Marriage in Australia

Section 5 of the Marriage Act 1961 (Cth) (“the Marriage Act”) states that ‘marriage’ means ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life’.

Section 88EA of the Marriage Act further states that certain unions are not marriages in Australia, specifically that:

A union solemnised in a foreign country between:

(a) a man and another man; or

(b) a woman and another woman; must not be recognised as a marriage in Australia.

Whilst marriage can only occur between a man and a woman in Australia, whether a person is a man or a woman is determined at the date of marriage, and not at birth.

In the case of the Attorney-General (Cth) v Kevin and Jennifer, Kevin and Jennifer (not their real names) filed an application seeking a declaration of the validity of their marriage pursuant to the provisions of s.113 of the Family Law Act 1975 (Cth) (“the Family Law Act”).

The couple had prior to the matter reaching the Court made enquiries of the Attorney-General as to the validity of a proposed marriage between them. The reply that they received was inconclusive. They went through a ceremony of marriage and thereafter resided together as a married couple. At the date of the marriage, Kevin was a post-operative transsexual person who, at the time of his birth, was registered as a female.

The Attorney-General intervened in those proceedings. At the hearing, both Kevin and Jennifer and the Attorney-General accepted that a valid marriage, for the purpose of the Marriage Act, must be between a man and a woman. Kevin and Jennifer submitted that, at the relevant time, namely the date of the marriage, Kevin was a man for the purpose of the marriage law of Australia and that the Court should declare that their marriage was valid. The Attorney-General submitted that Kevin was not a man for the purpose of the marriage law and that accordingly, Kevin and Jennifer’s application for a declaration should be dismissed.

On the definition of the words ‘man’ and ‘marriage’, the Full Court said in its judgment:

“… the question is whether the Parliament intended that the meaning of the words should be confined to their meaning in 1961…. We are unable to accept the argument on behalf of the Attorney-General that the Marriage Act constitutes a code. The fact that ‘marriage’ is undefined, as are the words ‘man’ and ‘woman’, in our view negates any such Parliamentary intention.”

The Court found that the definition of a man and women should be given their contemporary, normal and everyday meaning and declared the validity of Kevin and Jennifer’s marriage.

The landmark case established that the meaning of the word ‘man’ in the Marriage Act may include a post-operative male to female transsexual person, and a valid marriage can take place between such a man and a woman.

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