Marriage is a familiar concept, and one that might not seem to require much in the way of explanation or definition. Yet, as has become evident in recent years, the definition of marriage is neither fixed nor essential. In Australia the definition of marriage has been amended multiple times in recent decades, both times to reflect certain ideological points of view. This article considers the legal definition of marriage in Australia.
The definition of marriage
The definition of marriage, once an uncontentious social construct, has been a point of political and social debate in many countries over recent decades.
In Australia the definition of marriage, and the rules that pertain to this union, are contained in the Marriage Act 1961 (Cth). This Act was notable for initially making no mention of gender, gender identity, or sexual orientation in the definition of marriage. It was only a later legislative amendment that inserted a specification that marriage was only between a man and a woman.
In Australia, there were two strong and opposing views on changing the definition of marriage to include same-sex marriage. For proponents, it was an issue of human rights that gay members of the community should have access to a major social institution and be recognised on the same basis as heterosexual couples. It was also argued that excluding access to marriage based on a protected attribute (that is, sexual orientation) was a breach of the Sex Discrimination Act and other anti-discrimination laws.
For opponents, the institution of marriage was, and always had been, exclusively a union of a man and a woman. Many people held religious beliefs that informed their opposition to same-sex marriage. These opponents would point out that there were viable alternative options available to same-sex couples to establish a recognised union and family with their partner, including registered relationships and recognition of de facto couples. It was, opponents argued, unnecessary to change the institution of marriage to allow same-sex couples to access marriage in the same way as heterosexual couples.
In 2017, in response to growing social pressure, the federal government conducted the Australian marriage law postal survey to gauge public support for legalising same sex marriage. When the plebiscite demonstrated a clear majority of support from the Australian public, the federal government passed the Marriage Amendment (Definition and Religious Freedoms Act 2017 (Cth).
This amendment changed the definition of marriage from the union of a man and one woman to be more inclusive of marriage for different gender identities and same sex couples. As such, from 9 December 2017, marriage in Australia was defined as being the voluntary union for life of two people to the exclusion of all others.
Why is marriage important?
The amount of emotion and energy invested by both side of the marriage equality debate shows that marriage is still important, despite the fact that the rate of marriage in the Australian population has fallen in modern times.
A 2021 Australia Talks survey found that 29% of survey participants (predominantly young women) think marriage is outdated, yet the vast majority of Australians still consider there to be advantages to marriage. The survey results show that the institution of marriage is still widely regarded as an important part of social and cultural life in Australia.
Who can get married In Australia?
You do not need to be an Australian citizen or even a permanent resident in the country in order to get married here. In pre-COVID 19 times, it was common for people to visit Australia for a destination weddings before flying home.
Following the Marriage Amendment Act, sex and gender are no longer determinative of a right to marry in Australia. Any adult person can get married in Australia if they are unmarried, comprehend the significance of the act, and enter intro the union of their own free will. There are, however, specific prohibitions about who cannot marry, such as close relatives or a person under a minimum age.
Prohibition on marrying a close relative
A person cannot get married to a close relative such as a sibling, parent, grandparent, grandchild or child. This applies to both biological and adoptive family connections.
This prohibition is a common feature of modern countries, but it far from universal, and has certainly not always been the norm throughout human history. Historically, marriage within families has been a way to cement power, particularly for royal and ruling families. Even today, some countries still allow marriage to a close relative, but this prohibition is an accepted reality in Australia.
The most common reason cited for the prohibition on marrying within a family group is that it narrows down the genetic base and is more likely to lead to some recessive characteristics becoming dominant over time (although this would like only occur after multiple generations of intermarriage). However, this argument has no relevance to the marriage of two individuals with no capacity to produce offspring (such as a couple past the age of child bearing, or two same-sex individuals).
It also would not prevent a marriage between relatives with no genetic connection, such as adopted children. It appears, in fact, that the reason for the prohibition against marriage between close relatives is that it is contrary to the nature of family in Australia, and it is considered contrary to public policy to allow family members, even those with no genetic tie, to enter into marriage.
Prohibition on underage marriage
A person must also be of marriageable age before they are considered mature enough to tie their life to another person. Again, as with the prohibition against marriage of close relatives, the Australian attitude towards the marriage of very young people is not universal. In many countries the marriage of young teenagers, particularly teenage girls, is common, and historically the median age of marriage was significantly younger.
Prior to the introduction of federal legislation that standardised the legal age for marriage in Australia, the states and territories had unique laws and different marriageable age thresholds tied to the age of consent. With the introduction of the Marriage Act in 1961, the standard marriageable age in Australia became eighteen for men and sixteen for women. There was also provision for a male as young as 16 or a female as young as 14 to apply for permission to marry. The disparity between the marriageable age of each sex was corrected with the introduction of the Sex Discrimination Amendment Act 1984 (Cth).
