Same-sex marriage in Australia

Recognition and Rights for Same-Sex Couples in Australia

• De facto relationships defined in the federal Family Law Act 1975
• Available to both same-sex and opposite-sex couples
• Provide couples with many of the same rights and benefits as married couples
• Rudd government 2008-2009 reforms to equalize treatment for same-sex couples and families
• Amended 85 Commonwealth laws to eliminate discrimination
• Legislative history prior to de facto recognition
• Superannuation Industry (Supervision) Act 1993 amended to allow tax-free payment of superannuation benefits to same-sex couples
• HREOC report on discrimination against same-sex couples in 2007
• Differences between de facto relationships and marriages
• Some legal differences remain between de facto relationships and marriages
• De facto relationships are not legally recognized as marriages
• Marriages have greater legal recognition and protections
• Other types of recognition for same-sex couples
• Most states and territories have legislated for civil unions or domestic partnership registries
• Registered unions are recognized as de facto relationships under federal law

Challenges Faced by De Facto Couples and Accessing Rights

• Poor understanding of de facto partner rights by government departments
• Onerous burden of proof for de facto relationships compared to marriages
• Legal contests by other family members can further complicate de facto relationships

Political and Legislative History of Same-Sex Marriage in Australia

• Howard government introduced a bill defining marriage as between a man and a woman
• Several unsuccessful bills to legalize same-sex marriage between 2004 and 2017
• Labor governments were divided on the issue of same-sex marriage
• Tension within the Abbott government regarding same-sex marriage
• Proposal for a national vote on same-sex marriage, either through plebiscite or constitutional referendum
• Plebiscite bill passed in the House of Representatives but rejected by the Senate
• Pressure on Prime Minister Turnbull to allow a parliamentary vote on same-sex marriage
• Government's decision to conduct a voluntary postal survey on same-sex marriage
• Increasing pressure on Prime Minister Turnbull to change policy and allow a parliamentary vote
• Introduction of the Marriage Amendment Act 2017

Results of the Same-Sex Marriage Survey and Legalization of Same-Sex Marriage

• 61.6% of the votes were in favor of same-sex marriage
• 38.4% of the votes were against same-sex marriage
• Introduction of the Marriage Amendment Act 2017
• The government confirmed it would facilitate the passage of a bill legalizing same-sex marriage
• The Marriage Amendment (Definition and Religious Freedoms) Act 2017 was introduced and passed in both the Senate and House of Representatives
• Recognition of Same-Sex Marriages
• The Marriage Amendment Act defined marriage in Australia as the union of 2 people
• The Act removed the ban on recognizing overseas same-sex marriages

State and Territory Law and Constitutional and Legal Issues

• The federal legalization of same-sex marriage extended to all states and territories of Australia
• The Australian Capital Territory (ACT) passed a law allowing same-sex marriage in 2013, but it was later struck down by the High Court
• The High Court ruled that only the federal Marriage Act could operate concurrently with the state or territory laws
• Constitutional and legal issues related to the power of the Commonwealth to legislate over married and de facto relationships
• The legal status of marriage is internationally recognized, while de facto relationships rely on referrals by states to the Commonwealth
• The Family Court of Australia recognized the right of transsexual people to marry according to their current gender
• In 2007, the Administrative Appeals Tribunal recognized the existence of a marriage between two transgender women

Same-sex marriage in Australia Data Sources