About the Author
Sophia Bechara
Published on September 30, 2021
Marriage is a concept that is so familiar that we might rarely, if ever, stop to consider what it actually is. Even those people who dream of a big white wedding, or declare that they are positively against the institution, mostly do so without genuinely understanding the implications of marriage in our society. This article examines the legal meaning of marriage in contemporary Australia.
What is marriage in Australia?
Marriage can be described as a contract, but it is special category of contract that confers a status on those who enter into such an agreement. This status involves a bundle of rights, privileges, obligations and responsibilities.
Some of these rights and privileges are merely social and informal, such as the adoption of a spouse’s last name or wedding day celebrations, but there are also legal rights, privileges and obligations that come along with marriage that are encoded in Commonwealth and state legislation.
What does the Australian Constitution say about marriage?
The Australian Constitution 1901 (Cth) gives the Commonwealth the power to make laws about marriage in Section 51(xxi). Conferring this power to the Commonwealth was designed to allow uniformity in relation to marriage across the different colonies.
Despite having the power to legislate to introduce uniformity around marriage, the Commonwealth did not do so until the Marriage Act 1961 (Cth). After Federation and before 1961, each state continued to regulate marriage separately. For instance, in 1942, when Tasmania required girls to be at least 16 to marry, in New South Wales (NSW) it was perfectly legal for a girl to marry at 12. The result being that a young wife who moved with her husband from NSW to Tasmania would go from being legally married to no longer having her marriage recognised.
How is marriage defined in Australia?
Neither the Marriage Act 1961 nor the Constitution itself actually defined marriage. The absence of a definition was likely not an oversight, so much as a reflection of that fact that it was taken for granted that the definition of marriage was fixed and universal: marriage was between a man and a woman, to the exclusion of all others, and voluntarily entered into for life.
It was only in 2004 that the Commonwealth brought in an amendment to the Marriage Act to actually define marriage as a union of one man with one woman. This amendment was made by the Howard Government to prevent Australian Courts from recognising same-sex marriages performed overseas.
Marriage equality
The door that was firmly shut on marriage equality in 2004 was cracked open again in 2009, when the Rudd Government introduced reforms designed to equalise treatment for same-sex couples. The reforms amended 85 Commonwealth laws to eliminate discrimination against same-sex couples and their children. For instance, the reforms ensured that same-sex couples were treated the same as opposite-sex partners for social security or family assistance purposes. The reforms did not go as far as equalising access to marriage.
Following these changes, opponents of marriage equality suggested that same-sex couples already had all of the same benefits as married couples and, therefore, there was no need to enact marriage equality.
Proponents of marriage equality disagreed and pointed out the myriad ways in which married couples had more straightforward access to privileges than same-sex couples. Same-sex couples were able to assert most of the same rights as married couples after the Rudd reforms, but they often had to invest considerable effort to achieve the same result. For instance, when a married couple used IVF, both spouses were automatically assigned the status of legal parents, while a de facto couple – the only option available to same-sex couples – would need to prove their relationship to establish parentage.
The final equalisation would not occur until 2017, with the legalisation of same-sex marriage. The passage of the law followed a voluntary postal survey of all Australians, in which 61.6% of respondents supported legalisation of same-sex marriage. This changed the fundamental nature and definition of marriage, so that it became the union of one person with another person.
Attitudes to Marriage in Australia
The world has changed dramatically over the last century in ways that have profoundly impacted on the institution of marriage. Most obviously, marriage has become a less common feature of our society. Where once marriage was the norm, and it was unfortunate for anyone (especially a woman), to remain unmarried, it is now increasingly seen as a lifestyle choice.
Fewer people are marrying in the first place, with the crude marriage rate falling steadily since the early 1970s. Those who do marry, do so later in life. The median age for a woman to marry in 1984 was just 24, but by 2017 it had risen to 30. The age difference between males and females in first marriages is now on average less than two years.
Although young Australians are putting off marrying, this does not seem to be a rejection of the institution itself. A 2019 survey by Relationships Australia found that an overwhelming majority of young, unmarried Australians still want to get married eventually.
Overall, however, a majority (55%) of both men and women believe that marriage is more difficult today, and two-thirds of women (59%) and half of men (49%) think marriage is less relevant than it was in the past. A substantial majority of male and female survey respondents (75%) considered people were less committed to the idea of marriage than they once were.
On the whole, men (63%) were more likely than women (54%) to see benefits in being married as compared to being single. The survey also asked participants about their perception of children born outside marriage. While 65% of men thought that children were better off if their parents are married, less than 40% of women agreed. In fact, 40% of women thought that children were better off if their parents were not married.
Who can marry in Australia?
To get married in Australia, you must not already be married, be at least 18 (although someone who is 16 can seek the consent of their parents and the Court to marry), and understand the consequences of marriage.
