Given that spouses of, say, deceased war veterans are entitled to government payments because of their marital status, there could be considerable advantages to an individual in being legally married to more than one person, and I can see why the government would want to outlaw that. But generally, yes, the government should have no role in defining or proscribing whatever relationships may hold between consenting adults. (Nor, of course, should any religion.)

Great article.

"It could well be that the government needs to know exactly who is married and who is not."

But the government doesn't even accept its own certificate of marriage as evidence of the existence of a marriage. For example if you want to prove a marriage for social security or immigration law purposes, the feds won't accept a federal Marriage Certificate as proving what is in issue.

Plus the Marriage Act is inconsistent with the Family Law Act, in that a marriage is defined as a permanent union. But obviously the effect of the FLA is to make it terminable at will: in a word, temporary.

And in conferring benefits, the government itself contradicts the Marriage Act, by assimilating to the benefits of marriage categories of non-marriage or quasi-marriage, such as de facto relationships in the Property (Relationships) Act.

So while on the one hand the Marriage Act does not protect marriage, and other Acts contradict or ignore it, the Property Relationships Acts actively impose it on non-consenting parties! A dreadful jumble.

The Marriage Act also spreads through the whole population this confused idea that marriage is constituted by government, even though not even the Marriage Act itself claims that. The Marriage Act provides for the registration of *pre-existing* marriages - constituted by the act of the parties in taking each other to spouse - not by the government in registering them.

It is this confusion underlying the whole same-sex marriage movement, based on the factually untrue proposition that gays don't have a "right" to marry, or that it's "illegal".

The Marriage Act should be repealed, along with any criminal law relating to consensual marriage. None of the government's business to regulate or register or people's private consensual sexual relationships, legitimising some and marginalising - or even criminalising - others.

But if it is the government's business to impose the sexual regulations of mediaeval churchmen on modern society, then logically divorce and adultery - and even homosexuality, prostitution and masturbation for that matter - should be illegal.

JKJ:
Sometimes you make perfect sense, and then say it so well, there is absolutely nothing one can add!
Rhrosty.

Thanks Rhostry.

A very superficial and one-sided piece, though making the odd valid point.

I would have thought that with over 90 per cent of people getting married at some stage in their lives, and groups like same-sex couples wanting to get married, the case for a Marriage Act of some sort is compelling.

Other reasons for a Marriage Act include providing a means for secular people to commit to a marriage, and a need to facilitate public administration in areas of social security, taxation, child support and family breakdown.

In answer to some of the author's questions:

I agree that it is arguable whether the taxpayer should support marriage counselling. One can make a case for such subsidies on the basis that marriage/family breakdown often costs the taxpayer a lot of money, and that the children of stable marriages are known to experience better outcomes.

We need a minimum age for marriage to prevent forced marriages (especially of young girls) and because those who are immature (through youth) should be protected from entering lifetime commitments. Young people are already barred from entering many types of legal contracts.

There are obvious public interest reasons for prohibiting incestuous marriages and voiding marriages entered into as a result of duress.

A Marriage Certificate is an important administrative document and there are therefore strong reasons for regulating who can perform and certificate such ceremonies.

(Continued in second post)

(Comment continued)

"If decisions have to be made based on the relationship of the child to its parents then they should be made on the basis of biological or emotional relationship and not legitimacy". (Answer) Emotional relationships are hard to measure but being the child of married parents is easy to prove using birth and marriage certificates.

"Why exactly does marriage need to be a legal relationship?" (Answer) Because it involves legal obligations involving property and the support of families. A marriage certificate is also important evidence in divorce proceedings and inheritance, and in administration of social security.

"Since the government cannot control any of the behaviour that could be deemed an offence then what is the point of having penalties against the (Marriage) Act". (Answer) The same applies to murder but we still have penalties for murder, in part as a deterrent.

"Despite all the illogical arguments for its existence many citizens want the Act to exist because it creates a law which they think will give them security of relationship". (Answer) These citizens are right. The rate of break-up for formal marriages is far lower than for de-facto relationships.

"It could well be that the government needs to know exactly who is married and who is not. It may distribute benefits based on the relationship that two people have with each other or it may withhold benefits for the same reason". (Answer) Spot on! Many mothers in de-facto relationships illegally claim sole parent pensions. On the other hand, when superannuation or inheritance benefits are at stake, common law spouses are generally not backward in coming forward.

