Australia: Why can't same-sex couples in Australia get married?

In brief – Same-sex marriage is currently illegal in Australia

Same-sex marriage is currently illegal in Australia, which can result in same-sex couples experiencing discrimination. Recent changes in legislation mean that same-sex couples qualify as de facto couples and for the most part have the same family law rights as married couples when relationships break down.

Legalising same-sex marriage

Equality in marriage was the overriding theme of the annual Gay & Lesbian Mardi Gras celebration held in Sydney recently, but what does it actually mean from a legal perspective if same sex couples are allowed to get married?

At present the Marriage Act defines marriage as between a man and woman, which excludes same-sex partners from being able to get married. Australia also does not recognise the validity of overseas same-sex marriages. Australian Marriage Equality (AME) argues that this inequality sends out the negative message that there is something second rate about the love and commitment between same-sex partners and reinforces discrimination against them and their families.

At present, the official policy of both major political parties in Australia is to oppose any amendment to the Marriage Act to allow same-sex couples to marry.

Legislative amendments and same-sex couples

In 2008, the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Act 2008 (Cth) and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008 (Cth) amended a total of 84 Commonwealth acts to remove differential treatment of same-sex couples and their children in the areas of tax, superannuation, PBS and Medicare safety nets, aged care, veterans' entitlements, immigration, evidence, child support, social security, workers compensation entitlements and family law.

De facto couples and family law

As a result of that legislation, same-sex de facto couples in Australia have the same family law rights as opposite sex de facto couples, provided the relationship broke down after 1 March 2009. The new legislation covering de facto couples largely mirrors the legislation applicable to married couples. On the case law to date there does not seem to be any difference in approach between the law for married persons and those in a de facto relationship.

Many people (both same and opposite sex couples) are not aware that their relationship is a de facto relationship and they do not realise that if their relationship breaks down, they are eligible to make an application for financial relief against their partner. If you think you may be living in a de facto relationship, it would be prudent to seek advice and consider whether or not you should be entering into some form of asset protection, for example a financial agreement, to protect your assets in the event of a breakdown of your relationship. (Please see our earlier article Binding financial agreements – how they can protect assets and why they can be set aside by the courts for more information.)

Same sex couples and children

Same-sex partners are treated the same as opposite sex couples and married couples in relation to children's issues in the Family Court. This was reinforced recently in a Family Court case involving two lesbian parents. In that case the two women each had a biological child to different sperm donors during the course of their six-year relationship. While they lived together as a family, the women both acted as parents to the two children, with the children calling one mummy and the other mumma.

The court refused one parent permission to relocate interstate with her biological child, as this would have impacted on the child's relationship with the other, non-biological mother and sister. Despite the ex-partner having no biological link to the child, the court refused the application that the biological mother be granted sole parental responsibility for the child and ordered that the two women have equal shared parental responsibility for the child.

Government resistance to Marriage Act reform

With most of the major financial and societal distinctions and discriminations removed by the recent legislation, many people are questioning why the government continues to oppose same-sex marriage. In defending her position, Prime Minister Julia Gillard has said that marriage should be between a man and a woman because Australia's laws are based on Christian principles.

However, it is difficult to argue that opposing same-sex marriage is appropriate on religious grounds, as there is already a distinction between civil and religious marriages. Today two thirds of Australian marriages are performed by civil celebrants.

The fight for change

It appears same-sex couples will not have true equality until the Marriage Act is amended to allow them the same recognition as opposite sex couples.

Clearly, this is likely to be a hotly contested issue in the political arena for some time. Australia may be well on its way to achieving marriage equality as we speak. A parliamentary motion was passed in November 2010 calling on all parliamentarians to gauge their constituents' views on the issue of marriage equality.

AME reports that according to the most recent statistics, 62% of all Australians believe that same-sex couples should be allowed to marry. If these statistics are correct, the major parties may be convinced to allow a conscience vote on the issue, which will allow the many members of parliament who personally support this reform to vote for it.

Swaab Attorneys was the highest ranking law firm and the 13th best place to work in Australia in the 2010 Business Review Weekly Best Places to Work Awards. The firm was a finalist in the 2010 BRW Client Choice Awards for client service and was named the winner in the 2009 Australasian Legal Business Employer of Choice Awards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.