Legal Requirements of Marriage

Thursday 18th of July 2024

Legal Studies

Syllabus Topic

Option 3: Family

The nature of family law

legal requirements of marriage

Environmental Management Quiz

INTRODUCTION

The legal framework surrounding marriage serves multiple purposes: it provides formal recognition and rights for individuals entering into this intimate relationship, sets standards for behaviour within the marriage, and outlines procedures for the dissolution of the marriage, including the equitable division of assets and care for any children. By doing so, the law aims to encourage cooperation, resolve conflicts, and ensure just outcomes for all family members.

Legal requirement of marriage

Marriage has traditionally been defined as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. However, with the advent of same-sex marriage equality and the recognition that the original Universal Declaration of Human Rights (UDHR) definition of marriage does not necessarily exclude same-sex unions, the definition has broadened to the "union of a person." This change was formalized through the Marriage Amendment (Definition and Religious Freedoms) Act 2017, following the 2017 Australian Marriage Law Postal Survey.

Sections 51(xxi) and (xxii) of the Australian Constitution grant the federal government the power and authority to make laws governing marriage and divorce. The Marriage Act 1961 (Cth) established the legal requirements for a valid marriage, while the Family Law Act 1975 (Cth) sets out the legal duties and obligations that marriage creates. The aim of the Family Law Act is to reform the laws governing the dissolution of marriage.

Therefore, marriage is now defined as the exclusive union between two people (including same-gender couples), voluntarily entered into for life. As a legal institution, individuals who intend to marry must consider the legal consequences of this union, which includes a duty of care.

When is marriage valid?

The legal marriageable age is defined in Section 11 of the Marriage Act 1961 as 18 years old. A person is allowed to get married if they and their partner are at least 18 years old, both agree to the marriage, and neither is married to someone else. For individuals under 18, if either person is between 16 and 18 years old, they must apply to the Family Court or Magistrates Court to get married. The court will only grant permission in unusual or exceptional circumstances, and such orders are rare. Additionally, they must have permission from a parent or guardian.

When is Marriage invalid?

Marriage is invalid (not legally recognized) if either person is already married to someone else (no polygamy), if either person is underage without court permission, if either person did not give real consent (e.g., if forced or unaware), or if the parties are closely related (including step-siblings, step-parents, half-siblings, adopted siblings, adoptive parents, and blood relatives). Marriage must be voluntarily entered into; it is not legally binding if one of the parties was forced or tricked into the marriage, which would result in something termed ‘forced marriage’, that serves as a major contemporary issue in family law.

While marriage is intended for life, a married couple has the right to divorce, thereby legally ending the marriage before the death of either party, thanks to the introduction of no-fault divorce following the 1975 Family Law Act.

Multiple Choice Question

Which of the following conditions is necessary for a marriage to be legally valid in Australia?

Short Answer Questions

1. Describe the legal requirements for marriage in Australia.

In Australia, for a marriage to be legally valid, both parties must be at least 18 years old, and neither party should be currently married to someone else. If either individual is under 18 but at least 16 years old, they must seek permission from the Family Court or Magistrates Court and obtain parental or guardian consent. Furthermore, the marriage must be entered into voluntarily, with genuine consent from both parties, and the relationship must not be between closely related individuals. These requirements ensure that marriages are legally recognized and conducted with full compliance with Australian law.

2. Explain the significance of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 in the context of Australian marriage law.

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 was a pivotal piece of legislation in Australian marriage law, as it broadened the definition of marriage to include same-sex couples. Prior to this amendment, marriage was traditionally defined as a union between a man and a woman. The Act, following the 2017 Australian Marriage Law Postal Survey, formally recognized the union of two people, regardless of gender, thus ensuring equal legal recognition and rights for all couples. This legislative change was significant in reflecting societal progress towards inclusivity and equality in marriage.

3. How does the Family Law Act 1975 (Cth) contribute to the dissolution of marriage in Australia?

The Family Law Act 1975 (Cth) plays a crucial role in the dissolution of marriage in Australia by establishing a no-fault divorce system. This means that couples seeking a divorce do not need to prove fault or wrongdoing by either party. The Act provides a clear framework for the equitable division of assets and addresses matters related to the care of children, aiming to ensure fair outcomes for all parties involved. By simplifying the divorce process and focusing on the best interests of children, the Family Law Act facilitates a more streamlined and just approach to ending marriages.

SOURCES

UN: UDHR

Parliament of Australia: Marriage Amendment (Definition and Religious Freedoms) Bill 2017

Australian Bureau of Statistics: Australian Marriage Law Postal Survey, 2017

Parliament of Australia: Part V - Powers of the Parliament

AUSTLII: MARRIAGE ACT 1961

Federal Register of Legislation: Family Law Act 1975

NSW Government: Marriage and the law

Attorney-General’s Department: Forced Marriage

ABC News: How Australia introduced 'no-fault divorce'