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Marriage Amendments (Definition and Religious Freedoms) Act 2017 is the name of the legislation that gives effect to the same sex marriage arrangements in Australia.

The marriage equality changes to legislation in Australia regarding same sex marriage came into effect on the 8th December 2017.

The ACT has made changes that Family Dispute Resolution Practitioners and NMAS Mediators who are working with couples and families have to be aware of.

Rather than being a new piece of legislation it basically changes definitions of marriage and related meanings in a number of pieces of legislation which are listed below. The major changes are to the Marriage Act 1961.

Marriage Act 1961

The legislation makes changes to the Marriage Act 1961 in the objectives of the ACT. It now reads.

2A  Objects of this Act

It is an object of this Act [Marriage Act 1961] to create a legal framework:

(a)  to allow civil celebrants to solemnise marriage, understood as the union of 2 people to the exclusion of all others, voluntarily entered into for life; and

(b)  to allow ministers of religion to solemnise marriage, respecting the doctrines, tenets and beliefs of their religion, the views of their religious community or their own religious beliefs; and

(c)  to allow equal access to marriage while protecting religious freedom in relation to marriage.

The have very neatly changed the definition to avoid any ambiguity.

3  Subsection 5(1) (definition of marriage)

Omit “a man and a woman”, substitute “2 people”.

23 Grounds on which marriages are void

Now instead of not being able to marry your brother or sister [Paragraph 21 (2) (b)] or any decedent or ancestor including an adopted parent or child you can’t marry a blood related sibling, ancestor or descendant.

Subdivision D – Religious Marriage Celebrants

A new subdivision of the Act now allows marriage celebrants to register are Religious Marriage Celebrants to allow them to decline to marry people who’s relationship is not condoned by their particular faith.

Read 39DA to 39DE if this is of interest to you.

47  Ministers of religion may refuse to solemnise marriages

Section 47 sets out the terms that relate to Ministers of Religion [47] and Religious Marriage Celebrants [47a] may refuse to solemnise a marriage based on religious beliefs. 

Refusing to solemnise a marriage on the basis of religious beliefs etc.

(3)  A minister of religion may refuse to solemnise a marriage despite anything in this Part, if any of the following applies:

(a)  the refusal conforms to the doctrines, tenets or beliefs of the religion of the minister’s religious body or religious organisation;

 (b)  the refusal is necessary to avoid injury to the religious susceptibilities of adherents of that religion;

(c)  the minister’s religious beliefs do not allow the minister to solemnise the marriage.

Grounds for refusal not limited by this section

(4)  This section does not limit the grounds on which a minister of religion may refuse to solemnise a marriage.

47A  Religious marriage celebrants may refuse to solemnise marriages

(1)  A religious marriage celebrant may refuse to solemnise a marriage despite anything in this Part, if the celebrant’s religious beliefs do not allow the celebrant to solemnise the marriage.

Grounds for refusal not limited by this section

(2)  This section does not limit the grounds on which a religious marriage celebrant may refuse to solemnise a marriage.

47B  Bodies established for religious purposes may refuse to make facilities available or provide goods or services

(1)  A body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:

(a)  conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b)  is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

(2)  Subsection (1) applies to facilities made available, and goods and services provided, whether for payment or not.

(3)  This section does not limit the grounds on which a body established for religious purposes may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.

(4)  To avoid doubt, a reference to a body established for religious purposes has the same meaning in this section as it has in section 37 of the Sex Discrimination Act 1984.

(5)  For the purposes of subsection (1), a purpose is reasonably incidental to the solemnisation of marriage if it is intrinsic to, or directly associated with, the solemnisation of the marriage.

Family Law Act 1975 amendments

The Family Law Act 1975 has various amendments to the language changing

  • “a man and a woman” to “2 people”
  • “the husband or the wife” to “a party to the marriage”
  • “the husband and the wife” to “both parties to the marriage”
  • “husband or wife” to “husband, wife, spouse”

Western Australia

The legislation and recognition of same sex marriages means that separating couples in WA who were previously regarded as de facto may now be regarded as married if they had married overseas in a jurisdiction allowing marriage equality.

This may impact entitlements with regards to financial settlements, especially in terms of Superannuation.

Legislation that has changes to the definition of spouses and potentially other amendments.

  • Marriage Act 1961
  • Sex Discrimination Act 1984
  • Acts Interpretation Act 1901
  • Defence Force Discipline Appeals Act 1955
  • Defence (Visiting Forces) Act 1963
  • Australian Defence Force Cover Act 2015
  • Defence Force Retirement and Death Benefits Act 1973
  • Evidence Act 1995
  • Family Law Act 1975
  • Financial Transaction Reports Act 1988
  • Maintenance Orders (Commonwealth Officers) Act 1966
  • Safety, Rehabilitation and Compensation Act 1988
  • Federal Circuit Court of Australia Act 1999
  • Governor‑General Act 1974
  • Judges’ Pensions Act 1968
  • Parliamentary Contributory Superannuation Act 1948
  • Superannuation Act 1976
  • Migration Act 1958
  • Military Rehabilitation and Compensation Act 2004
  • Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988
  • Family Court Act 1997 (WA)

Recommendations for Members

We recommend that you review the following documents to ensure that the language is inclusive and in line with legislation regarding marriage equality.

  • Client Intake Forms
  • Client Information documents
  • Agreement to Mediate (FDR)
  • Parenting Plan tools and templates
  • Property settlement tools and templates
  • Marketing Material

 

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