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Traditional Marriage in Australia Already Includes Gay Marriage, So What’s the Fuss About?


marriageThe perennial, ubiquitous “look of love”

by Mary W Maxwell, LLB

H sapiens is a pair-bonding species. Humans have been getting married for a long time. Many tribes have a ceremony for it. Some tribes mark the marriage when the “bride and groom” are small children, as it is understood that they will unite later in life.

In Western civilization (so to speak), a couple may cohabit without any formalities, or may register the union with a state or religious authority. Often, as is the case with the Islamic religion or the Roman Church, there are theology-based rules about marriage, and about the dissolution of marriage.

Australian Law

Australian law has as its basis the British common law, such as it was on the day the First Fleet arrived. Some of that still remains as common law in Australia; some got subsequently modified by statutes. Also, many new laws were enacted by state or Commonwealth parliaments.

Roughly speaking, common law recognizes two people as being married if they act like they are married.

(In the US, a man might try to prove that he was common-law married by such things as the woman having changed her name to his, or the filing of joint tax returns!)

In Australia the Family Law Act 1975 “federalized” many laws having to do with such things as divorce, spousal maintenance payments, and child custody.

Probably the 1975 law is best known for having made divorce a matter of either party withdrawing from the union, whether or not the spouse agreed (thus obsoleting the practice of suing one’s spouse for desertion, adultery, mental cruelty, etc.).

The Marriage Act 1961 — Miscellany

The Family Law Act did not do much to alter the Marriage Act 1961. That law contains what I would call miscellany. It clears up questions that may have been disputed in court. For example, these questions were answered:

If the person has a guardian, is that guardian’s permission required for a marriage? Yes, per Section 14 of the Act.

Can a person sue for breach of promise of marriage? No, per Section 111A. (This obsoleted the former right to sue, but still permits gifts to be reclaimed.)

What wording, by the bride and groom, is needed when a chaplain of the armed forces performs a marriage? Per Section 72, it must be something along these lines:

“I call upon the persons here present [at least two witnesses] to witness that I take thee to be my lawful wedded wife (or husband).”

Can a person marry more than one spouse? No, per Section 23b: “A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where: (a) either of the parties is, at the time of the marriage, lawfully married to some other person….”

So What about Same-Sex Marriage?

Everybody knows there are many male-male couples and many female-female couples in Australia. They enjoy some legal benefits on the same grounds as opposite-sex couples, since Australia acknowledges “de facto relationships.” A de facto marriage is more or less the same as a common law marriage.

I argue that any gay person currently married in that way is in a traditional marriage. I mean how “traditional” can you get? De facto marriages long pre-date state marriages, indeed they precede the existence of states. You simply “take up” with the desired partner and settle down as a couple. So you’re married.

During the prime ministership of John Howard, a new law was passed, called the Marriage Amendment Act 2004. That is, it amended the Marriage Act 1961. Unfortunately it inserted a new definition. In subsection 5(1) we read:

“marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

I quote the Sydney Morning Herald of May 27, 2004, in an article entitled “Gay Marriage Ban”:

Gay couples will be banned from marrying, or adopting children from overseas, but will be allowed to inherit their partner’s superannuation under proposed changes to marriage laws announced today.

Mr Howard said the Marriage Act would be changed to include a definition of marriage as the `voluntarily entered-into union of a man and a woman … “We’ve decided to insert this into the Marriage Act to make it very plain that that is our view of a marriage and to also make it very plain that the definition of a marriage is something that should rest in the hands ultimately of the parliament of the nation,” Mr Howard told reporters.

”(It should) not over time be subject to redefinition or change by courts, it is something that ought to be expressed through the elected representatives of the country.”

The People’s Choice

I have to admit I am in favor of legislature-made law over judge-made law (based on accountability).  But where were the judges that day? Why didn’t they say “Excu-use me! Australian gay men and lesbians are already in marriages, de facto. What the heck are you legislating about?”

One does hear of parliamentarians – Senator Cori Bernardi has apparently been chosen as the mouthpiece – saying that “the legislators must protect traditional marriage.”

Given that I see traditional marriage as the permanent commitment of two persons who love each other, I am, of course, 100% with Cori Bernardi. Go, Cori!  Protect our marital condition!

Everybody KNOWS what traditional marriage is. Hence, I believe the 2004 Amendment Act was an effrontery to all loving couples. (Makes ya wunda – could it have been done just to give us a divisive issue to distract from other issues of the day? Ahem, ahem.)

Anyway, I think the “straights” should have jumped up and down in protest against John Howard’s attack on traditional marriage.

No Can Wait

What prompted me to write this article was seeing a sign on a tree at the University of Adelaide campus yesterday, which said the NUS – National Student Union – is planning a rally in November to demand the right of gays to marry. The sign said something like “We cannot wait any longer.”

I’ll say!

It’s just a bad joke, telling people they have to wait. Consider this interview conducted on August 17, 2015 by the ABC:

“A Sydney-based gay couple aged in their late eighties, who have been in a relationship for 48 years, say they want the right to marry before they die.

