Marital Status

December 01, 2014

Marital Status

As the push to legalise same-sex marriage gathers momentum, debate over the nature of marriage has intensified. David Phillips explains the legal status of marriage and civil unions in Australia, and, considers the potential impact of changes to the traditional account of marriage.

When the High Court of Australia declared, on 12 December 2013, the ACT Marriage Equality (Same Sex) Act 2013 to be inoperable, it held (among other things) that ‘marriage’ in Australia is a union between natural persons ‘to which the law accords a status affecting and defining mutual rights and obligations’ (emphasis added).[2] Legally, marriage is a particular kind of union with status.

In this paper, unless the context indicates otherwise, ‘marriage’ is taken to mean the current definition in Australia, namely ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.[3]

The first Australian legislation to accord a legal status to same-sex unions was the recognition of ‘significant relationships’ in Tasmania in 2003.[4] Similar legislation subsequently recognised ‘domestic relationships’ in Victoria in 2008,[5] ‘registered relationships’ in New South Wales in 2010,[6] ‘civil partnerships’ in Queensland in 2011,[7] and ‘civil partnerships’ and ‘civil unions’ in the Australian Capital Territory in 2012.[8]

The definitions of these relationships and the administrative procedures for recognising them vary between jurisdictions, but they have one major feature in common: they are all registered with the appropriate Registries of Births, Deaths and Marriages. Through registration these relationships gain a legal status that attracts marital benefits.

For simplicity in this paper, these registrable relationships will be collectively described as ‘registrable unions’. All Australian jurisdictions providing for registrable unions enable both male-female and same-sex couples to register their unions. 

These developments raise many questions:

  • What is marriage?
  • What is happening to marital status?
  • What are the similarities and differences between marriages and registrable unions?
  • How do registrable unions threaten marriage?
  • How do social justice considerations apply to these matters?

This paper addresses these and related issues from a Christian perspective.

Certificate of Marriage

What makes a marriage?

When my wife and I were married in 1965, the church service included a musical item sung by the choir while the bridal party withdrew to the vestry for the ‘signing of the register’. This phrase is a reminder of an earlier era when the primary records of baptisms, marriages and burials were held in parish registers—as anyone who has tried to trace their family tree may have discovered. For example, in NSW from 1788 to 1855 the primary source of information on baptisms, marriages and burials is early church records now held by the NSW Registry of Births, Deaths and Marriages.[9]

From 1856 the official responsibility for recording such life events in NSW was assumed by the colonial parliament with the formation of the Registry of Births, Deaths and Marriages. When the Commonwealth of Australia came into being on 1 January 1901, the constitutional authority for marriage was transferred to the Commonwealth.[10] This constitutional authority was first exercised with the passage by the Commonwealth Parliament of the Marriage Act 1961, which included provision for the States and Territories to continue their registries of births, deaths and marriages.[11]

Thus when our bridal party withdrew for the ‘signing of the register’, what we actually did was sign the documents necessary for registration of the marriage under Australian law. One document was a Certificate of Marriage headed by the Australian Coat of Arms and the words: ‘Commonwealth of Australia—Marriage Act 1961’. The certificate reads:

I, … having authority under the Marriage Act 1961 to solemnize marriages, hereby certify that I have this day at … duly solemnized marriage in accordance with the provisions of that Act and according to the rites of … between … and … in the presence of the undersigned witnesses.

Had the wedding service concluded without signing these documents, we might have been considered married by the church but we would not have been considered married under Australian law.

In 1971, I attended the wedding of Jewish friends. In their case, the marriage documents were signed and witnessed before the synagogue service commenced. They did not want any secular distraction from their wedding under the traditional Jewish canopy.

In both these examples, the weddings conflated two distinct elements: a religious ceremony and secular documentation. But when considering the status of marriage in Australia today, we must focus on the secular process for registering marriages, because that determines the implications of marriage under Australian law.

The legal effect of marriage

The primary legal effect of marriage is to confer on the couple a status that attracts certain responsibilities, rights and benefits. 

The term ‘status’ means ‘social position, relation to others or position of affairs’[12] and is often associated with rights and privileges. For example, a person may acquire the status of being a licensed tradesman or registered doctor by satisfying the relevant conditions and undertaking to adhere to requirements of the trade or profession. Achieving that status entitles the person to privileges not available to other people. A licensed tradesman or registered doctor is legally eligible for related employment and the public interest is served by maintaining high standards of service.

