5000LAW: INTERDISCIPLINARY RESEARCH PROJECT

“FROM STATUS TO CONTRACT AND BACK AGAIN: AUSTRALIAN MARRIAGE AND ITS

INTRINSIC CHARACTERISTICS”

Student Number: s2589973

Name: Joshua Taylor

Supervisor: Ms Zoe Rathus

Course Convenor: Mrs Kylie Burns (Nathan)

Word Count: 6067 words

This author would like to personally thank Ms. Zoe Rathus for her willingness to make herself available to help during semester.

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“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 cannot, in our view, ever be frozen in time”1

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“There is significant community concern about the erosion of the institution of marriage...”2

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“Marriage is a wonderful institution...but I ain’t ready for an institution yet!”3

ABSTRACT

What is marriage? In response to claims that changes to the institution of

marriage would ‘destroy the institution of marriage’4 or ‘fundamentally

weaken the institution’5, this essay will ask the most basic question: what

is the institution? It will provide an answer by considering in part one the

context by which we find our marriage laws today. It will consider these

through the theories of marriage-as-status and marriage-as-contract, and

consider the position from which Australian law began to deal with

marriage. Part two will then apply these theories to the development of

the Australian law on marriage, and will contend that marriage has moved

steadily from marriage-as-status to marriage-as-contract, but that recent

developments are reversing this trend. Part three will then use these

conclusions to discuss some of the characteristics of marriage: monogamy

and heterosexuality, the family and public acceptance will be discussed,

and the conclusion will be drawn that marriage requires public

acceptance, but that the family and status characteristics such as

monogamy and heterosexuality are not fundamental to the institution. 1 Re Kevin: Validity of Marriage of Transsexual (2001) FLC 93-087.2 Ruddock, P, Second Reading Speech Marriage Amendment Bill 2003 at 254. 3 Mae West, quoted in Goldbloom, R. “500 awesome one-liners” Penguin: Melbourne, 2003. 4 Crutchfield, C. “Nonmarital Relationships and their impact on the institution of marriage and the traditional family structure” 19 Journal of Family Law” 247 at 249. 5 Blankenhorn, D, The Future of Marriage Encounter Books, 2007, p. 125.

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This conclusion, it will be argued, proves that debate surrounding changes

to the institution should move from religion or that ‘intrinsic’ to marriage,

to one of government roles and responsibilities to citizens.

TABLE OF CONTENTS

Introduction..... 4

Part 1: A Context ...... 5

Theories of Status and Contract.... 5

Christianity and Status..... 6

Part 2: Development of Australian Marriage...9

The Re-Introduction of the State... 9

The Religious/State Divide under the Matrimonial Causes Act 1857...10

The Growing Primacy of the Family Unit: Matrimonial Causes Act 1959...11

Modern Trends: The Family Law Act 1975 onwards... 13

Back to Status – the Gay Marriage Debate...15

PART 3: What is the Institution? 16

Judiciary Conclusions.... 16

The Essential Characteristics Discussed....17

Public Acceptance... 18

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Monogamy and Heterosexuality.... 18

Conclusions.... 19

INTRODUCTION – AN INSTITUTION UNDER SEIGE

Many argue that the institution of marriage is under siege. In his second reading

speech, then Attorney-General Phillip Ruddock stated that “...there is significant

community concern about the erosion of the institution of marriage”6. Our

current Prime Minister, Ms. Julia Gillard, has called the institution of marriage a

“special status”7 , and argued that some things from our past must continue into

our future. Commentators such as Wardle8, Gallagher9, Reid10, and others have

similarly argued that the institution of marriage will fall if not protected. Posner

contends that the institution of marriage must have essential characteristics to

maintain identity and relevance as an institution11. McDermott argues that “...the

concept of marriage necessarily includes that of a man and women committing

themselves...”12 Gallagher’s contention rests mostly on the function of marriage

as intrinsic to the ‘family’, and that the nuclear family is necessary for a

6 Ruddock, P, Second Reading Speech “Marriage Amendment Bill 2003” at 254.7 Maher, S, “Ms Gillard Makes Stand as Social Conservative” The Australian, March 21, 2011. 8 Wardle, G, “What is Marriage?” 6 Whittier Journal Child and the Family 53 9 Gallagher, M, “(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman” 2 University St. Thomas Law Journal 33 (2004-2005) 10 Reid, C, “Marriage in its Procreative Dimension: The Meaning of the Institution of Marriage throughout the Ages” 6 University St. Thomas Law Journal 454 (2009) 11 Posner, R, Love, Sex and Reason, Harvard University Press, Harvard, p. 176. 12 McDermott, B, “Speaking Out: Why Gay Marriage Would be Harmful” Christianity Today June 1, 2010.

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functioning society13. Religious advocates such as William Bennett argue that

“...marriage is not an arbitrary construct; it is an honourable estate based on the

complementary nature of men and women...”14 The question for these authors is

simple: how much change can the institution of marriage take before it is

unrecognisable?

