THE LEGAL REGULATION OF MARRIAGE
A paper delivered to the Law Students Society, Faculty of Law, University of Melbourne by the Honourable Alastair Nicholson AO, RFD, QC,
Thursday 16 September 2004
Today I begin with reference to the Government‟s recent legislation to proscribe
same sex marriage. It is in my view one of the most unfortunate pieces of legislation that has ever been passed by the Australian Parliament.
It was clearly intended by the Government to constitute a pitch to the religious right and mirrored a similar attempt in the United States introduced by President Bush for the same purpose. Unfortunately it was more successful here than there.
The reason for its success reflects no credit upon the opposition, who clearly abandoned principle for pragmatism rather than hand an election issue to the Government.
The definition of marriage that the Bill adopts reflects the definition ascribed by Lord Penzance to marriage in Hyde v. Hyde and Woodmansee in 1866, where
his Lordship defined marriage as
"The voluntary union for life of one man and one woman, 1 to the exclusion of all others"
This definition was picked up by the Government and referred to with acclamation by the Attorney General, Mr Ruddock, in his second reading speech introducing the amending Bill.
It is worth noting that Lord Penzance‟s definition was inaccurate at the time that
he gave it and remains inaccurate today. It is difficult to understand how even in 1866, marriage could have been defined as a union for life, having regard to the passage of the Divorce and Matrimonial Causes Act in England in 1857. Given
that about 40% of Australian marriages now end in divorce, it is a nonsense to refer to marriage as a union for life today.
Similarly, since the concept of matrimonial fault has been abolished by the Family Law Act 1975 and in particular that adultery is no longer a ground for divorce, it is difficult to argue that a modern marriage necessarily excludes all
1 (1866) LR 1 P&D 130
2 All this seems to others, as Lord Penzance and the Government would have it.
have escaped the Government and the Opposition.
None of the proponents of this legislation seem to have asked themselves the thquestion as to whether it is not a bit strange to be falling back on 19 century
definitions of marriage in seeking to define marriage in 2004.
In 1866, homosexual acts between adult males, as distinct from females, constituted a crime and it was not long since adultery had been also described as “criminal conversation” in the law. It still had the character of a matrimonial
offence. There have been other changes to society since then that are far too numerous and comprehensive to set out here including the emancipation of women, the widespread introduction of anti discrimination legislation, changing attitudes to human relationships and the adoption of international standards as to human rights, to which this country has always been a party.
This legislation ignores all of those developments and treats them as if they had not occurred.
The discrimination against same sex couples seems to fly in the face of so much that has been achieved in recent years in these areas. It also seems to me to run contrary to principles of humanity and decency and to conflict with the spirit of international instruments to which Australia is a party e.g.
(a) guarantees of equality before the law and non discrimination in articles 2.1 and 26 of the International Covenant on Civil and Political Rights (“ICCPR”);
(b) the right not to be subjected to arbitrary or unlawful interference with a person‟s privacy and family in article 17.1 of the ICCPR.
It is also a dangerous step in the direction of establishing religion in this country. We must make no mistake that the sort of marriage that the Government is talking about is Christian marriage. As will appear later in these remarks, it was the Government‟s core submission in a recent case before the Family Court of Australia that marriage should be defined in terms of its ancient Christian origins.
22 The majority of the English Court of Appeal (Butler Sloss P and Robert Walker LJ) said in the case of Bellinger v Bellinger when
referring to that definition, it can no longer be regarded as correct in so far as it refers to a union voluntarily entered into for life. One would have thought this observation might also have occurred to those who drafted the Family Law Act, a major characteristic of which was the introduction of no fault divorce.
In fact, as will also appear, it is more likely that the concept of marriage that the Government is talking about has its origins in the commercial ambitions of the thth and early 19 century. English upper and middle classes of the late 18
However, my concern is that the Government is attempting to entrench Christian dogma in relation to marriage on all of us, whatever our religious persuasion or lack of it.
What is lacking about the Government‟s approach is humanity. I have had the opportunity to meet with many gay people and I count many amongst my friends. I have other friends who have gay children. I met only this week with a young man who had suffered sickening injuries as a result of being bashed because he was gay. The Government seems to be reflecting the attitude that discrimination against those who are gay is acceptable. Their conduct in enacting this legislation is almost such as to give encouragement to the dark legacy of discrimination against gay citizens and children in this country. It is reflective of even darker legacies in Europe last century.
The Definition of “Marriage”
Prior to the recent amendment and for over 100 years after federation, marriage remained undefined. Curiously enough Section 43 of the Family Law Act requires the Court, in exercising its jurisdiction under the Act to 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;
This is not a really definition at all, but appears to proceed upon the basis of a parliamentary assumption that this is what marriage means. It is somewhat ironic that the nearest thing that we had to a definition of marriage in Australian law prior to the passage of the recent amendments was contained in a statute almost entirely concerned with marriage breakdown.