The status of being married may be achieved by a couple who satisfy the relevant conditions—including being an adult man and an adult woman, who are not closely related, neither of whom is already married, and who pledge themselves exclusively to each other for life. 

The idea that marriage should have a unique status in society is evident in the Bible. The New Testament letter to the Hebrews, for instance, states: ‘Let marriage be held in honour among all’ (13:4, ESV). 

One of the many practical illustrations of marriage being given a unique and honoured status in society was found in criminal proceedings. Historically a person was protected from being forced to give evidence against his or her spouse, as explained by Wendy Harris of the Faculty of Law at the Queensland University of Technology:

It has been long undisputed that at common law a spouse was incompetent to give evidence at a criminal trial against his or her spouse… The various authorities … based the incompetence on the doctrine of unity of husband and wife coupled with the privilege against self-incrimination, the danger of perjury and the repugnance likely to be felt by the public seeing one spouse testifying against the other. [13]

The ‘doctrine of unity of husband and wife’ is clearly based on our Lord’s teaching on marriage when he said:

Have you not read that he who created them from the beginning made them male and female, and said, ‘Therefore a man shall leave his father and his mother and hold fast to his wife, and the two shall become one flesh’? So they are no longer two but one flesh. What therefore God has joined together, let not man separate. (Mt 19:4-6 (ESV) [14]

Historically, the Christian faith has been as manifest in our laws as in our churches.

Law reform has modified this common law doctrine,[15] but marital status today still has many important legal implications, for instance regarding property ownership and inheritance, and is therefore carefully prescribed in Australian law.

Marriage under Australian law

The Marriage Act defines several important requirements for how marriages are to be solemnised in Australia: celebrants, formalities, certificates and registration.

Celebrants

Since over 100,000 marriages are registered in Australia each year, ensuring that they all comply with the law is a major task. The Marriage Act addresses compliance by requiring that all marriages be solemnised by an authorised celebrant.[16]

Couples wishing to marry have three options for choosing a celebrant: ministers of religion, State or Territory registrars, or civil celebrants.[17] 

Formalities

Marriage celebrants are required to ensure that the legal requirements are met: advance notice at least one month before the wedding date, proof of identity of each party and the absence of any impediment to the intended marriage.[18]

A celebrant, other than a minister of religion who may use the form of service authorised by his denomination, is required to ensure that the couple understand the nature of marriage by saying to them in the presence of witnesses, words such as: 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.[19] Then the couple must pledge themselves to each other in the presence of witnesses.[20]

Finally, the celebrant must ensure that a Certificate of Marriage is signed and witnessed and that the marriage is registered with the State or Territory registrar of births, deaths and marriages.[21]

Certificates and registration

Completed marriage certificates become important legal documents for such purposes as applying for an Australian passport or establishing an entitlement to a superannuation benefit or a deceased estate. The Marriage Act affirms that: ‘Where a marriage has been solemnized by or in the presence of an authorized celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnized in accordance with this section.’[22]

The celebrant is required to submit both the advance notice and other official documentation of the marriage to the applicable State or Territory registrar of births, deaths and marriages.[23] 

A marriage certificate issued by a religious or civil celebrant is not sufficient for some purposes, for example when the risk of forgery is too great.  When applying for a passport in a married name that is different from that on a birth certificate, a marriage certificate issued by a registrar of births, deaths and marriages is required, not one issued by a religious or civil celebrant.[24]

Thus the primary legal evidence of the existence of a marriage is its registration with a State or Territory registry of births, deaths and marriages.

Registrable unions in Australian law

The State and Territory acts for registrable unions, like the Commonwealth Marriage Act, provide for registrars or celebrants, formalities and registration.

Registrars and celebrants

Legislation for registrable unions in New South Wales, Queensland, Tasmania and Victoria provides for registrars to ensure compliance with the relevant acts. This is similar to the provision in the Marriage Act requiring a Registrar of Births, Deaths and Marriages to ensure that a couple wishing to marry in a Registry Office comply with the Act.

In the Australian Capital Territory, ‘civil union celebrants’ are given that responsibility. This is similar to the provision in the Marriage Act for marriage celebrants to ensure that a couple wishing to marry comply with the Act.