This essay aims to answer this question. It will do so by addressing the argument

in three parts. Part one will consider the history of marriage and the involvement

of religious ideals within the construct of marriage-as-status. Part two will then

track the changes in Australian family law towards marriage-as-contract, and

draw the trends and patterns of marriage within it. Part three will then address

the institution itself. It will ask if public acceptance is necessary, and if so in what

context. It will consider the characteristics of monogamy and heterosexuality,

and the concept of family within marriage, and will conclude that the debate

surrounding the institution of marriage should not rest on intrinsic characteristics

of religious ideals, but rather what is best for individuals within that contract of

reliance. The debate then should be one of government duties to citizens, rather

than worries of ‘intrinsic’ failure of the institution itself.

PART 1: A CONTEXT OF MARRIAGE

Theories of Status and Contract

The debate of whether marriage should be characterised as a ‘status’ or

‘contract’ stem from a famous quote by Sir Henry Maine. “The movement

of a progressive society”, he said, “has been one from reliance on status

to reliance on contract”15. This is explained by Graveson to mean

“The rights and duties, capacities, and incapacities of the individual

are no longer being fixed by law as a consequence of his belonging

to a class, but those former incidences of status are becoming more

and more to depend on the will and nature and existence of that will

13 Gallagher, M, “What is Marriage For? The Public Purpose of Marriage” 62 Louisiana Law Review 77314 Bennett, W, “Gay Marriage: Not a Very Good Idea” Washington Post 3 April, 2009. 15 Maine, H, Ancient Law, Pollock Publishers, Chicago, 1897, p.3.

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of the parties affected by them. The remedy of these breaches is

also becoming more contractual in nature.” 16

This contention is most pertinent in the debate surrounding the role of

marriage. The status of marriage could be referred to as its public face17,

or the social conditions imposed on it18. Justice Appleton referred to it as

“more than a civil contract...a social relation, like that of parent and

child”19. The status of marriage determines who can enter into a marriage,

and under what conditions. The status a marriage has allowed the

government to impose obligations on it: legal rules as to how it may be

terminated, and the conditions of entry20. The status of marriage has been

described as a contract in itself, where both parties enter a contract with

the State, who is the principle party21. Put simply, without status, marriage

is simply a private contract. However, while marriage undoubtedly needs

this status, there also exist elements of contract22. Some commentators

argue that much of the terms of the contract of marriage have

traditionally been mandated through social norm. Weitzman in particular

argues that social understandings of the contract saw the man as the

head of household and the woman as the housewife23. However, other

contractual elements clearly exist. The roles within the marriage, and the

right to sexual autonomy, could be said to be contractual elements24. Most

importantly though, there is now more freedom than ever to choose when

to terminate this contract. As Katz put it,

16 Graveson, R, “The Movement from Status to Contract” 4 The Modern Law Review 261 at 261. 17 Halley, J, “What is Family Law? A Genealogy, Part 1” 31 Yale Journal of Law and Humanities 387 at 38918 Taintor II, C, “What law Governs the Ceremony, Status and Incidents of Marriage” 19 Boston Law Review 353 at 355. 19 Mayanard v Hill [1888] 125 U.S. 190 at 243 per Appleton J. 20 See Glendon, M. “The Transformation of Family Law: State, Law and Family in the United States and Europe” University of Chicago Press: Chicago, 1990. 21 Cooper, V. “How did the Government get involved With Marriage” www.alimonyreform.com/journalarticles/How_did_gov_marraige.html, page 4. 22 See Sager, C. Kaplan, H, Gundlach, R, Kremer, M, Lenz, R, Royce, J, “The Marriage Contract” 10 Journal of Family and Child Studies 13 23 Weitzman, L, “The Legal Regulation of Marriage: Tradition and Change; A Proposal for Individual Contracts and Contracts in Lieu of Marriage” 18 Journal of Marriage and the Family 657 at 65924 Hasday, J, "Contest and Consent: A Legal History of Marital Rape", 88 California Law Review: 1444

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“...marital partners today have considerably more contractual freedom

than in the past

to determine privately the terms of their relationship, and to decide

whether or not their

relationship will continue”25

This tension between the public face of marriage in the status, and the

private sphere of marriage in the contract, is an ever oscillating one. It is

the constant debate between the need to ‘protect’ the institution and

what is represents, and allowing individuals the freedom to choose how

they live their life26.

Marriage-as-Status

Marriage-as-Contract

<________________________________________________________________________________

__________________>

Class Distinction

Freedom to choose Partner

Legally Assumed Household Roles

Ability to evidence chosen Family Roles

Inability of Wives to claim Rape27

Sexual Autonomy in Marriage

Registration of Marriage Private

Contract

Divorce by Government Consent Choice of one party to

Divorce

One ‘correct’ Family Structure Ability to decide

on best Family Structure

Diagram 1 – A linear presentation of the marriage-as-status and marriage-as-contract

characteristics

Christianity and Status – A Brief History

25 Katz, S, “Marriage as Partnership” 73 Notre Dame Law Review 1251 26 McWalter, K, “Marriage as Contract: Toward a Functional Redefinition of the Marital Status” 9 Columbia Journal of Law and Society 637 at 637 27 See Scutt, J, “Consent in Rape: The Problems With the Marriage Contract” 3 Monash Law Review 255

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While some communities, such as ancient Greece, saw marriage as a

private contract between individuals28, others such as Rome saw marriage

as a legal institution29. In English law marriage has always has a very clear

public utility. Throughout the seventeenth century, marriage could be

described almost purely as marriage-as-status: few contractual elements

existed30. All married couples had the same roles, obligations and duties31.