Today, both parties must be eighteen or older to marry in Australia. Where one of the pair is sixteen or over, the Federal Circuit and Family Court of Australia or the Magistrates Court can give permission for a marriage in exceptional circumstances with the consent of the minor’s parents.
How to get married
Most people spend considerably time planning the details of their marriage, whether it is a big white wedding or a barbeque at a local park. Yet most of the details that are planned are legally unnecessary, and exist only to lend a sense of occasion to the legal union.
To be legally married in Australia, the marriage ceremony must be conducted by an authorised person and the parties to a marriage must use specific words and phrases. Only an authorised person is entitled to solemnise the marriage, although it is the government that legalises the marriage, not the minister of religion or other authorised marriage celebrant.
Before getting married, you will need to give the celebrant or minister documentary proof of your identity (such as a passport or driver’s licence), place and date of birth (birth certificate), and evidence of the dissolution of any prior marriage (divorce certificate or death certificate). Additionally, you must complete a notice of intended marriage form and give the form to a celebrant. On the day of the wedding ceremony, three identical marriage certificates must be signed by you and your fiancée, the celebrant and two witnesses (both of whom must be over the age of eighteen).
These are the only requirements for the marriage to be legally recognised.
Planning a wedding can take an inordinate amount of time. Couples can spend a year or more on the multitude of decisions that go into the planning of a wedding, but the actual amount of time that is legally required to get married is usually one month. You must give the notice of intended marriage form to your celebrant not more than 18 months and not less than 1 month before the ceremony.
In order to get married in less than a month, you will have to obtain permission from a prescribed authority. The Authority may grant an exemption if there was an error in arranging the notice, for medical reasons, or because there are legal proceedings, wedding arrangements, or travel or employment commitments that make it important to change the timeframe.
What are the legal implications of marriage?
There are distinct legal implications that accompany marriage in Australia.
There are particular benefits enjoyed by those who are married. For instance, a de facto couple must always prove their relationship – produce evidence that they are living together, sleeping together, or continue to be committed to each other. A married couple, by contrast, can live apart and rarely see each other, and yet still produce a certificate that is unassailable evidence of their partnership.
Married spouses are automatically recognised as each other’s next of kin, which affords a spouse the right to make medical decisions in an emergency, inherit life insurance and superannuation benefits, benefit from a intestate estate, and make special taxation and government support arrangements.
Marrying also revokes any testamentary instructions such a last will and testament, unless the will was made specifically in contemplation of the marriage. This automatic revocation is because the law assumes that your spouse takes precedence over all other family and dependents. Similar assumptions are not automatically applicable to other relationships.
How does a marriage end?
A marriage can end through the death of one of the spouses, through annulment, or through a divorce decree issued by the Federal Circuit and Family Court of Australia or the Family Court of Western Australia.
When seeking a divorce, both parties can agree to lodge a joint application to the Court. This is most common when the separation is amicable and both parties agree that divorce is the best option. Alternatively, either spouse can apply for a divorce without the cooperation of their spouse, and no objection from the other spouse can prevent the granting of the divorce decree. In either case, the only legal requirement for divorce is an irretrievable breakdown of the relationship, evidenced through a twelve month separation, and no possibility of reconciliation, evidenced by the affidavit of one of the spouses.
Various states and territories (including Queensland, New South Wales, and the Australian Capital Territory) have introduced legislation to allow registration of relationships. This was crucial prior to the legalisation of same-sex marriage in Australia, to allow same-sex couples to receive official recognition of their union, and to forestall legal complications that could result from circumstances such as a person dying intestate. At the time, Victoria and Tasmania went further and allowed the couple to register attendant agreements about financial maintenance, financial matters and other domestic issues.
While this type of legal registration has largely become redundant with the legalisation of same-sex marriage, it is still possible to register a relationship in Australia, and for some couples it is the more appropriate choice.
How to obtain a marriage certificate
A marriage certificate is the legal proof that you are married. Your celebrant or minister will give a ceremonial copy of the marriage certificate to you on your wedding day. The celebrant is responsible for submitting the marriage paperwork to the relevant registry of births, deaths and marriages in your state or territory within two weeks of the marriage. Following this registration, you will then be able to apply for an official copy of your marriage certificate from the registry.
Is marriage a contract in Australia?
Marriage is a legally recognised contract, perhaps the most binding and important document that you will ever sign. This contract is a commitment to care, respect and support your spouse and any children born or adopted into the family. It also has contractual obligations regarding property rights, inheritance, and obligations in relation to the support of children and spousal support.
The requirement for you to give the Notice of Intended Marriage at least one month prior to the wedding day can be seen as a “cooling off” period during which you can seriously consider the weight of the commitment involved in the marriage contract.
Where do you go for more info?
Unified Lawyers can assist you if you would like more information about marriage in Australia, whether you are considering your options prior to, during, or following your marriage.