Formalities

Registrable unions cannot be registered until after a waiting period ranging from 10 days to 1 month has expired—like the minimum of one month advance notice of intent to marry. While formalities vary between States and Territories, the principle remains the same: registration of a relationship or civil union must comply with the relevant legislation—as is the case with marriage.

Registration

In all States and Territories with such laws, registration achieves a status equivalent to marital status. It is registration that provides the legal proof of the existence of the relationship for establishing an entitlement to marital benefits.  

Comparisons

Marriages and registrable unions in Australia share several similarities. Firstly, registrars or celebrants are responsible for ensuring compliance with the respective laws in all cases. Secondly, formalities involve a waiting period, and proof of identity and absence of impediments in all cases. Thirdly, registration with the respective registrars of births, deaths and marriages is required in all cases.

Several differences between marriage and other unions are also evident. Unlike marriages, registrable unions do not require a commitment to be either faithful or permanent. Secondly, unlike marriages, registrable unions are open to same-sex couples. Thirdly, unlike marriage, the registrable unions can be ended by a simple deregistration procedure.

The overall effect of introducing registrable unions is to weaken marriage by providing options that undermine the main essential elements of marriage: male-female, exclusive and enduring.

The threat to marriage

What is the impact on marriage of registrable unions? And how does granting such unions a quasi-marital status threaten marriage?

Creating cultural confusion

The first impact of registrable unions is on community perceptions. For generations, growing children have absorbed cultural conventions and expectations that boys and girls will grow into men and women, who will marry someone of the opposite sex and have children of their own.

Now boys and girls are raised in a context of cultural confusion. When boys grow into men they may marry a woman, or register a union with another man or with a woman, or just cohabit with a woman or another man. And girls experience a similarly bewildering array of options.

This confusion is reinforced by legislation giving to registrable unions the same rights and benefits given to marriages. The implication is that all sexual relationships are morally equivalent—whether male-female or homosexual, whether exclusive or promiscuous, whether enduring or temporary.

Loss of procreative focus

These changes represent a tectonic shift in the cultural understanding of the purpose of marriage. Governments have a legitimate interest in protecting this institution—to cultivate a social environment conducive to bearing and raising the next generation of responsible citizens. In other words, the main national interest in marriage is protecting children.

An article in the Louisiana Law Review clearly identifies the public purpose of marriage. It is:

to foster a certain kind of sexual union between men and women characterized by caretaking, sharing of resources, procreation, and long-term commitment in order to encourage the protection of children and the reproduction of society.[25]

This priority of children in the purpose of marriage is well expressed in the Anglican marriage service:

First, it was ordained for the procreation of children, to be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.[26]

Since same-sex unions are naturally sterile, their purpose cannot be the procreation of children. 

The registration of same-sex unions represents an abandonment of procreation as a key purpose of sexual intimacy. 

Loss of commitment

A man and woman who want to formalise their relationship, and thereby secure marital rights and benefits, have a choice. They can register either a marriage or a registrable union. The former involves a commitment to fidelity and endurance; the latter does not. Laws granting access to benefits without commitment weaken the cultural conventions reinforcing fidelity and endurance.

The demand for legal recognition of same-sex unions has often been accompanied by promotion of promiscuity as a virtue. Activist Andrew Sullivan argues that ‘among gay male relationships, the openness of the contract makes it more likely to survive’. He presses for ‘greater understanding of the need for extramarital outlets between two men than between a man and a woman’. Embracing such marital unfaithfulness, he suggests, would ‘undoubtedly help strengthen and inform many heterosexual bonds’.[27] The evidence is otherwise: infidelity is known to be a major cause of marital breakdown.[28]

Daniel Harris, reviewing Sullivan’s Same-Sex Marriage: Pro and Con, writes: ‘For us, gay marriage is like a lunch counter where homosexuals aren’t allowed to dine and where we therefore fully intend to stage a lengthy sit-in, to park ourselves down right beneath the noses of the exasperated waitresses until they pull their pencils from behind their ears and take our orders. And yet please don’t mistake our eagerness to sit at this counter as a sign that we like the food. Please don’t insist that we see this fast-food joint as a four-star restaurant that merits our unqualified respect.’[29]

Risk to children

Honouring registrable unions, both male-female and same-sex, in the same way as marriages is likely to increase the incidence of such unions and thereby place more children at risk of greater abuse, lower educational achievement and increased unemployment.

