

Unlike homosexuality in men, homosexuality in women (also referred to as lesbianism) was never illegal in the UK and therefore it was never actually criminalised in Australia.

In 1951, the New South Wales government criminalised homosexuality by amending the Crimes Act 1900 (NSW) to ensure that buggery was illegal. This resulted in a lot of protests aimed at improving the rights of gay people living in Australia.

The 1960s saw a shift in attitudes after a large public rally in Sydney, Campaign Against Moral Persecution (CAMP). CAMP visited several university campuses around Australia and eventually gay people were given freedoms that they hadn’t previously enjoyed. Other groups formed and eventually there was greater support for homosexuals.

Then in 1994, homosexuality was decriminalised through the Human Rights (Sexual Conduct) Act of 1994. The effect was that you could not be arrested for your sexual preferences.

Until 1996, it looked as if gay rights were progressing, however the Howard government set them back. In 2004, then Prime Minister, John Howard stated that he did not agree same-sex couples should have the right to adopt children. A bill allowing same-sex couples to adopt was passed, however.

In 2004 however, the definition of marriage in the Marriage Act 1961 (Cth) was amended. Marriage was defined as being the union of a man and a woman, to the exclusion of all others, entered into voluntarily for life.

After the Howard government lost power in 2007, some of the Australian states and territories started to enact their own same-sex marriage legislation. 

How did the states deal with same-sex relationships?

In 2010, the Relationships Register Act 2010 (NSW) allowed same-sex couples to register their relationship on the 1st of July 2010. This gave them the same recognition as heterosexual couples.

A few years later, the Australian Capital Territory (ACT) passed legislation in December 2013, allowing same-sex couples to formally marry. The legislation was ineffective because Commonwealth legislation over-rides state legislation. 

Despite the ACT legalising same-sex marriage, an Australian lawyer argued that the law would not hold up because it was inconsistent with Commonwealth legislation. 

In December, 2013, the matter was taken to the High Court who decided that Marriage Equality (Same Sex) Act 2013 (ACT) was inconsistent with the Marriage Act 1961 (Cth). They unanimously said that under the Australian Constitution, Commonwealth law prevails over state law. Section 14(3) of the Marriage Act 1961 (Cth) states that it supersedes state legislation in relation to marriage.

Up until 1997 gay sex was outlawed in Tasmania and homophobia was rife, with anti-gay protests being held across the state. In September 2012, then Tasmanian Premier Lara Giddings’ government passed legislation allowing same-sex couples to marry.

South Australia, was the first state to decriminalise homosexuality in 1975; with Victoria following in December 1980. The Northern Territory was later in 1983, Western Australia decriminalised homosexual activity in December 1989; and Queensland was last in January of 1991.

The push for same-sex marriage in Australia

After the Marriage Act 1961 (Cth) was changed in 2004 to specifically define marriage as being between a man and a woman, the push to legalise same-sex marriage became stronger.

Between 2004 and 2017, 22 bills were heard by the Federal Parliament. Every single one of those bills was unsuccessful, with former Prime Ministers John Howard and Julia Gillard saying that they would not support the legalisation of same-sex marriage.

There was a shift in attitudes in 2011, at Labor’s National Conference, Julia Gillard changed her position and said she would support same-sex marriage. A motion was passed allowing MPs a conscious vote on the issue (meaning that they did not have to vote in line with the party).

In 2015, there was a leadership contest, with then Prime Minister Tony Abbott being ousted by then Communications Minister Malcolm Turnbull. This resulted in Malcolm Turnbull becoming Australia’s Prime Minister. Malcolm Turnbull openly supported same-sex marriage, and after groups successfully lobbied for same-sex marriage, he allowed a conscious vote on the issue. He said that a plebiscite on the matter would be held if he won the next election, which was held in 2016. He was returned as Prime Minister after the 2016 election.

Polls consistently showed that more and more Australians were in favour of the legalisation of same-sex marriage.

Before the election, Greens Senator Janet Rice introduced a same-sex marriage bill, however it was dismissed and was not read in parliament. An attempt by Labor was also rejected on the 2nd of March 2016.

Then in March of 2016, Attorney General George Brandis said the government would hold a plebiscite. During the election campaign, several Coalition MPs said they would consider rejecting any bill for same-sex marriage, even if the electorate voted in favour of it.

Same sex marriage cartoon

The Australian same-sex marriage plebiscite

The Coalition won the election and in September 2016, Prime Minister Malcolm Turnbull introduced the Plebiscite (Same-Sex Marriage) Bill 2016 so that the plebiscite could proceed. 

The plebiscite was eventually held between the 12th of September and the 7th of November 2017. Unlike Australian elections, participation in the postal survey was voluntarily. The survey form, with instructions, and a return envelope were posted out by the Australian Bureau of Statistics to every person registered on the Australian electoral roll.

