What makes a Marriage valid in Australia?
WHY IT IS IMPORTANT TO ESTABLISH THAT THE PROPOSED MARRIAGE IS VALID?
You might wonder what is involved in having a legal marriage in Australia? There are quite a few elements to it, be prepared for your Celebrant to need to check a few things with you and request to site various documentation.
A valid marriage changes the legal status of the parties to the marriage. This has potentially far-reaching implications for the parties which include:
official identity documentation – a married person can obtain official identity documentation, such as an Australian passport, in their married name (subject to the Australian Passport Office rules)
financial arrangements – provisions in the Family Law Act regulate how the married couple’s financial arrangements will be determined should they separate
inheritance of property – marriage invalidates any will made by either party to the marriage prior to the marriage (unless the will is made in contemplation of the particular marriage). Also, dissolution of marriage may revoke, or otherwise affect the operation of, the will of a party.
A celebrant must be satisfied that a proposed marriage will be valid at all times prior to the conclusion of the marriage ceremony.
Consequences for an invalid marriage
The celebrant may have committed an offence. Under section 100 of the Marriage Act it is an offence for a person to solemnise a marriage or purport to solemnise a marriage if they have reason to believe there is a legal impediment to the marriage or it would be void. The Registrar of Marriage Celebrants may also take disciplinary measures against a Commonwealth-registered marriage celebrant.
One of the negative consequences for the couple may be that they have to apply to the Family Court for a declaration as to the validity of their marriage. They may also have to go through a second marriage ceremony under section 113 of the Marriage Act. Each of these processes can be stressful, expensive and difficult for the couple.
A valid marriage usually invalidates any existing will. The position of each member of the couple and members of their families may be considerably affected if a marriage is not valid.
GROUNDS ON WHICH A MARRIAGE MAY BE VOID
When a celebrant is approached by a couple to solemnise a marriage, the celebrant must satisfy themselves that the marriage is not void by reason of any of the following grounds set out in subsection 23B(1) of the Marriage Act.
A marriage may be void where:
either of the parties is, at the time of the marriage, lawfully married to some other person
the parties are within a prohibited relationship
by reason of section 48 of the Marriage Act the marriage is not valid
the consent of either of the parties is not a real consent because it was obtained by duress or fraud, a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed or that party is mentally incapable of understanding the nature and effect of the marriage ceremony, or
either of the parties is not of marriageable age.
Prior undissolved valid marriage
A marriage is void where either of the parties is, at the time of the marriage, lawfully married to another person.
If one of the parties is still married to someone else, the marriage will be invalid. The celebrant is likely to have committed an offence. One of the parties will have committed the offence of bigamy which carries a penalty of five years imprisonment.
A person who is already validly married cannot marry someone else under Australian law until the first marriage has ended. A person who has been previously married must provide the celebrant with proof that any prior marriage has ended whether by divorce or by the death of the other party. It is the party’s obligation to satisfy the celebrant that they are not already married to another person. If they cannot do so the celebrant must not solemnise the marriage.
PARTIES IN A PROHIBITED RELATIONSHIP
A marriage is void where the parties are within a prohibited relationship. Prohibited relationships are marriages:
between a person and an ancestor or descendant ─ an ancestor is someone from whom a person is descended (parent or grandparent) ─ a descendant is someone descended from the person (child/grandchild), or
between a person and their sibling (whether whole or half-blood).
Prohibited relationships under the Marriage Act include a relationship traced through or to an adopted child and the adoptive parent or each of the adoptive parents. Adopted children are treated as the children of the adoptive parents. Adoption, for the purposes of invalid marriage, includes an adoption that has been annulled, cancelled or discharged or that has ceased to be effective. If adopted more than once, the child is deemed to be the child of each of their adoptive parents as well as of their birth parents.
Examples of prohibited relationship situations
The prohibited relationship requirements means a person cannot marry their:
·grandparent
parent,
sibling or half-sibling
child, or
grandchild. In addition, individuals who were adopted by the same adults but have never lived together are in a prohibited relationship. This includes cases where an adoption has been annulled, cancelled or discharged.
What is not a prohibited relationship:
An uncle may marry his niece or nephew and an aunt may marry her nephew or niece.
Cousins may marry each other.
Individuals who have lived together in the one family but were not adopted by the adults who raised them are not in a prohibited relationship.
MARRIAGE INVALID DUE TO FAILURE TO COMPLY WITH SECTION 48 OF MARRIAGE ACT
Invalidity Under section 48 of the Marriage Act a marriage solemnised otherwise than in accordance A marriage may be invalid where:
the vows do not comply with section 45 of the Marriage Act, or
there is doubt that the marriage ceremony took place.
There are a number of exceptions to section 48. Circumstances falling within these exceptions will not result in an invalid marriage. However, marrying couples or celebrants may still commit an offence under the Marriage Act if the Marriage Act is not complied with.
THE CONSENT OF THE PARTIES IS NOT REAL CONSENT
Issues of consent generally arise infrequently but can be difficult to assess when they do. It is an offence to cause another person to enter into a forced marriage or to be a party to a forced marriage (this offence does not apply to the victim of forced marriage). A forced marriage is not the same as an arranged marriage. In a forced marriage, the victim does not consent to the marriage. An arranged marriage is a marriage in which the spouses have the right to accept or refuse the marriage arrangement that their respective families have made. The Marriage Act does not prevent a person from consenting to marry another person that they do not know or have not met prior to the marriage ceremony. Marriages that appear to be contrived or a ‘sham’ entered into solely for the purposes of a visa are not prohibited by the Marriage Act. As long as both parties are consenting to the marriage, it is not your role, as the marriage celebrant, to determine the genuineness of the relationship. The existence of a marriage does not automatically entitle a person to a visa.