Overall I see a need both for a Marriage Act and a compulsory register of de-facto relationships.

Michael might not see much value in marriage which I suppose highlights why our society has become so corrupt. The fact that you promise to love someone all the days of your life is now so conveniently interupted by selfishness. To ignore that a child is far better of with a father/mother committed to each other is just deliberate ignorance. Yep fathers/mothers no longer keep their word to love all their life and wonder why pollies or anyone else can't keep their word. Maybe in marriage you might learn to be a little less selfish and know you are not god on this earth.

Do we need a Marriage Act?

Yes, we do. In each society people
create social institutions to meet their
needs. Marriage is one such institution.
It is a socially approved mating arrangement
between two people. Social recognition of a
marriage is marked through some culturally
prescribed ritual, such as a wedding by a
religious official, a registration of the
union by a judge or other government servant,
and it legalises the union.

A marriage Act provides legitimacy in our society.

Each society views its own patterns of marriage,
family and kinship as self-evidently right and proper,
(and usually as God given as well).

Much of the current concern about the fate of marriage
stems from this kind of ethnocentrism. If we assume that
there is only one "right" marriage form, then naturally any
change will be interpreted as heralding the doom of the
whole institution.

It is important therefore, to recognise, that there
is an immense range in marriage, family and kinship patterns.
That each of these patterns may be, at least in their own
context, perfectly viable, and that like any other social
institution, marriage will inevitably change through time.

For example it was our former PM -
John Howard who saw the need to make changes to the
Marriage Act in 2004,
amending the Act to read that Marriage was to be -
"between a man
and a woman... to the exclusion of all others."
And it is from the legality of those words that Marriage
has been excluded for same-sex couples.
Whether this needs to be changed in our country is a
decision for all Australians to make. And it is possibly
something that will in the future be made either by a
Referendum or by allowing a "Conscience vote," in
Parliament.

cont'd ...

We need a Marriage Act.
What we don't need are Mr Howard's
amended divisive wording changes that he imposed
onto the Marriage Act in 2004. That needs
to be taken out.

What we need from our authorities are Acts of decency !

Whether or not Australia needs a "Marriage Act" is a matter of opinion. The *possibility* of a Marriage Act has existed since federation because s.51(xxi) of the Constitution specifically empowers the Commonwealth government to enact laws about "marriage" (and "divorce" and other family matters in s.51(xxii)). It took 61 years for the Commonwealth to get its act together. Meanwhile, "marriage" and related matters were handled by the states and territories.

States and territories may still legislate in the area of "marriage," because that power is shared with the Commonwealth. However, state and territory laws about marriage will be invalid to the extent of any conflict with similar Commonwealth law(s). That is what happened with the attempt by the ACT to enact a law allowing same-sex marriage last year.

Some of the comments miss the point. The question is really: does society still need the state to be involved in 'sanctifying' marriage? People could still marry under whatever ceremonial conditions they liked, without a Marriage Act. Protections to individuals would exist under other laws. The harsh truth is that marriage was about property passing along the male line, in the days when women could not inherit. Part 9 of the Act, defining 'Legitimacy' is pernicious. My two children were denied automatic British citizenship because of it: ie, they are 'illegitimate' under the Act because my wife and I never married.

does society still need the state to be involved in 'sanctifying' marriage?
byork,
I'd say yes simply because when marriages go wobbly it is society or rather taxpayers' Dollars that are used to cover the stuff-ups of the "sanctified" marriages. Taxpayers fork out for neglected spouses & children etc. So yes, the State should have a say in it all.

Individual, society looks after the 'neglected', including children, regardless of the Marriage Act. State endorsement of marriage neither improves nor lessens the chances of success in a relationship.

byork,

Is that something you have explained to women you meet, especially the ones you might want to enjoy a 'relationship'* with?

Interested to know what the feedback was and what salve you use for scorched ears?

*a term used and understood by women, to their advantage. LOL

Also, what child prefers the caring State to mum and dad? You need to check just how caring the State is too and some here who have read the accounts of wards of the State and others under State care might set you right.

However I do believe that the tweaking of family law by the political 'Progressives' has resulted in numerous negative consequences which they are always reluctant to admit, of course.

State endorsement of marriage neither improves nor lessens the chances of success in a relationship.
byork,
Wanna bet ? It does both !

