that couple that can’t get divorced

Hey we dunno if you quokkas noticed, but the USA Supreme Court (abbreviated hilariously to SCOTUS) legalised marriage equality across their entire country. Good work, SCOTUS!

Many people are having feels, and Facebook is a literal rainbow. When a flatmate of No Award asked Steph what she thought, she said “I don’t celebrate other peoples’ wins.” Which is maybe a bit harsh. And yet not actually a lie! Especially because all those Facebook rainbows are just a literal rainbow washing and No Award is made up of curmudgeons who believe in online activism but don’t trust Facie. (And also have odd feelings about confirmed straight people turning their wedding photos rainbow.)

(Also, they are giving Liz a bad headache.  Enough with the bright colours and sparkly gifs, guys!)

But the equality movement in Australia is already so, often negatively, impacted by the US-centricity of discussions and actions, and as you know No Award rails against the way US-centricity skews and distorts Australian discussions in irrelevant ways.

Take this tumblr meme for example:


(That bottom image of Judge Judy is usually a gif of her tapping her watch as if to say ‘get on with it.’)

This post, and others that we’ve seen much like it, have hundreds of thousands of notes. But the important thing to remember is that this couple is Australian, as you quokkas know, and therefore three things:

  1. SCOTUS has no implications for them.
  2. Marriage equality is still not legal in Australia, where all marriages must be officiated over by a person who then says “Marriage is between a man and a woman to the exclusion of all others,” out loud, in public, how embarrassing, in order for that marriage to be legal.
  3. Actually, legally, this couple will not be granted a divorce by the Family Court of Australia. Section 48 of the Family Law Act 1975 has some excellent (in this instance) clauses around when a divorce will be granted and, having stated that they intend to keep living together and having children together, they don’t formally qualify for a divorce in Australia.  Plus, you have to live separately for a year and a day, and swear an oath (or make an affirmation) that your marriage has irretrievably broken down.  If these two tried that, after what they’ve been saying to the media, they’d be at risk of perjury.

(Please note, No Award is not qualified to give legal advice.)

In terms of the role of the High Court of Australia in legalising/upholding marriage equality, the HCA can’t rule on this because there’s no Constitutional right to marriage or similar that could be used as that basis. S51(xxi) does hold that laws relating to marriage exclusively come under the Federal Government – which is why the Federal Government has been able to overturn those States and Territories that have legalised marriage equality. The Federal Government can also legislate to make marriage equality legal. It is in fact the only body in Australia that can make that magic happen.

There are some Equal Love marriage equality rallies coming up across Australia, if that’s your jam. Melbourne, Perth so far. This piece on tumblr is an interesting piece of grassroots history around recent marriage equality stuff in Australia.

It’s awesome for the USA that this decision has been handed down. But it doesn’t impact us directly, and placing too much importance on it means we’re missing the specifics of how our situation is impacted and how our situation can change.

(Endnote: please note that anyone who says ‘gay marriage’ is going to get in very big trouble. It’s marriage equality, because it impacts more than just gay people. We are bi and queer and asexual and intersex and trans and a whole rainbow of stuff)

ETA: Please read the comments! They are filled with relevant comments from constitutional law geeks and the children of religious ministers.


9 thoughts on “that couple that can’t get divorced

  1. On #2 – strangely, I believe marriages which are officiated by clergy/held in a church, do not have to include ‘the line’ – I don’t remember it being said at my own, or at my cousins’ weddings (though I’m not 100% sure on that and it may have changed since then)

    1. It’s in the marriage act that those words have to be spoken in that particular order. If they are not spoken, it’s not a legal marriage (further marriage act fun: vows are legally binding. Once you have spoken them, you are married, even if the certificate isn’t signed. Be careful if you write your own!). I know this because the minister father has sought all kinds of advice in order to avoid having to say them; now, he prefaces the statement with the fact that these words are exclusionary and may cause pain to people in attendance, but he has to say them. He then goes on to say he hopes they change in the near future.

    2. Heidi

      Melina, you’re right: clergy don’t have to say the monitum, as the expectation is that approved service contains something similar. Which the UCA service does, just not as horrifyingly direct.

  2. Can I just be a constitutional law geek and point out that the Cth does not have exclusive power to legislate on marriage; merely that it has that power. The states also have legislative power re marriage. However, per s109 of the Constitution, if a state law is inconsistent with a Cth law, then the Cth law prevails, to the extent of the inconsistency.

    The requirement is for an authorised celebrant, who is not a minister of religion, to say those words (s.46 Marriage Act), and was inserted in 1988. They aren’t prevented from saying other words, however, and almost all the weddings I have attended, the celebrant goes on to say that they are required by law to say those words (true) and do not agree with them (ha, take that Howard!)

    1. We always welcome all forms of geekery on No Award, especially constitutional law geekery. Thank you for the clarifications!

      Most of the weddings I’ve been to have added words, but not all of them.

      Was it really inserted in 1988? That seems a bit early for a thing that Howard instituted? Or was it just that the Amendment made you have to say them?

      1. Okay. More law geekery, but I think I need to stop. It’s not my area of practice and I must be doing something wrong (sob. I thought I was so good at legal research!)

        You are right – 1988 was way too early.

        The *definition* of marriage, so that it is defined by the Marriage Act to be “union of man and woman” was done by the Marriage Act Amendment Act 2004.

        I cannot for the life of me work out when the requirement to say those words, in order for a marriage to be solemnised (eff that, I’d want my relationship to be all fun and not in the least bit solemn, thanks) was inserted.

        But s46 is clear that ministers of authorised religions do not have to say those words in order for them folks to be able to solemnise a wedding.

        And in searching, I had no idea and am pretty outraged, that the Marriage Act in s88EA (inserted at the same time as the definition) says as follows:
        Certain unions are not marriages
        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.

        WOW. We suck.

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