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.

Legitimation

Part VI of the Act declares that illegitimate children become legitimate when their parents marry. Such legitimation is backdated to the time of the child's birth or the commencement of the Act. Why does the government need to distinguish between illegitimate and legitimate children? If decisions have to be made based on the relationship of the child to its parents then they should be made on the basis of biological or emotional relationship and not legitimacy. If the government declares that such advantages as inheritance should fall to a child simply because of the relationship then why is legitimacy relevant? If no distinction is relevant then there is no point in maintaining legislation which states that there is.

Offences

Part VII describes the offences and prescribes the penalties relating to the act. Since the government cannot control any of the behaviour that could be deemed an offence then what is the point of having penalties against the act. If a man lives with a woman who is not his wife then he is behaving in a way that section III of the act is trying to curtail yet there are no laws preventing a man living with a woman. If the government is powerless to stop what it sees as an offence then legislating for penalties is a complete waste of time and taxpayers money.

The remaining parts of the act detail similar criteria for eligibility to receive a marriage certificate without having any control over the behaviour which it aims to restrict.

There are no logical reasons for maintaining this act but there may be illogical ones and these need to be addressed.

Legality of marriage

Why exactly does marriage need to be a legal relationship? What does the legality provide to either the married couple or the government that they could not live without?

Security for citizens

Despite all the illogical arguments for its existence many citizens want the Act to exist because it creates a law which they think will give them security of relationship. The government says you cannot go on to marry someone else whilst already married. You cannot have any of those things that marriage offers with another person whilst already married to your first spouse. This is obviously not true since you can leave your spouse and go and live with another person and have everything that legal marriage has except a certificate. The hope that some citizens harbor is that the legality will somehow constrain a spouse who would otherwise leave a marriage. What is the point of having a marriage relationship that exists only because of legal restraints? There is only one good reason for remaining in a marriage and that is because you truly love that person – anything else is a sham. People do not always marry for love or they stay in marriage relationships long after love has ended. They may do these things for security, for fear of being alone, for hope of money to come, for status, for fear of family, because of peer pressure and so many other false reasons. They want marriage to be a legally binding relationship in order to try and protect those things they feel afraid and insecure about.

It is not the duty of government to legislate for the insecurities of its citizens nor should it waste taxpayer funds in administering such legislation. The government however may have its own insecurities that keep such legislation as the Marriage Act on the statute books.

Security for the government

It could well be that the government needs to know exactly who is married and who is not. It may distribute benefits based on the relationship that two people have with each other or it may withhold benefits for the same reason. This may explain the part of the Act which defines marriage. Based on its own definition it can give or take away material benefits for those in a marriage relationship.

Does the government want to make such decisions based on the relationship or upon the possession of a certificate? Should two people who live under the same roof but have totally separate lives be given benefits purely on the basis of the certificate they acquired thirty years ago? Is the relationship still truly a marriage? Is it in fact a fraud maintained in order to take advantage of the government's lax definition of marriage? Correspondingly are people who should have a right to benefits being denied on the basis of a definition which is patently ineffective? To suggest that a true marriage exists simply because a couple possess a certificate is extremely naive. It can also be seen as discrimination.

The government also gives or withholds benefits to those who live as a couple. Whilst married couples only need to display their certificate in order to receive benefits couples can be subject to a great deal more scrutiny. Their financial details are examined as well as accommodation and domestic arrangements, social relationship, sexual relationship, relationship with children, and their commitment to each other. If the government is trying to determine who is truly justified in having benefits then it should treat everyone equally. Everyone should be subject to such scrutiny whether they are married or not. It seems by their actions that the government are giving an advantage to married people which is blatant discrimination. If they are truly committed to distributing benefits equally then it should not matter to them who is married and who is not. Therefore there is no point in having a definition of marriage in the Marriage Act for this particular reason.

Conclusion

If all the supposed reasons for each piece of legislation contained in the Act have no justification then the Act as a whole obviously has no purpose.

Whilst I may have not covered every possible reason why a marriage act should not exist the principles should be readily applied to other examples. The government must justify all legislation and unless it can be proven otherwise there are no good reasons why the Marriage Act of 1961 should exist.