The safest place for children is with their biological parents, committed to each other in marriage. The large-scale US Fourth National Incidence Study of Child Abuse and Neglect (NIS–4) found that children in other family types suffered much greater abuse.[30] Children with either non-biological married or biological non-married parents suffered four to six times as much abuse as children living with their married biological parents.

Children with married biological parents achieve better educational[31] and employment[32] outcomes than others. The Australian study by Professor Sotirios Sarantakos, Children in Three Contexts, studied teacher-rated language, mathematical and other performance of children from carefully matched married, cohabiting male-female and same-sex couple families. Children living with their married biological parents scored best in almost every academic and social area.[33] A large-scale Canadian study found similar results for high school graduation rates.[34]

In 2012, Dr Mark Regnerus, a sociology professor at the University of Texas, conducted a large-scale randomised study, the New Family Structures Study (NFSS), which measured a variety of outcomes for children from different family structures.[35] He concluded that, while children can do well without two married, biological parents, ‘the NFSS also clearly reveals that children appear most apt to succeed well as adults—on multiple counts and across a variety of domains—when they spend their entire childhood with their married mother and father, and especially when the parents remain married to the present day’.[36]

The biblical injunction to honour marriage is not just a pious platitude. A society that honours marriage thereby encourages the optimal context for raising the next generation of productive adults.

Children Smiling

Social justice

Some have argued that giving registrable unions a legal status equal to that of marriage is a matter of social justice. For example Dr Brian Edgar, formerly Director of Public Policy of the Australian Evangelical Alliance, argued for a commitment to ‘justice for all irrespective of their beliefs’.[37]

However, the concepts of equality and justice are often confused. Manuel Velasquez, of the Markkula Center for Applied Ethics at Santa Clara University says:

The most fundamental principle of justice—one that has been widely accepted since it was first defined by Aristotle more than two thousand years ago—is the principle that ‘equals should be treated equally and unequals unequally’.[38] 

Similar treatment of similar situations promotes justice, and is a core principle of the common law.[39]  Insistence on treating different situations equally does not promote justice.

The optimal context for raising children to responsible adulthood requires a mother and father committed exclusively to each other for life, namely marriage. Since registrable unions lack these three core elements, they are not similar to marriage and do not deserve equal treatment.

Furthermore, the social justice argument often fails to distinguish between individual and couple rights. Homosexuals in Australia already have the same individual rights as any other Australian. They are free to arrange their personal affairs as they wish via powers of attorney, wills and deeds. Through a power of attorney, a person can appoint any other person to manage their financial affairs or decide their medical treatment should they become unable to do so themselves, for example if unconscious after an accident. A will can specify funeral and burial or cremation arrangements as well as the distribution of an estate.

Such arrangements have been available for decades to people sharing accommodation in a mutually dependent relationship. They have not needed to register their friendship with the government.

Conclusion

Governments have no interest in recognising, registering or giving special status and benefits to friends or sexual partners, no matter how loving. But governments do have an interest in registering and rewarding marriages, since lasting, committed man-woman unions alone have the potential to bear and raise children in optimal conditions.

Unions of two people lacking the core requirements of marriages—male-female, exclusive and enduring—should not be given the same honour, status or benefits as marriage. To do so is fundamentally unjust. Calling such a union ‘marriage’ does not make it so.

Endnotes

[1] Dr David Phillips[1], BSc, PhD, ThA is the National President, FamilyVoice Australia.

[2]           Statement by the High Court of Australia on The Commonwealth of Australia v the Australian Capital Territory [2013] HCA 55, 12 December 2013.

[3]           Marriage Act 1961, s 5(1).

[4]           Relationships Act 2003 (Tas).

[5]           Relationships Act 2008 (Vic).

[6]           Relationships Register Act 2010 (NSW).

[7]           Civil Partnerships Act 2011 (Qld).

[8]           Domestic Relationships Act 1994 (ACT); Civil Unions Act 2012 (ACT).

[9]           NSW Registry of Births, Deaths and Marriages.

[10]          Australian Constitution, s 51(xxi).

