This has been perhaps the most important and significant change to the legal regime supporting family relationships in Australia

This has been perhaps the most important and significant change to the legal regime supporting family relationships in Australia

So no-fault divorce, introduced in 1975, ended the notion of marriage being presumptively for life. It was replaced with a policy that marriage lasted only as long as both parties wanted it to.

A legal union

Far bigger changes concerning marriage were to occur after 1975. They began slowly, with a limited legal recognition of de facto relationships; but as the law has developed, cohabitation, living together with someone in an intimate partnership, has become exactly the same as marriage for legal purposes. A legal union, in other words, no longer matters.

After 2008, there was simply no difference, anywhere in Australian law, between a heterosexual couple being married, and living together in a de facto relationship, at least once a period of time, typically two years, had elapsed

As understood in Christendom, marriage involved a solemn commitment of a man and woman to live together until death parted them, usually made publicly before family and friends. By the time of Pope Innocent III in the 13th century, the Church taught that it should be in the presence of a priest as a witness. By 1563, the Council of Trent determined in its etsi that for a marriage to be valid there needed to be three witnesses, one of whom had to be the parish priest of one of the parties; and there had to be an announcement about the prospective marriage beforehand, known as ‘publishing the banns of marriage’. Similar provisions were adopted across the emerging Protestant world, but inconsistently. The need for a public commitment was not established in English law until Lord Hardwicke’s Act of 1753.

NSW was the frontrunner in bringing about change in Australia. It enacted new laws in 1984 which provided some limited legal recognition for cohabitation. Over the following 20 years, other states introduced similar laws but they were increasingly indistinguishable from marriage. The trajectory of law reform at both state and federal levels over 20 years has been to insert the words “or de facto” whenever the word ‘marriage’ or ‘spouse’ appears in legislation. Initially this was to address the issues for heterosexual couples who do not marry; later the term “de facto” was extended to include same-sex couples.

The notion that marriage required a legal union was finally abandoned in Australia in 2008. In that year, the Family Law Act was amended to provide, across the country in all but Western Australia, that couples who live together without marriage should be treated for all intents and purposes as if they were married once they had lived together for two years. This followed on from amendments to various state and territory laws over the citas sapiosexual preceding twenty years or more that had been to similar effect.

Consider now a young couple in Australia who are in love and have begun living together. Let us call them Alex and Chris, for they could be a heterosexual couple or a same sex couple. Let’s assume that they live in Melbourne. Discussion turns on one cold winter’s night to the future of their relationship. Alex would quite like to get married but is not sure how. Chris is not so certain – why does a piece of paper matter?

So they explore their various options. If they decide to marry, they may choose a religious wedding, as long as they can find a minister of religion prepared to marry them. There are some nice old churches with a medieval stone look, if that is the kind of setting that they want.

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