Marriage and Divorce

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

This section covers what is a valid marriage, recognition of overseas marriages and getting divorced. The law relating to marriage is covered under the Marriage Act 1961. Divorce is covered by the Family Law Act 1975.

What is a Valid Marriage?

A valid marriage must:

1. Have the consent of both parties;
2. Both parties must have the capacity to give consent; and
3. Essential formalities are observed.

Consent

Australian law considers a person has not provided consent if:

• Consent was given under circumstances of fraud or duress;
• One party was mistaken about the identity of the other party OR one party was mistaken about the nature of the ceremony performed; or
• One party is mentally incapable of understanding the nature and the effect of the marriage ceremony.

If one party does not provide consent to the marriage, Australian law considers the marriage void – that is as if it never happened.

Capacity

A person has capacity to marry if they are of a marriageable age, are free to marry and are not in a prohibited relationship.

A person is of a ‘marriageable age’ if they are 18 years old, although from 16 years you can apply to a State or Territory Court for permission to marry a particular person. Australian law will consider a marriage void if a party is under 18 and a Court has not given permission for the marriage to occur.

A person is free to marry if they are not already married. Any previous marriage must have been terminated by death of one party or by divorce. If a previous marriage was void, it is not considered a bar to a later marriage.

A prohibited relationship is a relationship between a person and their ancestor or descendent or a relationship between brother and sister. This includes parent/child and grandparent/grandchild relationships.

For more information on the requirements of a valid marriage see: https://www.ag.gov.au/families-and-marriage/marriage/get-married.

Formalities

A marriage is considered valid where the following eight requirements are observed:

1. It is performed by an authorised celebrant. An authorised celebrant includes religious ministers and registered marriage celebrants;
2. The parties provide notice to the celebrant of the intended marriage at least one month before the marriage takes place;
3. Both parties provide an official birth certificate or acceptable document if a birth certificate is not available;
4. Both parties must prove that there is no legal obstruction to the marriage (e.g, a divorce decree if previously married);
5. The marriage is solemnised at any time, date or place (e.g, a garden marriage is considered valid);
6. The marriage must be witnessed by at least 2 other people who are at least 18 years old;
7. The authorised celebrant must explain the legal nature of a marriage;
8. The parties, celebrant and witnesses must sign a marriage certificate that is then sent to the appropriate State/Territory Registry.

Does Australia Recognise Foreign Marriages?

Australian law recognises valid overseas marriages.

A valid overseas marriage satisfies the ‘local law’ of the country where the marriage occurred. However, there are the following exceptions to this rule if:

1. One of the parties was married to a different person at the time of the marriage and the first marriage is valid under Australian law;
2. If one party was under the marriageable age of Australia (age 18) and one party to the marriage lived in Australia;
3. The parties are in a ‘prohibited relationship’ – including a parent/child relationship or sibling relationship;
4. One of the parties did not consent to the marriage because of fraud, a mistake about the nature of the ceremony or the identity of the other person or were mentally incapable of giving consent.

If you are unsure whether your overseas marriage complied with the laws of that country, you could seek advice from a lawyer in that country, or who specialises in the law of that country. The Department of Foreign Affairs and Trade may also be able to assist.

Can I Do My Own Divorce?

Yes, you can do your own divorce and most people do. The Family and Federal Circuit Court (FCFC) manages divorce applications. The FCFC website provides a ‘Do it Yourself’ Divorce kit here:
https://www.fcfcoa.gov.au/fl/forms/divorce-service-kit. You and your former partner can make a Joint Application for divorce, or either party can apply for a divorce alone (a Sole Application). To obtain a divorce in Australia, you or your spouse must:

1. Consider Australia your home and intend to live in Australia indefinitely;
2. Be an Australian citizen by birth, descent or application; OR
3. Have lived in Australia for the last 12 months before the application was filed.

The FCFC website allows people to file for a divorce by completing the online Application for Divorce and paying the filing fee using the Commonwealth Courts Portal. If you are concerned that you may not be eligible for a divorce you should seek legal advice. Contacts and Resources has a list of contacts where you can seek initial advice.

For a step-by-step guide on completing an Application for Divorce see: https://www.fcfcoa.gov.au/fl/hdi/apply-for-divorce.

Requirements for a Divorce

The requirements for a divorce to be declared by the Court under s 48 of the Family Law Act 1975 will be met where:

• The marriage has broken down irretrievably;
• The Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order; and
• The Court is satisfied that there is no reasonable likelihood of cohabitation being resumed.

Fees and applying for no fee

As of March 2022, the fee for a divorce is $940. You can apply to have this fee reduced if you are in receipt of Centrelink benefits or are in financial hardship. The reduced divorce fee is currently $310. For more information and links on how to apply for the reduced fee see: https://www.fcfcoa.gov.au/fl/pubs/guidelines-exemption-fees.

Complications

Sometimes there can be complications with divorce proceedings where the validity of a marriage cannot be established.

If a marriage is not recognised as valid under Australian law (whether or not the marriage took place in or out of Australia), you and your former partner may be considered to have been in a de-facto partnership and would not need to get a divorce.

Time limits for property settlement and financial applications start from divorce (12 month time limit) or where there is a de facto relationship, from the end of the relationship (2 year time limit).

Same Sex Divorce Applications

The FCFC website affirms that same-sex married couples are treated the same as other married couples and can apply for divorce if the marriage is recognised in Australia and the requirements for divorce under s 48 of the Family Law Act 1975 have been met:

• The marriage has broken down irretrievably;
• The Court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order; and
• The Court is satisfied that there is no reasonable likelihood of cohabitation being resumed.