Marriage in Australia: Difference between revisions

Since December 2017, Australian law has recognised [[same-sex marriage in Australia]] whether entered into in Australia or abroad.<ref>''[[Marriage Amendment (Definition and Religious Freedoms) Act 2017]]''</ref><ref name="ABC News">{{cite web|url=http://www.abc.net.au/news/2017-12-07/same-sex-marriage-bill-passes-house-of-representatives/9235560|title=Same-sex marriage bill passes House of Representatives, paving way for first gay weddings|work=ABC News|date=7 December 2017}}</ref><ref name="abc.net.au">{{cite news|title=When can you lodge your Notice for Intended Marriage?|url=http://www.abc.net.au/news/2017-12-07/when-can-you-lodge-your-notice-for-intended-marriage-forms/9238438|accessdate=7 December 2017|work=ABC News|date=7 December 2017|language=en-AU}}</ref> The original 1961 Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition.<ref name="ReferenceB">The definition is found in ''[[Hyde v Hyde]]'' (1866) {L.R.} 1 P. & D. 130: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others".</ref><ref name="Michael 2016">{{Cite journal |last=Michael |first=Quinlan |date=2016|title=Marriage, Tradition, Multiculturalism and the Accommodation of Difference in Australia|url=https://researchonline.nd.edu.au/undalr/vol18/iss1/3/|journal=The University of Notre Dame Australia Law Review |language=en |volume=18|issue=1|issn=1441-9769}}</ref> The [[Marriage Act 1961 (Australia)#Amendments to the Marriage Act|''Marriage Amendment Act 2004'']] defined, for the first time by statute, marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."<ref>{{cite web|url=http://www.comlaw.gov.au/Details/C2004A01361|title=Marriage Amendment Act 2004|work=comlaw.gov.au}}</ref> The 2004 Act also expressly declared same-sex marriages entered into abroad were not to be recognised in Australia. This was in response to a lesbian couple getting married in Canada and applying for their marriage to be recognised in Australia.<ref name="The Guardian">{{cite news |last1=Wall |first1=Louisa |title=Australia's marriage equality process did not have to be so politicised {{!}} Louisa Wall|url=https://www.theguardian.com/commentisfree/2017/oct/14/australias-marriage-equality-process-did-not-have-to-be-so-politicised |accessdate=15 October 2017|work=The Guardian|date=13 October 2017}}</ref> In 2017, the definition of "marriage" was changed, replacing the words "a man and a woman" with "2 people" and therefore allowing monogamous same-sex marriages.<ref>[[Marriage Amendment (Definition and Religious Freedoms) Act 2017|''Marriage Amendment (Definition and Religious Freedoms) Act'']]</ref> The changes also retrospectively recognised same-sex marriages performed in a foreign country, provided that such marriages were permitted under the laws of that foreign country.

Until 1991, the marriage age was 16 for females and 18 for males, but a female 14 or 15 years (wanting to marry a male aged 18 or above) or a male 16 or 17 years (wanting to marry a female aged 16 or above) could apply to the court for permission to marry.<ref>{{cite web | url=http://www.comlaw.gov.au/Details/C2004C05245 | title=Marriage Act 1961 }}</ref> The ages were equalised in 1991,<ref>''[[Sex Discrimination Act 1984|Sex Discrimination Amendment Act 1991]]''</ref><ref>{{cite web|url=http://scaleplus.law.gov.au/ComLaw/Legislation/Act1.nsf/framelodgmentattachments/A77AD7620C0F4E01CA256F7200178FD0 |title=ComLaw Acts - Attachment - Sex Discrimination Amendment Act 1991 |publisher=Scaleplus.law.gov.au |archiveurl=https://web.archive.org/web/20120216030614/http://scaleplus.law.gov.au/ComLaw/Legislation/Act1.nsf/framelodgmentattachments/A77AD7620C0F4E01CA256F7200178FD0 |archivedate=16 February 2012 |url-status=dead }}</ref> with the relevant ages applying to females being raised to those applying to males.

