The law regulating marriage in Australia is contained in the Marriage Act 1961 (Cth) which 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 [Marriage Act 1961 ss 11, 23], provided that the person:

If a person under 18 years of age wishes to marry:

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.

The ceremony

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

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

Notice of intention

Before a marriage ceremony can take place, a notice of intention to marry must be given to the marriage celebrant, not more than six 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 partners in the presence of the celebrant or another person authorised by the Act [Marriage Act 1961 s 42].

The partners 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 [s 42].

Evidence of divorce required

A divorced person, widow or widower, must produce evidence of the divorce, or a death certificate. A minor must obtain the appropriate consents.

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

Although most marriages take place in a church or a home, they can occur at any time or any place, as long as two adult witnesses are present.

Changing names

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

Marriage certificates

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 the Family Court under the Family Law Act 1975 (Cth). Usually a photocopy of the Marriage Certificate will suffice for an application to the Family Court.

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 [Marriage Act 1961 s 50(4)].

Foreign marriages

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:

A marriage celebrated outside Australia can be proved with an official extract from the foreign registry. Proof of a foreign marriage is needed, forexample, in all Family Court applications. Certificates in a foreign language must be filed witha 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 Court may accept other evidence as sufficient proof of the marriage.

An Australian marriage may be performed overseas if the ceremony is witnessed by a marriage officer (usually an Australian consular official) authorised under the Marriage Act 1961 (Cth). These marriages are recorded in the Register of Overseas Marriages. However, the Department of Foreign Affairs stopped this service in January 1995 and it unknown whether it will resume.

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.

Sexual relations

Marriage gives no right to a husband or a wife to sexual intercourse. A person may be convicted of sexual offence on his or her spouse, see: sexual offences. As well, a spouse who is sexually assaulted by the other may sue for assault.

Contraception and abortion

Advice on contraception is readily obtainable from medical practitioners and family planning clinics. A person seeking advice or taking contraception does not need a spouse's consent.

The laws on abortion differ from State to State. In South Australia it is covered under the Criminal Law Consolidation Act 1935 s82A(1). To perform an illegal abortion on oneself or someone else is an offence with a maximum penalty of life imprisonment.

A woman who has resided in South Australia for at least two months may have an abortion, at certain hospitals, by a medical practitioner who agrees with another medical practitioner with one of the following assessments:

Wills and estates

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.

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