The definition of marriage is easy to understand. A couple gets engaged, throws out a big wedding party, and cements their relationship legally. Marriage is the union between two persons. But apart from the wedding parties and the ever famous happy ever after, we need to discuss its legalities.
Marriage is the legal union of two people, so it would make sense that there are laws behind it. Couples will need to organise their assets, finances, and plan well if they want children. Moreover, divorce will pose more legal implications if couples want to separate. Now, let's explore what couples need to know and prepare for before marriage.
Definition of Marriage Under the Law
The Marriage Act 1961 deals with marriages in Australia and contains the definition of marriage along with related matters. Section 5 of the Act defines "marriage" as the union of two people to the exclusion of all others, voluntarily entered into for life. Let's break down each of the terms in this definition.
"Union of two people"
The Act recognises that marriage can occur between two people, regardless of sex. The sex of one partner or the other spouse is irrelevant.
"To the exclusion of all others"
The Act recognises only a union of two people and does not recognise any other forms of union. This can include polygamous marriages or concubinage (a husband having sexual intercourse with a woman who is not his wife).
"Voluntarily entered"
A court can punish a person if they force another into getting married. It is an offence for a person to force you, with the use of coercion, threat or deception, to marry them. It is also an offence for the spouse who you are being forced to marry (if they are separate from the person forcing you) to go ahead with the marriage.
Sections 270.7A, 270.7B, 270.8 and 270.9 of the Criminal Code Act 1995 deal with these offences and provide that the maximum penalty for these offences is four years' imprisonment, or seven years for an offence aggravated by the age of the victim, subjecting the victim to cruel, inhumane or degrading treatment or putting the victim in danger of serious harm or death.
The aggravating circumstances of these offences may occur wholly outside of Australia. In addition, a marriage entered into without valid consent becomes a void marriage. Hence, even arranged marriages should have valid consent from potential spouses.
What About Same-Sex Couples?
The definition of marriage also extends to same-sex marriages. Although a vast majority recognise same-sex marriages as a civil unions, in Australia, gender and sex no longer play roles in the right to marry. Many countries, including Australia, recognise that the right to marry is among other human rights.
An amendment to the Marriage Act 1961 to legalise same-sex marriage was passed into law in 2017. The former definition of marriage, "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life," then became ineffective.
Ever since the Marriage Act 1961 changes, same-sex couples can legally marry in Australia, irrespective of their sex or gender identity. The amendment now also recognises overseas same-sex marriages if they fulfil all the requirements of a valid marriage. Overseas same-sex marriages have the same criteria as opposite sex overseas marriages recognised in Australia.
In addition, the Sex Discrimination Act 1984 (Cth) was amended to ensure that it is not unlawful discrimination for a minister of religion or religious marriage celebrant or chaplain to refuse to marry a couple based on the grounds of religious beliefs, sexuality or gender.
Definition of Marriage: Legal Requirements
Now that we know the definition of marriage, we would also like to discuss the legal requirements for marriage
To be legally married in Australia, the parties should:
- Not be already married;
- Not be marrying immediate family members such as a parent, grandparent, child, grandchild, brother or sister;
- Be over the age of 18 and their relationship is not between close family members. Marriage applicant who are 16 or 17 years of age will need court approval
- Understand what marriage means and freely agree to marry;
- Give a Notice of Intended Marriage form to an authorised marriage celebrant at least one month and no more than 18 months before the wedding and not less than 1 month before the ceremony; and
- Be married by an authorised marriage celebrant, who may either
be a:
- a minister of religion registered under the Act,
- the Registrar of Marriages for the state or territory where the marriage is to take place, or
- a person authorised by the Commonwealth Attorney-General.
A divorced or widowed person must produce evidence of the divorce, or a death certificate to prove that they are not currently married. Additionally, parties do not have to be Australian citizens or permanent residents of Australia to get married in Australia.
Definition of Marriage: Void Marriages
A marriage entered into in Australia is void (not valid or legally binding) if:
- Either party is already lawfully married (bigamy, polygamy; having multiple husbands or multiple wives),
- The parties are in an illegal relationship. This means they are in a relationship with a direct ancestor or descendant or sibling (whether full sibling or half sibling), including adopted siblings,
- The marriage was not solemnised by an authorised celebrant,
- There is no consent, due to duress, fraud, mistake as to identity, mistake as to the nature of the ceremony, and mental incapacity, or
- The parties are below the marriageable age (child marriage).