“After a lifetime of relative privilege and opportunity, it is the one thing that eludes John Challis, and at 87, it really bothers him.”

Well, it would wouldn’t it.

“I’m not going to live forever,” he said. His partner, Arthur Cheeseman, who is 83 and has trouble seeing and hearing,  “He is getting frail”, Mr Challis said.

“We met at the Art Gallery of New South Wales; it was the final night of the great Sydney Northern retrospective in 1967. We just happened to walk out the door of the gallery together and smile at each other, and went off and had a cup of coffee and then there you are.”

Now the lengthening shadows of their lives give urgency to their wish to finally have their relationship given the public status it deserves.

John and Arthur describe themselves as “a very normal suburban kind of couple.” Right.

“I’m sure our relationship is just as devoted as [Tony Abbott’s] is and why should we be looked at in any different way?”

Ah, the power of common sense!

US Supreme Court

That interview took place ten weeks after the high court in the US declared that state laws against gay marriage were unconstitutional.  The 5-4 ruling was attributed to the right to due process and equal protection before the law.

If “equal protection before the law” has any meaning at all it has got to be the protection – for everybody — of normal legal rights, such as the right to form a family.

(Note: This has never included a demand for reproduction. I was about as married as a person could be for twenty years with no hint of children.)

Justice Anthony Kennedy wrote for the majority, that the hope of gay people “is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions”.

By God, talk about saying “Grass is green,” “two and two make four,” and “the capital of Florida is Tallahassee.”

“Gays don’t want to be excluded from one of civilization’s oldest institutions.”

The whole fuss is an embarrassment, isn’t it?

— Mary W Maxwell is a graduate of Adelaide Law School, and can be reached at her website maryWmaxwell.com or via GumshoeNews.com.


Photo credit: imgur.com


  1. The relationship between common law and statute law is quite complicated. I do not yet have a feel for it in Australia (even after working on it regarding my Coram Nobis petition for Martin Bryant).
    In the US the relationship has been clarified, ever since 1877, by the US Supreme Court’s decision in the case, Meister v. Moore. SCOTUS said:
    “No doubt a statute may take away a common law right, but there is always a presumption that the legislature has no such intention unless it be plainly expressed.”

    John Howard did not expressly kill off the common law of marriage in his 2004 Amendment Act. (Don’t worry, I’m not claiming that Meister v Moore applies in Oz.)

  2. 29 Oct’16
    Seeking State approval on any sort of personal relationship just indicates confusion, insecurity and oppression. Why would any self-respecting Soul render anything unto Caesar other than which belongs?

    • Ah, Berry. I’ll bet one of your ancestors was a signer of the Virginia Resulotion in 1798:

      “That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government…”

      • I simply can’t understand how a blessing from a reprobate entity such as the Federal Government could be counted as some sort of advantage.

        I don’t think that the motive behind legalising prostitution& marijuana was exactly altruistic either. Another lucrative tax source perhaps?

        These fat controllers don’t see us as anything more than cattle.Far harder to round up those outside the fence; hell, they might even escape being sent to market altogether!

      • That’s a good one, Berry. I pulled this quote from it:

        If you say to a Czech, Hungarian or Pole, ‘Render to the Soviets the things which belong to them’, he would understand you instantly. Nothing belongs to them. These words can only mean, ‘Give them a boot in the back and send them packing.’

  3. I lived with a feminist some time ago, she asserted that marriage was made by Man and was for the control of Women and as such a institution that was patriarchal? it seems as some want it both ways.

    • Picture it, Don. Her theory requires that some Blokes got together and said “OK now we will have Marriage, and keep the Sheila’s under control.”
      How would they then have produced all the biological emotions such as loyalty to one’s spouse, jealousy about cheating, etc?
      Easier to say it is a package deal from evolution.

      But I don’t dooubt that a consequence of male-female difference was a system of Blokes thinking Sheila’s were inferior. I recall a concert of Berlin Philharmonic at Carnegie Hall 40 years ago when no instrument was being weilded by a Sheila. It was like we somehow thought only Blokes could do it really well. But today of the top 10 violininsts in the world a fair few have the XX chromosome.

      (Don, I will wait to see if this thread develops into an argument about chromosomes or violins.)

    • As a woman born in 1950 I’d have to say that feminism died the day it fell into the hands of the Feds. Those ABC bitches & the likes aren’t intent on anything but stirring up enmity; I believe its called Divide & Rule.

  4. At the risk of being completely boring again.
    Wake up people to the new world order globalist corporate fascist agenda as presented by Dr. DAY, as reported by Dr. DUNEGAN. (NWO exposed by insider) [20th March 1969]
    Look up those bullet points where the plan is to dissociate procreation from a loving union of couples and to promote homosexual lifestyle.
    By that dissociation, the state destroys its greatest enemy…. the family unit. Thus the children become dissociated from family and then the state controls the children to be its serfdom/debt slaves.
    Not a new concept, the Spartans had the same system and so did the Nazis.
    The latest Nazi style brown shirts are our msm journos and shock jokes aided by our politcians, bamboozled by our Canberra public servants in their sheltered Canberra workshop.
    As Dr Day expressed, the secret of the NWO success is that our present Walkley wan…ers are too dumb to ask the right questions. (My parahrasing)
    Pitty them, our traitors, when their children become awakened.

