Australian Marriage Amendment Act - Essay Example

Australian Marriage Amendment Act Yvonne L. Academia Research The 40 year old Marriage Act 1961 is no longer reflective of contemporary relationships and not reflective of modern Australia’s advancement. However, to protect that sanctity of marriage and in effect the family as the basic unit of the society, the government has provided amendments to the old act in order to adapt to the modern views of marriage while working towards its preservation. In light of the prevailing issues on marital break-ups and de-facto relationships, this paper shall discuss the focal point of these new laws in relation to the issues. Introduction The marriage institution as a socially sanctioned union for procreation and child-rearing has been found in all societies, but in widely varying forms. Marriage is sometimes used to establish the legal father of a woman’s child and vice versa; gives the both partners control over the others sexual services, labor and property; establishes a joint fund of property for the benefit of children; establishes a relationship between the spouses. The most common type of marriage is treated as the union of one or more men with one or more women. Marriage is usually heterosexual and entails exclusive rights and duties of sexual performance. Prior to all the hoopla about marriage, the society has seemingly established certain norms and practices that govern the act of marriage. Laws are made to preserve marriage and the family as the basic unit of society. Such laws over the years have seen so many changes in order to adapt to the changing attitude in the society. Dissenting opinions have resulted to so many arguments that question the laws passed by each country and are equated as a restrictive measure in the marriage act to satirically portray a morally upright society. Yet in this current period of history when equal rights are commonly fought and granted by the governments, society has also substantially gained a relaxed observance towards the practices that prevailed 25 years ago in the marriage union. Times have changed and society has grown as a whole thereby certain laws are explored that allow equal treatment of rights and preferences as applied into the laws of marriage. However, religions have lobbied against a so-called break-up of the covenant that establishes an exclusive marital union in religion as recognized in modern society. Other celebrated unions that are beyond the religious were sometimes shunned in the last century. Our egalitarian government has given us given us the freedom to choose and practice of our own religion and allowed us to treat these preferences with equal respect in our own values regarding marriage. The multi-faceted approach and an actual application of certain laws that answered seemingly simple questions on one’s right to marry engages the important conversation about the state of divorce. Our society has therefore decided to widen its views and treat ministers and other people directly involved in marriages to see the significant cultural change. The new amendments passed to the Marriage Act 19611 serves to question the certain provisions that are contained in the Marriage Amendment Act 2002. The Marriage Amendment and Ministry The Marriage Amendment Act 2002 serves to amend the Marriage Act 1961 that starts operation on the day on which this Act receives the Royal Assent2 which according to the 2002 Bill has set the provisions and amendments that shall be applicable on the 8th day of October 2002, the day this Act receives Royal Assent3. This official schedule later revised the date of application to September 1, 20034 to accommodate the changes brought about by certifications and preparations to actually designate the particular practice of this act. As an expansion, this Act has provided an alternative content to the reclusive definition that authorized in its entirety mostly on a religious content background. This has greatly affected the marital union as a whole and specifically provided exclusive rights to religion as contained and interpreted in the 1961 Act5 where only ministers of religion duly recognized and authorized by the state; some state and territory officers and a few other persons registered as marriage celebrants were allowed under the act. This was seen as a tight restrictive measure adapted by the government who has not foreseen any radical changes occurring in the society brought about by migration and inter-marriages between cultures and sects. The new amendment is therefore seen as a change that work its ways in the recognition of diversities and has tasked the Attorney-General’s Department as responsible for the implementation of this act revising the provisions in the old act. The department is entrusted to also establish and appoint qualified people to perform the marriage ceremonies and provide couples with an alternative to Registry Office and church weddings. The Department has also given authority to other marriage celebrants who do not belong to a recognized sect or denomination. This package of reform amendments were developed to raise the professional standards in officiating marital services provided by marriage celebrants appointed under a renewed program. The reforms will broaden and enhance the role of celebrants to include the provision of information on pre-marriage and other relationship services6. This aims to ensure celebrants play an important role in developing longer lasting family relationships and stronger communities within Australia. Factors that influenced the Marriage Amendment There are a number of interesting issues which fall within the factors influencing the amendment. The first is the recognition that more and more people are choosing not to marry and are involved in prevalent domestic relationships without the benefit of marriage. Current