A Comprehensive Analysis of Same-Sex Marriage Laws in Australia

This essay provides a comprehensive analysis of the legal status of same-sex marriage in Australia. It begins by defining homosexuality and exploring the global context of same-sex marriage, noting countries where it is recognized and where it is not. The essay then delves into the Australian context, detailing the legal framework, including the Marriage Act 1961, and the numerous failed attempts to pass same-sex marriage bills. It examines public opinion, referencing surveys indicating increasing support, and highlights the key demographics in favor of legalization. The essay also discusses the implications of the recent voting initiative and the arguments for and against legalization, including religious concerns, property rights, and potential impacts on sexual experimentation and mental health. It concludes by summarizing the current state of the debate and the potential future of same-sex marriage in Australia, emphasizing that the majority of Australians support same-sex marriage.

Running Head: SAME SEX MARRIAGES IN AUSTRALIA
Same sex marriages in Australia
Name of Student
Name of University

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Homosexuality refers to a romantic or sexual relationship or attraction between persons
of same sex. It is a category of sexual orientation which means a continuing behavior of
attraction of sexual or romantic nature towards a certain gender. Sexual orientation is broadly
categorized into heterosexuals (persons attracted to persons of opposite gender), homosexuals
(persons attracted to persons of same gender) and bisexuals (persons attracted to both the genders
simultaneously). Homosexuals include gays (men attracted to men) and lesbians (women
attracted to women). These forms of orientation and relationships were not recognized in ancient
times and are still not given recognition in many countries till date. Same sex marriages have
been recently given legal recognition in many countries like Argentina, France, United States,
Mexico, the Netherlands, New Zealand and most recently in Uruguay in 2017. It is still not
recognized in Australia but a huge support is given to such marriages.
According to the federal law of Australia each state and territory is empowered to make
laws regarding same sex relationships still their relationship is considered as de-facto
relationship. The marriage law of Australia expressly excludes to give recognition to any form of
union other than that of a man and a woman (Marriage Act 1961 (Cth) s 46). Till date almost
twenty two Bills related to same sex marriages have been presented before the Parliament of
Australia but not a single Bill out of them has been passed (McKeown 2017). The Australian
Capital Territory gave recognition to same sex marriages by passing a Marriage Equality (Same
Sex) Act, 2013 in December 2013 which was later struck down by the High Court for the reason
that it was in contravention of section 46(1) of the Marriage Act 1961 (Cth).

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According to a survey conducted by Household, Income and Labour Dynamics in
Australia Survey (HILDA) for evaluating the support of different groups of persons of Australian
society for same sex marriages (Smyth 2017) it has been observed that the rate of support for
same sex couples to have equal rights with heterosexual couples has considerably increased since
2005 and also the percentage of people who agree that equal rights with heterosexual couples
shall be given to the same sex couples has also increased to a great extent. The category of
people who are in support of the equal rights of same sex couples includes women, homosexuals,
young people, non- religious people, persons of high- income group and persons living in major
cities (Perales & Campbell, 2017).
A recent voting has been conducted in Australia as an initiative of the coalition
government of Malcom Turnbull to know the view of general public regarding the validation of
same sex marriages in Australia as the issue of same sex marriage was the major topic of
discussion during 2016 elections (Westcott 2017).
According to a report of news.com there is a need for change in Marriage laws of
Australia to legalize the same sex marriages. The legalization of homosexual marriages will not
interfere with the rights of religious marriages which are different from legal marriages whereby
the religious leaders will still hold the right to refuse to marry homosexual couples. The
homosexual marriages are not connected to religious rites rather it is a custom which is as old as
the tribal groups of Britain. A number of religious institutions are concerned that if homosexual
marriages are given recognition they will be compelled to perform against their religious beliefs
but these institutions are given privilege to discriminate persons on the grounds of gender, LGBT

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status, relationship status or pregnancy which gives them right to refuse to marry homosexual
couples.
As the Marriage Act of Australia does not gives legal recognition to the same sex
marriages, it also does not recognizes any same sex marriage taken place outside Australia.
Therefore, the homosexual couples who get married outside Australia in a country of which they
are not the citizen, cannot get divorced after returning to Australia, neither do they can get
divorced in the country in which they got married as they are not a citizen of that country. This
the couple gets jammed into a legal midpoint.
Further according to the Family Law Act, if a married heterosexual woman becomes
pregnant by having access to IVF, foster or adoption facility with the consent of her husband
they become legal parent of the child but homosexual parents are required to prove their de facto
relationship at the time of taking the procedure. Marriage gives legal status to heterosexual
parents which is not available to homosexual parents until they are lawfully married. All married
parents and even the non- biological parents have legal parental rights over their children. Since
homosexual couples are already raising families allowing them to marry would only strengthen
legal rights. In the case of same sex couples, on the death of one of the spouse, the rights of
being legally married will sustain which are not available to the de facto couples. The
heterosexual de facto couples of Australia face the same conditions as the homosexual couples
do but they have right to marry which the latter do not have.

