Same-sex couples and family law

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See more resources on Same-sex couples and family law in the AIFS library catalogue

A shift in the United Nations Human Rights Committee's jurisprudence on marriage equality? An analysis of two recent communications from Australia.

Roos O and Mackay A
University of New South Wales Law Journal v. 42 no. 2 2019: 747-781
In 2002, in the case of Joslin v New Zealand, the United Nations Human Rights Committee determined that the right to marry contained in the International Covenant on Civil and Political Rights referred only to opposite-sex marriage. However, since this time, many countries have legalised same-sex marriage and the Committee has made different judgments on similar issues, suggesting that this earlier stance may indeed change. This article reviews two recent judgments by the United Nations Human Rights Committee on cases relating to marriage equality, and highlights the implications for future judgments and interpretations. In G v Australia, the Committee found that Australian laws which prevented a married male to female transgender person from changing her sex on her birth certificate violated the right to privacy under the International Covenant on Civil and Political Rights and the right to non-discrimination on the grounds of marital and transgender status. In C v Australia, the Committee found that Australian laws which prevented an Australian woman, who had married another woman in Canada, from obtaining a divorce in Australia violated the right to non-discrimination on the grounds of sexual orientation.

Marriage equality in Australia and Ireland : separate jurisdictions, similar politics.

Tobin B
Australian Journal of Family Law v. 32 no. 3 Feb 2019: 294-312
This article looks at the similarities and differences in the approaches taken in Australia and Ireland to marriage by same-sex couples. Both countries amended their laws in 2004 to expressly prohibit same-sex marriage, in response to events in other countries, and both countries saw high court challenges, activism, public debate, and eventual overturns to the law. Equally, the Irish referendum and and the Australian postal plebiscite were crude and distressing routes to reform and to what many considered a fundamental human rights issue that should have been settled by parliaments.

Marriages, civil unions and divorces: year ended December 2017

New Zealand. Statistics New Zealand
Wellington, N.Z. : Statistics New Zealand, 2018.
This series presents information on the number of marriages and civil unions registered in New Zealand each year as well as the number of divorces granted. This edition presents statistics for 2017, with a website supplemented with spreadsheets and data files. The findings indicate that marriage and divorce are both far less common than they were 25 years ago, but married couples are staying together for longer - people are also marrying and divorcing later in life. In 2017, 20,685 marriages and civil unions were registered to New Zealand residents. Many foreign visitors are also marrying in New Zealand, in particular same-sex couples.

Marriages in England and Wales, 2015

Great Britain. Office for National Statistics
Newport, Wales : Office for National Statistics, 2018.
This report provides statistics on the number of marriages that took place in England and Wales in 2015, analysed by age, sex, previous marital status, and civil or religious ceremony. There were 239,020 marriages between opposite-sex couples in 2015, the lowest on record following a gradual long-term decline since the early 1970s. There were 6,493 marriages between same-sex couples, and further 9,156 same-sex couples converted their civil partnership into a marriage.

Marriages and divorces, Australia 2017

Australian Bureau of Statistics
Canberra, ACT : Australian Bureau of Statistics, 2018.
This website presents statistics on marriage and divorce in Australia for 2017, with trends from 1997. For marriage, information is provided on: total number, crude marriage rate, median age at marriage, age specific marriage rates, previous marital status, marriage celebrants, country of birth, cohabitation prior to marriage, month of marriage, and state and territory rates. For divorce, information is provided on: total number, crude divorce rate, age at separation and divorce, age-specific divorce rates, divorces involving children, duration of marriage prior to divorce, applicant, and state and territory rates. In 2017, 112,954 marriages were registered and 49,032 divorces were granted. This edition also marks the first release of preliminary findings on the number of same sex marriages in Australia. 3,149 same-sex weddings were held between 9 December 2017 - when amendments to the Marriage Act came into effect - and 30 June 2018. Information is presented as data cube spreadsheets, charts, and a text discussion.