Australians were given the opportunity to answer the question, “should the law be changed to allow same-sex couples to marry?”

7,817,247 (61.6%) of Australians voted in favour, and 4,873,987 (38.4) voted against.

Opponents of marriage equality and rights for homosexuals

Whilst support for same-sex marriage has increased over the last few years in Australia, it hasn’t always been that way.

From 1996-2007 Australia was governed by the conservative Howard government. The matter started to receive attention in 2004 because same-sex marriage was legalised in Massachusetts, in the United States of America; and in Canada. Australian couples married in Canada and upon their return filed applications with the Family Court of Australia for their marriages to be legally recognised. 

Before he matter was heard in Court, the Howard Government amended the Marriage Act 1961, with the passing of the Marriage Amendment Act 2004. Marriage was defined as being between a man and a woman, to the exclusion of all others, entered into voluntarily for life.

Before same-sex marriage was legalised, there was a lot of opposition from various groups in the community including branches of Christianity and Islam. Religious venues in Australia are not required to perform same-sex marriage; and many choose not to because it does not align with their religious beliefs.

Overseas same-sex marriages

The first country to give same-sex couples the same rights as heterosexual couples was Denmark with the passing of the Registered Partnerships Act of 1989. Same-sex couples could not however be married in a Danish church or adopt a child.

The most recent country to allow same-sex marriage is Costa Rica who passed same-sex marriage legislation just last year, in 2020.

Colombia, with a high Catholic population legalised same sex marriage in April 2016. This followed Argentina, Brazil and Uruguay. Same-sex marriage was legalised after the nation’s Constitutional Court ruled that people are free to choose to start a family based on their sexual orientation.

The United States and Ireland legalised same-sex marriage in 2015. Finland passed same-sex marriage legislation in 2015, with the legislation taking effect in 2017. German Chancellor, Angela Merkel, who had previously been opposed to same-sex marriage withdrew her opposition, and same-sex marriage was passed in Germany on the 1st of October, 2017.

Since 2015, Mexico has allowed same-sex marriage in some jurisdictions. The Supreme Court made a ruling in favour of same-sex marriage in 2010, which meant that same-sex unions that occurred in Mexico City were valid.

They followed Scotland in 2014; and Brazil, France,  England and Wales in 2013. New Zealand also legalised same-sex marriage in 2013.

Argentina was the first nation in Latin America to pass same-sex marriage legislation, after a bill was passed on the 15th of July 2010.

Sweden legalised same-sex marriage in 2009 after Norway legalised same-sex marriage in 2008. This followed South Africa in 2006 and Spain in 2005.

Belgium allowed same-sex couples the right to register their partnerships in 2003, and five years later their rights were further increased. Gay and lesbian couples were given the same tax and inheritance rights in 2008.

The Netherlands has allowed same-sex marriage since 2000. 

Extending marriage rights to same-sex couples in Australia

The road to sam-sex marriage in Australia has been a long one, that was fought over several decades. It began with the states passing same-sex marriage legislation, however Commonwealth legislation does not recognise these unions as marriages. They are treated as civil unions.  A civil union grants couples many of the rights that a marriage does, however it does not offer all rights. Same-sex couples also have the option to register their domestic partnership with their relevant state authority. In New South Wales they can register their partnership with Birth, Deaths and Marriages.

Over the years, public opinion shifted in favour of same-sex marriage, with fewer groups opposing its legalisation.

After the Australian Marriage Law Postal Survey was held, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was passed by the Australian Senate. It changed the definition of marriage to, “a union of two people”, which had the effect of legalising same-sex marriage. The Senate passed the bill on the 29th of November 2017, with 43 votes in favour, to 12 against.

The first same-sex wedding, between Jill Kindt and Jo Grant, who had been together for eight years, was held on the 15th of December 2017. They married in Queensland. 

In 2018, more than 6,500 same-sex couples were married, which accounts for 5.5% of all marriages in Australia.

Same-sex marriage and the divorce system

Some people have questioned what the process is for same-sex couples who wish to divorce. The answer is that same-sex couples can divorce in the exact same way as opposite-sex couples. You can either file an application for divorce together, or you can make the application by yourself.  If you make a sole application, you will then need to serve the divorce papers to the other party. The criteria for divorce is:

  • You were born in Australia, or obtained Australian citizenship by descent;
  • You acquired Australian citizenship by grant (you will need to supply a Citizenship Certificate as proof);
  • You have been living in Australia for the last 12 months and intend to continue living in Australia;
  • You have been separated for at least 12 months before filing the application.

It is important to note that you can be separated but living under the same roof. You will need to supply evidence that the relationship has broken down.