statistical data highlights the precarious state of marriage where the number of people willingly living in de facto relationships showed a continuously increasing trend of 73% compared with 30% in 19827. In an effort to broaden the legislative scope of the Marriage Acts, the government recognizes the idea of diversity in modern relationships and aims to protect its longevity especially where children are involved8. The failures of marriage as an institution supported some 40 per cent ending in divorce, with the number of second marriages breaking down at an increasing rate9. The need to protect the institution of marriage must start at the edges with reform relating to civil celebrants who are enjoined to acts as facilitators that look at foundations and the expectations of couples entering in marriage. Pre-marriage counseling in more comprehensive and effective ways could help boost a couple’s attitude towards their responsibilities. Marriage is no longer seen to be inextricably bound up with having children that showed at least 760,000 single parents in 2002 from around 670,000 in 199610. Young people have treated marriage as no longer a social prerequisite for giving birth; and pregnancy does not mean that a woman must marry if she is to have the child11. These changes are evident and are reflected in social policy such as access to income support, child care, family law provisions, and similar matters where it is impossible to treat such social problems as separate without affecting the other. Fertility treatments12 as a scientific approach to parenthood would pose as another consequence of changing marriage patterns, and to what extent changing marriage patterns are due to changing fertility preferences. The current trends effortlessly suggest that both marriage and giving birth are increasingly a matter of choice, and that the nexus between the two aspects of family formation will continue to be redefined13 as reflected in recent studies that showed couples without children will overtake those with children in the next 14 years14. People in de facto relationships have also affected the current passing of this amendment. Conservative societies continue to treat people in de facto relationships as lesser beings or as being in lesser relationships by virtue of their not being married15. The ongoing conflict at times between state and federal laws also means that relationship recognition can be unnecessarily complex. While the states have jurisdiction over de facto relationships, including many same-sex relationships, the Commonwealth has sole jurisdiction over marriage by virtue of the Marriage Act 196116. Positive Outcomes The Amendment has developed a fairly ad hoc way with celebrants being selected on the basis of recommendations by members of parliament to a quota system that intends to improve the professional standards required of celebrants through appropriate training and ongoing professional development17, and to ensure the consistent quality service to couples engaging the services of celebrants. Celebrants will also have their role broadened to include information on pre-marriage counseling and other relationship services. The Act itself seeks to establish a Registrar of Marriage Celebrants, which will develop a mechanism for complaint handling and maintain the list of registrations of marriage celebrants18. A transition period of five years, during which time the number of celebrants will be limited to a 10 per cent increase each year19, preventing a flood of new celebrants thereby commercializing the marriage institution and in effect possibility of admitting fraud into the system. The case of Kevin and Jennifer20 found a willing marriage celebrant to perform a marriage ceremony in 1999 to Kevin, a transsexual and was born a woman. At the time when the law on transsexual marriage was undeclared, there were two main common law decisions that might set precedence in the case in Australia: the NZ case of Attorney General v Otahuhu Family Court21 that accepted gender re-assignment and upheld the marriage and the R v Harris and McGuiness22 for the purposes of criminal law and social security law could not permit the factual change of sex that the one which is biologically accepted at birth. In the above-named cases, the court and eventually the government found out that contemporary society had moved ahead of the law that Australian court could not possibly determine. In effect the stringent rules against celebrants are devised to penalize them for any possible acceptance of marriage which is not conveniently allowed in the present marital union recognized by the nation as a whole. The Marriage Act also serves to place celebrants as “watchdogs” of the society against polygamous marriages which is rather contrary to the recognition of Aboriginal Customary Laws subject of course in contrast to the provisions of the Equal Opportunity Act 1995 and Anti-Discrimination Act23. There is a potential of marriage between certain categories of persons which is further defined by culture and traditional historic relations. Such unions are often hedged by certain taboos, including polyandrous24 and polygenic25 marriages. It is enmeshed in a complex web of cultural and kin obligations and responsibilities that is underwritten by previous ancestral lineage. The Australian society can not encouraged such marriages and thus the positive outcome is seen where celebrants are used as watchdogs. Positively, the wider allowance of other celebrants can provide other sects and denominations to obtain a special license to be able to practice as one. The Christian community has seen the sacrament revealing the religious dimension of marriage. Besides the human, social and legal dimensions of marriage; the public sign that one gives oneself totally to this other person—sacramental marriage is also a public statement about