During the late sixteenth century, these public ideals became more

moulded with the Christian ideals of marriage. As such, the role divisions

of Christianity, such as the male as the worker and the women as the child

bearer, became more heavily enforced32. Rather than Christians entering

into the civil concept of the union, marriage was determined to be under

the province of religion33. Ecclesiastical courts had an interest in imposing

the Christian status of marriage. As Rheinstein notes, the Christian ideals

of marriage included concepts that had not been associated with marriage

before34. These were that marriage could not have divorce, that sexual

procreation could only take place within these bounds, and that sex could

only take place with each other35. Korotayev notes that these views were

unique to the Christian understanding of sexual ethics. In contrast, places

such as Africa and Mormon America were practicing Polygamous

relationships36, while the Hellenist, Oriental and Germanic communities

(on whom the Christians tried to impose these new morals) had previously

seen marriage as entirely contractual in nature37. Hafen argues that

governments used this status of Christian marriage to implement and

enforce social agendas38. He points specifically to the construct of the

‘family’, in particular the needs of children. In a feminist context, Elliot

28 Treggiari, S, “Divorce Roman Style: How Easy and Frequent Was It?” in Rawson (ed) Marriage, Divorce and Children in Ancient Rome (Clarendon, Oxford, 1991) 29 Institutes of Justian i, in Stevens, G. A Social History of Rome, Freedom Press, Ontario, 1993. 30 Halley, J, Unpublished Manuscript, “Behind the Law of Marriage: From Status/Contract to the Marriage System” 31 Halley, J, “What is Family Law? A Genealogy, Part 1” 43 Yale Journal of Law and Humanities 1134 at 1136. 32 Reid, C, “The Unavoidable Influence of Religions on Marriage Law” 28 QLR 493 33 Ibid at 345. 34 Rheinstein, M, “Marriage, Stability, Divorce and the Law” University of Chicago Press 1972, p. 10. 35 Ibid at 13. 36 Korotayev, A, World Religions and Social Evolution, Lewiston Press, New York, 2004, at 368.37 Rheinstein, n 24 at 540. 38 Hafan, B, “The Constitutional Status of Marriage, Kinship and Sexual Privacy – Balancing and Individual and Social Interests” 81 Michigan Law Review 463 at 467.

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argues that it was the status of marriage imposed through legal

framework that created what is now seen as the ‘nuclear’ family39. In

particular, the role division seen in household chores and provision for the

family, and the perception of reproduction and control of fertility to

subjugate women was evidence central to his case. This directly contends

with the Functionalist narrative of the family, which argues that the law

put rules around what nature had already divided: the mother had the

maternal instincts and the men had been more equipped to earn physical

livings40. Weitzman describes the status imposed on the individuals in a

marriage as

“Traditional marriage contracts recognise the husband as the head of

the household, and him responsible for the support of the family. The

woman is held responsible for domestic and childcare services...the

legal conception of the family in a narrow way and conception of

responsibilities of the sexes serve to entrench these views...”41

This was important because the act of marriage brought on very specific

rights and public benefits42. These included property distribution,

inheritance claims and political ties43. What did not have to be proven is a

loving relationship. Outhwaite goes so far as to say that “marriage had no

requirement of love or even of a joint agreement...it had specific roles and

obligations, and these obligations were state enforced.”44 In

Westermarck’s landmark book “A History of Marriage”, he describes some

of the public utilities of marriage. First, he argues, was the public

acceptance of the marriage45. This allowed the government to strongly

enforce ideals of class distinction, legitimate birthrights, and the rejection

of divorce. In other words, it allowed the State to impose Christian

39 Elliot, R, “A Tarheel Confederate and his Family” R.G.E Publications, Florida, 1989, p13. 40 Hamilton, G, and Ferry, F, The Family in Australia, Macmillan Press, Melbourne, 1994. 41 Weitzman, L, “To Love, Honour and Obey? Traditional Legal Marriage and Alternative Marriage Forms” 24 The Family Coordinator 531 at 531. 42 Murphy, R, “A good man is hard to find: Marriage as an Institution” 47 Journal of Economic Behaviour of Organisation 25 at 26. 43 Coontz, S, Marriage, A History: From Obedience to Intimacy, or How Love Conquered Marriage Viking Publishers, California, 2007. 44 Outhwaite, R, Marriage and Society: Studies in the Social History of Marriage Europa Publications, London, 1981. 45 Westermack, E, A History of Marriage, 3rd Ed, Cornwell Books, London, 1901.

