Australian law recognises only monogamous marriages, being marriages of two people, including same-sex marriages, and does not recognise any other forms of union, including traditional Aboriginal marriages,[1]polygamous marriages or concubinage. The marriage age for marriage in Australia is 18 years, but in "unusual and exceptional circumstances" a person aged 16 or 17 can marry with parental consent and authorisation by a court. A Notice of Intended Marriage is required to be lodged with the chosen marriage celebrant at least one month before the wedding.[2] There is no citizenship or residency requirement for marriage in Australia, so that casual visitors can lawfully marry in Australia, provided that a domestic marriage celebrant is employed, the requisite notice given, and other domestic requirements satisfied.
Marriages performed abroad are normally recognised in Australia if entered into in accordance with the applicable foreign law, and do not require to be registered in Australia. It is not uncommon for Australian citizens or Australian residents to go abroad to marry. This may be to the family’s ancestral home country, to a destination wedding location or because they would not be permitted to marry in Australia.
As was the case for other Western countries, marriage in Australia for most of the 20th century was done early and near-universally, particularly in the period after World War II to the early 1970s. Marriage at a young age was most often associated with pregnancy prior to marriage.[3] Marriage was once seen as necessary for couples who cohabited. While some couples did cohabit before marriage, it was relatively uncommon until the 1950s in much of the Western world.[4]
According to a 2008 Relationships Australia survey love, companionship and signifying a lifelong commitment were the top reasons for marriage.[5]
Nature of marriage
Australian law recognises only monogamous marriages, being marriages of two people, including same-sex marriages, and does not recognise any other forms of union, including traditional Aboriginal marriages,[1]polygamous marriages or concubinage. A person who goes through a marriage ceremony in Australia when still legally married to another person, whether under Australian law or a law of another country, commits an offence of bigamy, which is subject to a maximum 5 years imprisonment,[6] and the marriage is void.
Since December 2017, Australian law has recognised same-sex marriage in Australia whether entered into in Australia or abroad.[7][8][9] The original 1961 Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition.[10][11] The Marriage Amendment Act 2004 defined, for the first time by statute, marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."[12] The 2004 Act also expressly declared same-sex marriages entered into abroad were not to be recognised in Australia. This was in response to a lesbian couple getting married in Canada and applying for their marriage to be recognised in Australia.[13] In 2017, the definition of "marriage" was changed, replacing the words "a man and a woman" with "2 people" and therefore allowing monogamous same-sex marriages.[14] The changes also retrospectively recognised same-sex marriages performed in a foreign country, provided that such marriages were permitted under the laws of that foreign country.
A marriage must be entered into with the full consent of both parties, and it is an offence to force someone to marry them or another person, by the use of coercion, threat or deception, and whether in Australia or abroad. Full consent assumes a mental capacity to understand the nature of a marriage.
Most federal, state and territory laws also recognise de facto relationships, often on an equal basis to formal marital relationships.
Marriageable age
The marriageable age for marriage in Australia is 18 years, which is the age of majority in Australia in all states,[15] but in "unusual and exceptional circumstances" a person aged 16 or 17 can marry with parental consent and authorisation by a Magistrates Court. The application to the court must be filed by a parent. For many years, courts have refused to accept a minor's pregnancy as a pressing consideration in deciding whether to allow an early marriage.[16] In addition, the older partner must be over 18.
Until 1991, the marriage age was 16 for females and 18 for males, but a female 14 or 15 years (wanting to marry a male aged 18 or above) or a male 16 or 17 years (wanting to marry a female aged 16 or above) could apply to the court for permission to marry.[17] The ages were equalised in 1991,[18][19] with the relevant ages applying to females being raised to those applying to males.
Void marriages
A marriage entered into in Australia is void if:[20]
the parties are in a prohibited relationship: direct ancestor or descendant or sibling (whether full sibling or half sibling), including those arising from a legal adoption.
the marriage was not solemnised by an authorised celebrant.
there is no consent, for example due to duress, fraud, mistake as to identity, mistake as to the nature of ceremony, mental incapacity, or being below the marriageable age.
Marriages of non-citizens
Australian citizenship is not a requirement for marriage in Australia, nor for the recognition of a foreign marriage.
