Marriage Act 1961

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The Marriage Act 1961 (Cth) is an act of the Parliament of Australia which governs legal marriage in Australia. It does not deal with the legal dissolution of marriage (divorce). Marriage is a commonwealth power under s51(xxi) of the Australian constitution, but prior to 1961 states and territories administered marriage law.

1 Preliminaries
2 Marriage education
3 Marriage Age
4 Void Marriages
5 Solemnization of Marriages in Australia
- 5.1 Authorised Celebrants
- 5.2 Marriages by Authorised Celebrants
6 Recognition of Foreign Marriages
7 Other Sections
8 External sources

[edit] Preliminaries

Part I of the Act deals with preliminary matters.

The most important of these is a definition of ‘marriage’. Prior to 2004, marriage was not defined in the act. The Marriage Legislation Amendment Act 2004 inserted a definition into s5(1) of the act that reads: “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, or words to that effect.

The effect of this amendment was to address the issue of gay marriage. Prior to this amendment there was uncertainty as to: if the Marriage Act 1961 by its own terms allowed gay marriage or if the Marriage Act 1961 did not ‘cover the field’ nor exclude gay marriage such that states could legalize gay marriage. Arguably, as the breadth of Commonwealth legislation is limited to powers in Section 51 of the Australian Constitution it may not have had power to allow gay marriage as ‘marriage’ in s51(xxi) means heterosexual unions. Arguably, if this is the case then the states may still have a residual power to authorize gay unions.

For the time being, the Marriage Act 1961 now seems to exclude the possibility of gay marriage in Australia.

[edit] Marriage education

Part IA, titled ‘marriage education’ allows the government to make grants to approved organisations for marriage counselling.

[edit] Marriage Age

Part II (s10-21) deals with the marriageable age and the marriage of minors. The marriageable age was set in the original 1961 act at 16 for girls and 18 for boys, raised to 18 for both genders in 1991 by the Sex Discrimination Act 1991. In ‘exceptional circumstances’ the marriage of persons under 18 but over 16 may be authorised by the court. Part II establishes the procedures required in this instance.

[edit] Void Marriages

Part III entitled ‘void marriages’ establishes the circumstances in which a marriage is void. To preserve the validity of past marriages, this part is divided into years based on when amendments to this act were introduced. A current purported marriage is void if:

the parties are already married
the parties are in a prohibited relationship: direct descendants or siblings, including adopted (by law) relationships.
the marriage was not solemnized by an authorised celebrant (as in Part IV, Div 2)
there is no consent (due to duress, fraud, mistake as to identity, mistake as to nature of ceremony, mental incapacity, or below marriageable age in Part II)

[edit] Solemnization of Marriages in Australia

Part IV is a large part dealing with the ‘Solemnization of Marriages in Australia’. It deals with who is authorised to be a wedding celebrant, and the procedures to be followed. It also contains a division on marriages by foreign diplomatic or consular officers.

[edit] Authorised Celebrants

Division one deals with authorised celebrants. Under the current Act three types of celebrants are allowed: ministers of religion, State and Territory officers, and (civil) marriage celebrants).

[edit] Religious Ministers

Under Subdivision A, a register is kept of ministers of religion (s27) of ‘recognised’ denominations (s26). The only requirements for registration is that a person is a minister of religion, that a person is nominated by their denomination, they are resident in Australia and over 21 years (s29). A minister will be registered (s30) unless the register refuses registration as there are sufficient ministers of that denomination, the minister is ‘not a fit and proper person’, or will not devote sufficient time to functions of a minister of religion (s31). In general, the act establishes a broad scheme which allows religious ceremonies to be recognised as conducted by a valid celebrant provided only that the religious official register.

[edit] Registry Office Marriages

Subdivision B (Section 39) preserves the power of ‘state and territory officers’, allowing people who register marriages (under a state law) to also solemnize marriages (i.e. registry marriages).

[edit] Civil Celebrants

Subdivision C deals with ‘marriage celebrants’, or the authorisation of people to conduct civil ceremonies. Section 39B allows the register to be kept and sections 39D-E are procedural and seek to set up processes to control the number of celebrants.