    • Thanks, Ned. You are right, the Bozos are trying to put the family off the menu. But now let’s see how they go about that amazing plan, with no reference to same-sex couples.

      First, the Bozos alter the culture through feminist ideology, which generally says a Mom should not be there in the home all day; she needs to have a career. Relatedly, they denigrate the male who is provider and protector.

      Second, they have somehow changed the common word from “spouse” (or, God forbid, “wife”) to “partner.” The implication of this is the two persons are not in a lifelong committed relationship. They are under a sort of contract which can be broken in the twinkling of a eye. “And that is wonderful.”

      Thirdly, they encourage sex as recreation and you are supposed to believe that anything is the real thing. A high school student in Adelaide told me that there is a sign in the hallway of her (state) school that says there are 17 ways to have a relationship.

      Well, tell that to a zoologist.

      (In another school, I saw, with me own eyes, a sign on the door of the nurse’s room “If you need a morning-after pill, see the nurse.”) It has come to be considered normal to be a single Mom. I don’t list this as one of the items that Dr Day confessed to. Instead I blame this on the lads who don’t take fatherhood seriously – as society does not press them to.

      A certain GP once told me that many young couples come into his office when the girl is newly-pregnant. They seem to be asking “Should we go through with this?” The doctor says to the boy “Will you stick around?” Boy says Yes. But soon enough, he shoots through. “Single Mom-hood” was thus not of the girl’s choosing.

      And, as you recall, Dr Day said work patterns would be re-engineered to keep husband away from the family.

      All of the above has nothing to do with the fact that each population – oh, except Saudi — has a certain percentage of heterosexuals and a small number (maybe only 2%) of gays. “Gay pride” may look like an effort to undercut the family but as I have tried to show in this article, men who want to marry each other are certainly not undercutting the family – they ARE family.

      Here is the quote by Dr Dunegan who recollected what Dr Day (that bastard!) had said in 1969:

      “Now back in 1969, four years before Roe vs. Wade, he said, ‘Abortion will no longer be a crime.’ ‘People will be given permission to be homosexual.’ Clothing would be more stimulating and provocative. Bras would be thinner and softer allowing more natural movement. Divorce would be made easier and more prevalent.”

      Ned, I don’t expect you to remember that, pre 1969, bras were stiff. They were “the Eton collar” of the fairer sex.

      Take me on, Ned. I am dying to argue. Or ask Dee to commission an article from me about LGBTIQABCXYZ.
      But not tomorrow, because tomorrow I am doing TPP.

      • Funnily enough Mary, I’m sort of with Ned on this.
        Homosexuality is a variant human behaviour with its existence documented crankily as far back as the Old Testament, but the active marketing of all the LBGTEFGHIJK…… is something new, modern and a bit bizarre (even embarrassing at times). I think the politically active warriors of justice who are talking about Marriage Equality don’t want “legal” marriage for themselves nearly as much as they want the State-sanctioned “right” to have it.

        I have wondered if Mr Soros maintains a Marriage Equality Department in his offices (maybe next to the Destroy Putin Department, down the hall from the Vibrant Diversity Export Department….yes, big office).

        • Paul, I am with you, and Nedski.
          But not all warriors are fake. The sister of the awful Newt Gingrich (at one time the Republican Speaker of the House) wrote a good book in 1996 called “Accidental Activist.” I wish everybody would read it as a boost to empowerment.

          One day she (Cadace Gingrich) just said Why am I putting up with this? (Being ill-treated as a lesbian.) So it led to other things.
          By the way, why are we putting up with George Soros? He has done so much all-around harm, and for what?

          • Mr Soros by all counts is a severe, intrusive tinnitus sufferer. As one myself I can attest to the potent effect it can have on your mood and spirit. Maybe his Global meddlesome nonsense is one way to keep his mind off the eternal screech? The planet’s pain becomes his personal therapy? No crazier than anything else you’ve observed in your travels. Human motivation, though often cloaked in grandiose intent, usually arises from fairly base instincts: money, sex, power, cat pictures… We do tend to invoke supernatural-ish (God-like even) justifications for simply wanting more than someone else.

  5. I have been with my (male) partner for 32 years. I will not be part of a movement to invite the State into my relationship beyond ensuring my rights and protection within the Law. We do not require “recognition” from the State to justify ourselves and our lives.


    1. Pair boding is superb (Wheeee!)

    2. The family is the strengthener of society and we should not lightly give it away.

    3. Herr Howard’s 2004 insertion of a “definition” was no doubt dictated by the divisiveness squad.

    4. Sexuality has many variations. Every majority is always inclined to make the minorities feel outcast.

    5. Dee and I would be “deeply grateful” if the nation would send the 160 million to us instead of wasting it on a plebiscite.

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