British settlement in Australia introduced the reception of English Law which was established after the passing of the Australian Court ACT (UK), 1826, governing Australia under the same laws as the United Kingdom . The English legal system reflected the culture and societal norms and the heavy imbalance between men and women in legal partnerships, which in effect was then applied in Australia. Following the British settlement, British traditions and customs were introduced to Australia (gender inequalities did too) . At the time of British settlement, women in the United Kingdom had few rights and married women experienced even fewer. Unsurprisingly the newly introduced marriage laws did not identify men and women as equals in the legal system, continuing gender inequality. There has been an immense development in Australian marriage laws through amendments to laws which have redressed the unequal balance between males and females in legal partnerships .
Prior to the British settlement and the application of English law in Australia, was the traditional custodians of Australia. Indigenous Australians maintained a spiritual connection with the land, as they believed that the land is linked to all aspects of life. Indigenous Australians had many traditional practices, beliefs and a unique governing system in ran by each local community . During the late 1700’s, British prisons were getting increasingly overcrowded with convicts, as there was low employment driven by the industrial revolution. People grew exceedingly poor resulting in many incidences of minor theft as they needed to steel for survival. In 1770 Captain Cook discovered the coastline of Australia and in 1778 the first fleet arrived with 11 ships . The arrival of British convicts in Australia introduced traditional British law in Australia. Marriage laws were not the same for Indigenous Australians and beliefs, values and opinion are regarding many issues, including marriage were not understood. Convicts, both female and male were supported to get married as the British government wanted to develop Australia into a new society. Females and male’s convicts were separated into ‘female and male factories’. For well-behaved women in ‘Female Factories’, they were able to be selected to be servants or wives. Marriage involved control over women as women were seen as objects to be gazed upon, this significantly disempowered women .
Change in marriage laws did not occur until 1883 when married women were able to own property in South Australia under the ‘Married Women’s Property ACT, South Australia 1883’. This was a significant change for married women as the Act gave married women equal legal position in owning and purchasing property in South Australia .
The Australian Commonwealth Public Service in 1932, placed a bar on married women. The marriage bar meant as a consequence of marriage, women were legally prohibited to continue their employment after marriage and forced to resign . The law reinforces the stereotype that women belong in the private sector, being a homemaker, wife, mother and married women were not capable of employment. The effect of the marriage bar law in society made it socially acceptable for society to restrict women in their choices regarding employment and what was an acceptable family dynamic. As women were presumed to get married, businesses commonly did not give women the opportunity to be employed as eventually women would get married and resign, adding to female unemployment . The Australian Commonwealth Public Service abolished the marriage bar in 1966, allowing women to maintain employment after getting married. The abolishment of the marriage law was an empowering change for women in Australia as women’s roles within society were expanded and their contribution to society were seen as equal .
The Federation of Australia occurred in 1901 and Australia managed their own government and laws, however, marriage laws were governed by each state until 1961 . The Marriage Act of 1961 united all states and territories under one Commonwealth Act. The Marriage act of 1961 recognises the marriage and union of two people (monogamy) however, did not include a definition of marriage. The Act recognises the marriage between two people, however, does not recognise Indigenous Australian or polygamous (marriage with multiple spouses at the same time) marriages.
In 2004, Australian Prime Minister John Howard amended the Marriage Act of 1961. Previously the Marriage Act did not state a definition of marriage however in 2004 Howard amended the law by adding a definition of marriage, “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life “. The definition of marriage refined the meaning of marriage to only being between a man and a woman, prohibiting same-sex marriages in Australia. Same-sex marriages were not recognised legally in Australia and raised concerns regarding constitutional law, including human rights. The effect of the amendment reinforced gender discrimination and made it socially acceptable to use gender and sexuality to discriminate . The amendment significantly impacted the nature of marriage and the social discomfort that surrounded same-sex relationships. Marriage should be available for all and people should not be dictated or discriminated against by their sex or gender identity.
In October 2013 the Australian Capital Territory (ACT) passed The Marriage Equality Amendment Bill 2013, making same-sex marriage legal within the ACT. However, by December of 2013, The High Court overruled the Act and made same-sex marriages the occurred in the short period annulled. The High Court overruled the act due to inconsistency between the ACT Act and The Marriage Act of 1961. For those who married during the period, their marriages were annulled, and their relationship and marriage were seen as null. The overturn of the Act considerably affected the wider community, particularly the LGBTQ+ community .
On the 9th of December 2017, same-sex marriage become legal in Australia on a Federal and State level. The amendment of the Marriage Act, previously amended in 2004, redefined the definition of marriage to ‘a union of two people’. The definition is not gendered, and marriage is not determined by an individual’s gender, race, sexuality or religion . The 2017 amendment recognises that all love and marriages are equal, and that gender and sexuality should not affect a person’s right to marriage. The legal change shifted the social acceptance of gender, homosexual relationships, the stereotypical representation of gender and challenged patriarchal beliefs. By law, individuals are treated equally under the Marriage Act amendment of 2017 and have empowered equal legal partnerships between homosexual and heterosexual marriages. The amendment did not change the previous definition of marriage, but simply expanded the meaning.
Historically there was a clear division between men and women in society, and disadvantaging women through law. The nature and institution of marriage were heavily influenced by patriarchal views and was biased towards men. Past laws and social norms emphasised the discriminatory nature of men and women and the unequal representation of men and women in marriage laws has been reflected in the law. Australia has come a tremendous way forward in establishing gender equality within the legal system particularly among homosexual and heterosexual relationships and partnerships. As a society, we have become more accepting of others. The Marriage Act Amendment of 2017 was a great step forward for gender equality in Australia.