Evidence based policy research project: 20 case studies

Per Capita (Firm), NewDemocracy Foundation. Evidence Based Policy Research Project
Melbourne, Vic. : Per Capita Australia, 2018.
Public policy in Australia is often made on the run, undermining the quality of public policy and having a detrimental impact on faith in public institutions. In response, the Evidence Based Policy Research Project aims to increase evidence-based policy making by all tiers of Government. It commissioned two think tanks with different ideological leanings - free-market think tank the Institute of Public Affairs and progressive think tank Per Capita Australia - to analyse 20 high-profile federal and state public policies using the ten criteria of the Wiltshire test for good policy making. Similarly, both think tanks found that governments in Australia are failing to undertake best practice policy-making, with only some of the policies meeting a majority of the Wiltshire Criteria. This report presents the results of the Per Capita Australia's analysis. The policies reviewed include the abolition of the 457 Visa, the Australian Marriage Law Postal Survey regarding same-sex marriage, the creation of the 'Home Affairs' department, future submarine program, media reform bill, the National Energy Guarantee, the abolition of greyhound racing in New South Wales, legalisation of ride sharing (such as with Uber) in Queensland, and Victoria's Indigenous treaty, legalisation of medical cannabis, and voluntary assisted dying.

Evidence based policy research project: 20 case studies

Lesh M
Melbourne, Vic. : Institute of Public Affairs, 2018.
Public policy in Australia is often made on the run, undermining the quality of public policy and having a detrimental impact on faith in public institutions. In response, the Evidence Based Policy Research Project aims to increase evidence-based policy making by all tiers of Government. It commissioned two think tanks with different ideological leanings - free-market think tank the Institute of Public Affairs and progressive think tank Per Capita Australia - to analyse 20 high-profile federal and state public policies using the ten criteria of the Wiltshire test for good policy making. Similarly, both think tanks found that governments in Australia are failing to undertake best practice policy-making, with only some of the policies meeting a majority of the Wiltshire Criteria. This report presents the results of the Institute of Public Affairs's analysis. The policies reviewed include the abolition of the 457 Visa, the Australian Marriage Law Postal Survey regarding same-sex marriage, the creation of the 'Home Affairs' department, future submarine program, media reform bill, the National Energy Guarantee, the abolition of greyhound racing in New South Wales, legalisation of ride sharing (such as with Uber) in Queensland, and Victoria's Indigenous treaty, legalisation of medical cannabis, and voluntary assisted dying.

Certain unions are not marriages : predicting outcomes on separation for same-sex couples married overseas.

Cooney L and Tiernan E
Family Law Review v. 7 no. 3 2018: 207-214
In Australia, marriage between same-sex partners is not recognised by law, regardless of it being performed in an overseas jurisdiction where it is valid. This article considers the issues for separating same-couples who had been married overseas. It discusses the 2004 amendments to the Marriage Act, recent proposed amendments, and the implications for financial settlements, parenting orders, and bigamy. It holds that the 2004 amendments to the Marriage Act caused a series of legal conundrums that did not exist previously, and which even proposed amendments for marriage equality may not resolve. Note, this article was written prior to the marriage equality amendments adopted in late 2017.

Who supports equal rights for same-sex couples? Evidence from Australia.

Perales F and Campbell A
Family Matters no. 100 2018: 28-41
Research from many nations overseas has shown an increasing public acceptance over the past two to three decades of sexual minorities and the rights of same-sex couples. This article investigates how public support has changed in Australia over the last 10 years, with a comparison of 2005 and 2015 data from the Household, Income and Labour Dynamics in Australia (HILDA) Survey. It analyses individuals' perceptions of whether or not gay/lesbian couples should have the same rights as heterosexual couples, and the extent to which factors such as gender, age, education, religiosity, ethno-migrant background, or area of residence are predictive of these attitudes. The findings show a high degree of support for equal rights, up from 40% in 2005 to 66% in 2015. These changes cannot be attributed to compositional changes in population characteristics, and may be the product of cultural or institutional changes at the macro level.

Marriage and values in public policy : conflicts in the UK, the US and Australia.

Van Acker E
New York : Routledge, 2017.
Marriage is a controversial issue in Australia, the United Kingdom, and the United States, with clashes between rival groups strongly opposing or strongly supporting marriage, in a context of fewer couples marrying each year. This book explores this issues, with a focus on how governments are responding. Chapters include: neoliberalism, values and marriage policies; transforming the legal state of marriage; the clash of institutional versus individual values; changing gender relations and values in marriage; the neglect of the marriage divide and disadvantaged cohorts; government strategies to strengthen marriage; the contradictory politics of same-sex marriage. In conclusion, it consider whether all couples can "live happily ever after" in neoliberal societies.

