Legal Requirements of Marriage

The Nature of Family Law

Legal definition of Marriage

 ‘the union of a man and a

woman to the exclusion of all

others, voluntarily

entered into for life’

From Hyde v Hyde and Woodmansee 1866

This case established the common law definition of marriage.

Mr Hyde was seeking a divorce, on the grounds that his wife (from whom he was separated) had married another (Morman) man. The Judge found that the polygamous marriage was not valid.

The Marriage Act 1961 Until 1961 marriage had been regulated by

State and Territory law and there were nine separate and diverse systems of marriage law in Australia.

The main aim of the Act was to: Produce a marriage code suitable to present day

Australian needs, a code which, on the one hand, paid proper regard to the antiquity and foundations of marriage as an institution, but which, on the other resolved modern problems in a modern way.

The original Marriage Act contained NO definition of marriage [...] in our view it is best to leave to the

common law the definition or the evolution of the meaning of ‘marriage’ as it relates to marriages in foreign countries and to use this bill to stipulate the conditions with which marriage in Australia has to comply if it is to be a valid marriage. – Senator John Gorton

The Marriage Act was amended in 2004. The common law definition of marriage was added to ‘reflect the understanding of marriage held by the vast majority of Australians’

The primary aim of the 2004 amendment was to ensure that same-sex marriages which occur overseas are not recognised as legal in Australia

Since the enactment of the 2004 amendments to the Marriage Act the issue has resurfaced several times, with Private Members Bills being introduced by the Democrats, the Greens and (in 2015) by Labor.

Marriageable Age The Marriage Act permits a marriage where one party is

aged between sixteen and eighteen years of age, where there is both the required consent (usually parental) and an Australian court order from a judge or magistrate authorising the marriage.

The judge or magistrate must be satisfied that the applicant: is at least 16 years of age; is proposing to marry a person of at least 18 years of age;

and 'the circumstances of the case are so exceptional and

unusual as to justify the making of the order'

It is illegal for any person under the age of sixteen, or two people under the age of eighteen, to marry.

Child bride? No, these secret marriages are child abuse

http://www.smh.com.au/national/child-bride-no-these-secret-marriages-are-child-abuse-20140214-32r44.html

Australian underage marriage laws to be tightened

http://www.dailytelegraph.com.au/news/nsw/australian-underage-marriage-laws-to-be-tightened/story-fnpn118l-1227252928978

http://www.smh.com.au/nsw/child-bride-19yearold-man-charged-over-wedding-to-15yearold-20150225-13oe3q.html

Degrees of relationship A person may not marry their descendent,

ancestor, or sibling. (This applies to both full- and half-blood relations.)

People who are legally adopted into a family are included in this – they may not marry their adoptive ancestor, descendent, or sibling.

Valid Marriage Ceremony a marriage must be solemnised by, or in the presence

of, an authorised celebrant (religious or civil) written notice of the intended marriage must be given

to the celebrant at least one month before (and not more than six months before) the date of the marriage

ministers of religion may require longer notice of the intended marriage

a marriage must be solemnised before two adult witnesses; and

where a marriage is solemnised by a civil celebrant, there is a prescribed form of words to be included in the ceremony (this requirement does not apply to a minister of religion of a recognised denomination)

Marriage Certificate The celebrant will issue a marriage certificate

after the ceremony. This is legal proof that all legal requirements of a marriage have been met.

The married couple will also need to apply to the department of Births, Deaths and Marriages to have the marriage registered.

State Jurisdiction Like all section 51 powers, the marriage power in

section 51(xxi) of the Constitution is not an exclusive federal head of power but is held concurrently with the States. Where a federal and a State law are in conflict, section 109 resolves that conflict in favour of the Commonwealth law, with the State law being rendered not void but inoperative for the duration of the conflict.

A move towards formal legal recognition of same-sex unions may occur through use of the legislative powers of the States. However, such laws would likely be rendered in-operative by section 109 of the Constitution due to inconsistency with federal law.

ACT Marriage Equality (Same Sex) Act 2013

The ACT's Marriage Equality (Same Sex) Act passed into law in October 2013 and the first marriages took place on 7 December.

However on 12 December, 2013, a unanimous High Court found that the ACT law was inconsistent with the federal Marriage Act and therefore is of no effect.

The ACT had attempted to argue that the Commonwealth legislates on heterosexual Marriage only, so the states are free to legislate on marriages outside of the scope of the Marriage Act