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obligations onto the institution of marriage. The second social obligation

was to enforce and share property rights and inheritance to legitimate

heirs. Women were often, in these situations, used as tools of their

families to grow family wealth and influential ties. Women who did not

marry were unable to provide for themselves, and therefore required

marriage in order to have access to property46. This furthermore provided

justification for bans on polygamous relationships47. The third social

obligation was to uphold morals of procreation. Westermarck contends

that marriage was a way in which the government could force men to look

after children and provide for them, and prevent rape of women48. This

contention was backed by Blackstone in his Commentaries of Laws in

England when he claimed that marriage laws for women

“exist for her protection and benefit, so highly favoured is the female

sex...the wife is one with the husband in law, the very being or legal

existence of that women suspended during the course of the

marriage.” 49

What is clear then is that the Christian influence on marriage legitimised a

strict legal status on marriage. Moreover, this status restricted the ability

of parties to contract within that marriage and provided clear role

differentiations within the marriage. It is obvious then that the law in

Australia was dealing with marriage that was strongly built on Christian

ideals, and used the concept of marriage-as-status to enforce those

morals on the institution.

PART 2: DEVELOPMENT OF AUSTRALIAN MARRIAGE LAW

This essay will now consider how the institution of marriage has

developed under Australian law. It will consider how this development has

affected the view of marriage-as-status and of marriage-as-contract. 46 Becker, G, “A Theory of Marriage: Part 1” 21 Journal of the Political Economy 677 at 679 47 Hillman, E, Polygamy Reconsidered: African Plural Marriage and the Christian Churches, Orbis Books, New York, 1975, p 47. 48 See also Perkin, J, Women and Marriage in Nineteenth Century England, Routledge, London, 1989 49 Blackstone, W, Commentaries on the laws of England, Oxford University Press, Oxford, 1765.

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The re-Introduction of the State

The eighteenth century onwards saw a raft of provisions that reinforced

the role of the government in marriage. Most fundamentally, Lord

Hardwicke’s Marriage Act50 succeeded in enforcing the official registration

of marriages to the state. While on the one hand this softened the status

of marriage in the sense of removing the church’s ability to decide the

status of marriage, it also removed the ability of citizens to simply

‘contract’ marriages, verbally or through written consent51. However, this

was considered important to ensure that the parties were properly and

freely consenting to a marriage, and could prove the marriage52. Next, the

Civil Marriage Act 1836 (Eng) created a national registry of births, deaths

and marriages, and allowed marriage to occur solely in front of a civil

registrar. No longer then did the Church maintain a monopoly over who

could marry53. The Matrimonial Causes Act 1857 (Eng) was the result of

much campaigning on behalf of citizens for fairer laws with regards to

divorce54. Australian colonies then followed suit55. This was the first real

shift under the Christian doctrine back to allowing contractual rights in

marriage. The legislation had two effects. The first was the removal of

religion from the administration of marriage; this directly moved marriage

away from one of religious status. The second was it allowed divorce in

limited circumstances. This was a direct concession from the state that

the status of marriage prescribed by the church was not absolute, and

that there had to clauses for contractual style termination. The state was

introducing a raft of independent, contractual elements to counter the

status of marriage imposed by religion.

50 Clandestine Marriages Act 1753. 51 Stone, L, The Road to Divorce, Oxford University Press, Oxford, 1990. 52 Ibid at 123. 53 Chadwick, O, The Victorian Church, Vol. 1, 2 vols. an Ecclesiastical History of England New York, Oxford University Press, 1966, p 437. 54 Maddox, P, “The Background and Contemporary Reaction to the Matrimonial Causes Act 1857” 18 Cambrian Law Review 62. 55 Matrimonial Causes Act 1858 (SA); Matrimonial Causes Act 1860 (Tas); Divorce and Matrimonial Causes Act 1861 (Vic); Ordinance to Regulate Divorce and Matrimonial Causes 1863 (WA); Matrimonial Causes Jurisdiction Act 1864 (Qld); Matrimonial Causes Act 1973 (NSW).

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The Religious/State Divide under the Matrimonial Causes Act 1857

However, to say that religion no longer had a powerful role to play in

marriage would be far from correct. The first definition of marriage

occurred in Hyde v Hyde and Woodmansee56 and defined marriage “as

understood in Christendom...as the voluntary union for life of one man

and one woman to the exclusion of all others”57. This definition is

fundamental in affirming the Christian values that underpinned marriage

as it was practiced in Australian law. This understanding of marriage

carried with it other assumptions, such as that of the ‘nuclear’ family58.

This extends not only to the heterosexual nature of the marriage, but also

to role assumptions and duties within the relationship59. This nuclear

family ideal was considered to be paramount right though into the

1980’s60. It was, as Harrison notes, a driving argument for opponents to

divorce and rights within a marriage, with the need of women to be safe

from the public purse - and children looked after most fundamentally61.

However, it soon became clear that this status was failing. A large number

of women had been deserted, and the discriminatory nature of the laws

against women seeking divorce ensured that women remained tied to

deserted husbands62. Furthermore, citizens could only seek access to

divorce in situations of adultery (repeated for women), or cruelty63. As

one woman, named Rachel, noted:

“...however indissoluble they may say my marriage is, he who was

my husband, by his unnatural desertion, has dissolved it. The law

interferes where it should not, and says that we are still husband and

56 (1866) LR 1 P & D 130. 57 At 130. 58 Saggers, S, And Sims, M, Diversity: Beyond the Nuclear Family, Allen and Unwin, Newcastle, 2008.59 Ibid at 39-40. 60 See In the Marriage of Mehmet (1986) 11 Fam LR 322 where the full court found that ‘family’ in law meant the ‘nuclear family’. 61 Harrisson. D, Women and Marriage, Cambridge University Press, London, 1994, p.45. 62 Finlay, H, To Have not to Hold: A History of Attitudes to Marriage and Divorce in Australia 1858-1975 Federation Press, Sydney, 2005, p. 48. 63 Enderby, K, “The Family Law Act: Background to the Legislation” 1 University New South Wales Law Journal 10 at 11.