Report on the Commonwealth Government's exposure draft of the Marriage Amendment (Same-Sex Marriage) Bill

Fawcett D
Canberra : The Senate, 2017.
The Australian Government intended to hold a national plebiscite on whether the law should be amended to allow couples of the same sex to marry. As part of planning, in October 2016 the Attorney-General released an exposure draft of what the legislative amendments could look like, to facilitate consultation. This 'Marriage Amendment (Same-Sex Marriage) Bill' would amend both the Marriage Act and the Sex Discrimination Act and feature changes to the definition of marriage and exemptions for religious organisations. Though the legislation to establish a plebiscite has now been defeated in parliament, the Senate has decided to refer the exposure draft for inquiry as a matter of public policy and to progress political and legislative debate on the legalisation of same-sex marriage in Australia. In particular, the Senate is interested in: the nature and effect of proposed exemptions for ministers of religion, marriage celebrants, and religious bodies and organisations; the impact upon religious freedoms; the nature and impact of the proposed amendment to the Sex Discrimination Act 1984; potential amendments to improve the bill; the likelihood of achieving the support of the Senate; and whether there are to be any consequential amendments. This document presents the findings of the inquiry.

Chronology of same-sex marriage bills introduced into the federal parliament: a quick guide

McKeown D
Canberra, A.C.T. : Dept. of Parliamentary Services, Parliamentary Library, 2017.
This resource provides a chronological list of bills on marriage equality introduced into the federal parliament of Australia. It includes: whether or not a conscience vote was granted; links to each bill homepage and parliamentary speeches; changes in party policy; comments by party leaders and other members of parliament where relevant; and results of divisions in the Senate and House of Representatives. Since the 2004 amendment to the Marriage Act 1961 - which inserted the current definition of marriage as being between a man and a woman - 23 bills dealing with marriage equality or the recognition of overseas same-sex marriages have been introduced, including the most recent, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017. This update also describes the processes leading up to the voluntary Australian Marriage Law Postal survey and its findings.

The impacts of marriage equality and marriage denial on the health of lesbian, gay and bisexual people: evidence review & annotated bibliography

Kolstee J and Hopwood M
Sydney : ACON, 2016.
This report reviews the international literature on how the legal right to marriage affects the health of lesbian, gay and bisexual people. It summarises what is known about the impact of marriage equality or denial on individual health, public health, and health care usage, then presents an annotated bibliography of the articles found. The findings highlight that systemic discrimination has clear impacts on the health of minority groups, with research studies consistently demonstrating the negative health impacts of marriage denial and the positive impacts of marriage equality for lesbian, gay and bisexual people. The current situation in Australia, with a marriage equality plebiscite under debate, is also briefly discussed.

The High Court, democracy and same sex marriage

Maley B
St Leonards, NSW : Centre for Independent Studies, 2016.
In 2013, the High Court of Australia overturned an attempt by the Australian Capital Territory to introduce a marriage equality Act to permit same-sex couples to marry in that jurisdiction. In Commonwealth law, marriage is defined as between a man and a woman only. However, in its findings, the High Court also explored the scope of the Constitution to determine marriage. This paper discusses concerns raised about this additional exploratory matter, which has been held to be flawed, inappropriate, dangerous, and without due process, challenging the role of parliament and the people to make decisions on the nature of marriage.

Faith, love & Australia : the conservative case for same-sex marriage.

Ritchie P
Redland Bay, Qld. : Connor Court Publishing, 2016.
This book puts forward a case for same-sex marriage from a conservative perspective, arguing that same-sex marriage is good for Australia because it strengthens marriage, affirms families, and expands the freedom of Australians. Chapters include: whereas the people; the marriage advantage; a shared citizenship; tradition and change; responsibility and shame; render unto caesar; render unto god; answering the arguments against same-sex marriage; the vote; and the hope.

Reflections on a same-sex marriage plebiscite.

Maley B
Policy: ideas, debate, opinion v. 32 no. 1 Autumn 2016: 30-32
This article argues that marriage equality law reform deserves a whole of nation vote - a referendum - rather than a plebiscite on opinion. This article reviews the Constitutional issues involved and the limitations of plebiscites in shaping law.

Same-sex marriage attitudes during the transition to early adulthood : a panel study of young Australians, 2008 to 2013.

