Marriage Amendment Bill 2004

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The Marriage Act was enacted in 1961. It set out the requirements for a valid marriage to occur in Australia, and it also made provision to recognise in Australia overseas marriages which were celebrated in accordance with the local law where they took place.

However, the Marriage Act did not contain any definition of “marriage”. At the time the Marriage Act was enacted, parliament considered it was a matter for the Courts to determine the definition of marriage. This was confirmed by the Family Court in the recent case of Re: Kevin & Jennifer, where it was noted that marriage is a concept which is not frozen in time – its definition evolves, depending on matters including attitudes of society from time to time.

Previous High Court decisions have ruled parliament does not have the power to define the scope of the “marriage” power under the Commonwealth Constitution. In other words, Parliament cannot seek to impose limits on this power by seeking to define “marriage” in legislation.

However, on 16 August 2004, the Marriage Amendment Act 2004 (Cth) was assented to. The Marriage Amendment Act has defined marriage to mean “the union of a man to a woman to the exclusion of all others, voluntarily entered into for life” (Schedule 1 subsection 5(1)). The Marriage Amendment Act also states that foreign marriages “between a man and another man or a woman and another woman must not be recognised as a marriage in Australia”.

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