It is of interest to note that the Australian Government, under the Prime Ministership of Sir Robert Menzies, during the debates preceding the passage of the Marriage Act 1961, rejected an amendment moved by a National Party
Senator seeking to define marriage in terms of the traditional definition appearing in s 43 of the Family Law Act. The then Senator Gorton, (the Minister
representing the Attorney General in the Senate), indicated that it was the Government‟s view that the question of the definition of marriage was one for the courts to determine in individual cases. One might ask Mr Ruddock and the Government what it is that has changed since then. It may well be that what has
changed is that the Courts have made decisions that the Government does not like.
No-one seems to have asked the question whether the amendments were necessary. Despite the lack of definition, in my view it would have been impossible to have successfully argued that “marriage” as used in the Marriage
Act 1961 contemplated same sex marriage. This is because of the reference to it in the Family Law Act referred to above and because the Marriage Act itself did
advert to something akin to the Hyde definition in setting out the words to be
used by marriage celebrants. In the circumstances one would have to question the motives of a Government in rushing such legislation through on the eve of an election.
The Full Court of the Family Court had reason to consider a number of these 3issues in the recent case of Kevin and Jennifer.
In Kevin and Jennifer the central issue was the validity of a marriage involving a woman and a post-operative transsexual person who was registered at birth as a female. The circumstances were that several months after their marriage in August 1999 the parties applied for a declaration of its validity pursuant to section 113 of the Family Law Act. The Attorney-General intervened in those
proceedings to argue that the marriage was invalid. After failing before the trial judge, he appealed to the Full Court. In so doing, the submissions on behalf of the Attorney-General relied heavily on the 1971 first instance English decision 4of Corbett v Corbett (otherwise Ashley) in which Ormrod J held that a person‟s
sex is immutable and irreversible, being determined at birth by reference to chromosomes, gonads and genitals. Applying such reasoning Kevin, having been born female, was a female hereafter and therefore could not go through a form of marriage with another female.
It is important to appreciate that the proceedings did not involve a challenge to the essential nature of marriage. It was always Kevin and Jennifer‟s contention that Kevin was a man for the purpose of the law of marriage at the date of the marriage. Much of the supporting medical, psychological and other evidence emphasised that Kevin had always seen himself as male, was similarly seen by his family, friends and workmates as male, and had undergone both hormonal and surgical treatment to enable his anatomy to conform to his self-perception.
Following the medical and surgical intervention Kevin was recognised as being a man by both Federal and State laws for a range of purposes other than
 FamCA 94, judgment delivered 21 February 2003, available at
http://www.familycourt.gov.au/judge/2003/pdf/attorney.pdf. Special leave to appeal to the High Court of
Australia was not sought. 4  P 83
marriage. At the State level, Kevin‟s birth registration was altered from female
to male following surgery; the couple had been accepted into the IVF program and had had a child as a result. They have since had a second child. At the Federal level it was not in contention that Kevin would be considered male for the purposes of criminal and social security law, and would also be entitled to a passport showing him as a male.
An amusing satirical „letter‟ from Prime Minister John Howard‟ to the Australian public penned by Emma Tom („Be alert: the deviants are coming, 15
March 2003) in The Australian Newspaper, referred to “an infiltration of
communists, homosexuals and single women” infiltrating “this country‟s once
proud judiciary”. Calling it the “Morally Polluted Poofter Court” persecuting a
couple who are more committed to 1950s values than most regular constituents, Tom warned the people of Australia against the behaviour of sexual terrorists.
thThe question of the 19 Century definition of marriage became an issue (as did the meaning of marriage as at the time of the passage of the Marriage Act in
1961), because it was argued for the Attorney-General that if marriage now bears the meaning that it did in 1866, or even 1961, it was not contemplated that it would extend to a post operative transsexual person such as Kevin.
The Attorney General also argued that the essential purpose of marriage was the procreation of children. The Full Court was therefore called upon to consider whether marriage is a static or evolving institution, whether the concept should be frozen at some point of time, or whether „marriage‟ as used in the Marriage
Act, should bear its contemporary normal everyday meaning. If it did, that still left the question whether it contemplates, using that test, marriage by a post-operative transsexual person such as Kevin to a female.
