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Same Sex Marriage

On Wednesday 15 November 2017, the result of the historic vote offered to all Australians regarding whether same-sex couples should be able to marry in the same way as heterosexual couples was announced.  61.6 % of Australians voted in the affirmative.

Under new legislation, the Marriage Act 1961 will be changed to redefine marriage as a “union of two people” rather than a “union of a man and a woman”.

Prime Minister Malcolm Turnbull immediately took steps to enshrine the wishes of a majority of Australians into legislation by introducing a Bill into the Senate. Supported by some Coalition members plus most Labour members, the Greens, the NXT and Victorian Senator Derryn Hinch, the result is now history.

The bill itself was developed by a Senate Select Committee after consultations and several public hearings.  There are some exemptions, for example for religious organisations and Australian Defence Force chaplains who will be allowed to refuse to conduct same-sex marriages.  However there is residual concern from so-called ‘conservative’ Australians regarding the possibility that free speech will somehow not be available to them.  Attorney-General George Brandis worked to include protections in the bill for civil marriage celebrants, and also to clarify that it will not be unlawful for people to hold and express traditional views about marriage.

Family Law implications under the new legislation will be interesting.  Previously, same-sex couples who were married in another country were unable to divorce in Australia.  Now that the legislation is in force, and following 12 months’ separation, they will be able to do so. Previously, only heterosexual married couples were able to divorce.

Under Family Law, property settlements between same-sex partners have been difficult.  Couples needed to meet the eligibility requirements of a de facto couple in order to apply for a property settlement. Now that a gay couple is able to be married, this process is simplified.

The continuing community debate is likely to focus on the polarity between freedom of speech and discriminatory behaviour.  Law Council of Australia President Fiona McLeod SC believes that the Bill provides enough protections for freedom of religious expression.  She argues that the bill represents a balanced and fair approach from a human rights perspective.

Queensland Senator Matt Canavan plans to move amendments to the Bill, to enshrine free speech protections, commenting that if conservatives lost the battle over free speech and parental rights “that does strike at the foundation of our Western democracy”.

This debate will be important, profound and quite fascinating to watch.

By Nicholes Family Lawyers


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