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wife; but this empty title imposed by law only implies servitude on

my part …”64

This revolt by supporters of women’s rights in marriage was also part of a

wider revolt against the understood ecclesiastical morals underpinning

marriage laws. As one man argued in the Melbourne Argus

The people of Victoria have spoken constitutionally through their

representatives in the two Houses of Parliament, and no one else has

any right to speak in their name. … What right have clergymen of

any church either in England or here to speak as if they represented

the public opinion of the colony?65

The want of women to have more ability to contract in their marriage

seemed entirely at odds with the religious ideals of the family that the

marriage-as-status had been enforcing. The rise of the state as the

enforcer of women’s rights in a marriage necessarily complimented that

growing distain for religious significance in marriage.

The Growing Primacy of the Family Unit: Matrimonial Causes Act 1959

The debate for uniform divorce laws had been raging since colonisation66.

Simultaneously, the push for a greater range of grounds for divorce had

also been growing. This could in part be traced to an evolution in the uses

of the marriage institution. The ecclesiastical nature of marriage had

transformed it from one of public status of title, to one about the stability

of the family unit itself. In turn, that status of marriage was transforming

from one of class status, to cultural status; what was once an institution to

protect inheritance and to protect family status, had now become about

presenting and protecting the ideal family unit. It was fear of unstable

family units that had lead to the passing of the Matrimonial Causes

64 ‘Rachel’, Letter to the Editor, The Age (Melbourne), 21 February 1860, 4, cited in Finlay, To Have but Not To Hold, above n62. 65 Editorial, The Argus (Melbourne), 17 April 1890, 6, cited in Finlay, To Have but Not To Hold n.6266 In the Australian Federal Constitution Debates, for Instance, it was argued that the marriage power was necessary for uniform laws (Quick and Garren, Annotated Constitution of the Commonwealth of Australia, 1901).

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(Dominion Troops) Act 1919, which allowed greater relief to families torn

apart or made unstable by World War I67. The family unit had become a

staple of modern civilisation. As then Attorney-General Garfield Barwick

wrote at the time of the passing of the Matrimonial Causes Act,

“The basic element of the philosophy underlying the (Matrimonial

Causes) act is that stable and sound marriage is indispensible to the

maintenance of our way of life: the family unit is basic and not

susceptible to substitution...the stable marriage which the Parliament

seeks as part of the fundamental organisation of our community is a real

relationship playing its part in the organic life of the community”68.

This new cultural status of marriage gave justification to the ability to

terminate a marriage. If marriage was about enforcing the best ideals for

the family unit, when a marriage was seen not to be working, the

government now had a moral justification to remove that status from the

contracting parties. Smart describes this trend as

“...the relationship of law to the family via marriage and divorce has

been essentially control oriented...the primary objective of family law

was the preservation of marriage and the family structure with its

unequal sexual hierarchy...” 69

What was apparent is that the state had recognised that society had no

tangible interest in maintaining legal walls to a marriage that had broken

down. Rather, it was better placed to manage the dissolution of that

marriage as best it could.70 To this end, the Matrimonial Causes Act 1959

(Cth) commenced in 1961 and significantly widened the grounds for

divorce, while also enacting measures aimed at strengthening the

family71. Most importantly, the ground of ‘irreversible breakdown’ was

introduced, with a five year separation as evidence72. However, despite

67 Enderby, K, above n.63at 69. 68 Barwick, G, “Some Aspects of the New Matrimonial Causes Act” 3 Sydney Law Review 410 at 414. 69 Smart, C, “Regulating Families or Legitimating Patriarchy? Family Law in Britain” (1982) 10 international Journal of Sociology of Law 131 at 133. 70 Glendon, M, Abortion and Divorce in Western Law Harvard University Press: Harvard, 1987, p.66. 71 Barwick, G. “The Commonwealth Marriage Act 1961” 3 Melbourne Law Review 277 at 13; Matrimonial Causes Act 1959 s7-9. These provided for Counselling and reconciliation procedures. 72 Matrimonial Causes Act 1959 s6(m)

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this increased freedom, marriage-as-status was still paramount. The

marriage still placed on the parties’ obligations, and those obligations,

when breached under the act, led to one of the parties being ‘at fault’73.

This necessarily acted to stigmatise and blame one of the parties in the

marriage, and led consistently to better outcomes for the innocent party74.

The status of marriage also still maintained religious tenets. For instance,

regulation was still in place to protect ‘legitimacy’ of children75, consistent

with the canon law76. Marriage was still also seen to be monogamous77.

