The sky is not falling: How marriage has changed in Australia over the last two and a bit centuries

The people have spoken, the Parliament has done its job, and marriage equality is finally law in Australia.  For my LGBTIQ friends – I am so very pleased that we are finally doing the right thing by you.  And you know that I am just *itching* to make wedding cakes at the earliest opportunity.  (Just don’t all get married on January 9, because there really are only so many cakes I can make in one day…)

Back when this whole debate started, a friend of mine commented that the Marriage Act had certainly changed plenty of times before, and it would be interesting to see how, and who had objected. I started compiling a list of changes (objections were harder to research), but the whole project got so enormous that I never did manage to finish it before I went overseas, and then I came back and was sick for weeks, and by the time I had any brains to speak of, the vote was over and done with.

Still, with Marriage Equality finally signed into law, it seems to me that the time has arrived to take a quick look at all the ways marriage has changed in Australia since European settlement. This is not going to be as carefully referenced as my usual post (December is bedlam when you are a singer, an event organiser, and the person who organises the charity drive and the choir at work), though I will link to all the articles that informed this list at the bottom of the page, so that you can delve further if you are interested (I’m sorry, but referencing often takes longer than the post itself, and December is a busy month for me).

So, for starters, you may or may not be aware that the Australian Marriage Act only came into being in 1961; prior to that, different states did things in their own (sometimes horrifying) ways; and prior to that, we all came under English marriage law.  And prior to 1788, I would presume that the many indigenous nations each had their own laws and traditions.  I’m not even going to attempt to delve into these.

So let’s start by taking a look at…1788

  • Australia was a convict colony.
  • Indigenous people were not recognised as, well, people.
  • Convicts were not viewed as citizens and could not marry without permission of the governer
  • Married women were, practically speaking, the property of their husbands, and their belongings and earnings were entirely their husband’s to dispose of.
  • Aboriginal marriages were not recognised as legal, convicts could not marry without permission of the governor, and a wife’s belongings and earnings were entirely her husband’s to dispose of.
  • Domestic violence was considered a private matter, and there was no concept of marital rape.

Not an auspicious start, to say the least.  In fact, I would go so far as to say that even those people who read this blog and disagree with absolutely everything else I say on it would probably agree with me that this was not a particularly good model for marriage.

In fact, quite a lot of people in the 18th and 19th centuries also agreed with me, and so in  1857 we get the Introduction of the English Matrimonial Causes Act

  • This Act of Parliament reformed divorce law in England and its colonies, taking it out of the hands of the church and putting it in the hands of the state.
  • Men could now divorce their wives on the grounds of adultery
  • Women could only divorce their husbands for cruelty, or if adultery was combined with incest, cruelty, bigamy or desertion.

Australia was invited to pass similar legislation, however there were fears that this would promote immorality. Because it’s so very immoral to allow women the same rights in a marriage as men, don’t you know.  Excuse me, I mean *some* of the same rights.  We were still property at that point.

Eventually, in 1860, Australia got a similar law to that in England.  Notably, John Fawkner, in writing the Victorian law, tried to make reasons for divorce a little more egalitarian,  but he was overruled by the British government.

Let’s just all pause and think nice things about John Fawkner, who clearly deserved to have a suburb named after him.

Another thing that happened in the 1860s was that convicts were now able to marry without permission from the Governor

I’ve read this in a few places, but nobody is quite sure of the year.  I suspect that it would be more accurate to say that we’d basically stopped bringing in convicts (the last convict ship landed in Western Australia in 1868), and the laws about letting convicts marry became looser as a result.

Incidentally, prior to this time, convicts could re-marry after seven years if their spouse remained in England and had no intention of coming to Australia.  Convicts may have been the only class with a de facto right to a cheap, no fault divorce in this era.

Also in 1866 (clearly a busy year for marriage-law-appreciators), Lord Penzance defined marriage as ‘the voluntary union for life of one man and one woman, to the exclusion of all others’

And you thought that was Howard’s idea.  This wording didn’t make it into the original Marriage Act, but Howard did borrow it when he decided to change the wording in 2004.

On a less forward-looking note, it was also in the 1860s that laws began to be passed restricting the marriage of Aboriginal people to non-Aboriginal people, and requiring them to have permission from the Protector of Aborigines to marry at all.  Up until this point, Aboriginal marriages had simply not been recognised by Australian law.

