Do we need a Marriage Act?

It is hard to find a more anachronistic act on the statute books than the Australian Marriage Act of 1961. When we examine the elements of the Marriage Act it seems that none of them make any sense and in actual fact they probably never did.

Authorising funds for marriage counselling

The Act begins by authorising taxpayer funds to be used for marriage counselling. The aim obviously is to keep people married where it seems that their relationship might be 'on the rocks'. The presumption is that being married is better than being unmarried both for the individual and for society.

If two people have doubts about continuing their relationship then it should be their choice and responsibility to examine these doubts. They can seek professional help but this should not be funded by the taxpayer. There are dozens of types of relationships in society between two people which go through difficulties and who are not able to access government funded counselling services. Why is it that the government deems it necessary to give aid only for marriages? Who is to say that marriage relationship difficulties are more important to solve than any other type? If the government is trying to show care for its citizens then it needs to show care for them all equally otherwise it is guilty of discrimination.

Maybe the government sees marriage as the cornerstone of society. The cornerstone of society is the individual – you can have a society without marriage but you cannot have a society without individuals. If the government views marriage as the cornerstone then it is incumbent on them to prove it before handing out money on such a basis. Being single is just as life affirming as being married. Both states have their advantages and disadvantages – they are simply different ways of living. If there are no advantages to the individual but only differences in the two states then why should the government be supporting one state in favour of the other?

A further objection may be that marriage counselling should be funded for the good of the children. Such counselling is available also to 'couples' in a committed relationship. Notwithstanding the fact that such counselling is also available to those couples without children it is incumbent again on the government to prove that such counselling actually produces better outcomes for children. There are studies done which prove both points of view and quite often these studies find what they want to find. The government needs more conclusive proof than they presently have to fund counselling services on this basis.

Marriageable age

The next section of the Act declares what the marriageable age of individuals can be. Supposedly this is to protect young people from being in situations for which they do not have the required maturity. How does such an Act stop people from indulging in those behaviours which it intends to stop when none of those behaviours is actually unlawful in themselves? Two fifteen year olds can run away together, set up their own home, share finances and live exactly like a married couple. The only aspect of such an arrangement that might, according to the letter of the law, be deemed unlawful is if they have a sexual relationship. Since this is already covered by other laws in regard to age of consent then there is no need to have it as part of the Marriage Act.

Void marriage

The aim of this section seems to be to stop certain behaviours in much the same way as the decree on marriageable age. A marriage is declared void if either of the parties is already married. What is the point of declaring it void at all? What advantages are to be gained by someone marrying a second person that cannot be obtained by not marrying them? If you take away their right to a second marriage what have you actually taken? They can be married to one person and then move into the home of another and live in exactly the same way as if they did with the first. The only thing you prevent them from having is a marriage certificate.

A marriage is deemed void if the two parties are in a 'prohibited' relationship. This means they are siblings or direct descendents. Who is the government to make judgements about what constitutes a prohibited relationship? Surely it goes well beyond the scope of government to make such definitions. Regardless of these liberties what can you possibly control by such a decree?

A marriage is void if it is not solemnised by an authorised celebrant. Once again it gives the government control over who gets a certificate but since the certificate has no practical implications it is meaningless.

A marriage is also void if one of the parties has not given consent. Why does this need to be stated at all? How can there be a genuine marriage without consent of both parties? A marriage certificate does not prove consent to marriage – it proves consent to do what is necessary to obtain a marriage certificate. The government says you cannot have a certificate if you made a decision based on duress, fraud, mistaken identity and similar irregularities. A marriage is a relationship freely entered into or else it is not a marriage. Whether you conceal your lack of consent or expose it the reality is exactly the same – you are not truly married. The government seems unconcerned about whether your consent is to true marriage or to the rules regarding the acquisition of a certificate.

Solemnisation of marriages

This part of the act details who is authorised to present marriage certificates on behalf of the government. Since it makes no difference whether you have a certificate or not then it is hardly relevant as to who can present them.