A marriage celebrant who fails to hold a valid licence to marry a couple will not always result in a void marriage.
Section 48(3) of the Marriage Act 1961 provides that a marriage will still be declared valid in circumstances where the married couple believed that the celebrant was authorised to perform the ceremony and their intention was to be lawfully wedded to each other.
Legal Effects of Marriage
The legal effects of marriage is as important as the definition of marriage. Marriage in Australia has a number of legal consequences for the parties involved, including the following:
- There is no law that a person's surname must be changed on marriage. One woman who marries can choose to change her name to her spouse's surname. If so, they should update their details on all forms of identification and notify government departments of the change.
- Marriage in Australia automatically revokes any previous Wills unless the Will-maker specifically made it in contemplation of the marriage. Neither separation nor divorce automatically revokes a will; however, divorce removes any gift or power to the former spouse. To learn more about Wills, click here.
- The amount of tax a person pays changes once they are married; hence, one must notify the Taxation Office concerned.
Definition of Marriage Versus De Facto Relationships
De facto partners who live together "cohabitate" together. This is a general term for unmarried people who live together on a domestic basis. Indeed, cohabitation and marriage have similarities. They both involve couples dealing with debt responsibilities, division of assets, and children. However, there's more than meets the eye for married and unmarried couples. Let's look at them:
- Marriage is a legal union between two persons. A de facto relationship occurs between two parties living together in the same household without the benefit of marriage.
- A couple who will marry needs to obtain a marriage licence (or a marriage contract or legal contract). De facto couples don't require any formal and legal steps to start cohabiting.
- Marriage can provide recognition both interstate and internationally, while registering a de facto relationship will only gain recognition in Australia (such as in the Australian Capital Territory, New South Wales, Western Australia, and other States) .
- Should the happy marriage end, it requires the formal process of filing for divorce or annulment, as the case may be. De facto couples who have registered their relationship have to revoke that registration, which can be an informal process, depending on the terms and conditions of your Cohabitation Agreement.
- If a spouse in a marriage dies without leaving a Will, the surviving spouse will usually inherit part of the estate. However, the surviving partner in a de facto relationship may not have an automatic right to any inheritance if there is no Will.
In addition, the Family Law Act 1975 treats de facto relationships as marriages for the purpose of recognising the rights of parties at a breakup.
Overseas Marriages Recognised in Australia
Australia will legally recognise an overseas marriage if it meets the following requirements:
- the law of the country in which you married considered your marriage as valid, and
- Australian law would recognise the marriage as valid if it took place in Australia.
If you had an overseas marriage, there is no legal requirement to have the marriage registered in Australia. However, you would need to have evidence of the marriage, such as a marriage certificate from the country where the marriage took place. This would serve as proof of the validity of the marriage. Furthermore, as same-sex marriages have already been recognised as valid under Australian law, they are part of overseas marriages recognised in Australia.
Taking Care of Your Marriage
To know the defintiion of a marriage does not automatically make you the perfect partner. Moreover, it does not give you the excuse to slack off in the relationship. continue to express your gratitude and focus on each other's positive traits. Always have open discussions like with your financial commitments and sexual concerns.
Never stop becoming better for yourself and your partner. Being in a married life changes a lot, so it takes a different level of maturity, confidence, and intelligence to marry someone. It's not a game, but a lifetime commitment to work together as a team that can tackle any kind of challenge.
Seeking Legal Advice From Expert Family Lawyers
So, did you get the definition of marriage in this article? Marriages are not for everyone. But for people who do want to marry, must stay informed about its legalities and be ready to commit to it. You may be planning to get married and want to ensure that your marriage will be a valid one or perhaps the status of your marriage is being questioned.
In either case, JB Solicitors has a leading team of experienced family lawyers. We can help with the preparation of documents for marriage and give legal advice on any concerns you have regarding marriage or other family law matters. Should your marriage fall apart, we can help with property settlement and parenting matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