When one of the parties to a marriage is a non-citizen of Australia and the other is an Australian or New Zealand citizen or a permanent resident, the non-citizen may apply for an Australian “partner visa” to remain in Australia.[21]
When marriages are entered into, whether in Australia or elsewhere, for the purpose of enabling the non-citizen to obtain an Australian visa to enter or stay in Australia, Australian authorities may investigate whether such a marriage is a sham. If found to be a sham, they may cancel the visa. Such behaviour also carries a possible 10 year jail sentence.[22] Nevertheless, this does not effect the validity of the marriage itself.
Solemnisation of marriages in Australia
A marriage entered into Australia is void (invalid) if it has not been “solemnised” by an authorised marriage celebrant.[23] Only authorised marriage celebrants are allowed to solemnise marriages in Australia. There are three types of celebrants: ministers of religion, state and territory registry officers, and civil marriage celebrants. The only requirements for registration of a minister of religion is that he or she is nominated by a proclaimed "recognised denomination", is a resident in Australia, and is at least 21 years old. The Sex Discrimination Act 1984 (Cth) was amended with the 2017 recognition of same-sex marriages to exempt a minister of religion or religious marriage celebrant or chaplain from the prohibition of sex discrimination by refusing to marry same-sex couples. It is illegal to marry your sibling (brother or sister).
State and territory officers who are allowed to register marriages (under a state law) can also solemnise marriages (i.e. registry marriages).
Civil marriage celebrants are authorised to conduct and solemnise civil wedding ceremonies. For registration, they must meet a number of requirements, in addition to being at least 18 years old and "fit and proper" persons. The register will take into account knowledge of the law, commitment to advising couples about relationship counselling, community standing, criminal record, the existence of a conflict of interest or benefit to business, and "any other matter", which includes professional development and an adherence to a code of practice. Most marriages in Australia are solemnised by civil celebrants.
Notice of Intended Marriage
Couples must give their marriage celebrant a Notice of Intended Marriage[24] at least one month before the intended wedding ceremony. The Notice is valid for 18 months.[25][2] In exceptional circumstances, the couple can apply for a waiver of the one-month waiting period,[26]
This Notice is not a marriage licence, as a couple does not normally require an official authorisation to marry, but a person under the age of 18 wishing to marry requires parental consent and the authorisation of a judge.
Wedding ceremony
The couple must wait at least one month after giving their marriage celebrant the Notice of Intended Marriage before the wedding ceremony. Both parties to the marriage must be present at the ceremony, with proxy marriages not permitted. The marriage celebrant and two witnesses over the age of 18 years must also be present,[27] besides other guests. The witnesses must sign the certificate prepared by the celebrant.
The celebrant is required to recite the prescribed words to solemnise the marriage.[28] Otherwise, almost anything is permitted. For example, it can be at any venue, indoors or outdoors, at any day or time,[29] and follow any tradition or custom, or none at all.
Recognition of foreign marriages
It is not uncommon for Australian citizens or Australian residents to go abroad to marry. This may be to the family’s ancestral home country, to a destination wedding location or because they would not be permitted to marry in Australia. However, if a party to the marriage is not an Australian citizen, issues may arise with plans for the couple to move to and live in Australia. Marriage by itself to a non-citizen does not, for example, guarantee an Australian visa, let alone citizenship.
The Department of Foreign Affairs and Trade (DFAT) can legalise signatures or seals that appear on Australian public documents (apostilles and authentications) and issues Certificates of No Impediment to Marriage (including witnessing the signature on the form).
In general, marriages entered into abroad are normally recognised in Australia as valid if they are valid according to the laws of the country in which the marriage took place, except that a marriage is not recognised as valid in Australia if:
either person is still married, that is, if it is a polygamous marriage,
either person is not of marriageable age,
the parties are within a prohibited relationship, or
there was no real consent.
So, for example, even though it may be legal for a person under the age of 18 to marry abroad, such a marriage will not be recognised as valid under Australian law, even when the underage partner turns 18.
Marriages performed abroad do not require to be registered in Australia, and it is advisable that the couple obtain and retain the marriage certificate from the relevant authority in the country in which the marriage took place.
Registration
It is compulsory for marriages entered into in Australia to be registered in the appropriate state or territory registry.[30][31] In Australia, after the marriage ceremony, the marriage celebrant will send a certified copy of Notice to the Registrar of Births, Deaths and Marriages of the state or territory in which the marriage took place. The Registrar uses the information in the Notice to register the marriage. A failure to register does not invalidate the marriage, but the registrar cannot issue a marriage certificate until the marriage is registered.