A marriage entered into Australia is [[void marriage|void]] (invalid) if it has not been “solemnised” by an authorised marriage celebrant.<ref>{{Cite web |date= |title=Lists of authorised marriage celebrants in Australia |url=https://www.ag.gov.au/families-and-marriage/marriage/find-marriage-celebrant |access-date= |website=Australian Government: Attorney Generals Department}}</ref> Only authorised marriage celebrants are allowed to solemnise marriages in Australia. There are three types of celebrants: ministers of religion, state and territory registry officers, and civil marriage celebrants. The only requirements for registration of a minister of religion is that he or she is nominated by a proclaimed "recognised denomination", is a resident in Australia, and is at least 21 years old. The ''[[Sex Discrimination Act 1984]]'' (Cth) was amended with the 2017 recognition of same-sex marriages to exempt a minister of religion or religious marriage celebrant or chaplain from the prohibition of sex discrimination by refusing to marry same-sex couples. It is illegal to marry your sibling (brother or sister).

Couples must give their [[Celebrant (Australia)|marriage celebrant]] a Notice of Intended Marriage<ref>[http://www.marriagebureau.com.au/images/New-notice-of-intended-marriage.pdf Notice of Intended Marriage] (Form 13 - regulation 38 - Marriage Act 1961).</ref> at least one month before the intended wedding ceremony. The Notice is valid for 18 months.<ref>[https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx GettingGet married], Attorney-General's Department, [[Australian Government]]</ref><ref name="ylo"/> In exceptional circumstances, the couple can apply for a waiver of the one-month waiting period,<ref>{{cite web|url=http://www.abc.net.au/news/2017-12-13/why-the-first-ssm-wedding-will-happen-in-under-a-month/9256610|title=Same-sex marriage: How Australia's first wedding can happen within a month|work=ABC News|date=13 December 2017}}</ref>

The celebrant is required to recite the prescribed words to solemnise the marriage.<ref>Marriage Act 1961, s.46</ref> Otherwise, almost anything is permitted. The civil celebrant is obliged to assist couples to compose or choose an appropriate ceremony and provide a rehearsal if the couple require it.<ref>{{cite web |title=Code of Practice for Marriage Celebrants |url=https://www.ag.gov.au/sites/default/files/2020-03/Code_of_practice_for_marriage_celebrants.pdf |website=Attorney-General of Australia |publisher=Australian Government |access-date=18 August 2023 |ref=Section 5 a}}</ref> For example, it can be at any venue, indoors or outdoors, at any day or time,<ref>Marriage Act 1961, s.43</ref> and follow any tradition or custom, or none at all.

The state or territory registrars will, on application by either spouse, issue a [[marriage certificate]] which is considered to be an acceptable and secure [[Identity documents of Australia|secondary identity document]] especially for the purposes of change of name, and needs to be obtained separately, for a fee, generally some time after the marriage. This document can be verified electronically by the [[Attorney-General of Australia]]'s Document Verification Service.<ref>{{Cite web |url=https://www.ag.gov.au/RightsAndProtections/IdentitySecurity/Pages/DocumentVerificationService.aspx |title=ArchivedDocument copyVerification Service &#124; Attorney-General's Department |access-date=7 April 2017 |archive-url=https://web.archive.org/web/20170321081501/https://www.ag.gov.au/RightsAndProtections/IdentitySecurity/Pages/DocumentVerificationService.aspx |archive-date=21 March 2017 |url-status=dead |df=dmy-all }}</ref> States and territories sometimes market commemorative marriage certificates, which generally have no official document status.<ref>{{cite web |url=http://www.bdm.nsw.gov.au/Pages/marriages/marriage-certificate.aspx#commemorative |title=Marriage certificate|website=Bdm.nsw.gov.au|accessdate=21 May 2018}}</ref>

Marriage certificates are generally not used in Australia, other than to prove change-of-name, and proof of marital status for [[probate]] purposes or in a [[Divorce in Australia|divorce application]]. Some visa categories require a certificate (where a partner is to be associated with a primary applicant),<ref>{{Cite web |url=https://www.border.gov.au/Trav/Visa-1/300- |title=ArchivedProspective copyMarriage visa (Subclass 300) |access-date=7 April 2017 |archive-url=https://web.archive.org/web/20170407233805/https://www.border.gov.au/Trav/Visa-1/300- |archive-date=7 April 2017 |url-status=dead |df=dmy-all }}</ref> however there are similar categories of partner visas that do not.<ref>{{cite web|url=https://www.border.gov.au/Trav/Visa-1/801-|title=Partner visa (subclasses 820 and 801)|website=Border.gov.au|accessdate=21 May 2018}}</ref>

In 2004, the Liberal [[Howard Governmentgovernment]] enacted the ''Marriage Amendment Act 2004'' to expressly ban same-sex marriage in Australia. It defined ''marriage'' as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".