God26. Other religious organizations and groups are overjoyed about the this Act that allows and recognized a distinguished member to marry a member within the cntext of their own values and traditions that may not be acceptable to other religious denominations that set to discourage couples into the marital covenant. This act has understood that not all would require a church wedding. Others would opt for silent get-together in the presence of a solemnizing officer that requires a lesser expense than the actual marriage ceremony. Other Matters of the Marriage Act 2002 Other matters discussed in the act included the acceptability and qualifications of the celebrants. The conduct specifically defines the prescribed authority granted to him within the country and within the countries to be proclaimed under its jurisdiction that authorizes the solemnization by the presence of either or both diplomatic or consular offices of that country27. In territorial countries like Papua New Guinea, the extensive recognition of traditional marriages in overseas jurisdictions is upheld while Aboriginal traditional marriages in Australia are not recognized as marriages under the Marriage Act 1961. But there is only limited legislative recognition of traditional values comparing traditional marriages with Marriage Act marriages for various purposes. This Act seeks to determine the particular consequences of recognition of that union as a marriage would produce results appropriate and consistent with Aboriginal perceptions of marriage. This case by case method reduces distortion and leaves Aboriginal customary laws free to maintain flexibility and development. It avoids enforcement of traditional marriage rules, particularly those which may infringe basic human rights. However no provision determines the law and its allowance on polygamous marriages of aboriginal communities in compliance with the requirement of monogamous Marriage Act. Legal recognition of traditional marriages should allow the recognition of polygamy where it occurs. There is no reason why recognition of traditional Aboriginal marriages should not entail benefits or protection for more than one spouse. Under Australian law however, the marrying age in some communities is adjusted and permitted to 16 for boys and 14 for girls as it is unnecessary and undesirable to deny the benefits of recognition, merely on the basis of marriageable age. The recognition of traditional marriage does not authorize or condone sexually discriminatory marriage practices, thus celebrants are enjoined on the observance of these laws28. Functional recognition of traditional marriages for specific purposes involves according a benefit or status to a traditional union, which is just as likely to protect or benefit Aboriginal wives as husbands. Conclusion In order for a marriage to take place, the man and woman must be capable of entering into such agreement duly recognized by the authorized celebrants in his full capacity as counselor at the same time. The government has seen this measure of relaxing the stringent laws on weddings and the actual ceremony in recognition of the multi-cultural groups present in the countries and to promote equality among all citizens. The state does not want to believe that marriages come to an end dramatically and therefore prays on the off-chance that more people are around to save the institution from crumbling. Ideally I believe though that we need a broad ranging and comprehensive parliamentary inquiry into the nature and structure of contemporary Australian relationships and an analysis of what vital reforms would ultimately respond to a particular model or relationship on people in accordance with his ideological framework. Relationships should be recognized for what they truly are within the legal framework in which rearing of children is involved. If our government is serious about cutting the divorce rate and promoting longevity in the marriage vows, they have to acknowledge that unrealistic and inadequate frameworks for marriage may well be a contributing factor in many cases. Likewise, there may be many more marriages and many more long-term relationships if all Australian citizens were offered equal opportunities as some other couples may feel that a long-term committed relationship is best maintained as a threat to the masculine gender sexuality where gay-marriages are concerned. Bibliography Australia. Marriage Act 1961, Commonwealth Consolidated Acts. Australia. Marriage Amendment Act 2002. Australia. Australian Bureau of Statistics (ABS),[2000] Report Compilation. Allot, Daniel. 2005. Traditional Marriage under Fire. Houston Chronicle, Nov. 5, 2005. Nassar, A. & Sullivan, E. A. 2001. Australia’s Mothers and Babies, 1999. National Perinatal Statistics Unit, Australian Institute of Health and Welfare, Sydney AIHW Catalogue No. 19,. Weston, R., Stanton, D., Qu, L. and Soriano, G. 2001. Australian families in transition: Some socio-demographic trends 1901-2001. Family Matters, no. 60, Spring/Summer, pp. 12-23. Coombs, R.H. 1991. Marital Status and Personal Well-being: A Literature Review. Family Relations 40. January, 97-102. Ellis j in Attorney General v Otahuhu Family Court, [1995] 1 NZLR 603. Buchanan, John. 2006. Marriage Ministry. Gale Group. UN. Convention on Protection of Children and Cooperation in respect of Intercountry adoption signed at the Hague on 29, May 1993. Sharpe, Andrew .2000. Transgender Jurisprudence and the Spectre of Homosexuality. Australia. Equal Opportunity Act 1995 (Vic) s 6(d); Anti- Discrimination Act 1977 (NSW) Part 4C; Anti- Discrimination Act 1991 7(l); Equal Opportunity Act 1984 (SA) s 29(3); Discrimination Act 1991 (ACT) s 7(b). Australia. Human Rights and Equal Opportunity Commission Act 1986 (Cth).Human Rights and Equal Opportunity Commission Regulations (Cth) (SR No 407 of 1989) reg 4(a) (ix). Read More