If you’ve been following the marriage redefinition debate in Australia you may have heard the claim made that, in 2004, Howard introduced an amendment – overwhelming passed by the House and Senate – that changed the definition of marriage by introducing the following definition into the Marriage Act 1961:
“marriage ” means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
However, the inclusion of this definition did nothing of the sort. Prior to its inclusion, the definition of marriage was provided by the common law. Here is how Black’s Law Dictionary (2nd ed.) defined marriage in the decade following Federation:
MARRIAGE. Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. (emphasis mine)
MARRIAGE. Marriage, as distinguished from the agreement to marry and from the act of becoming married, is the civil status, condition, or relation of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex. (emphasise mine)
marriage,n.1. The legal union of a couple as husband and wife (emphasis mine)….Also termed matrimony; conjugal union. [Cases: Marriage 12.1. C.J.S.
Marriage § 9.]
There is simply no change. The definition of marriage from Federation in 1900, through the passing of the Marriage Act 1961, and then the Marriage Amendment Act 2004, remains at all times the same. That this was uncontroversial in 2004 is itself reflected, not only in the overwhelming support for the amendment in the Parliament, but in the fact that the Labor opposition supported the amendment and used precisely the argument I’ve laid out here; namely, that the amendment simply introduced into statue what was already the case at common law.
Even if the claim is narrowed so that what is being asserted is only that no legislation prior to the 2004 amendment defined marriage as the union of a man and a woman, a worthless point I grant you but I want to be as charitable as possible; even this narrow claim itself is also mistaken. As is noted by Neil Foster in John Howard and the Myths of the 2004 Marriage amendments, section 43 (1)(a) of the Family Law Act 1975 states:
Principles to be applied by courts
(1) The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life; (emphasis his).
Further, he also reminds us of Brennan J in the High Court decision of R v L (1991) 174 CLR 379 at 391:
In Hyde v. Hyde and Woodmansee Lord Penzance defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others” and that definition has been followed in this country and by this Court. It is the definition adopted by the Family Law Act, s.43(a) of which requires a court exercising jurisdiction under that Act to have regard to “the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life”. Marriage is an institution which not only creates the status of husband and wife but also, without further or specific agreement, creates certain mutual rights and obligations owed to and by the respective spouses. (emphasis his).
I think we can conclude that this oft-repeated canard is now exploded.What I find tantalizing about the inclusion of marriage as a union of a man and a woman in the Family Law Act is the declaration of the need to “preserve and protect the institution of marriage” as just this sort of union. From their mouth to the people of Australia’s ears.