Marriage in Australia

In Australia, marriage is regulated by the Marriage Act 1961. Under the Marriage Act, marriage is the union of two people to the exclusion of all others voluntarily entered into for life. The Marriage Act also imposes various restrictions on who can marry, including a minimum age and a requirement that the person not be married to someone else. This article outlines the law surrounding marriage in Australia.

Marriageable age

Section 11 of the Act provides that a person is of marriageable age if they are aged 18 or older. However, section 12 provides that a person who is aged 16 or older may apply to a Judge or Magistrate for an order allowing them to marry despite not having reached the age of 18. This order may be granted if the Judge or Magistrate is satisfied that the person is over 16 and that the circumstances of the case are exceptional and unusual enough to justify the order. If a minor is to marry, consent must generally be given by their parent/s. However, this requirement may be dispensed with in appropriate circumstances.

Void marriages

A marriage is void under the Marriage Act if any of the following circumstances exist:

• The parties are in a prohibited relationship (such as siblings or parent and child, including by adoption);
• One or both parties was lawfully married to someone else at the time of the marriage.

Foreign marriages

Overseas marriages are recognised in Australia provided:

• Neither of the parties was a party to another marriage that is recognised in Australia;
• Either of the parties was not of marriageable age (if at least one party was living in Australia at the time);
• The parties have a prohibited relationship;
• The consent of either party was not valid.

If neither party was living in Australia at the time of the marriage and one or both parties was under the age of 16, the marriage will not be recognised in Australia while either party is under 16.

Offences under the Marriage Act

The Marriage Act establishes a number of criminal offences related to marriage. These are summarised below.

Bigamy

Bigamy is an offence under section 94. It is committed when a person who is married goes through a marriage ceremony with another person. Bigamy carries a maximum penalty of five years imprisonment.

Marrying a person not of marriageable age

Under section 95, it is an offence to marry a person who is not of marriageable age. This offence carries a maximum penalty of five years imprisonment.

Person not authorised to solemnise marriage

Under section 103, it is an offence to go through a marriage ceremony performed by a person who is not authorised to solemnise a marriage knowing that the person is not so authorised and believing that the other party does not know that the person is not so authorised.  This offence is punishable by up to five years imprisonment.

Solemnising marriage offences

Under the Marriage Act, it is an offence for a marriage celebrant to solemnise a marriage without adhering to formal requirements of a marriage such as the giving of a notice of the intended marriage, satisfying themselves as to the identity of the parties and their conjugal status and the parental consent (where applicable). The penalty for solemnising a marriage where any of these requirements is not met is imprisonment for up to five years.

Other offences under the Marriage Act include giving a defective notice to a celebrant and failing to comply with a notice under section 51.

Same-sex marriage

Prior to 2017, marriage in Australia was defined as ‘the union of a man and a woman to the exclusion of all others voluntarily entered into for life.’ This was changed after the Australian Marriage Law Postal Survey, which posed the question “Should the law be changed to allow same-sex couples to marry?”  returned a 61.6% ‘yes’ vote. As it has pledged to do if the survey returned a yes vote, the Liberal-National coalition government then introduced a private member’s bill to legalise same-sex marriage.

The old definition of marriage was inserted into the Marriage Act in 2004 to ensure that same-sex marriages could not be performed or recognised in Australia. Prior to 2004, there had been no definition of ‘marriage’ in the Act and the common law definition explicated in the English case of Hyde v Hyde was used.

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