Marriages entered into abroad do not need to be registered in Australia.
Proof of marriage
In Australia, the marriage celebrant will at the time of marriage prepare three copies of a certificate, one for forwarding to the appropriate state or territory registry, one for the couple and one retained by the celebrant. While legally valid as proof of marriage, the couple’s copy is not generally acceptable as an official document.
The state or territory registrars will, on application by either spouse, issue a marriage certificate which is considered to be an acceptable and secure secondary identity document especially for the purposes of change of name, and needs to be obtained separately, for a fee, generally some time after the marriage. This document can be verified electronically by the Attorney-General of Australia's Document Verification Service.[32] States and territories sometimes market commemorative marriage certificates, which generally have no official document status.[33]
Marriage certificates are generally not used in Australia, other than to prove change-of-name, and proof of marital status for probate purposes or in a divorce application. Some visa categories require a certificate (where a partner is to be associated with a primary applicant),[34] however there are similar categories of partner visas that do not.[35]
In the case of foreign marriages, the foreign marriage certificate is normally adequate proof of marriage.
History
Signing the marriage register, 1945
In colonial New South Wales marriage was often an arrangement of convenience. For female convicts, marriage was a way of escaping incarceration. Land leases were denied to those who were unmarried.[36] On the other hand, there was a significant gender imbalance in the colony.
Until 1961, each Australian state and territory administered its own marriage laws. The Marriage Act 1961 (Cth) was the first federal law on the matter and set uniform Australia-wide rules for the recognition and solemnisation of marriages. In its current form, the Act recognises only monogamous (heterosexual or same-sex) marriages and does not recognise any other forms of union, such as traditional Aboriginal marriages[1]polygamous marriages or concubinage.
The Family Law Act 1975 (Cth) replaced the previous faults-based divorce system with a no-fault divorce system, requiring only a twelve-month period of separation.[37] The 1970s saw a significant rise in the divorce rate in Australia.[3] This change has been attributed to a change in social attitudes: having once been considered acceptable only if there were severe problems, divorce was now widely considered acceptable if it was the preference of the partners.[38]
In 2004, the Liberal Howard Government enacted the Marriage Amendment Act 2004 to expressly ban same-sex marriage in Australia. It defined marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".
Until the enactment of the 2004 amendment, there was no definition in the 1961 Act of "marriage", and the common law definition used in the English case Hyde v Hyde (1866) was taken as applicable.[39] The definition pronounced by Lord Penzance in the case was: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".[40] The 2004 amendment also banned the recognition of same-sex marriages performed in a foreign country.[41] The definition of marriage was added to the wedding ceremony speeches as a monitum; without it, ceremonies would be considered invalid.[42]
The 2014 Marriage Amendment (Celebrant Administration and Fees) Act amended the Marriage Act 1961 in relation to celebrants and other issues.[43]
The 2017 Marriage Amendment (Definition and Religious Freedoms) Act again changed the definition of "marriage" under the Marriage Act 1961, replacing the words "a man and a woman" with "2 people" and therefore allowing monogamous same-sex marriages. The Act also reversed the 2004 Amendment and retrospectively recognised same-sex marriages performed in a foreign country, provided that such marriages were permitted under the laws of that foreign country.
