Legal Requirements of Marriage

1. Legal Requirements of Marriage
The Nature of Family Law

2. 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.

3. 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.

4.  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’

5.  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.

6. 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.

7. Child bride? No,
these secret
marriages are child
abuse
http://www.smh.com.au/n
ational/child-bride-no-
these-secret-marriages-
are-child-abuse-
20140214-32r44.html

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

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

10. 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.

11. 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)

12. 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.

13. 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.

14. 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