In the course of its judgment the Full Court referred with approval to the remarks of the trial judge (Chishom J) as follows:
37. His Honour said that the last few words in the passage quoted constituted the only reason given by Ormrod J for excluding non-biological matters. His Honour first queried the use of the word “natural” by his Lordship, and
secondly his reference to the “essential role of a woman in marriage”. His
Honour in this context referred (at par 93) to the following passage of Gordon Samuels‟ extra judicial comment in an article “Transsexualism” (1983) Aust J
Forensic Sciences 57-64:
“There is no reason to suppose that she could not provide the companionship and support which one spouse ordinarily renders to the other. She could not conceive and bear children, but it is not the law that marriage is not
consummated unless children are procreated or that procreation of children is the principle end of marriage. Hence the female spouse’s ability or willingness
to produce children is not a necessary incident of a valid
38. We think that this statement has considerable force and represents what we consider to be a considerable shift in our community away from the purely sexual aspects of marriage in the direction of defining it in terms of companionship.
39. His Honour similarly criticised, and we believe correctly, the proposition that the capacity for genital intercourse is the essential role of the woman or the man in marriage. He rejected what he called an essentialist view of sexual identity that individuals have some basic essential quality that makes them male or female.
The Full Court further addressed the contention that the purpose of marriage was the procreation of children as follows:
152. The real point of the Attorney-General‟s submission was to support an
argument that procreation is one of the essential purposes of marriage. It was argued that it follows from this that the biological characteristics of a person are central to determining a person‟s status as a man or a woman. It was put
that the historical importance of the sexual relationship in marriage remains and that it is because of this significance that the law continues to look to the physical attributes, and not the psychological or social attributes, of a person. It is therefore said that because
of Kevin‟s biological inability to procreate, the marriage to Jennifer could not be a valid marriage.
153. Apart from the stated purpose of procreation relied upon by the Attorney-General, we accept, as did the trial Judge, that marriage has a particular status. Like the trial Judge, we reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside marriage and many people who are married neither procreate, nor contemplate doing so. A significant number of married persons cannot procreate either at the time of the marriage or subsequently - an obvious example being a post - menopausal woman. Similarly, it is inappropriate and incorrect to suggest that consummation is in any way a requirement to the creation of a valid marriage. Subsequent to the passage of the
Marriage Act, inability to consummate a marriage ceased to be a ground for making a declaration of nullity: see ss. 1 and 51 of the Family Law Act and ss. 23, 23A, and 23B of the Marriage Act.
Both the Marriage Act and the Family Law Act derive their constitutional basis
from the marriage, divorce and incidental powers of the Federal Parliament 5 Although the Attorney-General did not seek to contained in the Constitution.
argue as to the meaning of marriage in the Constitution, it seemed to the Court to be inescapable for it to consider this issue in interpreting the meaning of
and generally. This raised the further issue as to marriage in the Marriage Act,
whether, for the purposes of the Constitution, it should be given the meaning it had in 1901 when the Constitution came into effect, or 1961 when the Marriage Act was passed, or whether it should have its contemporary, everyday meaning.
The meaning of „marriage‟ in the Constitution is a legally fascinating issue. The High Court has never considered this issue in any detail, although a number of individual judges have expressed their views in individual cases and these are discussed by the Full Court in the judgment. They vary widely, from, on the one hand Brennan CJ taking a firm view that not only does the Hyde definition apply,
but that it is beyond the powers of the Commonwealth Parliament to legislate for any other form of marriage, to McHugh J expressing the view that it may 6encompass same sex marriages.
In Re:Wakim; ex parte McNally, McHugh J said:
“The level of abstraction for some terms of the Constitution is, however,
much harder to identify than that of those set out above. Thus in 1901”
marriage” was seen as meaning a voluntary union of life between one
man and one woman to the exclusion of all others. If that level of
abstraction were now accepted, it would deny the parliament of the
Commonwealth of power to legislate for same sex marriages, although
arguably marriage now means, or in the near future may mean, a 7voluntary union for life between two people to the exclusion of others.”
Similar views were expressed by Thorpe LJ in Bellinger in the course of his
dissenting judgment in the Court of Appeal where he said that he would redefine marriage:
“as a contract for which the parties elect but which is regulated by the
state, both in its formation and in its termination by divorce, because it
5 Section 51 (xxi), (xxii) and (xxxix) 6 See the discussion at pars 88-100 in Kevin and Jennifer. 7 (1999) 198 CLR 511 at 553
affects status upon which depend a variety of entitlements, benefits and 8 obligations.”
Although the Full Court followed his Lordship‟s dissenting judgment in that case, it did not find it necessary to redefine marriage beyond the finding made by Chisholm J that the meaning of marriage in a contemporary sense included post-operative transsexual persons.