(Interestingly, there were also efforts made around this time to prevent white women from marrying Chinese men, which apparently they were inclined to do because Chinese men were seen as more hardworking and respectful than white men.  No laws seem to have been passed to prevent such marriages, however.)

An enormous step forward in women’s rights occurred in 1884 with the introduction of the Married Women’s Property Act, which allowed a woman to own property in her own right.  English law had previously viewed women and men as one person under the law, with that one person being the husband.  A married woman had essentially no legal personhood.  She could not own or dispose of property, or enter into contracts – her marriage contract was the last contract she would ever enter, unless she was widowed.

John Stuart Mills first introduced a Bill restoring these rights to married women in 1856.  It was defeated then, and again in 1868.  Opponents expressed concern that such a Bill ‘would cause great difficulties in all the domestic arrangements of life. It would cause antagonism between those who we were taught to believe were one,’ and that it would materially alter the ‘existing relations between husband and wife, and introduce discomfort, ill-feeling, and distrust where hitherto harmony and concord had prevailed.’

This is actually a somewhat fascinating statement, because it speaks to such an utter unconsciousness of how a woman might have felt about having no say over her own property.  Suddenly, a man could not automatically use his wife’s earnings or inheritance for any purpose that he chose, without consulting his wife!  How shocking!  How terribly uncomfortable!  It is true that the previous situation rather forced a woman to trust her husband, since she could not prevent him from mishandling her affairs, nor could she leave and be assured of any of her own income, but I’m not sure that this would have looked like harmony and concord from the female perspective…

A version of the Mills Bill was passed in 1870, but it was deemed inadequate, and finally in 1882 it was amended to provide women with full rights to own and dispose of property and act in their own right.  Australia passed its own version of the act on June 10, 1884.

In 1901 Australia became a Commonwealth, and was given authority over marriage and divorce law in Australia

But nothing actually happened on the marriage front then, or for several decades after that, so let’s move on to 1938 when the Australian Aborigines League petitioned for freedom to marry:

We recommend that Aborigines and Halfcastes should come under the same marriage laws as white people, and should be free to marry partners of their choice, irrespective of colour.

The petition was denied, and it would be another 22 years before the law was changed in their favour.

A small step forward for non-Aborigines, at least, came in 1942 when the minimum age for marriage was raised to 16 for girls and 18 for boys.

Prior to this time, the minimum age had been 12 for girls and 14 for boys.  The mind boggles (yes, even the mind of someone who studied medieval history.  Children should not get married!). The Marriage Act of 1961 would finally make the legal age for marriage uniform, at 18, or 16 with parental consent.

(Oh, and a small step away from racism in 1947, when White Australia laws were relaxed to allow 700 Australian soldiers who had married Japanese women to bring their brides back to Australia.)

So, just a reminder of where we stand at the end of the 1940s:

  • Women can own and dispose of property.
  • No convicts left, so the laws relating to them no longer apply
  • Men can divorce women for adultery, among other causes.
  • Women can divorce their husbands for cruelty, or for adultery if it was combined with incest, cruelty, bigamy or desertion.
  • There is still no real legal definition of cruelty, however, and there are no marital rape laws on the books, so domestic violence is still not really recognised as a problem.
  • Married women could not work
  • Aboriginal people are still classed as fauna, and also they require the permission of the government to marry.  Which seems like a serious case of cognitive dissonance, but racism does that.

In 1959, things started getting interesting, as Australia began moving towards its own Marriage Act.  One of the first of these things was the Australian Matrimonial Causes Act, which basically unified the grounds for divorce or annulment in Australia.  It required an attempt at reconciliation, and required five years of separation before divorce could be finalised. It did, however, make divorce slightly easier for women, adding ‘abandonment’ as a cause of divorce.

Also, in 1959, as Australia’s Marriage Act was being debated in Parliament, a young indigenous woman, Gladys Namagu, was refused permission to marry her white Australian fiancé, Mick Daly, and was in fact sent to another settlement by the Protector of Aborigines, so that she would not be able to see him.  Their cause sparked public outrage and sympathy, and in 1960 Aboriginal people were given the right to marry without requiring permission from the Government.

Some analyses suggest that the publicity generated by this case was also instrumental in producing a resounding ‘yes’ in the 1967 referendum granting Aboriginal Australians full citizenship.

Now we get to some really interesting times, because in January 1961, the contraceptive pill became legal in Australia, with prescription from a doctor.