Smith J
Journal of Family Issues v. 37 no. 15 Nov 2016: 2163-2188
This article examines changes in young people's attitudes to same-sex marriage between late adolescence and early adulthood. It uses panel data from the Social Futures and Life Pathways Project, for 1,836 young Australians aged 14-15 years old in 2008 and 19-20 years old in 2013. The article argues that higher levels of same-sex marriage support is linked to young people's own emerging plans for couple and family formation, not - as often suggested - just a consequence of rising tolerance of homosexuality across successive generations.

Should bakers be forced to bake cakes for same sex weddings?: democracy and the rights and limits of religion and conscience in contemporary Australia

Fisher A
St Leonards, NSW : Centre for Independent Studies, 2015.
The 2015 Acton Lecture on religion and freedom is presented by His Grace the Most Reverend Anthony Fisher, Archbishop of Sydney. He defends religious liberty and freedom of conscience within democracy, two values which are often considered with intolerance and suspicion in society and law today. It discusses democracy in Australia, Pope Francis' views on religious liberty and democracy, and the relationship between religion and The State, with the case of same-sex marriage highlighting some of the issues involved.

Legal recognition of same-sex couples and family formation.

Trandafir M
Demography v. 52 no. 1 Feb 2015: 113-151
One concern raised in debates on the legal recognition of same-sex couples is that there could be a negative effect on the value of marriage and family formation. This article investigates whether there is any evidence of this, by comparing the marriage rate, the divorce rate, and the extramarital birth rate across 28 OCED nations from 1980 to 2009. During this period, 14 countries introduced some form of same-sex registered partnership, 3 introduced same-sex marriage, 4 introduced some form of weaker registration laws, and the remainder - including Australia - did not adopt any related laws.

The mental health benefits of relationship formalisation among lesbians and gay men in same-sex relationships.

Bariola E, Lyons A and Leonard W
Australian and New Zealand Journal of Public Health v. 39 no. 6 Dec 2015: 530-535
This article investigates whether the formalisation of a same-sex relationship - such as through registered domestic partnerships and commitment ceremony unions - has benefits for couples' mental health. Findings are taken from 'Private Lives 2' - a national survey conducted with 1,420 people in same-sex relationships - regarding cohabitation, feeling able to seek partner emotional support, relationship tenure, financial arrangements, formalisation, intention to seek formalisation, and levels of distress. Mental health was evaluated using the K10 Psychological Distress Scale. The findings suggest that affording same-sex couples the opportunity to formalise their relationship is not only a civil rights issue but also a public health issue.

Matter of a popular vote, in the form of a plebiscite or referendum, on the matter of marriage in Australia

Lazarus G
Canberra : Senate Legal and Constitutional Affairs Committee, 2015.
An amendment to The Marriage Act 1961 (Cth) in 2004 defines marriage as 'the union of a man and a woman to the exclusion of all others, voluntarily entered into for life'. However, since that time, numerous bills have been introduced into Parliament to attempt amend this definition. In August 2015, the focus has moved from a parliamentary vote on the issue to a debate about the potential of a popular vote. This inquiry was called to investigate these mechanisms further. It outlines the merits and drawbacks of a referendum, a plebiscite and a parliamentary vote, and sets out the Committee's findings and views. The Committee makes only one recommendation: that a bill to amend the definition of marriage in the Marriage Act 1961 to allow for the marriage between two people regardless of their sex is introduced into the Parliament as a matter of urgency.

The High Court, the Constitution and family law.

Pillai S and Williams G
Australian Journal of Family Law v. 29 no. 2 Aug 2015: 65-89
This article examines the ways in which the High Court's interpretation of the Australian Constitution has impacted upon the field of family law. It identifies three broad themes that underpin the court's approach to constitutional interpretation in this area, and argues that the Court's invalidation of the Marriage Equality (Same Sex) Act 2013 (ACT) reflects a continuation of these themes. The article concludes with a reflection on the implications this may have on future state attempts to legislate on the subject of same-sex marriage.

