LexisNexis Practical Guidance®

The framework for the concept of marriage is provided by the Marriage Act 1961 (Cth) and reinforced by the Family Law Act 1975 (Cth) which widens the role of the Court to deal with financial, property and parenting issues related to the breakdown of a marriage and which are known as “matrimonial causes”. Under the Marriage Act 1961 (Cth), references to “husband and wife” are altered to “husband, wife or spouse”.

Since 9 December 2017, marriage has been defined as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.”: s 5 of Marriage Act 1961 (Cth). This change enables people of the same sex to marry and was accompanied by significant exceptions and protections to authorised celebrants who are permitted to rely on their religious beliefs to refuse to solemnise same sex marriages.

In Australia at present the conditions for a marriage are:

• •the marriage must be voluntary;
• •the marriage must be for life, ie, the parties' intention at the time of the marriage;
• •the union must be between two people who are not in a prohibited relationship;
• •the union must be between two adults; and
• •neither party must be married to another person.

Pursuant to s 51(xxi) of the Commonwealth of Australia Constitution Act (Cth), the Commonwealth Government in Australia has power to make laws relating to marriage, and by implication, the breakdown of those marriages. Since 2009, following a referral of powers from participating States and Territories, the Family Law Act 1975 (Cth) acquired jurisdiction over the breakdown of de facto relationships, including same sex de facto relationships.

In Australia, marriage is regulated by the Marriage Act 1961 (Cth) which sets out the requirements for a valid marriage and provides for the recognition of foreign marriages. The Family Law Act 1975 (Cth) regulates the ending of marriages by divorce or decrees of nullity and consequent arrangements for children, financial support and property of the marriage.

The formalities of a valid marriage are:

• •that a marriage must be solemnised by an authorised celebrant;
• •that there must be at least one month’s written notice of the intention to marry;
• •there must be at least two witnesses over the age of 18 years to the ceremony;
• •each party must express their verbal agreement to the union; and
• •the authorised celebrant shall prepare a certificate of marriage which shall be registered with the appropriate registration authority in each State or Territory.

A marriage may be declared to be invalid if these requirements are not met.

Where a same sex marriage was solemnised before the commencement of the amending legislation (a pre-commencement same-sex marriage) which previously would not have been recognised, it may now be recognised as being valid following the commencement of the amending legislation to the Marriage Act 1961 (Cth).

Where a marriage is recognised as a valid marriage by the law or custom of the overseas country it will be recognised as a valid marriage in Australia. Certified evidence of a certificate or registration in that overseas country will be accepted in this country.

For the purpose of proceedings under the Family Law Act 1975 (Cth), a polygamous marriage which is or has been, a union entered into in a place outside Australia, is deemed to be a marriage.

Section 23B of the Marriage Act 1961 (Cth) sets out the grounds upon which a marriage may be declared void and therefore may be annulled under s 51, FLA. The court may not make a divorce order where it has an application for nullity before it.

The concept of separation is enormously important in family law matters. The court's jurisdiction to make orders in respect of children, or by way of adjustment of property rights, is normally triggered when the parties separate, not when a divorce order is made or becomes final.

In respect to both de facto relationships and marriage, clarity as to the separation date is essential namely:

• •Applications for Divorce may not be filed until 12 months after the date of separation. See Separation for 12 months prior to filing;
• •Applications for de facto financial matters, which must be filed within two years of the date of separation: See De facto relationships under the Family Law Act and De facto law — State based;
• •Applications for financial orders for de facto parties, may not be filed where the parties have not actually ended their relationship. See De facto relationships under the Family Law Act and De facto law — State based.

In other cases, the date of separation can be an important consideration for the court in determining the appropriate approach to be taken. Those cases include:

• •applications for property settlement involving assets acquired after separation;
• •applications for property settlement in terms of the assessment of contributions post-separation; and
• •care arrangements for children after separation.

In all cases, the separation date is important for the parties as it marks the psychological end to the marriage or relationship and is almost always a time of significant stress and anxiety. In families where there is or has been family violence, separation marks a time when the affected family member (statistically speaking predominantly the female spouse) is at a significantly increased risk of violence from the perpetrator spouse. Where possible, practitioners should ensure that clients are appropriately advised about safe ways (physically and emotionally) to communicate a wish to separate to their spouse.

Separation essentially means the breakdown of the marital or de facto relationship to the extent that one or both of the parties intends to permanently sever that relationship. Physical separation alone is neither sufficient nor necessary to establish separation, and the court will have regard several factors in determining when, or if, separation has, in fact, occurred. These include: whether there was a conscious intention and action to separate, and whether that intention was either directly or indirectly communicated to the other party.

Frequently parties will have separated but continue to live in the same house and may share some household services because they may wish to reduce the impact on their children or because they are unable to afford to live in alternate accommodation. In such cases, the parties will need to provide additional supporting affidavits to the court to verify that an actual separation has occurred before a divorce may be granted. See Separation under one roof.

See The meaning of separation.

Insubstantial periods of cohabitation are treated as being periods of less than three months and the court may find they have not reduced the period of separation. Generally however, the court will aggregate the periods of living separately and apart in order to determine that the 12 month requirement is met before making a divorce order.