The focus of the current debate on marriage in Australia is the entitlement of men and women to enter into a legally binding relation of marriage with a person of the same sex. But this debate doesn’t go far enough. Now is an opportunity for us to rethink the very definition of marriage in Australia, in particular its insistence that the relation of marriage is a union for life.
At common law, marriage was defined in 1866 in Hyde v Hyde as "the voluntary union for life of one man and one woman to the exclusion of all others". Roughly similar understandings are set out in §46(1) of the Marriage Act 1961 (Cth) and §43(1)(a) of the Family Law Act 1975 (Cth). The Marriage Act also underlines this definition in its prohibition of bigamy (§94) and of the solemnisation of a bigamous union (§99).
The neutrality of marriage law in Australia was last placed in question in 2004, when the Marriage Legislation Amendment Bill was proposed. At that time, debate was also focussed on the legal recognition of same-sex unions, which the bill was explicitly designed to preclude. However, there are other questions in regard to neutrality that are lurking in the definition of marriage incorporated by the passing of the 2004 Bill, questions that received little or no consideration in its passage, and remain occluded in the current debate also.
In order to preclude the legal recognition of same-sex marriages, the 2004 Bill proposed to incorporate the common law definition of marriage set out by Lord Penzance in the case of Hyde noted above, which involved the status of Mormon polygamous unions made in America. Lord Penzance noted: "marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others". The words, "as understood in Christendom", do not appear in section 46 of the Marriage Act nor in section 43 of the Family Law Act. The Hyde definition is otherwise intact in those sections.
None of the legislators in 2004 voiced concern that the incorporation of this understanding as a definition in the Marriage Act effectively codifies what marriage is as understood by Christianity, although some celebrated the fact. For example, the Liberal MHR Robert Baldwin held that he was being true to his religious convictions in seeking to "ensure that the Christian values of marriage — being an institution between a man and woman for the purpose of procreation — remain as the cornerstone of the foundation of our society".
Other members of parliament were less outspoken than Baldwin in this respect, but some still referred to marriage in terms of sanctity, a notion deeply entrenched in canon law and ecclesiastical practice. The notion of sanctity is associated with the view of marriage as a sacrament, the foundation of which is taken to be Ephesians 5:31-32: "For this cause shall a man leave his father and mother, and shall be joined unto his wife, and they two shall be one flesh. This is a great mystery [sacramentum]: but I speak concerning Christ and the church." Even here, however, the term sacrament refers more to the marriage itself, rather than the occasion of entering into the relation, which may notwithstanding resemble the making of a contract or agreement.
Christianity does not have a monopoly on respect for marriage of course. Islam and other religions accord respect to marriage. But the relation of marriage in Shari‘a, for example, is understood more as an agreement or contract of relation between parties, albeit having religious significance and consequences. That agreement or contract is not considered to be irrevocable, for life.
The 2004 codification of a definition of marriage that was formulated "as understood in Christendom" has important practical consequences in regard to pre-existing provisions of the Marriage Act and the Family Law Act. First, §46 of the Marriage Act requires marriage celebrants (other than ministers of religion) to say to the parties:
"I am duly authorised by law to solemnise marriages according to law.
"Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
"Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."
Second, §43(1)(a) of the Family Law Act requires courts to exercise their jurisdiction under the Act with regard to "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 provision does not apply to the jurisdiction of courts in regard to de facto financial causes).
It has been argued that §46 of the Marriage Act is not a definition of marriage, important in various interpretative contexts, but rather a description or characterisation of marriage. The codification of the Hyde formula in §5 of the Marriage Act however appears to add weight to these sections of the Marriage Act and the Family Law Act.
To summarise: unions other than those between "a man and a woman to the exclusion of all others, voluntarily entered into for life" do not fall within the law’s understanding of marriage, and courts are required to exercise their jurisdiction on that basis.
Meagan Tyler has recently drawn attention to the "dark history" of marriage in terms of the inequality of women. In many other religions and cultures, there is no expectation that women will take their husband’s name in marriage, or merge their finances with those of their husband, with a view to a lifelong union. And there are even fewer religions and cultures in which men are expected to take their wife’s name to symbolise a lifelong union.
It is not just the sex of the permissible partners that needs our reconsideration, but also the character of the relation, and its presently defining assumption of marriage as a relation "for life". If persons wish to promise lifelong commitment and fidelity to each other, this is touching and admirable, and it may also be pleasing to God. But it cannot, and should not, be legally stipulated, required or implicitly enforced, even by the form of words in the marriage ceremony. It is also not enough that people cross their fingers behind their back as they listen to the words about "for life", in the knowledge that many marriages do in fact end well shy of a lifetime.
The view of marriage as "for life" is a religious perspective that is no longer defensible in a legal system based on different understandings of personal freedom. John Stuart Mill eloquently argued that it is not appropriate for the law to specify that the marriage relation be irrevocable. In On Liberty Mill quotes von Humboldt approvingly:
"that engagements which involve personal relations or services, should never be legally binding beyond a limited duration of time; and that the most important of these engagements, marriage, having the peculiarity that its objects are frustrated unless the feelings of both the parties are in harmony with it, should require nothing more than the declared will of either party to dissolve it".
Citing Mill does not of course settle the argument, but it does indicate that a defence of liberty in non-religious terms does not support the protection or enforcement of marriage as a relation "for life". Mill argued that of course moral obligations to others, especially to intimate others, are of great importance, but there should be no legal requirement binding persons to each other for life.
In 1851, Mill disclaimed for himself the life-long legal rights conferred on him as a husband, in the very beautiful Statement on Marriage:
"And in the event of marriage between Mrs. Taylor and me I declare it to be my will and intention, and the condition of the engagement between us, that she retains in all respects whatever the same absolute freedom of action, and freedom of disposal of herself and of all that does or may at any time belong to her, as if no such marriage had taken place, and I absolutely disclaim and repudiate all pretension to have acquired any rights whatever by virtue of such marriage."
But he acknowledged that this statement had no legal effect.
It is time to re-evaluate existing definitions and stipulations in Australian family law, given its roots in ecclesiastical practices and understandings of Christianity. In particular, it is time to address the notion of "for life" as a term of marriage, and not merely the sex of the persons entitled to volunteer such a commitment to each other.
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