Social change
In 2009, the Australian Bureau of Statistics noted that "The proportion of adults living with a partner has declined during the last two decades, from 65% in 1986, to 61% in 2006". The proportion of Australians who are married fell from 62% to 52% over the same period.[44]
Common-law marriages have increased significantly in recent decades, from 4% to 9% between 1986 and 2006.[44] Cohabitation is often a prelude to marriage and reflects an increasing desire to attain financial independence before having children.[45] In 2015, 81% of all those marrying were already living together.[46]
Civil celebrants have conducted the majority of marriages since 1999. In 2018, they conducted 79.7% of marriages.[47]
On its inception, the Commonwealth Public Service placed a bar on the employment of married women, so that married women could only be employed as temporary staff. Any female employee was required to resign upon marrying. This bar restricted women's opportunities for promotion. After a long campaign the bar was lifted in 1966.[48][49]
In 1971, more than three quarters of women surveyed placed being a mother before their career. By 1991 this figure had dropped to one quarter.[37]
By the 1980s there was a clear trend towards delaying first marriage. In 1989, more than one woman in five had not married by the age of 30.[3] Between 1990 and 2010, the median age at first marriage increased by more than three years for both women and men (from 24.3 years to 27.9 years for women, and from 26.5 years to 29.6 years for men).[50]
Divorce in Australia
Marriage and divorce rates in Australia from 1901 to 2005
The crude divorce rate was 2.0 divorces per 1,000 estimated resident population in 2014 and 2015, down from 2.1 in 2013. The median duration from marriage to divorce in 2015 was 12.1 years. The median age at divorce was 45.3 years for men and 42.7 years for women.[46]
The Marriage Act 1961 was amended in December 2017 by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 to amend the definition of marriage and to recognise same-sex marriage in Australia whether entered into in Australia or abroad.[8][9] The original Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition.[10][11] The Marriage Amendment Act 2004 defined, for the first time by statute, marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."[51] The 2004 Act also expressly declared same-sex marriages entered into abroad were not to be recognised in Australia. This was in response to a lesbian couple getting married in Canada and applying for their marriage to be recognised in Australia.[13]
Same-sex marriage in South Africa has been legal since the Civil Union Act, 2006 came into force on 30 November 2006. The decision of the Constitutional Court in the case of Minister of Home Affairs v Fourie on 1 December 2005 extended the common-law definition of marriage to include same-sex spouses—as the Constitution of South Africa guarantees equal protection before the law to all citizens regardless of sexual orientation—and gave Parliament one year to rectify the inequality in the marriage statutes. On 14 November 2006, the National Assembly passed a law allowing same-sex couples to legally solemnise their union 229 to 41, which was subsequently approved by the National Council of Provinces on 28 November in a 36 to 11 vote, and the law came into effect two days later. South Africa was the fifth country in the world and the first in Africa to legalise same-sex marriage.
The Marriage Act 1961(Cth) is an Act of the Parliament of Australia which regulates marriage in Australia. Since its passage in 1961, it has been amended on numerous occasions and applies uniformly throughout Australia (including its external territories); and any law made by a state or territory inconsistent with the Act is invalid. The Act was made pursuant to power granted to the federal parliament under s.51(xxi) of the Australian Constitution. Although the federal parliament was given the power to pass laws about marriage at federation in 1901, it did not use this power until the adoption of the Act, while before 1961, each Australian state and territory had its own marriage laws.
Australian family law is principally found in the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia Rules 2021 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia and internationally by marriage law and conventions, such as the Hague Convention on Marriages (1978).
Marriage is available in England and Wales to both opposite-sex and same-sex couples and is legally recognised in the forms of both civil and religious marriage. Marriage laws have historically evolved separately from marriage laws in other jurisdictions in the United Kingdom. There is a distinction between religious marriages, conducted by an authorised religious celebrant and civil marriages conducted by a state registrar. The legal minimum age to enter into a marriage in England and Wales is eighteen years. Certain relatives are not allowed to marry. For foreign nationals, there are also residency conditions that have to be met before people can be married. Same-sex marriage was introduced under the Marriage Act in March 2014.
Lesbian, gay, bisexual and transgender (LGBT) rights in Australia have advanced over the latter half of the twentieth century and early twenty-first century to make Australia one of the most LGBT-accepting countries in the world, with opinion polls and the Australian Marriage Law Postal Survey indicating widespread popular support for same-sex marriage. A 2013 Pew Research poll found that 79% of Australians agreed that homosexuality should be accepted by society, making it the fifth-most supportive country surveyed in the world. With its long history of LGBT activism and annual Gay and Lesbian Mardi Gras festival, Sydney has been named one of the most gay-friendly cities in the world.
A marriage certificate is an official statement that two people are married. In most jurisdictions, a marriage certificate is issued by a government official only after the civil registration of the marriage.
Same-sex marriage in Australia has been legal since 9 December 2017. Legislation to allow same-sex marriage, the Marriage Amendment Act 2017, passed the Australian Parliament on 7 December 2017 and received royal assent from the Governor-General the following day. The law came into effect on 9 December, immediately recognising overseas same-sex marriages. The first same-sex wedding under Australian law was held on 15 December 2017. The passage of the law followed a voluntary postal survey of all Australians, in which 61.6% of respondents supported legalisation of same-sex marriage.