In 2009, the Labor [[Rudd Governmentgovernment (2007–10)|Rudd Governmentgovernment]] enacted the ''[[Family Law Act 2009 (Australia)|Family Law Act 2009]]'', which recognised the property rights of each partner of a [[de facto relationship]], including a same-sex relationship, for the purposes of the ''[[Family Law Act 1975]]''.

The 2014 ''Marriage Amendment (Celebrant Administration and Fees) Act'' amended the ''Marriage Act 1961'' in relation to celebrants and other issues.<ref>{{cite web | url=https://www.legislation.gov.au/Details/C2014A00025 | title=Marriage Amendment (Celebrant Administration and Fees) Act 2014 }}</ref>

In 2009, the Australian Bureau of Statistics noted that "The proportion of adults living with a partner has declined during the last two decades, from 65% in 1986, to 61% in 2006". The proportion of Australians who are married fell from 62% to 52% over the same period.<ref name="abs.gov.au">{{cite web| url = http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4102.0Main+Features20March%202009| title = 4102.0 - Australian Social Trends, March 2009}} </ref>

[[Common-law marriage]]s have increased significantly in recent decades, from 4% to 9% between 1986 and 2006.<ref name="abs.gov.au"/> Cohabitation is often a prelude to marriage and reflects an increasing desire to attain financial independence before having children.<ref name="fgk">{{cite book |title=Family, Gender and Kinship in Australia: The Social and Cultural Logic of Practice and Subjectivity |last=Uhlmann |first=Allon J. |year=2006 |publisher=Ashgate Publishing |isbn=0754680266 |page=31 |url=https://books.google.com/books?id=dou2mL9bD6YC |accessdate=3 August 2013}}</ref> In 2015, 81% of all those marrying were already living together.<ref name="ReferenceA">{{cite web| url = http://www.abs.gov.au/ausstats/[email protected]/mf/3310.0| title = Marriages and Divorces, Australia, 2020 {{!}} Australian Bureau of Statistics| date = 24 November 2021}} </ref>

By the 1980s there was a clear trend towards delaying first marriage. In 1989, more than one woman in five had not married by the age of 30.<ref name="saec" /> Between 1990 and 2010, the median age at first marriage increased by more than three years for both women and men (from 24.3 years to 27.9 years for women, and from 26.5 years to 29.6 years for men).<ref>{{Cite web|url=http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4102.0Main+Features30March+Quarter+2012|title=Main Features - Love Me Do|last=Statistics|first=c=AU; o=Commonwealth of Australia; ou=Australian Bureau of|website=www.abs.gov.au|date=4 April 2012 |language=en|access-date=2018-01-28}}</ref>

The ''[[Marriage Act 1961 (Australia)|Marriage Act 1961]]'' was amended in December 2017 by the ''[[Marriage Amendment (Definition and Religious Freedoms) Act 2017]]'' to amend the definition of marriage and to recognise same-sex marriage in Australia whether entered into in Australia or abroad.<ref name="ABC News"/><ref name="abc.net.au"/> The original Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition.<ref name="ReferenceB"/><ref name="Michael 2016"/> The [[Marriage Act 1961 (Australia)#Amendments to the Marriage Act|''Marriage Amendment Act 2004'']] defined, for the first time by statute, marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life."<ref>{{cite web|url=http://www.comlaw.gov.au/Details/C2004A01361|title=Marriage Amendment Act 2004|work=comlaw.gov.au}}</ref> The 2004 Act also expressly declared same-sex marriages entered into abroad were not to be recognised in Australia. This was in response to a lesbian couple getting married in Canada and applying for their marriage to be recognised in Australia.<ref name="The Guardian"/>

{{Reflist|2}}