Religious organisations were expressly able to perform marriage

ceremonies consistent with their own faith78. Interestingly, in allowing

Islam celebrants to perform marriages, Attorney-General Barwick (as he

was then) expressly stated that allowing this practice culturally would be

acceptable, so long as there was no legal recognition. Section 113 allowed

persons married to undergo a second ceremony in front of a celebrant,

and have that second marriage registered at that place: effectually, this

allowed cultural polygamy. This showed the divide between legal

recognition of marriage-as-status, and cultural acceptance of practices.

The introduction of the Matrimonial Causes Act 1959 (Cth) was moving

from marriage-as-status to marriage-as-contract by allowing greater

freedom to parties. However, the status of marriage was still justification

for the stigmatisation of one party, and maintenance of Christian ideals.

Modern Trends: The Family Law Act 1975 onwards

The push for rights of married women, and the movement to cultural

justifications for the institution saw a general shift to concerns about

economic consequences in the termination of the marriage and the role of

the family for children after breakdown79. Parkinson contends that “...the

73 Starr, L, Counsel for Perfection, Oxford University Press, Melbourne, 1996, p.57. 74 Ibid at p.58. 75 Matrimonial Causes Act 1959 s91. 76 Barwick n55 at 18477 Matrimonial Causes Act 1959 s18(a)78 Matrimonial Causes Act 1959 s39 (2) 79 Parkinson, P, Australian Family Law in Context (4ed) Law book Co: Sydney, p 104.

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status of marriage is of diminishing significance, and the more important

status... is parenthood”80. This marks a clear shift in the states

understanding of its role in promoting marriage-as-status, to one of

marriage-as –contract. Attorney-General Senator Lionel Murphy showed

this shift clearly in his second reading speech when he said

“It is apparent that the public attitude to divorce has changed

dramatically in the comparatively short time since the 1959 Act....even

amongst conservative thinkers, not a single voice has been heard in

favour of retaining grounds....are all undoubtedly in favour of ridding the

law entirely of the concept of fault...”81

In furtherance to this, the Family Law Act created a separate family court.

This courts role was to “...where reconciliation fails, play a major role in

reducing the area of disharmony and bitterness and facilitating the

settlement of custody, access and property disputes.”82 This legislation

achieved this by starting two clear trends. Firstly, the movement towards

the protection of children was becoming paramount, with the introduction

of welfare officers for children, and the onus of parents to consider the

interests of the child83. Towards the end of the late 1980’s, this trend

gained significant movement84, culminating in the 1992 Family Law

Commission report85, which suggested that parents ought to have equal

responsibilities to the child post separation. This was codified in the 1995

reforms, which had the express intentions of overriding notions of

property of children, give children a voice, and ensured they were the

paramount consideration86. In 2006, in response to the Every Picture Tells

a Story report87, the presumption of equal shared parental responsibilities

80 Ibid at 105 81 Explanatory memorandum, Family Law Bill 1974, at 345. 82 Report on the Law and Administration of Divorce and Related Matters and the Family Law Bill 1974 (1974) Parl. Paper 133 at 145. 83 Ibid at 233. 84 Taylor, N, “What do we know about involving children and young people in family law decision making? A research update” (2006) Australian Journal Family Law 15485 Australian Law Reform Commission, “Forbidden Family” www.forbiddenfamily.net 86 Rhoades, H, Graycar, R, Harrison, M, The Family Law Reform Act: The First Three Years University of Sydney Press, Sydney, 1979 87 House of Representatives Standing Committee, “Every Picture Tells a Story: Report into the child custody arrangements in the event of family separation” December 2003, Canberra.

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presumption was introduced, along with compulsory mediation88. This

clearly changes the mould of marriage-as-status from the government

attributing rights as a married couple, to one where your status as a

parent is paramount. This also proves a move to marriage-as-contract –

the responsibilities of entering into the contract are being divided more

evening amongst parents.

The second trend was that of the move to makes laws providing justice

based on contractual reliance. The state no longer imposed a fault on any

party. There became only one ground for termination: “irreconcilable

breakdown”89. Practically, this meant that spouses were able to claim

maintenance regardless of the actions that led to the dissolution of the

marriage. Principally, this was a shift to intervention based on contractual

reliance in the marriage, rather than the status of the marriage90. This

movement towards reliance has received greater tract in the progression

of de facto relationship rights. The 2008 Amendments91 to the Family Law

Act 1975 gave the federal government power over de facto couples, and

granted these couples completely equal rights in property settlement and

child custody matters. With a number of states92 now allowing adoption for

homosexual couples, the press towards non traditional marriage

structures being granted by the government is now in full swing. It is

obvious that the obligations to marriage have shifted away from the

status of the marriage, towards a contract. The result of this contract is

that upon termination, your rights are determined by the terms the

parties evidence in acting out that contact. Just as obviously, more

obligations are placed as a parent then as a husband or wife, and that this

is seen as a status voluntarily entered into by contracting with another.

