Lord Penzance defined marriage in the case of Hyde vs Hyde and Woodmansee (1986) LR 1 P. 130 when he started "I conceive marriage, as understood in Christendom, may be defined as the voluntary union for life of one man and one woman, to the exclusion of others". It has been confide both in section 46(1) of the Marriage Act and section 43(a) of the Family Law Act. Marriage is therefore defined as "the union of a man and a women". Consequently same sex couples are not able to legally marry under Australian law. However in 1984 the legal system acknowledged that relationships outside of the traditional or legal form of marriage did exist. The De facto Relationships Act 1984 (NSW) provided protection and recognition for such alternative relationships involving people of the opposite sex. Where previously homosexual relationships are illegal under the law, as was homosexual intercourse.
In section 4 of the Property (Relationships) Act 1984 defines a de facto relationship as a relationship between two adult persons who live together as a couple, and who are not married to one another or related by family. Because this does not state men and women homosexual couples are legally recognised in NSW under this law. .
The move toward legal recognition of the same sex relationships gained greater force with the Property (Relationships) Legislation Amendment Act 1999 (NSW) providing protection to people in the same sex de facto relationships in a wide range of situations such as property division, inheritance, joint financial arrangements and issues of illness or death of a partner.
The changes apply to couples that have lived together for more than two years. The changes give same sex couples the same rights afforded de facto couples under the De facto Relationships Act 1984 (NSW). It does not give same sex couples equal rights in all areas in the law that are given to married or heterosexual de facto couples.