I have not been able to establish precisely when contraception of various kinds became legal in Australia.  Contraceptives such as diaphragms and condoms seem to have been available in Australia during the 1920s, but I’m not too sure what the legal situation was.  There were definitely attempts made in the 1940s in Tasmania to make contraceptives available to married women, but these were unsuccessful, and instead, a Bill was passed there restricting the sale and advertisement of contraceptives at all (this Bill was eventually repealed in 1976).

(Indeed, John Ockerby, who sponsored the Bill prohibiting advertisement of contraceptives, said that ‘birth control was the devil’s doctrine practised by lazy women who would not accept responsibility.’  What a lovely man he must have been…)

Of course, one could still not advertise the Pill, and many doctors would only prescribe it to married women, but for those women who had access to the Pill, it gave them control over their own fertility that did not require negotiation with their husbands or partners.  Arguably, decoupling the act of sex from reproduction was the greatest change to the nature of marriage in Australia’s history, and it didn’t come from the Government at all…

Also in 1961 the Australian Marriage Act was passed, making marriage laws uniform across Australia, and raising the minimum age to 18.

Marriage was not defined at this point, presumably because it never crossed anyone’s mind that it was anything other than one man and one woman.

Another big step forward for women happened in 1966, when the Marriage Bar was removed, allowing women to continue working after marriage.

Note that this occurred five years after women got access to a pill that meant that they could be married without being constantly pregnant.  That’s your two children, two years apart, who are now old enough for kindergarten, and suddenly, here’s Mum, ready to return to the workforce… 


I want to pause here for a moment, because it’s around about here, in the mid-to-late 1960s, where we start to lose the most conservative political parties in Australia (actually, we lost the *really* conservative religious parties at the introduction of the Pill, but since most of these parties do not object entirely to married women in the workforce, and the Pill couldn’t actually be advertised until 1974 and thus was perhaps less generally available, I think the mid-sixties work as the stopping point). 

What I mean by this is that up until now, the changes to marriage in Australia have been things that modern Australians generally agree with.  You don’t see people campaigning to change the Women’s Property Act back, or to take away the right for Aboriginal people to marry whoever they choose.  Everyone is in agreement that the changes above were positive things.  These matters are settled.

This is not the case for the changes listed below.  Yes, the vast majority of Australia believes that no-fault divorce is a good thing, that homosexuality should be decriminalised, that being married to someone doesn’t give you the right to rape them.  But we are now entering the territory where some small minority of people DO think that these laws are a bad thing.  This is not hyperbole on my part; for every single item listed below, I have seen a current political party ranting about how this particular legislation needs to be repealed, revoked, or otherwise changed beyond recognition.

I’d like to note two things about this.  First, that this turning point seems to be almost exactly fifty years ago.  Second, that the number of people ranting about each of these laws is greater the more recent the law is.

This actually gives me hope.  Clearly, in the aftermath of a change to marriage, there is a lot of fear and anxiety and anger among the conservatives of that time.  But, as time passes and people continue to get married and live together happily and the world does not end, the fear and anxiety subsides, and with it, the desire to turn back the clock.

The things we were objecting to fifty years ago are now considered both normal and right.  And so we may reasonably hope that the things we are afraid of now will also look normal and right to our children and grandchildren in fifty years time.  


Up until this point, all marriages in Australia had taken place at a church or a registry office.  But in 1973, this changed, with the appointment of Mrs Lois D’Arcy as Australia’s first Civil Marriage Celebrant.  For the first time, Australians could marry with ceremony outside a church.  Early appointees included several young women, including at least one Aboriginal woman.  It seems that this change was not so much a change in law, as a series of appointments by the Attorney General Lionel Murphy, rather against the wishes of his colleagues, but the Civil Celebrant program was very popular with Australians.

1975 was a big year in Australian marriage law, because this was the year that the Family Law Act was passed.  Two big changes that came from this act were the provision of no fault divorce, and the definition of domestic violence as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”.

Remember, up until now, a woman could divorce her husband for cruelty – but there was no definition of what cruelty meant.  Now, she didn’t need to prove cruelty, and if she did want to argue that her relationship was a violent one, there was a framework in place for her to do so.