Resilient individuals: sexual orientation, gender identity & intersex rights : national consultation report, 2015

Australian Human Rights Commission
Sydney, NSW : Australian Human Rights Commission, 2015.
This report explores the lived experience of human rights and discrimination among lesbian, gay, bisexual, trans and intersex (LGBTI) people in Australia. It presents findings from one of two consultations held in parallel to inform the Human Rights Commissioner's work around sexual orientation, gender identity and intersex (SOGII) issues. LGBTI people and allied individuals, groups, service providers, and organisations were asked about how well SOGII rights are respected and protected in Australia, specific legislation and policies that unduly restrict SOGII rights, and what more should be done to promote a culture of respect. Issues raised include structural discrimination, religious freedom, participation in employment and sport, equal relationship recognition, reproduction and the interests of children, young people in primary and secondary school, the 'gendered' nature of healthcare, conversion therapy, surgery and classification of intersex infants and children, Aboriginal and Torres Strait Islander peoples, expungement of criminal records, the 'homosexual advance' defence, and age of consent. The report also states what law reform is needed to address this inequality, and the role of the Australian Human Rights Commission in this work.

Don't mess with marriage: a pastoral letter from the Catholic Bishops of Australia to all Australians on the 'same-sex marriage' debate

Australian Catholic Bishops Conference
Canberra, ACT : Australian Catholic Bishops Conference, c2015.
At a time of public debate on the laws and nature of marriage, this open letter from the Catholic Bishops of Australia argues that marriage is an institution designed to support people of the opposite sex to be faithful to each other, and to the children of their union, and it is not discrimination to reserve it to them. Sections include: Respect for all; Marriage equality & discrimination; Emotional tie versus Comprehensive one-flesh union; The importance of marriage and family; The importance of mothers and fathers; Consequences of redefining marriage; and Time to act.

Marriage : a human right for all?

Gerber P, Tay K and Sifris A
Sydney Law Review v. 36 no. 4 Dec 2014: 643-647
This article analyses article 23 of the International Covenant on Civil and Political Rights - the express right to marry. It analyses this provision, other United Nations human rights treaties, and Australian other national law to determine whether this provision includes same-sex couples. Twelve years ago, in Joslin v New Zealand, the United Nations Human Rights Committee determined that it does not apply to same-sex couples. However, this article argues that this finding is no longer good law and that human rights should be interpreted as applying to all.

The territory of marriage : constitutional law, marriage law and family policy in the ACT same sex marriage case.

Parkinson P and Aroney N
Australian Journal of Family Law v. 28 no. 2 Sep 2014: 160-192
In 2013, the Australian Capital Territory attempted to introduce same-sex marriage in Australia. Though their legislation was passed into territory law on 22 October, it was struck down by the High Court of Australia less than 2 months later on 12 December. This article examines the High Court's decision, including issues of commonwealth power and jurisdiction, the commonwealth Marriage Act, marriage policy and constitutional law, whether marriage is a legal institution or a private matter, and the future direction of marriage in Australia.

Same-sex marriage : the road to social justice?

Richardson-Self L
Australian Review of Public Affairs Digest May 2014
This article argues that, while same-sex marriage is justified, social justice is best served when the normative importance of marriage is undercut. Retaining the hierarchically privileged status of marriage and opening it up to LGBT people is unlikely to be the best way to combat discrimination.

Property and financial matters upon the breakdown of de facto relationships

Carson R
Melbourne, Vic. : Australian Institute of Family Studies, 2014.
Reforms introduced in 2009 to the Family Law Act 1975 (Cth) have meant that most same-sex and opposite-sex de facto couples (in all states and territories except Western Australia) who end their relationships can now have their property and financial matters dealt with in substantially the same way as married people. This paper aims to provide non-legal professionals in the family law sector with a general outline of the relevant reforms, their genesis, and the arguments in favour of and against their introduction.

Recognition of foreign marriages and divorces.

Harland A
Family Law Review v. 4 no. 2 Jun 2014: 125-133
Australian courts are increasingly being asked to recognise marriage and divorce decrees from overseas. This article reviews the legal issues involved, including differences in consent, capacity, polygamy, and same-sex unions, and protections against forced and servile marriages.

The forgotten freedom: threats to religious liberty in Australia

Kurti P
St Leonards, NSW : Centre for Independent Studies, 2014.
This paper discusses religious tolerance, freedom, and liberty in Australia, using the current debates on 'same-sex marriage equality' as a example. It suggests that rather than constructing and imposing models of equality upon the individual, the political and cultural framework of the liberal state needs to allow believers and non-believers alike to live together peacefully.
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