Australian law also recognises same-sex marriages that occurred overseas, so if you married overseas, and the marriage is valid, then you can divorce in Australia if you wish. If you divorced overseas, that will also be recognised in Australia.

Differences between de facto relationships and marriages

The Marriage Act 1961 (Cth) defines marriage as the union of two people, to the exclusion of all others, voluntarily entered into for life. For a marriage to be valid, a couple needs to wait a month after they file their Notice of Intended Marriage form and the marriage ceremony must be performed by an authorised celebrate, which includes a religious minister, a celebrant or a designated state or territory officer.

Marriage is recognised immediately. It also means that your relationship is recognised immediately and you do not need to supply evidence of the relationship.

A de facto relationship on the other hand has a broader definition in the Family Law Act 1975 (Cth). Subsection 4AA defines two people being in a de facto relationship if:

  • they are not legally married to eachother; and
  • they are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Various factors will be taken into consideration to determine whether or not the couple have a genuine domestic relationship. 

Unlike with marriage, you do not have the same legal rights as a married couple, and you will need to prove your relationship. For social security benefits, such as Centrelink payments you are considered to be a de facto couple from the date that you start living together.

If you want to divorce or end a marriage, you need to apply for a Divorce Order. When you want to end a de facto relationship, you do not need to submit any forms, or register the termination of your relationship.

Same-sex marriage and family law proceedings

With same-sex marriage coming into effect on the 9th of December, 2017, same-sex couples now have the same rights that opposite-sex couples do after a relationship ends.

Same-sex divorce and property proceedings

Proving a de facto relationship has always been tricky, with property proceedings for same-sex couples who fall into that category being more difficult than for married couples. De facto couples need to prove their de facto relationship by supplying evidence that they shared the same residence and were financially dependent upon eachother. 

Marriage, on the other hand is a much simpler process, with a marriage certificate being enough to prove to the Family Court that they had shared interests. 

The other distinct difference is that de facto couples have two years after separating to commence property proceedings, whereas a married couple has 12 months following the divorce to begin Court proceedings.

Same-sex divorce and divorce proceedings

Everyone knows that one in three marriages end in divorce, with the average marriage lasting for a period of 12 years. Although Australia only legalised same-sex marriage in 2017, it has recognised historical marriages that happened outside of Australia. The effect of this is that there are a number of same-sex couples who have already been married for a significant period of time.

One potential issue is that same-sex marriages are recognised retrospectively. This means that an Australian couple who married overseas may not have finalised the divorce to their previous marriage; and could therefore end up being married to two different people. One of the marriages will be nullified under Section 88D(2) of the Marriage Act 1961 (Cth).

If you are worried that you may have married twice, without finalising the divorce to your first marriage, then get in touch with our same sex divorce lawyers on 1300 667 461 , to find out how we may be able to help.

Same-sex divorce and parenting matters

If you are in a same-sex marriage and your spouse conceives a child using IVF, then you as the non-biological parent is a legal parent of the child according to Section 60H of the Family Law Act 1975 (Cth).

If you are in a de facto relationship then you will need to prove that you were in fact in a de facto relationship at the time of the IVF procedure; and that you consented to the procedure.

Marriage simplifies the process.

The presumption of parental rights applies to IVF pregnancies only. It does not extend to surrogacy, which is dealt with separately under state legislation.

The Family Law Act 1975 (Cth) does however contain a provision for an interested party (most commonly males in same-sex partnerships) to apply for a Parenting Order. The Court will then consider which adults in the child’s life should hold parental responsibility for the child.

Binding financial agreements

Same sex couples have the option to make a binding financial agreement. A financial agreement covers issues such as:

  • who bears the responsibility for expenses;
  • who owns the property? What property is joint and what is individual?;
  • who bears the responsibility for debts;
  • the division of the property if the relationship ends.

If you have made a financial agreement, you should always seek legal advice before you sign it.

Need Assistance?

The legalisation of same-sex marriage has raised many issues for couples in Australia. If you would like advice in relation to any issue covered in this article, feel free to get in touch with our expert same sex family lawyers on 1300 667 461.

Our lawyers explain things simply, so that you can understand them without getting caught up in legal jargon. From the outset they will develop a strategy for you. With over 250 satisfied clients online you can trust the service you’re getting.

Tania Sakla - Family Lawyer
Tania Sakla - Family Lawyer

Tania is an experienced and passionate family lawyer. At the core of Tania’s approach to family law matters is the aspiration to preserve relationships and to avoid dragging her client’s through a drawn out and emotionally tolling family law dispute. Where she can, Tania will always attempt to resolve her client’s matter through settlement negotiations without compromising her client’s rights and entitlements under the law.