This section was introduced by the Marriage Amendment Act 2002, after an Attorney-General inquiry into the Civil Celebrants Program. Prior to the passage of this amendment the authorisation of celebrants was entirely contained in s39, which had a s39(2) allowing the recognition of other ‘fit and proper persons’ as civil marriage celebrants, religious celebrants outside a recognised denomination, and celebrants with special community needs.

The original 1961 act therefore allowed civil ceremonies, and the first civil celebrants were authorised in 1973. By the time the amendments were introduced civil celebrants performed over 50% of marriages. The changes therefore provide legislative recognition to civil celebrants, and prescribe a regime beyond being ‘fit and proper’ in order to control the quality and number of celebrants.

Section 39C now lists a number of requirements to be registered as civil celebrant, in addition to being over 18 and ‘fit and proper’. The register will take into account: knowledge of the law, a commitment to advising about relationship counselling, good community standing, criminal record, the existence of a conflict of interest or benefit to business, and ‘any other matter’.

Section 39G imposes ‘obligations’ on civil celebrants. These include professional development and an adherence to a code of practice.

Section 39H, I, and J set up a review of celebrants and a disciplinary system.

Significantly, subdiv C deals only with marriage celebrants (civil or not a recognised religion), not with ministers of religion which are governed by Subdiv A. As a result, Ministers of Religion are not subject to the same obligations – including adherence to the Code of Practice.

[edit] Marriages by Authorised Celebrants

Part IV Div 2 then deals with the technical requirements of a marriage conducted by an authorised celebrant (as set out in Div 1). It applies to all marriages solemnised in Australia. Marriages must be solemnized by an authorised celebrant, as established in Div 2.

Notice needs to be given at least 1 month before the marriage. Section 42 sets out the requirements of this form of notice etc. This is one of the most important requirements for people intending to marry and is dealt with on the marriage registry sections of most state government sites.

Section 43 clarifies that a marriage may be solemnized at any time and day.

Section 44 requires 2 witnesses over 18 (or who appear to the celebrant as over 18) to be present.

Section 45 and 46 set out the form of ceremony and sets out that:

religious ceremonies may be held in any way recognised by the religion with no words to any effect required
In non-religious ceremonies it must be said: “I call upon the persons here present to witness that I, A.B., take thee, C.D., to be my lawful wedded wife (or husband) ”; or words to that effect.
In non-religious ceremonies the celebrant has to say:

“I am duly authorized by law to solemnize marriages according to law”; and “Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.”; and “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”; or words to that effect.

Section 47 allows ministers of religion to refuse to solemnize marriages or to require addition (e.g. religious membership) requirements

Section 48 deals with the situation of marriages not conducted in accordance with the requirements. The section seeks to preserve the validity of marriages. In effect, a failure to comply with technical requirements (e.g. of words) will not invalidate a marriage. However, a marriage must be solemnized by an authorised celebrant unless there was a reasonable mistaken belief.

Section 50 deals with marriage certificates and section 51 with incorrect certificates.

[edit] Recognition of Foreign Marriages

Part VA deals with recognition of foreign marriages.

This division reflects the acts tendency to seek to uphold the validity of marriages. Marriages will be recognised if they were valid in the country they were performed if the marriage would be legal under Australian law. The foreign marriage certificate is proof of marriage and marriages need not be registered. Section 88EA however provides that marriages performed in another country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.

As a marriage must be legal under Australian law a foreign marriage will not be recognised if a person was already married (or the overseas divorce is not recogonised in Australia), were under 18 (subject to some exceptions), were siblings or parent/child, there was duress or fraud.

[edit] Other Sections

Marriages by Foreign Diplomatic or Consular Officers (Division 3 of Part IV): there are currently no Australian diplomatic or consular officers appointed to solemnise marriages overseas under Australian law.
Marriages of Members of the Defence Force Overseas: Part V of the act deals with marriages of members of the Defence Force overseas.
Legitimation of children (Part VI)
Offences (Part VII): e.g. bigamy, marrying a person below marriageable age (child marriages), a celebrant solemizing a marriage when believe legal impediment etc
Miscellaneous provisions in Part IX – interpreters, publication of lists of celebrants, etc.