Suddenly, it became a lot easier to leave a bad marriage.  A lot of people did not like that one bit.  A lot of people still don’t like that one bit, in fact, but what’s fascinating is that in writing this post, I went looking for the political parties who were against no-fault divorce a couple of elections ago, and they have all softened their stance on this.  They still want to change it and make it harder, but the most recent call for its repeal by a conservative think tank was in 2003.  This tends to add weight to my theory above that people acclimatise to legal and social changes over time…

The other big change in 1975 wasn’t to the Marriage Act, but is decidedly relevant this week, because it was in 1975 that South Australia decriminalised homosexuality.  Go, South Australia!  It took the rest of Australia a while to follow, and Tasmania was the last state to get there, in 1997.

South Australia was clearly on a progressive roll in the 1970s, because in 1976 South Australia became the first state to recognise the possibility of rape in marriage:

“No person shall, by reason only of the fact that he is married to some other person, be presumed to have consented to sexual intercourse with that other person”

This one also took a while to trickle upward, however in 1991 the High Court of Australia ruled that being married to someone was no longer a defense against rape charges.

On the whole, though, things stayed pretty much put for about thirty years after the Family Law Act and South Australia’s brush with progressive social policies in the mid 1970s.  Other States slowly caught up with South Australia, but there were no other big Federal changes until August 16, 2004, when the Marriage Act was amended to state that marriage was ‘the voluntary union for life of one man and one woman, to the exclusion of all others’.

The immediate reason for this amendment was the return to Australia of a Canadian-Australian lesbian couple who had married in Canada after marriage equality became law there.  On returning to Australia, they sought clarity on the status of their marriage, and the amendment, which stated that same sex marriages contracted overseas were not valid under Australian law, was the response.  This amendment really triggered the start of the marriage equality debate in Australia – while I certainly remember it being discussed in the early 2000s, I don’t think it was a big part of the national conversation before 2004, though I could easily be wrong about that.

Once again, I don’t think it’s a coincidence that marriage equality hit the political agenda about twenty-five years after homosexuality began to be decriminalised across Australia, at the point where young people who had grown up in a world where they did not have to hide their gender identity were reaching their mid-twenties and settling down with their life partners.

Marriage equality was never going to become legal under Howard; disappointingly, Labor under Rudd and Gillard and Rudd also did not have the political will (or, perhaps, the political capital) to push it forward, but in 2009 it began to be possible to register your de facto relationship in some states, giving it a similar status to marriage.  The difficulty, of course, is that similar is not always equal, or recognised as such.

Meanwhile, in Family Law news, the Family Violence Act was enacted in 2011, expanding the definition of family violence to specifically refer to “a wide range of behaviour including assault, sexual assault or other sexually abusive behaviour, stalking, emotional and psychological abuse, and economic abuse.”  The legislation also amended the definition of child abuse to include exposing a child to family violence.

And finally, on Thursday, December 7th 2017, the Australian Parliament amended the Marriage Act to define marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life”.  This was signed into law by the Governor General yesterday.  Marriages contracted overseas became legal in Australia at midnight last night, and civil celebrants were sent the new paperwork to register statements of intention to marriage for same sex couples yesterday.  Registration opened today, and the first marriages will be able to be performed from January 9th.  (For those overseas, this isn’t a gratuitous hurdle – there is a 28-day waiting period in Australia between registering your intention to marry and being able to actually marry.)

 

And there was much rejoicing.


In conclusion, I think what this shows is that marriage is a pretty durable institution.  People have always had the desire to come together in long-term relationships, and while the shape of marriage has changed enormously over the years (and really, thank goodness for that!), it has survived, and will continue to survive.  If anything, it becomes stronger as we make it available to all those who love each other and are committed to building a life together.

Further Reading

Here are some of the sources I used in compiling this behemoth of an essay.

History of Marriage Laws in Australia, House of Representatives Standing Committee on Social Policy and Legal Affairs

Marriage in Australia: How Love and Law have changed in 130 years, by Kathy Gollan

Marriage equality in Australia is a final step on a long march from 1788, by Paul Daley

Marriage Act 1961 Wikipedia page

Family Law Act 1975 Wikipedia page

Marriage and Divorce, by Henry Finlay

To Have but Not To Hold: A History of Attitudes to Marriage and Divorce in Australia 1858–1975 by Henry Finlay. Book review by Margaret Harrison

A History of Marriage in Australia, by Rodney Croome

True and Good Citizens, by Rodney Croome

Domestic Violence Laws in Australia and New Zealand, by Kelly Buchanan

Why exactly did Howard change the Marriage Act when he did?, by Jacqui Tomlins

 

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