‘Society Moves Ahead And The Law Limps Behind.’

1456 Words6 Pages
The values and standards of society are under constant change, spawned by increasing levels of education and the influence of a multicultural society. This necessitates, however, quick and often drastic changes within the legal system, which the process itself works against. As demonstrated in family law through the rigid and inflexible definitions of a marriage and types of families, altering common law is an arduous process, whilst statute law is generally a reflection of politicians who may encompass archaic values, removed from those of the general populace. Therefore, while the law does develop with a society it is often not equivalent to the rate of change of the society itself. A marriage, defined in the case of Hyde v Hyde and Woodmansee (1866), encompasses a ‘union between a man and a woman voluntarily entered into for life, to the exclusion of all others.’ While this definition continues to subsist, its interpretation has undergone a drastic transformation. The increasing prevalence of divorce required the element ‘for life’ to refer to the intention of the marriage, rather than a binding agreement. Similarly ‘to the exclusion of all others’ is no longer a grounds for divorce, though polygamous marriages remain illegal. However, despite public recognition and acceptance of same-sex couples, the law refuses to acknowledge a marriage as anything other than a ‘union of a man and a woman’. In 2001, the case re Kevin [2001] FAM CA 1074, held that gender reassignment was sufficient to satisfy the requirement of a bond ‘between a man and a woman’. Three years later, in the wake of unsuccessful government appeals against the action, Prime Minister Howard became concerned about the number of countries legalising same-sex marriage and the prospect of same-sex Australian couples getting married overseas and wanting recognition in Australia. The Marriage Amendment
Open Document