[11]          Marriage Act 1961, s 6.

[12]          George Turner, (ed), ‘status’, The Australian Concise Oxford Dictionary (7th ed, 1987).

[13]          Wendy Harris, ‘Spousal Competence and Compellability in Criminal Trials in the 21st Century.’ QUT Law & Justice Journal 2003, p23; citing [1979] AC 474, 484-6 (Lord Wilberforce) and Coke on Littleton (1628), s 6b.

[14]          Cf. Mk 10:2-9.

[15]          See Australian Law Reform Commission, Evidence, Report No 38 (1987), p80; Law Reform Commission of Victoria, Spouse Witnesses (Competence and Compellability), Report No 6 (1976), p22; K. M. Mack, ‘Compellability of Family Members of an Accused’ (1989) Melbourne University Law Review, Vol. 17, p220.

[16]          Marriage Act 1961, s 41.

[17]          Ibid., Part IV—Solemnization of marriages in Australia, Division 1—Authorized celebrants.

[18]          Ibid., s 42.

[19]          Ibid., s 46.

[20]          Ibid., s 45.

[21]          Ibid., s 50.

[22]          Ibid., s 45(3).

[23]          Ibid., s 50(4).

[24]          Australian Passports Act 2005, s 53(3)(c).

[25]          Maggie Gallagher, ‘What is Marriage For? The Public Purposes of Marriage Law’. Louisiana Law Review, 2001, Vol 62, pp1-18.

[26]          ‘The Form of Solemnization of Matrimony’, Book of Common Prayer of the Church of England, 1662.

[27]          Andrew Sullivan, Virtually Normal (Vintage, 1997), pp202-203.

[28]          Ilene Wolcott and Jody Hughes, Towards understanding the reasons for divorce, Australian Institute of Family Studies, Working Paper No. 20, June 1999.

[29]          Daniel Harris ‘Review of ‘Same-Sex Marriage: Pro and Con’ (edited by Andrew Sullivan)’. International Gay & Lesbian Review, 2006, http://gaybookreviews.info/review/3287/750 (accessed 18 May 2014).

[30]          Fourth National Incidence Study of Child Abuse and Neglect (NIS–4): Report to Congress US Department of Health and Human Services, Administration for Children and Families, 2010, section 5.3, pp5-18.

[31]          Sotirios Sarantakos, ‘Children in Three Contexts’. Children Australia, 21(3), 1996.

[32]          Mark Regnerus, ‘How different are the adult children of parents who have same-sex relationships? Findings from the New Family Structures Study’. Social Science Research, Vol. 41(4),  2012, pp752-770.

[33]          Many published studies report that children raised by same-sex couples do as well as or better than those raised by male-female couples. A 2005 American Psychological Association (APA) brief based on a review of 59 studies claimed, after excluding the Sarantakos study, that ‘[n]ot a single study has found children of lesbian or gay parents to be disadvantaged in any significant respect relative to children of heterosexual parents’. In a comprehensive review of the 59 studies relied on by the APA, Loren Marks (‘Same-sex parenting and children’s outcomes: A closer examination of the American Psychological Association’s brief on lesbian and gay parenting’. Social Science Research, Vol. 41, Issue 4, July 2012, pp735-757) concluded that ‘strong, generalized assertions, including those made by the APA Brief, were not empirically warranted’. Neither was exclusion of the Sarantakos study warranted. Its combined sample size (174) was the seventh largest of the 59 studies, and the other larger six all relied on adult self-reporting. Thus, as Marks observed, the Sarantakos study was the ‘largest study that examined children’s developmental outcomes’.

[34]          Douglas W. Allen, ‘High School Graduation Rates among Children of Same-Sex Households’. Review of Economics of the Household, December 2013, Vol. 11(4), pp635-658.

[35]          Mark Regnerus, op.cit.

[36]          Ibid., p766.

[37]          Brian Edgar, Same-Sex Relationships and the Law, Australian Evangelical Alliance, 2006, www.ea.org.au.

[38]          Manuel Velasquez, et al., ‘Justice and Fairness’. Issues in Ethics (Markkula Center for Applied Ethics at Santa Clara University), V3 N2 (Spring 1990).

[39]          Catriona Cook et al, Laying Down the Law, 4th ed, (Butterworths, 1996), p9.



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