Same-sex marriage has been legal in Australia since 9 December 2017. Legislation permitting same-sex marriage, the Marriage Amendment (Definition and Religious Freedoms) Act 2017, became law on 8 December 2017 and came into effect the next day. This immediately recognised overseas same-sex marriages. The first same-sex wedding under Australian law was held on 15 December 2017. The passage of the law followed a voluntary postal survey of all Australians, in which 61.6% of respondents supported the legalisation of same-sex marriage. Australia was the second country in Oceania, after New Zealand, and the 23rd in the world to allow same-sex couples to marry nationwide. Prior to legalisation, 22 bills to allow same-sex marriage were introduced to Parliament between September 2004 and May 2017. These failed attempts came after the Howard government amended the Marriage Act 1961 in 2004 to codify the then-exclusively heterosexual common law definition of marriage. The Australian Capital Territory passed a same-sex marriage law in December 2013 that was struck down by the High Court for inconsistency with federal law.
Other types of recognition for same-sex couples are also available. Under federal law, same-sex couples can also be recognised as de facto relationships. De facto couples have most of the same rights and responsibilities afforded to married couples, although these rights may be difficult to assert and are not always recognised in practice. Although there is no national civil union or relationship register scheme in Australia, most states and territories have legislated for civil unions or domestic partnership registries. Registered unions are recognised as de facto relationships under federal law.
De facto relationships De facto relationships, defined in the federal Family Law Act 1975, are available to both same-sex and opposite-sex couples. De facto relationships provide couples who live together on a genuine domestic basis with many of the same rights and benefits as married couples. Two people can become a de facto couple by entering into a registered relationship (i.e. a civil union or domestic partnership) or by being assessed as a de facto couple by the Federal Circuit and Family Court. Couples who live together are generally recognised as a de facto relationship, even if they have not registered or officially documented their relationship.
Rudd government 2008–2009 reforms Following the Human Rights and Equal Opportunity Commission's (HREOC) 2007 report titled "Same-Sex: Same Entitlements", and an audit of federal legislation, the Rudd government introduced in 2008 several reforms designed to equalise treatment for same-sex couples and same-sex families. The reforms eliminated discrimination against same-sex couples and their children in a wide range of areas. They came in the form of two pieces of legislation, the Same-Sex Relationships (Equal Treatment in Commonwealth LawsGeneral Law Reform) Act 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth LawsSuperannuation) Act 2008. These laws, which passed the Parliament in November 2008, amended 70 existing Commonwealth acts to equalise treatment for same-sex couples and their children.
As a result of these reforms, same-sex couples were treated equally with heterosexual couples in most areas of federal law for the first time. For instance, with relation to social security and general family law, same-sex couples were previously not recognised as a couple for social security or family assistance purposes. A person who had a same-sex de facto partner was treated as a single person. The reforms ensured that same-sex couples were, for the first time under Australian law, recognised as a couple akin to opposite-sex partners. Consequently, a same-sex couple receives the same rate of social security and family assistance payments as an opposite-sex couple.
Legislative history prior to de facto recognition In 2004, the Superannuation Industry (Supervision) Act 1993 was amended to allow tax free payment of superannuation benefits to be made to the surviving partner in an interdependent relationship, including same-sex couples, or a relationship where one person was financially dependent on another person. Prior to 2008, same-sex couples were only recognised by the Commonwealth Government in very limited circumstances. For example, since the 1990s, same-sex foreign partners of Australian citizens have been able to receive residence permits in Australia known as "interdependency visas". Following a national inquiry into financial and work-related discrimination against same-sex relationships, the HREOC released its Same-Sex: Same Entitlements report on 21 June 2007. The Commission identified 58 Commonwealth law statutes and provisions that explicitly discriminated against same-sex couples by using the term "member of the opposite sex". The previous conservative Howard government had banned its departments from making submissions to the HREOC inquiry regarding financial discrimination experienced by same-sex couples."How well does Australian democracy serve sexual and gender minorities?", Democratic audit of Australia, ANU School of Social Science report No. 9, 2003 p. 19
The report found that 100 statutes and provisions under federal law discriminated against same-sex couples by using the term "member of the opposite sex", from aged care, superannuation, childcare, Medicare (including the Pharmaceutical Benefits Scheme) through to pensions. "All the basics that opposite-gender couples are legally entitled to and take for granted" were things same-sex couples were effectively barred from utilising under the former system.
