While most people reading this will immediately conjure up images of the culturally acknowledged union of two romantically entwined adults to the exclusion of all others, few will be aware of the extensive legal framework that underpins such union.
Given the tremendous social and financial repercussions of entering the ‘ultimate’ legally binding personal relationship, it follows that entrance into such an arrangement would entail compliance with significant and comprehensive legislation. The Marriage Act 1961 (Cth) represents the Commonwealth’s consolidation of marriage legislation in Australia, as before 1961, each Australian state and territory had its own marriage law. The Act stipulates an appropriately onerous set of pre-requisites and processes that are required to be followed by parties seeking to form a valid marriage.
What then, are the requirements?:
Any person (same-sex marriage is permissible after the definition of ‘marriage’ in section 5 of the Act was amended following the 2016 national plebiscite) over 18 years of age can marry, provided:
- They can and do consent, free from any legal incapacity, coercion, or fraud;
- They are not already married to another person (bigamy or polygamy are not permissible under the Act);
- They are not in a ‘prohibited relationship’ (i.e. parent-child; adoptive parent-child; sibling-sibling);
- They have attained marriageable age (18 years-old); and
- In Re Z (1970), the court found that a sufficiently ‘mature’ minor, pregnant with the couple's child, with bona fide familial support, was eligible to marry subject to a court order supported by the written consent of her parents.
- They have complied with the substantive procedural requirements enshrined in ss 41, 42(1)(a), and 44, namely:
- An authorized celebrant solemnizes the marriage; and
- A Notice of Intended Marriage is completed and provided to the celebrant at least 1 month before the ceremony; and
- The solemnization is witnessed by two capable adults.
Your authorized marriage celebrant will give you a certificate of marriage on the day. This is a ceremonial certificate of your marriage. The celebrant must then (within 14 days of the marriage) submit your marriage paperwork to the registry of births, deaths and marriages in the state or territory in which the ceremony was performed.
Should you have any questions pertaining to marriage or the consequences of its demise, please do not hesitate the to contact Swan Family Lawyers at 8227 1970
or by email at swan@swanfamilylawyers.com.au.