Britain has a conservative Prime Minister; Australia has just elected one.  However, whilst Britain’s Prime Minister wants to permit gay marriage, the new Australian Prime Minister is on the record as opposing it.  In Britain the Westminster Parliament has unfettered power to legislate as it pleases, but not so in Australia where the Federal Government and the States have distinct fields of power set out in the Constitution.

Under Section 51 (xxi) the Commonwealth Federal Government has power over the subject of marriage.  However the powers reserved to the Commonwealth in Section 51 are concurrent powers, meaning that unless the Commonwealth legislates to “cover the field”, the States retain their intrinsic legislative powers.  For that reason State law defined and regulated marriage for 60 years after Federation, and the Commonwealth did not exercise its power until the Marriage Act 1961 was enacted.

This is different to the position in America, where the power to regulate marriage was left with the States.  Hence the US faces the interesting problem of some States recognising gay marriage and some States passing laws to define marriage as a union between a man and a woman.  That leads to the difficulty in America that the Constitution demands that “due recognition” be given by one State to the enactments of another.

In Australia at time the 1961 Act was passed there was no debate about the definition of marriage.  In this century, as debate intensified, socially conservative forces in the Federal Parliament amended the Marriage Act in 2004 to define marriage as a union between a man and a woman, and to declare that any existing same sex marriage from another country was not to be recognised in Australia.

This presents a potential constitutional difficulty perhaps of its own making for the Federal Government.  If marriage is to be defined as a union between a man and a woman, what is to stop a State extending the definition of marriage for its own jurisdiction to include gay marriage?  At State and Territory levels same sex marriage has a form of recognition in “de facto” relationships, but would extending the definition of marriage create an inconsistency with Commonwealth law?

In May 2013 an Ipsos poll found that 54% of respondents in Australia were in favour of same sex marriage and another 20% supported other forms of recognition for same sex couples.  If it is thought likely that Australia will follow the lead of countries such as its closely synonymous neighbour New Zealand, then it is probably only a matter of time before one of the States legislates to recognise gay marriage.

Then it will be for the High Court of Australia to determine whether the State law is inconsistent with the Federal Government’s attempt to cover the entire field in relation to marriage.  Which will bring us around to full circle, just how do you define a marriage?

It also presents the incessant problem of Constitutional interpretation, do you look at the intentions of the writers of the document (who worked on it for several years in the 1890s) or do you interpret the meaning of the word “marriage” by reference to modern mores?

Got a question? Ask us now…

Kindly complete the form below to send an enquiry. Your message will be sent to one of our solicitors. Discretion is guaranteed.

Your Information

  • Consider including information such as: the name of your spouse (if relevant), the country you live in, the background to your problem.

  • This field is for validation purposes and should be left unchanged.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Over 2000 FREE
consultations and counting…

Our free consultation can help you more clearly understand the legal issues relating your case and what your options are to move forward.

Request your free consultation

Or send us an enquiry

I recently had a one hour pro bono consultation with Samantha Jago. I was really blown away by how much she was able to digest in such a short period of time and even more so by the report which I received shortly after.

Apr 2024   S DF

I had applied for a free consultation and I was contacted in a very short timeframe. Thank you so much for the insightful and thorough consultation, Kevin Danagher. You made me feel at ease and you provided clear expectations with the initial info I had provided... I have now a much better understanding on my query.

Feb 2024   Sonia Accardi

We had a very useful first consultation with Amber Matheson today. Amber took the time to understand our (somewhat complicated) set-up, and offered good, understandable advice on next steps. She followed up with a very thorough email clarifying what we had discussed. Highly recommended.

Feb 2024   Lucie

Lovely friendly experience. All questions were answered so that I understood completely.

Dec 2023   Ali Catlin

Very balanced, fair and pragmatic advice. Thoroughly recommend!!

Nov 2023   James Elliott

Henry graciously provided his time for a consultation. I found him to be highly knowledgeable, empathetic and he provided excellent advice which put my mind at ease. Would highly recommend Henry and his firm.

Oct 2023   Allan Ang

Henry Brookman went above and beyond during the free consultation, and even overran the allocated time. He provided invaluable professional advice in a courteous manner. I recommend his firm without reservation.

Sep 2023   Mario Ignatov

I only had my initial free review with Amelia yet I already feel much more strengthened in my legal and financial position. I am currently reflecting on the steps I want to take to negotiate my desired outcome of the financial settlement but, when I am ready to use the services of a lawyer, Amelia is definitely the top on my list.

Sep 2023   Nahid Toubia

I had a zoom consultation with Lauren Moir and she was incredible. Very patient, insightful and reassuring. She also advised me based on my previous conversations with another firm and also clarified various positions I am in. Highly recommend.

Aug 2023   Gary Hawes

I was very impressed with the friendly, helpful and professional service offered by Brookman Solicitors. The generous advice and knowledge offered during the initial free consultation has enabled us to have a much better understanding of our case and plan a way forward.

Jul 2023   Peter Jackson

I had a first consultation with Kevin, who very diligently and professionally provided an exhaustive overview of the divorce process and the best approach for my specific case.

Jul 2023   Giulia Matteo

Great service and excellent advice at the initial consultation. I would certainly recommend and use in the future.

Jul 2023   Tom James

Spoke to a kind solicitor this morning who took an hour of her time to talk me through some advice relating to a difficult separation.... She was clear and helpful with her advice, leaving me feeling much more confident with the process ahead of me.

Jun 2023   Luke Taylor

Mr Brookman provided very clear advice that left me with no doubt about the options and next steps. Getting specific advice with the requirements in the different jurisdictions was particularly useful so I won’t need to consult another lawyer outside of the UK

May 2023   Julian Anthony

Google Reviews
Ask A Question

Contact Us

If you have questions, contact us now, we can help you.

Enquire Now

Or call us on +44 (0)20 7430 8470