Definition of a marriage

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.

Constitutional framework

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.

Formalities for a valid 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.

Void marriages

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.