Marriage in Australia is governed by the Marriage Act 1961 (Cth).
A marriage is the union of a man and woman entered into voluntarily to the exclusion of others. Traditionally marriage was a lifelong commitment; however, there has been a gradual increase in rates of divorce over recent years.
Any person over the age of 18 can enter into a marriage as long as the relationship is between persons of the opposite sex and it does not involve family members.
It is possible for someone over the age of 16 years but who has not yet turned 18 years to marry, but they must either have their parents’ consent, or authorisation from the court. If the person’s parent refuses to consent to the marriage, the person can apply to the court for approval to marry. Once parental consent or the court’s authorisation has been obtained, the marriage must take place within 3 months.
Marriage in Australia has a number of legal consequences for the parties involved.
⇒ It invalidates any previous wills unless the will clearly shows that marriage was planned.
⇒ The amount of tax you pay changes once married; you must therefore notify the Taxation Office of your marriage.
⇒ The dollar value of any health or welfare benefits you receive changes once you are married, so you should notify the Department of Human Services as soon as you can following your marriage. It is a criminal offence to mislead or provide false information to the Australian Government about your entitlement to health or welfare payments.
⇒ Traditionally, a female who married would adopt her new husband’s surname, necessitating notification and the provision of documentary evidence of the marriage to numerous organisations and government departments. There is, though, no legal requirement to change your name. Instead, a person who marries is able to elect whether to change their name to adopt the other’s surname. It is now becoming common practice for the male of the marriage to adopt the female’s surname, or to hyphenate the two surnames. Where a party chooses to change their name, they should update their details on all forms of identification, and notify organisations and government departments as necessary.
⇒ Where once the status of a child born to persons who were not married to each other at the time of their birth was deemed illegitimate, even if the parents subsequently married each other, now the child is for all purposes considered a legitimate child of their parents.
To be considered a valid marriage in Australia, a number of legal requirements must be met.
- The ceremony must be performed by someone who is authorised to do so, such as a marriage celebrant or minister of religion.
- The ceremony must be witnessed by at least 2 other persons over the age of 18. They must watch the couple sign the marriage certificate, and must then sign it themselves.
- The parties must complete and submit a Notice of Intended Marriage. You can do so up to 18 months before the wedding, but it must be submitted no later than 1 month prior.
- The parties to the marriage must provide evidence of the place and date of their birth and the end of any previous marriages.
- The parties must sign a ‘Declaration of no legal impediment to marriage’ confirming they are an appropriate age and that there is nothing which would legally prevent their marriage.
- The marriage must be registered with the Registry of Births, Deaths and Marriages.
While persons getting married can make up their own vows, as part of the marriage ceremony, both parties must, at some point in the ceremony, state their intention to be lawfully married to the other person.
A marriage celebrant must also make particular statements in the hearing of the witnesses. They must declare that they are in fact authorised under Australian law to perform marriage ceremonies, and they must state the definition of marriage as set out in the Marriage Act 1961. They must also remind the parties of the solemnity of marriage and that it is a binding relationship.
A marriage performed overseas will, on most occasions, be considered valid in Australia provided:
- it was recognised as a valid marriage by the law in the place where you were married,
- it would have been a valid marriage if it had been performed in Australia, and
- the marriage has been registered.
Same sex marriages which are performed overseas are not recognised as marriages in Australia but rather are treated as de facto relationships for the purposes of Commonwealth, State and Territory laws. Same sex couples can enter into a civil partnership in some States and Territories. This means the relationship can be registered, but it still does not have the same legal effect as a marriage.
There are three ways in which a marriage can end:
- the death of a spouse, or
The most common way to end a marriage in Australia is by divorce. This process is governed by the Family Law Act 1975 (Cth). Australia has a principle of no-fault divorce, meaning that neither party to the marriage will be blamed for the breakdown of the marriage.
Parties must make an application to the Federal Circuit Court of Australia to obtain a divorce. An application can only be made following a period of separation of at least 12 months. It may be made by either party to the marriage or jointly. If the application is made by a sole applicant, then it must be served on the other party to the marriage.
Whilst there are many DIY divorce kits available, it is recommended that you seek legal assistance when ending a marriage, particularly where children are involved, to ensure you receive everything to which you are entitled and that the children are adequately supported and manageable custody arrangements are in place.
The Family Court in Australia can annul a marriage which it finds is invalid. At least one of the parties must be an Australian citizen, live in Australia and consider it their home, or have lived in Australia for at least 12 months prior to making the application. The Court will annul the marriage by issuing a decree of nullity where:
- the relationship between the parties is illegal or prohibited, as in the case of family members
- one or both of the parties to the marriage were married to someone else at the time
- the marriage did not comply with the law in the locale in which the parties were married
- one of the parties was not old enough to marry, or, if they were between 16 and 18 years, they did not have parental consent or a court authorisation, or
- one of the parties did not validly consent to the marriage. This might arise if they were being forced into the marriage, they were mistaken about what marriage is or who they were actually marrying, or they were not sufficiently capable of understanding what was taking place.
This article reflects the state of the law as at 9 June 2016. It is intended to be of a general nature only and does not constitute legal advice. If you require legal assistance, please telephone 1300 636 846 or request a consultation at gotocourt.com.au.