It did discuss the history of marriage and some of its observations may be of interest today. In this regard it referred to a 1982 article by Margaret Harrison 9where she said:
“Before the period of industrialisation, status depended upon an alliance of
political power and economic wealth. Marriage was an important connecting link in determining status, and this in time was intrinsically tied to the importance of legitimacy, which enabled power and wealth to be passed on to an acceptable group. Conversely, for those groups who were powerless and poor marriage was irrelevant as it offered them no material advantage. So legal marriage was basically for the wealthy – a means of preserving property and
“Civil marriages were not really catered for until 1836 when formalities
regarding such marriages were introduced, but this was still only an optional system. Ecclesiastical jurisdiction over marriage formulation and termination can be said to have survived in England until 1857 when the Matrimonia lCauses Act conferred jurisdiction to grant divorces in civil courts. Later, the industrialising world came to accept the „appropriateness‟ of state
regulation of the formation, organisation and dissolution of marriage. The law became closely involved with social conduct, often in great detail as with the codifications of Prussia (1794) and France (1792). Furthermore, in the eighteenth and nineteenth centuries, the indissolubility of marriage and the emphasis on marriage as performing the „correct‟ social function permeated the
law. This ideology concealed the property transmitting function of marriage stressing rather its moral and religious attributes.”
The Full Court concluded this section by commenting:
“…..we think it plain that the social and legal institution of marriage as it pertains to Australia has undergone transformations that are referable to the environment and period in which the particular changes occurred. The concept of marriage therefore cannot, in our view, be correctly said to be one that is or
8 Supra note 12 at par 128 9 [(1982) Informal Marriages: Working Paper No. 1)
The Australian Institute of Family Studies]
ever was frozen in time. The relevance of this conclusion for the purposes of these reasons for judgment, is that on the sources we have had to identify for ourselves, there is no historical justification to support Mr Burmester‟s contention that the meaning of marriage should be understood by reference to a particular point in time in the past, such as 1961.‟‟
We now have the spectacle of a Government, supported by the Opposition that have effectively frozen marriage in time, namely in 1866. Is this what the majority of the Australian people want and even if they do, why should not the views of the minority be considered and particularly same sex couples? What will now be the position in relation to transsexual marriages such as that of Kevin and Jennifer?
The Attraction of Marriage
st century about the It is true that there may be some scepticism in the early 21
benefits of marriage. For a variety of reasons its attractions appear to be waning and marriage rates have declined in the past few decades – from a rate of 53 per
1000 unmarried women in 1981 to 32 in 2000. Further, demographers estimate that if current marriage rates continue 29% of men and 23% of women will never marry. There has been a concomitant increase in the numbers of de facto relationships, and about one third of all births are to unmarried women. These trends are not limited to Australia, but are characteristic of other western nations
Reasons for the declining popularity of marriage are said to include: -
; The certainty of contraception and the careful planning of births; 10 ; The fact that marriage frequently occurs after the parties have cohabited
and possibly experienced multiple relationships and prolonged autonomy as
; A growing realisation by women that they cannot and ought not be dependent
on men; and
; A legal framework which has progressively enacted equal opportunity,
human rights and joint responsibility for men and women in fulfilling the 11 obligations of marriage and parenthood.
The increasing legal recognition given to non marital heterosexual unions from the 1980s on has more recently been extended to same sex unions, although in both cases there have been pockets of opposition to the extension of the various 12rights and obligations of marriage partners. However this may be, there are
many couples who still seek marriage and in my view it behoves the law to develop in a way that gives marriage a modern contemporary meaning. Why it is that same sex couples should be excluded from this process is beyond me.
At least one factor seems to be an assumption that it is better for children to have a parent of both sexes than otherwise. This is a big assumption. My own experience in the Family Court suggests that children need a loving and caring relationship with their parents of whatever sex. There are many cases where children may in fact be better off with one parent. The scientific basis for such an assertion appears to be extremely doubtful.
rdIn a paper delivered to the 3 National Conference of the Family Court of 13Australia, Jenni Millbank pointed to the wide ranging studies in both the UK and USA over 20 years that had found:
“Specifically, the children showed:
; no difference in terms of gender role or gender identity (and
Patterson notes that in the more than 300 children studied there
was absolutely no evidence of gender identity disorder),
10 In 2001, 72% of couples indicated that they had cohabited prior to marrying (ABS Marriages and Divorces, Australia ) 11 Edgar, D (1988) „The new marriage: changing rules for changing times‟, Threshold 22. 12 See in this regard Sandor, D „Legislating for Love Outside of Marriage‟ paper presented at the Miller Du Toit and The Law Faculty of the University of Western Cape Family Law Conference, The Changing
Definitions of Family, 25 March 2002, Cape Town, South Africa, available at
http://www.familycourt.gov.au/papers/html/sandor.html. Compared with other jurisdictions, Australia does not
have a strong same sex marriage movement. 13 Lecturer in Law, University of Sydney, Third National Conference of the Family Court of Australia, Hotel Sofitel, Melbourne “Same sex couples and family law”