What are marriage laws meant to do?

26 September 2017

What are marriage laws meant to do?

With two months left until the result of the Australian Marriage Law Survey is announced, a lot of attention will be dedicated to the proposed changes to the Marriage Act, with many column inches and plenty of airtime postulating on the effects and justification of doing so. Lost in this analysis is the purpose for which marriage acts are (and have been) enacted, which may provide a context in which to differentiate what they can and should do, and how they should look.

Marriage law, broadly speaking, serves three related purposes:

  1. reflecting social practice and culture;
  2. remedying societal ills; and
  3. ensuring compatibility and consistency between jurisdictions.

Reflecting social practice and culture

As a social institution marriage has undergone a variety of transformations, usually reflecting the changes to the social practices and cultural understandings behind it that evolved with time, societal realities and developments in social justice.

In ancient times, the social concept of marriage centred around progeny, reflecting the need for population growth. Ancient Greek society, by and large, placed a premium on childbearing, with raising healthy children considered a duty to the state. Accordingly, when laws were made regarding marriage they reflected and encouraged this social practice. Lycurgus of Sparta encouraged marriage by enforcing punitive laws against people who married too late (graphe opsigamiou), unsuitably (graphe kakogamiou), or not at all (graphe agamiou). Plato even stated clear penalties for bachelors in his Laws.  The Ancient Romans were no different, with the Lex Papia Poppaea enacted in AD 9  granting privilege to families with certain numbers of children and punishing celibacy.

The cultural understanding of what the institution meant also shaped the laws that defined them. Polyamory, for instance, was a facet of the cultural understanding of marriage until the spread of Christianity in the 6th to 9th centuries. The history of our own marriage laws demonstrates this evolution amid cultural shifts. Laws came into being or were amended to allow women to own property, to reduce the age of marriage to 18, and permit interracial marriages — but only as the society that adopted them accepted these changes.

Remedying societal ills

Where there were practices or cultural understandings around marriage in society that constituted a moral or social wrong (perceived or otherwise), marriage laws were used to try and correct this.

In Roman times, adultery and incest were social norms to various degrees, although the latter was considered nefas (against the laws of gods and man). In part as a response, the Emperor Augustus enacted Lex Julia De Adulteris, which imposed and regulated death penalties for adulterers and those in incestuous relationships. Incestuous marriages were the subject of several legal evolutions in Roman civil law, with explicit prohibitions on marriages between parents and children, and varying levels of complexity for siblings, relatives, and Roman or non-Roman citizens (incestus iuris civilis and incestus iuris gentium).

In more contemporary developments, where there has been a social injustice identified in the institution of marriage, laws have changed to correct this. The anti-miscegenation (interacial marriage) laws that littered the United States were struck down after the United States Supreme Court’s 1967 decision in Loving v Virginia. This purpose of marriage law is also found in international declarations on the age of consent, and against forced marriage and child marriage, and corresponding laws that are enacted to enforce or encourage this social change.

Compatibility and consistency between jurisdictions

People frequently move from jurisdiction to jurisdiction, and it is desirable to ensure a degree of consistency between how the law treats their relationships. In a federation such as the United States or Australia, it would be impractical if a couple married in one stated moved to another state, where they were treated substantially differently. Marriage laws can provide consistency across a country if regulated at the national level or compatibility between states in a federation or sovereign states at the international level so that marriages entered into in one jurisdiction can be accommodated in other jurisdictions.

The Australian Marriage Act 1961 is a good example of this. When Australia became a federation in 1901, each state and territory was responsible for their own marriage legislation, which lead to mismatched provisions. This meant that the eligibility of an Australian couple to marry, or the validity of their existing marriage, depended on the state they were in.  The federal Marriage Act served in part to provide for a uniform marriable age across the entire country.

Our current marriage laws

From the prism of these three pillars of marriage law, the debate at the centre of the postal survey takes on a different, more procedural tone.

Defining a cultural or societal understanding of an institution is always difficult in a pluralistic society, but we can broadly attempt to do so with reference to what a society thinks it enshrines. In general, people believe that marriage should be about celebrating companionship and starting a family, enshrining a life-long commitment to someone, and most importantly, love — reasons that the LGBTI+ community in particular shares. Accordingly, a marriage law that reflects this social understanding would reflect the ability of two people, in love, to commit to each other for life.

The perceived moral or social harm attributable to the legalisation of same-sex marriage vary widely depending on the respondent, but are rarely supportable. In addition, it is more the case that a range of benefits exist in the legalisation of same-sex marriage for the LGBTI+ community from a mental health perspective. It is hard to see, therefore, how marriage law would be required to treat same-sex marriage as a societal ill and regulate against it.

Finally, in terms of regulation, the restriction on certain members in society from joining a social institution aside, legal obstacles (which differ from state to state) exist for couples in de facto relationships that would otherwise not exist were they able to get married. Changes to a federal marriage law should seek to ensure that treatment under marriage law was uniform across the country for all Australians.

Time will tell if the outcome of the postal survey reflects this ideal come November.