88 Department of Families, “A new family law system: government response to every picture tells a story” published December 2006, www.aph.gov.au/families/every.pic.story.html 89 Family Law Act 1975 s 12 (c) 90 In Millibank, J, “De-Facto Relationships, Same Sex and Surrogate Parents” (2009) 23 AJFL 160 at 161 she mentions in passing the 2008 reforms “leading more to a concept of reliance in a relationship...” 91 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) 92 Adoption Act 1994 (ACT) s36(c); Adoption Act 1994 (WA) s4; Adoption Act 2000 (NSW) s27 (ii)

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Back to Status – the Gay Marriage Debate

The explosion of debate surrounding the ability of homosexual couples to

become ‘married’ has seen a huge reversal of this established trend93. As

a result, the Federal Government of Australia inserted a definition of

marriage as ‘a voluntary union of a man and a woman to the exclusion of

all others, voluntarily entered in to for life’94. In his second reading speech,

he made the reasoning clear. We must ‘protect the institution of

marriage’,95 he claimed, ‘by putting it beyond legal challenge’96. This is a

clear attempt to reinsert marriage-as-status: the banning of citizens from

the institution based on sexual preference. As Polikoff points out, this

battle over status occurs from both side of the issue. She argues that and

gay and lesbian movements have relied on the status of marriage to win

their war, rather than aiming for substantive equality97. Stoddard argues

that marriage is fundamentally important, firstly because that status still

has unique benefits, and secondly because as long as the law

discriminates on some grounds, then the justification exists for all to

discriminate98. Contrariwise, Ettelbrick argues that marriage is a

heterosexual institution, and homosexuals should not be trying to gain

access to a discriminatory institution99. What is clear is that for both

opponents and proponents to same-sex marriage, the battle has moved

from one of contractual rights, back to marriage-as-status. As such, the

debate over the institution has gone full circle: from status to contract and

back again.

PART 3 – SO WHAT IS THE INSTITUTION?

93 Coolidge, D, “Definition or Discrimination – State Marriage Recognition Statutes in the Same-Sex Marriage Debate” 29 Creighton Law Review 113, at 11994 Marriage Amendment Act 2004 (Cth) s 5(1). 95 Explanatory Memorandum to the Marriage Legislation Amendment Bill 2004 at 16 96 Ibid at 17. 97 Polikoff, N, “We Will Get What We Ask For: Why Legalising Gay and Lesbian Marriage will not ‘Dismantle the Legal Structure of Gender in Every Marriage” 79 Virginian Law Review 1535 at 1538. 98 Stoddard, T, “Why Gay’s and Lesbian’s should Seek the Right to Marry” in Sherman, S. (ed.) Lesbian and Gay Marriage, Fountain Press, Virginia, 2007, at 13. 99 Ettelbrick, P, “Since When is Marriage the Path to Liberation? 12 National Lesbian and Gay Quarterly 43

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Judiciary Conclusions

So we return the original question: just what is the institution under siege?

The High Court of Australia may soon have to make a decision on this, as

states attempt to alter the institution on their own100. In comments to the

institution to date, the High Court has reflected the changing nature of the

institution. In Attorney-General (Vic) v Commonwealth101 Justice Windeyer

claimed marriage was not limited to its 1900 definition102, though Justice

Tiernan argued that the plain meaning of marriage “...was Monogamous

marriage”103. Justice Brennan argued in Re F; ex parte F that an ex-nuptial

child could not be a child of a marriage. He claimed that “the

law...recognises as the relationships which subsist between husband, wife

and children of the marriage.”104 More recently however, Justice McHugh

has argued that characteristics can change with society. In Re Wakim105

he claimed that “marriage now means, or in the future may mean, a

voluntary union for life between two people...”106 Most recently, in the

context of a transsexual marriage, it was considered 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 occur. The concept of

marriage cannot, in our view, ever be frozen in time”107.

These considerations will have to meet with those raised in Queen v L108;

that the institution of marriage in law relies on some intrinsic

characteristics that make that institution definable109. This was backed by

100 The Federal Level of Government has the ability to make laws with relation to “Marriage”. The debate, should it go to the High Court, may be around whether homosexual marriage is the same institution described in the Constitution. See Williams, G. “Advice Regarding the Proposed Same-Sex Marriage Act” 9 Constitutional Law and Policy Review 2. 101 (1962) CLR 540 102 Ibid at 235 103 Ibid at 576 104 Re F; Ex Parte F (1986) 161 CLR 376 105 Re Wakim; Ex Parte McNally (1999) 198 CLR 511 106 Ibid at 294 107 Re Kevin: Validity of Marriage of Transsexual (2001) FLC 93-087 108 (1991) 174 CLR 379. 109 at 404 per Justice Dawson

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Geoffrey Liddell when he claimed that for the legal institution of marriage

to exist, there must be an ‘essential’ meaning to the term marriage110. The

question now becomes: for marriage as a legal institution in Australia,

what characteristics are ‘essential’ to marriage?

The Essential Characteristics Discussed

This essay contends that the essential characteristics of marriage are

those necessary for the state to provide just relief for the parties at the

breakdown of that relationship. The trend towards marriage-as-contract is

important in establishing the rights of individuals to determine the modes

of reliance within their lives. However, marriage-as-status remains

important in recognising the unique nature of that reliance. This is

exemplified best by the trend towards the rights of children as paramount

in termination of the relationship. To exemplify this contention, this essay

will conclude by discussing the public recognition of marriage, and

monogamy and heterosexuality in marriage.