There are some restrictions on who you can marry. You cannot marry a first degree relative (that is, a parent, child, grandparent or grandchild, or sibling).
It is important to note that you do not have to be an Australian citizen or permanent resident of Australia in order to marry in this country.
Steps to take to get married in Australia
There are only a few rules that must be followed for a marriage to be valid in Australia. You can only be married by someone with the authority to conduct marriages, such as an authorised marriage celebrant. You must also give a notice of intended marriage form to the celebrant at least one month (and not more than 18 months before) your wedding.
A small percentage of Australians are married by a religious leader (less than 20% in 2017). In those cases the couple must comply with the specific rules of that church, which may include attending classes or other preparation activities.
Legal implications after you get married
The act of marriage creates certain rebuttable legal assumptions.
For instance, the minute that you marry, the law assumes that your previous will is invalid because you now wish your main beneficiary to be your spouse. Similarly, your superannuation trustee will assume that you wish to make provision for your spouse. However, it is important to know that you can, to a certain extent at least, contradict these presumptions by creating a new will that recognises your marriage (or intention to marry) and nevertheless asserts your intention that your spouse should not be your main beneficiary. This may be particularly important if you have children from a previous relationship, in which case you should consult a solicitor with expertise in wills and estates.
There are some legal changes after you marry which you have no choice over. For instance, before the ink is dry on your marriage certificate, you are viewed in a different light for the purposes of income tax and welfare benefits, and you must declare your married status to the government.
Getting married overseas
Destination weddings were commonplace prior to the Covid19 pandemic, and will undoubtedly once again become popular. Whilst the idea of a holiday with your nearest and dearest might sound like a fun way to tie the knot, there are some serious bureaucratic hurdles that also need to be considered before planning an exotic walk down the aisle.
Proving you’re allowed to marry
When marrying overseas, there is sometimes a requirement by the foreign government that you prove that you are free to marry. The requirements will differ based on the rules of each country, but the most common documents foreign governments accept are a Certificate of No Impediment (CNI) to Marriage or certificates from an official registry of births deaths and marriage.
Certificate of No Impediment to Marriage
The Department of Foreign Affairs and Trade (DFAT) can issue a CNI before you leave Australia, but some countries require that you obtain the CNI from the Australian embassy or consulate within their country. If you are planning to marry overseas, you should contact the foreign government to find out if they require a CNI, and whether you can obtain this in Australia before you leave. It is also critical that you determine the notary requirements for the CNI before you leave Australia, as arranging for a notary service in a foreign country can be difficult and may delay your marriage ceremony.
You may have to provide more proof that you’re free to marry. Your Australian State or Territory Registry of Births, Deaths and Marriages can provide a statement that there is no record that you have been married before, a No Record Result certificate or a Single Status certificate.
Depending on your circumstances, overseas authorities may also ask for copies of divorce papers or the death certificate of a deceased spouse, as well as your original birth certificate and passport.
Foreign authorities may have further requirements depending on the country’s laws. For example, they may not let you marry unless you’ve lived there for a certain a length of time.
Australian recognition of your overseas marriage
Under the Marriage Act 1961, an overseas marriage is recognised in Australia if it was both a valid marriage in the country where you married and would have been a valid marriage in Australia.
You will likely need to seek legal advice to determine whether your overseas marriage will be recognised in Australia.
Can a foreign marriage not be recognised in Australia?
Not all marriages performed overseas are recognised by the Australian Government. The Marriage Act 1961 does not recognise any marriage where one of the parties was already married, were too closely related, were too young, or where the consent of one of the parties was obtained through duress, fraud, mistake or mental incapacity.
Of particular concern is the rejection of overseas unions that are considered to be forced marriages or child marriages. Even if these unions were perfectly legal in the country of origin, or if they follow the dictates of a particular religion, it is a matter of public policy that Australia will not recognise a marriage that is contrary to the requirements of Australian law, and also constitute a breach of human rights.
Ending a marriage
Divorce has been available in Australia since colonial times. However, it was initially difficult to obtain, with the petitioner required to show proof that the conduct of their spouse was so bad that the courts would be compelled to dissolve the marriage.
With the introduction of the Family Law Act 1975, Australia introduced the no-fault divorce system that we have today. Under this system, there is no longer any need to prove that your spouse was unfaithful, cruel or has abandoned you.
Today the only basis for the dissolution of marriage is marriage breakdown due to irreconcilable differences.
What percentage of Australian marriages end in divorce?
The Australian Institute of Family Studies reports that following the Family Law Act 1975, in 1980 the crude divorce rate rose to 2.7 divorces each year per 1,000 Australians. The rate of divorce has settled at around 2.0 per 1,000 Australians in recent decades.
Need advice?
For help and advice about any aspect of marriage in Australia, call Unified Lawyers on 1800 952 338.
Published on September 30, 2021
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