Legal Marriage in Australia
What is Marriage?
In Australia, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 which commenced on 9 December 2017, amended the Marriage Act 1961 to redefine marriage as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'.
Who can get married in Australia?
A person can get married if:
Aged at least 18 years old;
Partner is at least 18 years old;
Both agree to the marriage;
Neither is married to someone else;
Couple to not constitute a prohibited couple (parent, grandparent, child, grandchild, brother or sister);
Use specific words during the ceremony;
Understand what marriage means and freely consents to marrying; and
Give written notice of intention to marry within the legally mandated time frame.
I am under 18. Can I get married?
In exceptional circumstances, the Family Courts will allow you to marry if you are aged between 16 and 18. It depends on the circumstances of the case.
Factors the Courts will look at before making an order to allow marriage of minor, include:
· Person’s level of maturity;
· Length of the couple’s relationship;
· Financial situation;
· Whether couple is independent unit;
· Reasons for marriage: and
· Views of couple’s families.
The permission of the partner/s’ parent or guardian is required to allow marriage. Once permission is granted you must marry within three (3) months of being given permission by the Court.
As marriage in Australia is a legal process with legal rights and implications it is important that all official forms and procedures are completed correctly so that the marriage is valid.
Legal Requirements to Marry
As marriage in Australia is a legal process with legal rights and implications it is important that all official forms and procedures are completed correctly so that the marriage is valid.
1. Complete Notice of Intended Marriage Form;
2. Wait one (1) month after completion of Form; and
3. Be married by authorised celebrant.
Who is an Authorised Celebrant?
The three types of authorised celebrants who can solemnise a marriage in Australia are:
1. Minister of religion (recognised denomination);
2. Marriage celebrant (including non-denominational religious celebrants); and
3. State or territory officers.
Ministers of religions and some marriage celebrants are protected to allow them to act and conduct a marriage ceremony according to their religious beliefs.
Marriage Celebrants must be registered and must state the legal definition of marriage as part of a marriage ceremony.
What if I am separated or divorced?
Sometimes couples are caught up in negotiating financial settlements and parenting arrangements and do not consider finalising their divorce.
In Australia, you can divorce if you are separated for at least 12 months. If you have been separated but remain living under the same roof you will have to provide additional independent information that constitutes evidence of your separation.
You can only remarry if your divorce is issued by the Court and becomes final (Officially you receive a Decree Nisi from the Court).
You then must wait one month and one day after receiving the order for divorce. You must also present a Certificate of Divorce to the celebrant.
What if I was married overseas?
An overseas marriage will be recognised in Australia if:
· It is considered a valid marriage according to the law of the overseas country; and
· If it would have been recognised as valid according to Australian law if celebrated in Australia.
What if I married on an ocean liner in the Mediterranean?
It is important to register where the marriage took place. If the ship is moored in the territorial waters of a country, the law of that country will be the law governing the marriage.
If the marriage takes place on the high seas, the law governing the marriage will be the law according to the country where the ship is registered.
It is important that you ascertain this information before considering marrying on a ship to ensure the validity of your marriage.
Also, marriage celebrants who are registered in Australia to perform marriage ceremonies are only authorised to perform legal marriages in Australia.
An overseas marriage cannot be registered in Australia. You must keep the foreign marriage certificate as this will be the only evidence that the marriage has occurred. There are some restrictions on the use of foreign marriage certificates such as obtaining a driver’s licence so it is important to check with the appropriate government agency.
Invalid Marriages
Certain circumstances result in a marriage being considered invalid:
· If either person did not give real consent in that they did not understand what marriage is or they were being forced to marry;
· If either person was under age and had not received permission from the Court;
· If either person was still married: (some marriages in polygamous relationships may be recognised if polygamy is legal in the country of origin but polygamous marriages are not permitted by Australian law and will not be celebrated within Australia); and
· If couple are in prohibited relationship (blood relation such as parents, sisters)
Effect of Change in Law to allow Same-sex Marriages
Although there are only three types of authorised marriage celebrants in Australia, some same-sex marriages may have be carried out by a diplomatic or consular officer under the law of a foreign country before same-sex marriage became legal in Australia on 9 December 2017. These marriages are recognised in Australia as valid under the law of the foreign country.
Same-sex couples can divorce in Australia under the Family Law Act 1975 (Cth) as long as their marriage is recognised as valid.
Legal Recognition of Marriage
At or after the marriage ceremony the couple must sign three (3) marriage certificates. The marriage celebrant will keep one which must be provided to the Registry of Births, Deaths and Marriages within 14 days of the ceremony.
It is important to apply for a copy of this certificate from the registry as it is an important document used for official purposes such as applying for a passport and proof of your marriage.
Change of Name
If you want to change your name to that of your spouse, you must apply to the Registry of Births, Deaths and Marriages and provide the requisite documentation to prove your identity which includes the official marriage certificate.
Contact David H Cohen & Co to discuss related matters or any other legal concerns. You can also pop into our Sydney CBD office on Castlereagh st.