Public Recognition

Some commentators have argued for a removal of public recognition of

marriage111. For example, Weitzman argues that the status of marriage

carries with it obligations imposed by the state: these are obligations of

family, of role division, and of social and economic support112. The only

way to counter these, she contends, is to remove the government from

that institution. However, as Frick rightly argues, the institution of

marriage relies on its public acceptance. At its core, marriage is a public

understanding that individuals have created obligations with each

110 Lindell, G, “Constitutional Issues Regarding Same-Sex Marriage: A Comparative Survey” 30 Sydney Law Review 27 at 44. 111 As a most recent example, US Congressman Ron Paul is proposing ‘privatised’ marriage, without any government intervention. See irregulartimes.com/.../did- ron - paul -support- marriage -freedom-in-the-may-5- presidential-debate112 Weitzman, L, “The Legal Regulation of Marriage: Tradition and Change; A Proposal for Individual Contracts and Contracts in Lieu of Marriage” 18 Journal of Marriage and the Family 657 at 659.

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other113. A marriage-as-status remains important in understanding the

marriage-as-contract has a different burden to pure contractual relations;

that the community has an interest in protecting such a special reliance

on another, particularly when children happen to be involved. This

reliance often involves, but does not depend on, love. The progressive

movement towards contractual rights have reflected the general

movement of rights in greater society. Governments have a role to ensure

that the institution of marriage reflects the social understanding and

acceptance of these rights. No longer can governments hide behind

religion for this public acceptance. It is very clear that the government has

replaced religion as the enforcer of ideals in marriage. This is shown

through the introduction of no fault divorce, and the civil recognition of

non religious marriages. With the state’s role to enforce equitable

solutions at the conclusion of a marriage it dismisses the arguments put

forward by commentators that a change in public acceptance will ruin the

institution of marriage. As the transition of history has shown us, this is in

fact marriages most fundamental characteristic.

Monogamy and Heterosexuality

Some argue that these two characteristics are fundamental to the

protection of the institution114. However, what becomes clear is that both

of these characteristics are statuses that governments throughout the

years have been loath to accept within the institution115. This means

marriage-as-status currently refuses to recognise them within the

institution. The institution is one that allows the government to This does

not mean that the institution’s identity only exists without them. The more

correct statement to make is that governments have considered

monogamy and heterosexuality important because marriage-as-status

was built on a set of ideals that respected these. such, the debate

113 Frick, T, “Marriage Change and Moral Change: Culture, Virtue and Demographic Transition” Oxford University Press, Oxford, 1997, p. 234. 114 See Wardle, L, “Is Marriage Obsolete?” 12 Whittier Journal of Children and Family Advocacy 264 115 See Davis, K, “Introduction: The meaning and significance of marriage” in Davis, K (ed). “Contemporary Marriage: Comparative Perspectives on a Changing Institution” Russel Sage: California, 2008, pp 1- 4. For an analysis of the social value system on the marriage institution.

21

surrounding changing both of these institutions should be argued on the

grounds of the role of government to citizens and social harms of change,

rather than the ideological argument of ‘institutional failure’116.

Conclusion

This essay has proven that marriage is a changing institution. It has

argued the role of the government is one of ensuring that the changing

face of marriage reflects the morals and duties of its citizens, particularly

as marriage moves from marriage-as-status to marriage-as-contract. It

has also proved that the institution of marriage is not dependant on

characteristics such as monogamy and heterosexuality, and that these

are instead social ideals that change with the institution. The basic reason

for marriage status is reliance – which one party contracted with another

parties in a public ceremony agreeing to rely on each other. The debate

should instead rest on what the government’s obligations are to its

citizens, and how marriage may best achieve those goals. It need not rest

on fears of a degradation of the institution itself.

116 See Witte, J, From Sacrament to Contract: Marriage, Religion and Law in Western Tradition, John Knox Press, Westminster, 1999, as a good example of this argument.

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CASES

Attorney-General (Vic) v Commonwealth (1962) CLR 540

Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130

In the Marriage of Mehmet (1986) 11 Fam LR 322

Mayanard v Hill [1888] 125 U.S. 190

Re F; Ex Parte F (1986) 161 CLR 376

Re Kevin: Validity of Marriage of Transsexual (2001) FLC 93-087

Re Wakim; Ex Parte McNally (1999) 198 CLR 511

LEGISLATION

Adoption Act 1994 (ACT)

Adoption Act 1994 (WA) Adoption Act 2000 (NSW)

Clandestine Marriages Act 1753 (Eng)

Divorce and Matrimonial Causes Act 1861 (Vic)

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Family Law Act 1975 (Cth)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Matrimonial Causes Act 1959 (Cth)

Matrimonial Causes Act 1858 (SA)

Matrimonial Causes Act 1860 (Tas)

Matrimonial Causes (Dominion Troops) Act 1919

Matrimonial Causes Jurisdiction Act 1864 (Qld)

Matrimonial Causes Act 1973 (NSW)

Ordinance to Regulate Divorce and Matrimonial Causes 1863 (WA)

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