Marriage in Scotland is recognised in the form of both civil and religious unions between individuals. Historically, the law of marriage has developed differently in Scotland to other jurisdictions in the United Kingdom as a consequence of the differences in Scots law and role of the separate established Church of Scotland. These differences led to a tradition of couples from England and Wales eloping to Scotland, most famously to marry at border towns such as Gretna Green. The legal minimum age to enter into a marriage in Scotland is sixteen years and does not require parental consent at any age.
The marriageable age is 16 with parental consent but 18 otherwise. Marriage must be between two otherwise unmarried people. If one of the parties wishing to marry is subject to immigration control, notice of marriage can only be given at a register office, which both parties must attend together. The UK Government was obliged, under the Northern Ireland Act 2019, to extend same-sex marriage to Northern Ireland by secondary legislation that took effect on 13 January 2020. Until then, same-sex marriages from other jurisdictions were treated as civil partnerships. Civil partnerships became available to same-sex couples in December 2005 and grant rights and responsibilities identical to civil marriage.
Same-sex marriage is legal in the Australian Capital Territory, and in the rest of Australia, after the Federal Parliament legalised same-sex marriage in December 2017.
In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.
This article details the history of the LGBT rights movement in Australia, from the colonial era to the present day.
Marriage in New Zealand is governed by an Act of Parliament. The minimum marriage age is 18 years, or 16 years with consent of the Family Court. Polygamous marriages are not permitted in New Zealand. There are prohibitions of marriages between some relatives and some who are already in a civil union.
The Australian Capital Territory (ACT) is one of Australia's leading jurisdictions with respect to the rights of lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI) people. The ACT has made a number of reforms to territory law designed to prevent discrimination of LGBT people; it was the only state or territory jurisdiction in Australia to pass a law for same-sex marriage, which was later overturned by the High Court of Australia. The Australian Capital Territory, Victoria and Queensland are the only jurisdictions within Australia to legally ban conversion therapy on children. The ACT's laws also apply to the smaller Jervis Bay Territory.
The history of same-sex marriage in Australia includes its express prohibition by the Howard Government in 2004 and its eventual legalisation by the Parliament in December 2017. Although a same-sex marriage law was passed by the Australian Capital Territory in 2013, it was struck down by the High Court on the basis of inconsistency with federal law. The Court's decision closed the possibility of concurrent state or territory laws that would allow same-sex marriage where federal law did not. A law legalising same-sex marriage passed the Parliament on 7 December 2017 and received royal assent the following day.
Same-sex marriage in Akrotiri and Dhekelia has been legal since 3 June 2014. An Order in Council to legalise same-sex marriages was approved by the Privy Council of the United Kingdom on 28 April 2014 and came into effect on 3 June. However, this only applies if one of the parties to the marriage is a member of the British Armed Forces. The order does not apply to the local civil population residing in Akrotiri and Dhekelia. Military personnel have also been able to enter into civil partnerships since 2005.
The Marriage Amendment (Definition and Religious Freedoms) Act 2017(Cth) is an Act of the Parliament of Australia, which legalises same-sex marriage in Australia by amending the Marriage Act 1961 to allow marriage between two persons of marriageable age, regardless of their gender.
Civil registration in Australia of births, deaths and marriages as well other life events is carried out and maintained by each state and territory in Australia, in an office called a Registry of Births, Deaths and Marriages. is compulsory in each jurisdiction, though the procedures and information recorded varies between jurisdictions. Access to information on the register is restricted by period or relationship, and is usually provided at a fee in the form of certificates. Nowadays, certificates can also be ordered online, and will be posted to the applicant, often with some delay.
Tamil Nadu does not recognise same-sex marriages or civil unions.
Goa does not recognise same-sex marriages or civil unions.
1 2 3 McDonald, P. (1992). "The 1980s: Social and Economic Change Affecting Families". In Jagtenberg, Tom; D'Alton, Phillip (eds.). Four Dimensional Social Space. Pymble, Sydney: Harper Educational Publishers. pp.126–128. ISBN0063121271.
1 2 The definition is found in Hyde v Hyde (1866) {L.R.} 1 P. & D. 130: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".
↑ Statistics, c=AU; o=Commonwealth of Australia; ou=Australian Bureau of (4 April 2012). "Main Features - Love Me Do". www.abs.gov.au. Retrieved 2018-01-28.
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