Marriage Act 1961 (Australia) - Preliminaries

Preliminaries

Part I of the Act deals with preliminary matters.

The most important of these is the definition of ‘marriage’. Prior to 2004, marriage was not defined in the act. The Marriage Legislation Amendment Act 2004 inserted a definition into s5(1) of the act, that reads:

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

The 2004 amendment addressed the issue of gay marriage in Australia. Prior to the enactment of the 2004 Amendment Act there was uncertainty as to whether the Marriage Act 1961 allowed gay marriage. Furthermore, there was uncertainty as to whether the 1961 Act ‘covered the field’ so as to preclude gay marriage. If the 1961 Act did not cover the field then states could 'fill in the gap' to legally recognise gay marriage in that state. On the other hand, some have argued that, as the breadth of Commonwealth legislation power is limited to powers in Section 51 of the Australian Constitution, the federal Parliament may not have power to legislate in relation to gay marriage as ‘marriage’ in s51(xxi) means heterosexual unions. If that is the case then it is arguable that the states may still have a residual power in relation to gay unions.

It is generally accepted that for the time being, the Marriage Act 1961 excludes the possibility of gay marriage in Australia.