When is consent to a marriage not real consent?
Both parties must consent to being married and understand the nature and effect of marriage.
Consent A person’s consent to a marriage is not real if:
the consent is obtained by duress or fraud
one of the parties is mistaken as to: ─ the identity of the other party, or ─ the nature of the ceremony performed, or
a party is not capable of understanding the nature and effect of the marriage ceremony.
MARRIAGEABLE AGE IN AUSTRALIA
The marriageable age in Australia is 18 years. A person under the age of 16 cannot marry under any circumstances. Two people under the age of 18 cannot marry under any circumstances. It is an offence for a person to solemnise, or purport to solemnise, a marriage if the person has reason to believe that one or both of the parties are not of marriageable age. The celebrant must therefore carefully check the age of both parties from their birth certificates or extracts. It is also an offence for a person to go through a form of ceremony of marriage with a person who is not of marriageable age.
REQUIREMENTS FOR MARRIAGE OF A MINOR – WHEN ONE PARTY IS AGED 16-18 YEARS
The minimum requirements The two minimum requirements under which a person aged between 16 and 18 years may marry a person over the age of 18 are:
a judge or magistrate has made an order authorising the person to marry a particular person of marriageable age (over 18 years), and
the required consents (e.g. parental, guardian etc) have been given or dispensed with.
It is important to note that parental consent to the marriage of an underage person is generally required but is not sufficient on its own. There must be a court order authorising the marriage in all cases. It is a minor’s responsibility to make an application to a Judge or magistrate for an order, and to obtain any written consents needed. If a minor needs assistance, they should consider seeking legal advice. A celebrant must not solemnise the marriage unless the two requirements above are met.
The Marriage Regulations set out additional requirements that must be met in relation to a minor’s marriage. The Marriage Regulations make it clear that:
the minor must give the marriage celebrant the order made by the Judge or magistrate
the marriage celebrant must not solemnise the marriage unless they have been given the order before the ceremony, and
the marriage celebrant must indicate on the Notice of Intended Marriage form, before they solemnise the marriage, that they were given the consents and the order.
The celebrant may accept a NOIM for a party that is under the age of 18 years, if they will be 18 years at the date of the marriage. No consents or court orders will be required in this situation.
First requirement – court order A person aged 16 to 18 years may apply to a Judge or magistrate in a state or territory for an order authorising them to marry a particular person of marriageable age. The authorisation of a Judge or magistrate is required in all cases where one party is under the age of 18 years. Application to the Judge or magistrate must be made by the person seeking the order, and must be made in the approved form, the notice of application for order authorising marriage under marriageable age, which is available on the department’s website. The marriage must take place within three months after the date of the court order. If either party is under marriageable age, the marriage is invalid unless the required court order and consents have been obtained. Should a marriage involving an underage person take place without the required court order and consents the marriage celebrant may have committed an offence. The marriage will also be void.
What will the Judge or magistrate consider when making the decision? The Judge or magistrate must be satisfied of two things:
that the applicant is at least 16 years, and
the circumstances of the case are so exceptional and unusual as to justify the making of the order.
Whether or not the order is made is at the discretion of the Judge or magistrate. If the order is not granted the person cannot marry even if parental consent has been granted. If the order is granted authorising the particular marriage, the applicant is of marriageable age in relation to their marriage to that particular person (also of marriageable age) specified in the order but not otherwise. The marriage must take place within three months of the court order.
Second requirement – consent In addition to the court order, it is also necessary to obtain the consent of any person whose consent to the marriage is required. This is usually the parents of the party who is not of marriageable age. The marriage must be solemnised within three months of the date of this consent. Such consents are not necessary if the party has already been previously married. A court order is still required in such a case.
Unless this consent is the consent of a Judge or magistrate (under Part II of the Marriage Act), it must be in writing and must:
identify the person giving the consent
identify the parties to the intended marriage, and
indicate the capacity in which the person’s consent is required.
Where a celebrant solemnises the marriage of a minor and a document is produced to the celebrant as the consent of the person whose consent is required by the Marriage Act, the celebrant must, by writing on the consent, state the manner in which they satisfied themselves that the person who gave the consent is a person whose consent is so required. This does not apply to the consent of a Judge, a magistrate given under Part II of the Marriage Act.
How may a person who is illiterate or a person with a disability consent? In all circumstances, the person before whom the consent is given (for example the marriage celebrant) has to be satisfied that the person giving the consent understands what they are consenting to, and that consent is given freely. Generally, the celebrant before whom the consent is given should be satisfied that:
the contents of the consent have been drawn to the attention of the person giving the consent, and
the person giving the consent understands the matter about which consent is being given, including what they are consenting to and what this means.
Drawing the contents of the consent to the attention of the person giving the consent can include reading the consent, or communicating it to the person in a way that would make the content of the consent clear to them. For example, if the person is vision impaired, the celebrant could: read the content of the consent to them; show the consent to them using a computer with a screen reader, text-to-speech software or a braille display; or use other technology for the vision impaired.
If the person giving the consent is physically incapable of signing the consent, the person before whom the consent is given should be satisfied that the person has indicated that the contents of the consent are true.
What happens if a parent or guardian cannot be contacted to give consent? In such cases the minor may apply to a prescribed authority to dispense with the consent of a person whose consent to the marriage is required where their views are not known. Where a parent refuses consent, or an application to a prescribed authority to dispense with consent is refused, the minor may apply to a judge or magistrate for their consent in place of the consent of the person whose consent is required.68 There is a right of appeal, by either the minor or the person in relation to whose consent the application was made, against a judge or magistrate’s decision. The procedure for a person to apply to a judge or magistrate for consent to marry in place of the consent of the person whose consent is required is set out in sections 14 to 16 of the Marriage Regulations.