Marriage

Contributed by HenryMoser and current to 27 July 2018

Who may marry

A marriage is, in legal terms, the union between two people at the exclusion of all others, voluntarily entered into for life. This, by definition, includes marriages between people of the same sex. Same-sex marriages entered into overseas are also recognised.

Any person over the age of 18 may marry, provided they are able to give legal consent, are not already married and the relationship is not “prohibited” (for example, sister, grandparent etc.). A person over 16 but under 18 must have the written consent of their parents. The written consent must be witnessed and given not more than 3 months before the marriage takes place. A marriage celebrant cannot proceed with the marriage of a minor without this consent unless a Judge or Magistrate has made an order dispensing with the parent’s consent. A Judge or Magistrate may only make an order if the person is 16 years old and the circumstances of the case are so exceptional and unusual as to justify making the order.

Procedure

Australia recognises civil marriages, religious marriages and marriages performed in other countries. Marriages performed in other countries are called foreign marriages and will be recognised if they have been performed in accordance with the laws of that country and do not conflict with the laws of Australia such as prohibited marriages (for example, to a brother or father).

Polygamous marriages performed in accordance with the laws of another country are not recognised. However, the Family Law Act 1975 (Cth) provides that, for the purpose of proceedings under that Act, for instance when making parenting arrangements for children, polygamous marriages are recognised as valid marriages.

The person who performs the ceremony is called the marriage celebrant. Civil marriage celebrants may charge a fee to perform the ceremony. Religious marriage celebrants usually ask for a donation.

Notice of intention to marry must be given to the celebrant not more than 3 months or less than 1 month before the date of the ceremony. Birth certificates or certified extracts of birth certificates for both people must be produced. If birth certificates cannot be obtained, a statutory declaration setting out why this is so and the person’s current marital status must be provided.

Changing names

There is no legal requirement that either person change his or her name upon marriage.

Proof of marriage

The marriage certificate is proof of marriage. It is needed for a number of different purposes including obtaining passports, as evidence in probate matters and in any applications before the Family Court.

Marriage certificates are prepared on the day of the ceremony and are signed by:

• the husband;
• the wife;
• the celebrant; and
• two adult witnesses.

Three copies of the certificate are usually prepared, one for the husband and wife, one for the celebrant and one to be forwarded to the Registrar of Births, Deaths and Marriages within 14 days so the details can be officially recorded

Foreign certificates

If a person is required to provide evidence of a foreign marriage, an official extract from the registry of the country concerned is sufficient. If the certificate is not in English, it must be translated by a qualified translator, and an affidavit must be sworn by that person about his or her qualifications and the accuracy of the translation.

If foreign marriage certificates are not available, the person concerned may need to prepare an affidavit setting out the facts and circumstances of the marriage and why a copy of the official record cannot be obtained.

Australians who wish to marry overseas may have their marriage witnessed by a marriage officer (usually an Australian Consular official) and have the marriage recorded in Australia in the Registrar of Overseas Marriages. Australians wishing to marry overseas should consult their local consular office.

Property

Property (including land, houses, furniture, bank accounts, vehicles belonging to the parties before their marriage) remains their individual property. There is no legal requirement for either person to transfer his or her property into joint names. This property can, however, be taken into account when considering the needs of each person should a dispute arise under the Family Law Act 1975 (Cth). The position is different with regard to property acquired after the marriage.

It is common when buying land or homes for the couple to be registered as joint owners. In these circumstances, neither person can sell or give away the property without the consent of the other, regardless of who provided the finance for the purchase.

It is also common for the property to be mortgaged. Sometimes the mortgage is in one person’s name only, and often one person ceases employment and the other person’s income is all that is available to make repayments. Neither of these circumstances alters the fact that the property is jointly owned.

If the couple do not want to jointly own land or homes, another form of registration is as tenants in common. This separates the interest of the parties and enables each person to deal individually with his or her own share.

It should be noted, however, that under the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA) orders can be made dealing with property regardless of whose name it is held in. See Property and Spousal Maintenance.

Wills and estates

Unless a will specifically says it was made in anticipation of a marriage, the marriage will revoke the will. This is because the law presumes that spouses intend to provide for each other and that any previous arrangements have been set aside by the marriage. Each person should, therefore, consider whether to make fresh wills to set out their intentions.

Likewise, a divorce sets aside a will and after a divorce each person should also consider making a fresh will.

Where a person dies intestate (without a will) in Western Australia, problems may arise for the surviving spouse who must apply under the Administration Act 1903 (WA) to the Supreme Court (Probate Division) for Letters of Administration in order to administer and distribute any assets. See Wills, Estates and Funerals.

Sexual relations

Marriage gives no right to a wife or husband to have sexual intercourse with the other. If either spouse is sexually assaulted by the other, he or she may make a complaint to the police which may result in criminal charges.

Family planning

Contraception is legal in Australia. Information about contraception can be easily obtained from local family planning clinics and doctors. Until May 1998 abortion was illegal in WA under the WA Criminal Code. Now abortion is legal in WA if performed by a qualified medical practitioner, provided that a doctor is consulted, counselling is offered and the woman gives her informed consent. A second doctor then carries out the abortion.