17 March 2011 Why can't same-sex couples in Australia get married?

By Josephine Blight

In brief – Same-sex marriage is currently illegal in Australia

Same-sex marriage is currently illegal in Australia, which can result in same-sex couples experiencing discrimination. Recent changes in legislation mean that same-sex couples qualify as de facto couples and for the most part have the same family law rights as married couples when relationships break down.

Legalising same-sex marriage

Equality in marriage was the overriding theme of the annual Gay & Lesbian Mardi Gras celebration held in Sydney recently, but what does it actually mean from a legal perspective if same sex couples are allowed to get married?

At present the Marriage Act defines marriage as between a man and woman, which excludes same-sex partners from being able to get married. Australia also does not recognise the validity of overseas same-sex marriages. Australian Marriage Equality (AME) argues that this inequality sends out the negative message that there is something second rate about the love and commitment between same-sex partners and reinforces discrimination against them and their families.

At present, the official policy of both major political parties in Australia is to oppose any amendment to the Marriage Act to allow same-sex couples to marry.

Legislative amendments and same-sex couples

In 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cth) amended a total of 84 Commonwealth acts to remove differential treatment of same-sex couples and their children in the areas of tax, superannuation, PBS and Medicare safety nets, aged care, veterans' entitlements, immigration, evidence, child support, social security, workers compensation entitlements and family law.

De facto couples and family law

As a result of that legislation, same-sex de facto couples in Australia have the same family law rights as opposite sex de facto couples, provided the relationship broke down after 1 March 2009. The new legislation covering de facto couples largely mirrors the legislation applicable to married couples. On the case law to date there does not seem to be any difference in approach between the law for married persons and those in a de facto relationship.

Many people (both same and opposite sex couples) are not aware that their relationship is a de facto relationship and they do not realise that if their relationship breaks down, they are eligible to make an application for financial relief against their partner. If you think you may be living in a de facto relationship, it would be prudent to seek advice and consider whether or not you should be entering into some form of asset protection, for example a financial agreement, to protect your assets in the event of a breakdown of your relationship. (Please see our earlier article Binding financial agreements – how they can protect assets and why they can be set aside by the courts for more information.)

Same sex couples and children

Same-sex partners are treated the same as opposite sex couples and married couples in relation to children's issues in the Family Court. This was reinforced recently in a Family Court case involving two lesbian parents. In that case the two women each had a biological child to different sperm donors during the course of their six-year relationship. While they lived together as a family, the women both acted as parents to the two children, with the children calling one mummy and the other mumma.

The court refused one parent permission to relocate interstate with her biological child, as this would have impacted on the child's relationship with the other, non-biological mother and sister. Despite the ex-partner having no biological link to the child, the court refused the application that the biological mother be granted sole parental responsibility for the child and ordered that the two women have equal shared parental responsibility for the child.

Government resistance to Marriage Act reform

With most of the major financial and societal distinctions and discriminations removed by the recent legislation, many people are questioning why the government continues to oppose same-sex marriage. In defending her position, Prime Minister Julia Gillard has said that marriage should be between a man and a woman because Australia's laws are based on Christian principles.

However, it is difficult to argue that opposing same-sex marriage is appropriate on religious grounds, as there is already a distinction between civil and religious marriages. Today two thirds of Australian marriages are performed by civil celebrants.

The fight for change

It appears same-sex couples will not have true equality until the Marriage Act is amended to allow them the same recognition as opposite sex couples.

Clearly, this is likely to be a hotly contested issue in the political arena for some time. Australia may be well on its way to achieving marriage equality as we speak. A parliamentary motion was passed in November 2010 calling on all parliamentarians to gauge their constituents' views on the issue of marriage equality.

AME reports that according to the most recent statistics, 62% of all Australians believe that same-sex couples should be allowed to marry. If these statistics are correct, the major parties may be convinced to allow a conscience vote on the issue, which will allow the many members of parliament who personally support this reform to vote for it.

For further information, please contact our family law team.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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