Marriage – The Basics

The law regulating marriage in Australia is a federal law, and is contained in the Marriage Act 1961 (Cth). The Act sets out who may marry, who may perform the marriage ceremony, how it is to be conducted, and where and when it may be performed. Sections given are from that Act unless otherwise indicated.

Who May Marry?

Under the Marriage Act 1961 (Cth), the marriageable age for females and males is 18 years (s11). Same-sex marriages are now also recognised under the Marriage Act, which now defines marriage as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life.’

Between the ages of 16 years and 18 years young men and women need the consent of their parents/guardians and the authorisation of a judge or magistrate in a state court to marry. The court needs to be satisfied that the circumstances are “so exceptional and unusual as to justify the making of the order” (s12 & 13). The court may dispense with the parents’ consent in certain cases (s13). The young person must produce a certificate showing that the young person has received marriage counselling.

Procedure

A marriage can take place at any time and in any place. Marriages usually take place in a church or home, or a park but marriage services in theatres, vineyards, and halls are not uncommon. Marriages have been conducted on speed boats and planes, and in other unusual places.
Australian law only recognises three ways of getting married:

• civil marriage;
• religious marriage; or
• foreign marriage (s88D)

In each case, the person who performs the ceremony is known as the marriage celebrant, even where the celebrant is a priest or minister of a church. Civil marriage celebrants charge a fee for the marriage service, currently around $400. Celebrants of religious marriages usually receive a donation.

Foreign marriages are those conducted outside Australia according to the law of the country where the marriage takes place. There are some marriages that Australian law won’t acknowledge – this is usually bigamous or polygamous marriages – marriage of more than one spouse, incestuous marriages, or marriages where the bride is a child under the age of 16.

Notice of intention to marry must be given to the celebrant not more than six months and not less than one month before the date of the intended marriage. The notice must be signed by the husband and wife in the presence of the celebrant after the marriage. Birth certificates must be produced and statutory declarations signed as to the parties’ existing marital status (s42).

Names

There is no legal requirement on either party to change their name on marriage.

Marriage Certificates

Proof of marriage is provided in the form of a marriage certificate. It is required for different purposes such as obtaining passports or as evidence in probate cases. Proof of marriage is required in all applications under the Family Law Act 1975 (Cth) and in many situations certificates or copies must be filed with certain other documents at a court registry.

A marriage certificate is prepared on the same day as the marriage by the person performing the ceremony. The certificate is signed by:

• the people getting married;
• the person celebrating the marriage; and
• two witnesses who must be 18 years of age or over.

The certificate must be forwarded by the celebrant to the Registrar of Births, Deaths and Marriages within 14 days for official recording of the ceremony (s50(4)(a)(i)). If duplicate certificates are prepared, the parties may receive a copy after the ceremony. Three copies are usually made after the ceremony.