Differences between de facto relationships and marriages
Some legal differences remain with respect to treatment of couples in a de facto relationship and couples in a marriage. Differences exist between the rights of a de facto couple and a married couple in relation to family law matters, including property settlements and entitlements to spousal maintenance. A de facto relationship must have ended for the court to make an order for property settlement or spousal maintenance, though this requirement does not exist for married couples. For a de facto partner to seek an order for property settlement, the court must be satisfied of at least one of the following: The period of the de facto relationship was for at least two years; or There is a child in the de facto relationship; or The relationship is or was registered under a prescribed law of a State or Territory; or That failure to make an order would result in serious injustice due to the significant contributions made by one party.
By way of comparison, for a married couple, it is enough merely to have been married to attract the jurisdiction of the court for property and spousal maintenance. Furthermore, it is possible that an individual in a de facto relationship can be treated substantively different to a person in a marriage. In the event of an unexpected end to a de facto relationship (such as the death of a partner), the surviving partner must often prove the existence of a relationship in order to be registered as the next of kin on a death certificate and receive government bereavement payments and access to a partner's superannuation. These requirements vary on a state by state basis. Given that, prior to the legalisation of same-sex marriage, same-sex couples did not have the option to marry, as heterosexual couples did, these discrepancies could have a particularly discriminatory impact on same-sex couples. The rights of a de facto partner may be poorly understood by government departments, resulting in occasions where said couples have not had their rights upheld. De facto relationships also often face an onerous burden of proof before rights that are automatically granted to married couples can be accessed. This means partners may have to provide evidence about their living and childcare arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. This can present difficulties when de facto relationships are legally contested by other people, usually other family members. Marriages rarely encounter such difficulties as they are generally regarded as immediate and incontrovertible.
In April 2014, a federal court judge ruled that a heterosexual couple who had a child and lived together for 13 years were not in a de facto relationship and thus the court had no jurisdiction to divide up their property under family law following a request for separation. In his ruling, the judge stated that "de facto relationship(s) may be described as 'marriage-like' but it is not a marriage and has significant differences socially, financially and emotionally."
Same-sex marriage
Background and summary
The federal Marriage Act 1961 governs marriage in Australia. It did not explicitly define the legal meaning of the word "marriage" prior to 2004. Section 46(1) of the Act, however, has always included a provision requiring celebrants to state the legal nature of marriage in Australia. Prior to the legalisation of same-sex marriage, the requirement was to state marriage is the union of "a man and a woman", or words to that effect, in line with the 1866 English case of Hyde v Hyde. The words in section 46(1) have been seen as a description or exhortation rather than a legal definition.
In August 2004, the Howard government introduced a bill to insert a definition of marriage in the interpretation section (section 5) of the Act; as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". The bill also inserted a new provision in the Act (section 88EA) which stipulated any foreign marriages of same-sex couples "must not be recognised as a marriage in Australia". The bill was supported by the opposition Labor Party and came amidst increased public debate on the issue following the judicial legalisation of same-sex marriage in Massachusetts and Canada. Prime Minister John Howard later stated that the amendments were partially motivated by a desire to prevent same-sex couples from having their marriages recognised by the courts, as was being litigated at the time. Additional amendments to the Family Law Act 1975 prevented same-sex couples from adopting children in inter-country adoption arrangements, although these restrictions were eventually relaxed in 2014. The bill passed the Parliament on 13 August 2004 and went into effect on the day it received royal assent by Governor-General Michael Jeffery, 16 August 2004.
Between 2004 and 2017, there were 22 unsuccessful bills to legalise same-sex marriage in the Parliament. Labor governments of Kevin Rudd and Julia Gillard between 2007 and 2013 were divided on the issue. Despite passing a resolution at the party's national conference in December 2011 to support same-sex marriage, the party held a conscience vote when two private member's bills to legalise same-sex marriage were debated in the Parliament in September 2012. The legislation was opposed by Prime Minister Julia Gillard and several other Labor MPs, as well as by the opposition Coalition, led by Tony Abbott. The first bill failed in the House of Representatives by 42 votes to 98 and a similar bill was rejected by the Senate by 26 votes to 41.