Marriage

The law regulating marriage in Australia is contained in the Marriage Act 1961 (Cth).

The Marriage Act 1961 (Cth) sets out who may marry, who may perform the marriage ceremony, how the ceremony is to be conducted and where and when it may be performed.

All references in this section are to this Act unless otherwise stated.

Who may marry?

Any person over the age of 18 may marry provided that the person:

  • is legally able to consent
  • is not married to someone else
  • is not in a prohibited relationship (such as that of a grandparent, parent, brother or sister) with the proposed spouse

[see ss 11, 23]

A person who is aged under 18 may marry provided:

  • they are at least 16 years of age; and
  • the proposed spouse is over 18 years of age; and
  • they obtain a court order authorising the marriage (the relevant court is the Magistrates Court); and
  • they have the written consent of the parents or guardians (unless a court has given the consent in place of the parents).

[see ss 12, 13]

A marriage can only occur between persons of opposite sex. Traditionally the definition of 'sex' has been left to biology, however the Family Court has recently allowed a marriage between a woman and female-to-male transexual, see: Re Kevin[2001] FamCA 1074. The decision was based on 'apparent sex', not biology. The decision was upheld on appeal [2003] FamCA 94.

What if I feel like I am being forced into getting married?

It is an offence for a person to force you, with the use of coercion, threat or deception, into marrying another person. It is also an offence for the husband or wife who you are being forced to marry (if they are separate to the person forcing you) to go ahead with the marriage.

The definition of marriage for the purposes of these offences is broader than a marriage that may be recognised under Australian law, see below 'Are foreign marriages recognised in Australia?'.

The maximum penalty for these offences is fours 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 features of these offences may occur wholly outside of Australia.

[See Criminal Code Act 1995 (Cth) ss 270.7A, 270.7B, 270.8 and 270.9]

What documents have to be filed before a marriage can take place?

Before a marriage ceremony can take place, a Notice of Intended Marriage (Form 13) must be given to the marriage celebrant, not more than 18 months and not less than one month before the date of the intended marriage. The notice must give all the required details and be signed by each of the intending spouse in the presence of the celebrant or another person authorised by the Act [see s 42].

The spouse must each complete and sign a declaration stating their current marital status and that they believe there is no legal reason why the marriage should not take place. Birth certificates, or extracts (showing the date and place of birth) or, if not obtainable, a statutory declaration giving these details, must be produced [see s 42].

Is evidence of divorce required?

Yes. A divorced person, widow or widower, must produce evidence of the divorce, or a death certificate.

In special cases, all or any of these requirements may be relaxed.

What is a valid ceremony?

To be valid, a marriage must be performed by an authorised celebrant, who may be:

  • a minister of religion registerd under the Act
  • the Registrar of Marriages for the State or Territory where the marriage is to take place
  • a person authorised by the Commonwealth Attorney-General

Civil marriage celebrants (listed in the Yellow Pages) charge while ministers of religion usually receive a donation.

Although many marriages take place in churches, they can occur at any time or any place, as long as two adult witnesses are present.

Is there any law requiring a woman to change her name to her husband's?

There is no law that a woman's name must be changed on marriage. Although it is common practice for a wife to assume her husband's surname, she can continue to use her own name after marriage if she chooses.

For more information, telephone the Registrar of Births, Deaths and Marriages at Consumer and Business Services on 131 882.

How do I obtain, and what are marriage certificates used for?

Commemorative marriage certificates are prepared on the day of the marriage by the marriage celebrant and signed by the husband and wife, the celebrant and two witnesses, who must be 18 years of age or over.

The certificate is usually given to the married couple after the ceremony. The celebrant must forward a second certificate to the Registrar of Births, Deaths and Marriages within the following fourteen days, for the official recording of the marriage [s 50(4)].

Once the marriage is officially recorded, you can apply to the Registrar of Births, Deaths and Marriages for a certificate of marriage which is signed and sealed by the Registrar.

Marriage certificates provide proof of a marriage and are needed for many purposes, such as obtaining passports, evidence in probate cases and when applying to a court under the Family Law Act 1975 (Cth).

Usually a photocopy of the marriage certificate will suffice for applications to the Family Law Courts.

Are foreign marriages recognised in Australia?

In general, a marriage celebrated overseas is recognised in Australia as a valid marriage if it is valid according to the laws of the country in which the marriage took place. However, the marriage will not be valid in Australia if:

  • either person is still married, ie a polygamous marriage [ss 23A(1)(a), 23B(1)(a)]
  • either person is not of marriageable age
  • the parties are within a prohibited relationship
  • there was no real consent [see s 23B(1)(d)]

Even though it may be legal for a child with dual nationality to marry whilst under the age of 18 in the country of their other nationality, such a marriage will not be valid under Australian law, even once they turn 18.

A marriage celebrated outside Australia can be proved with an official extract from the foreign registry. Proof of a foreign marriage is needed, for example, in all applications to the Family Law Courts. Certificates in a foreign language must be filed with a translation and an affidavit by the translator that he or she is competent to translate it. If a foreign marriage certificate is unavailable, the Family Law Courts may accept other evidence as sufficient proof of the marriage.

Marriages performed in Australia according to the laws of another country are generally valid if made in the presence of consular or diplomatic staff from that country and provided they observe the rules about age and prohibited relationships [s 55], see Annulment.

Does marriage give husband or wife a right to sexual intercourse?

Marriage gives no right to a husband or a wife to sexual intercourse and a person may be convicted of sexual offences on his or her spouse, see CRIMINAL AND TRAFFIC OFFENCES, Sexual Offences.

In the case of PGA v The Queen (2012) 245 CLR 355; [2012] HCA 21 the High Court held that if there ever had been such a right under the common law, there ceased to be so by the time of the enactment of the Criminal Law Consolidation Act 1935 (SA).

Does marriage affect a will?

Marriage automatically revokes a will, unless the will was made in anticipation of a marriage. Neither separation nor divorce automatically revokes a will, however upon divorce, any gift or power to the former spouse is cancelled. To be safe, legal advice about wills should be sought upon marriage, separation or divorce, see WILLS, ESTATES AND FUNERALS.

Contact points

Births, Deaths and Marriages
Level 2, Chesser House
91-97 Grenfell Street ADELAIDE SA 5000
Telephone: 131 882
Magistrates Court
Adelaide Civil Registry
260-280 Victoria Square ADELAIDE SA 5000
Telephone: 8204 2444
Marriage  :  Last Revised: Tue Mar 25th 2014
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.
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