The Legalities of Marriage
Congratulations! You’re getting married! (Or thinking about it)
In this article I have covered the basics surrounding Marriage, what’s involved in submitting your ‘Notice of Intended Marriage’, and how any prior Marriages may affect your wedding planning.
First let’s look at the general requirements of a Legal Marriage.
It is common for your celebrant or minister to go through the legal requirements of Marriage; and if they don’t you can always make a quick phone call to your chosen law firm to clear up any questions you might have. It’s also a good idea to check the Register of Marriage Celebrants to ensure that your celebrant is registered and able to perform Marriage ceremonies: https://marriage.ag.gov.au
The definition of Marriage is found in section 5 of the Marriage Act 1961 (Cth), which states that "Marriage" means the union of 2 people to the exclusion of all others, voluntarily entered into for life.
The Marriage ceremony needs to include the following:
- Two witnesses present who are over the age of 18 years;
- The minister or celebrant states the nature and obligations of Marriage, and in the case of celebrants they say certain words during the ceremony, including but not limited to:
"I am duly authorised by law to solemnise Marriages according to law.
"Before you are joined in Marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
"Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life."
"I call upon the persons here present to witness that I, take thee, to be my lawful wedded wife (or husband, or spouse)";
Other than the inclusion of the above, the Marriage ceremony can include as much or as little as you wish e.g. readings, songs, sand or candle lighting ceremonies, you name it, the list is endless. The point is, once the formal stuff is out of the way, there are an infinite amount of ways that you and your partner can make the ceremony just yours!
Legally, there are certain things that will make a Marriage void, those are:
1. Either party to the Marriage is, at the time of Marriage, married to another person;
2. The parties to the Marriage are in a prohibited relationship. A prohibited relationship being a relationship between a person and an ancestor or descendant of the person (i.e. parents or grandparents) or between siblings (including both whole and half blood siblings);
3. The parties did not enter the Marriage voluntarily. A Marriage is not entered into voluntarily when:
a. Either party of the Marriage’s consent to the Marriage is obtained under duress or by fraud;
b. Either party is mistaken as to the identity of the other or they were unaware of the ceremony which was being performed; or
c. Either party is incapable of understanding the effect of a Marriage ceremony for reason of mental incapacity;
4. Either party to the Marriage is not of marital age, marital age being 18 and over;
5. Either party has not provided the appropriate written notice of their intention to marry.
Before you pick your wedding date and book your venue, you also need to ensure that you have factored in the following:
1. Lodging your Notice of Intended Marriage, and
2. Finalising any previous Marriages (if applicable)
Notice of Intended Marriage:
As previously noted, one reason that a Marriage may be considered void is the failure to provide the appropriate written notice. The requirement to provide notice is found in section 42 of the Marriage Act.
The notice is to be provided to the authorised celebrant solemnising the Marriage at least 1 month prior to the date of Marriage, but also within 18 months of the date of Marriage.
With the Notice of Intended Marriage you will also need to provide to your celebrant details of your birth and particulars of the parties previous Marriages and their end (if applicable). You may also be required to complete a statutory declaration; however your celebrant will advise you if this is the case.
Finalising a previous Marriage (Divorce):
In my experience, it’s a good idea not to set a firm date for your impending Marriage until the Divorce order is finalised. The authorised celebrant will need to see the Divorce order before the Marriage ceremony can take place.
However, it is possible to complete and provide to your celebrant the Notice of Intended Marriage before the Divorce order is finalised.
A Divorce order generally comes into effect one month and one day after the Divorce is granted by the Court. The granting of the Divorce occurs after the Registrar of the Court hears your circumstances. Be careful not to assume this will always be granted on the first instance, as the Court may require further information depending on your circumstances. The rule of thumb is to get this all finalised well in advance of you wedding day.
Now that you know the legal requirements, you can focus on the fun stuff - like picking a cake! Happy Wedding Day!
Family Law Solicitor
Kenny Spring Solicitors