Onthebeach, in a couple of years my wife and I will celebrate 30 years of a happy and fruitful relationship. Neither of us ever felt the need for state endorsement. We never married. The Family Law Act classifies people in this situation as de facto married. The Marriage Act would be irrelevant were it not for the nasty bits pertaining to 'Legitimacy' of children etc. I refer to my wife as my wife because I don't like the politically-correct alternatives such as 'partner'.

byork,

My wife (dual citizenship) and I have dual citizenship children. In your case it wasn't Australia but Britain that denied their dad's citizenship to pass to them because they were regarded as ex-nuptial (or did lack of a period of residency affect it?). I take it that your wife also would not have qualified for such citizenship (dual) for the same reason, plus she may not have satisfied the residency period?

Of course there are many reasons including personal preference, why some don't seek or qualify for dual citizenship.

Concerning Australia, the C'wealth govt remedied the Constitutional impediment affecting non-nuptial children with the Family Law Act in the 1980s. In the preceding decade (1970s) all States and Territories passed legislation abolishing the status of illegitimacy and banning discrimination against ex-nuptial children.

I believe later amendments were made by States and Territories concerning equal rights to inheritance for ex-nuptial children.

While governments usually want to do the best for their citizens and their(citizens') loved ones, it gets very complicated where immigration is concerned (to take an instance). It isn't necessarily the fault of the Marriage Act and removal of that Act would have many negative consequences as well.

I am not taking sides in the argument for or against marriage. Each must weight up the pros and cons and make his/her choice and be responsible. Apart from that I reckon it is a fair comment that vastly more women want and propose marriage. Also, men do not usually march to a biological clock.

Onthebeach, my children were denied British citizenship because they were 'illegitimate' under Australia's Marriage Act and because Britain's Nationality Act did not recognize claims for automatic citizenship on behalf of illegitimate children. Had my wife and I been married, our children would be 'legitimate' and would have been granted automatic British citizenship because their father (me) was born in London. The British Nationality Act was amended to remedy this around 2007 (?) but the amended law was not retrospective. Had the Marriage Act not defined 'legitimacy', it would not have been a problem. But then why have a Marriage Act if it doesn't define legitimacy? But then why define legitimacy in terms of a certificate from the state telling you that you are married.

byork,

It was not Australia deciding citizenship, as you say you had to meet the British Nationality Act.

You don't feel that your own choice had any bearing on it?

"I would have thought that with over 90 per cent of people getting married at some stage in their lives, and groups like same-sex couples wanting to get married, the case for a Marriage Act of some sort is compelling."

That is not any case for a Marriage Act. People, including gays, can do that without a Marriage Act.

The Marriage Act also provides no substantive protection in law that is not otherwise available on the basic of the facts of a marriage-like relationship.

"Other reasons for a Marriage Act include providing a means for secular people to commit to a marriage...

The Marriage Act does not provide a means for secular people to commit to a marriage. This argument is based on a mistaken concept of what marriage is. You are confusing marriage, with the registration of marriage. This invalidates your argument.

"and a need to facilitate public administration in areas of social security, taxation, child support and family breakdown."

The Act does not facilitate public administration of those areas. All those areas of law ignore the existence of registration of marriage and look to the substance of the matter, not the form.

No-one has established any valid reason in support of the Marriage Act.

The mistake in their reasoning is to think that the Act make marriage possible, or facilitates it. This is flatly incorrect, and not even the Marriage Act claims that or has ever claimed that.

The Marriage Act does not constitute any marriage. It provides for the *registration* of *pre-existing* marriages brought into being by the act of the parties in exchanging vows. This fact disproves all the arguments that have been made in this thread in support of the Marriage Act.

byork, may I ask, did you and your wife ever exchange promises in the nature of marriage? For example, to be true to each other and share finances?

JardineKJardine, my wife and I didn't at any point do anything formal or devise a set of vows or draw up a legal contract. We made a commitment by talking things through when we knew we were in love. We considered a ritual to share and celebrate our commitment to one another, and probably would have had some kind of event with family and friends - had our families and friends not been spread so far along the east coast. The big decisions were to live together and then to have children. Looking back over 28 years together, we've done it by talking things through and by willingness to compromise and change. Oh yes, and our philosophy of our relationship is that it's good if it allows both individuals to pursue their ambitions and desires and to develop as individuals. And good times are essential!