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Legalizing the same sex marriages will also give property rights to their children as
marriage gives legal status to the children from the marriage. Further the legalizing will also give
rights in the property of the spouse in case of the death of either of them.
On the other hand, legalizing of the same sex marriages has some disadvantages. One of
such disadvantage is the possibility of emergence of sexual experimentation especially in the
younger generation. These acts of carnal experimentation will give bring complexities, rise in
sexual diseases, etc. Further it would also complicate the courts of law to decide and make
bifurcation regarding the rights and liabilities of the parties in cases of dispute arising from the
same- sex marriages.
Younger generation of homosexuals will be prone to major risk of sexual and mental
health concerns. As per certain researches that have been conducted in countries that have
already legalized homosexual marriages, it was found that the young homosexuals are
experiencing social discrimination for their orientation which is expected to increase in case the
homosexual marriages are not given legal recognition. It has been seen in the countries where
homosexual marriages has been legalized that no mental health problems arise in those groups of
homosexuals (The Conversation 2017).
Therefore it may be summarized that in the recent voting that took place in Australia
regarding the legalizing of the same sex couples shows that majority of the public is in its
support. However, certain sections of the society are still not in the support a large number of
people want the homosexuals to get rights under the marriage law.

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Marriage does not have its place to any religious group even if they have right to perform
it. Customs change, and few customs have changed as much as the custom of marriage. With
regard to the dispute that marriage is for the reproduction of children, this does not stand up to
inspection. A number of mature couples marry despite the fact that they are unable to procreate
or reproduce children. Younger couples are not obligated to show their productiveness before
getting married. If the marriage laws are regarding the procreation of children, then participants
should ask the newly married couples to make a pledge to endeavor to produce children.
Participants are already obligated to make the statement that according to the Australian law
marriages are a union of man and woman and not of others and it should be added that it is also
for the purpose procreating children. This will be highly criticized by many couples who are
unable to procreate children or do not want to have one. This should not stop them from
marrying.
By banning homosexual marriages, there will be a adverse effect on the lives of
homosexual people. This means that banning homosexual marriages would restrain the religious
autonomy of homosexual people. Either it can be believed that homosexual marriages are a
legitimate practice or not. A large number of Australians believe that homosexual marriages is
neither fundamentally destructive nor immoral. The practice of homosexuality has no negative
effects upon those who elect not to involve in it. Therefore, the Government has no room in
banning it and no room in discriminating against the persons who practice it.

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Reference List:
McKeown, D 2017, Chronology of same sex marriage bills introduced into the federal
parliament: a quick guide. Available from:
http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/
pubs/rp/rp1617/Quick_Guides/SSMarriageBills. [23 September 2017].
Marriage Act 1961 (Cth).
Perales, F. & Campbell, A. 2017. Who supports same-sex marriage in Australia? And who
doesn’t? University of Queensland. Available from:
http://www.abc.net.au/news/2017-08-31/same-sex-marriage-who-supports-it-and-who-doesnt-
hilda-data/8856884. [23 September 2017].
Smyth, J. (2017). Same- sex marriages reignites Australia’s culture wars. Financial Times.
Available from: https://www.ft.com/content/f793f132-96f8-11e7-b83c-9588e51488a0. [23
September 2017].
The Conversation (2017) Legalising same-sex marriage will help reduce high rates of suicide
among young people in Ausralia. Available from: http://theconversation.com/legalising-same-

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sex-marriage-will-help-reduce-high-rates-of-suicide-among-young-people-in-australia-82917.
[23 September 2017].
Westcott, B. (2017). Australia votes on same- sex marriage: What you need to know. CNN.
Available from: http://edition.cnn.com/2017/09/04/asia/australia-same-sex-marriage-explainer/
index.html. [23 September 2017].