The 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 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.”
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