FACTCHECK: Howard’s 2004 marriage definition
FACTCHECK – Did John Howard make marriage as only being for a man and a woman back in 2004?
“Now youâ€™ve probably heard that this definition of marriage was inserted into the legislation by John Howard in 2004. And itâ€™s trueâ€”Howardâ€™s government did insert this definition into the Marriage Act. But the same definition of marriage dates all the way back to an English court case from 1866, which Australian courts have repeatedly endorsed, including the High Court, which endorsed that same definition in 1991. So this has been the explicit common-law definition of Marriage, basically since 1866.
But not only have our courts defined marriage in this way for almost one and a half centuries, this very same definition of marriage was already in the Marriage Act before the Howard governmentâ€™s amendments. It just wasnâ€™t in the official â€œdefinitionsâ€ sectionâ€“it was hidden away in section 46.
So just to be absolutely clear, John Howard didnâ€™t invent this definitionâ€“all he and his government did in 2004 was to take a long-standing common-law definition of marriageâ€“a definition that already appeared in the Marriage Actâ€“and place it into the definitions section of the same Act.
So itâ€™s not a definition that John Howard came up with suddenly in 2004; the Australian courts had already formulated this definition well before that, and it was also already in the Marriage Act, but just in another part.”
– Tim Cannon
Do you mean this section:
MARRIAGE ACT 1961 – SECT 46
Certain authorised celebrants to explain nature of marriage relationship
(1) Subject to subsection (2), before a marriage is solemnised by or in the presence of an authorised celebrant, not being a minister of religion of a recognised denomination, the authorised celebrant shall say to the parties, in the presence of the witnesses, the words:
“I am duly authorised by law to solemnise marriages according to law.
“Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”;
or words to that effect.
(2) Where, in the case of a person authorised under subsection 39(2) to solemnise marriages, the Minister is satisfied that the form of ceremony to be used by that person sufficiently states the nature and obligations of marriage, the Minister may, either by the instrument by which that person is so authorised or by a subsequent instrument, exempt that person from compliance with subsection (1) of this section.
I’m no lawyer but it doesn’t seem like this in any way prevents alternative words being used and in fact seems to present the mention of man and woman as only one possible option.