Grade Course: Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    2
  • Words:
    1177

Legal requirements for a valid marriage in NSW

Legal Requirements for a Valid Marriage in Australia NSW

  • Executive summary: provide a succinct summary of the essay. Identify the legal requirements for a valid marriage in NSW as identified in the report.

  • Section 73 Marriage Act 1961(Cth): states that legal marriages in Australia must be solemnised in accordance with rules laid out in the constitution.

  • Monogamous heterosexuals: The constitution makes it clear that a legal marriage needs to be between a man and woman who are not in any other existing marriage recognised as valid in Australia.

  • Of Legal Age: the constitution states that people who intended to marry must be at least 18 years old.

  • Subsequent marriages: The constitution states that people who have been married before must prove that their previous marriages are void before remarrying.

  • Issuing notice: a notice of intended marriage must be issued, and must meet specific time requirements

  • Overseas Marriages: people who marry outside Australia and who want their marriages to be legally recognised in the country must follow specific constitutional requirements.

Table of Contents

Table of Contents iii

Executive Summary 1

Section 73 Marriage Act 1961(Cth) 1

Monogamous Heterosexuals 2

Of Legal Age 2

Subsequent Marriages 3

Issuing notice 3

Overseas Marriages 3

Appendices 5

Executive Summary

In Australia, the Marriage Act 1961(Cth) lays the rules that any legal marriage must abide to in order to be recognised under the law. Specifically, the law states that a marriage union should be between a consenting man and woman, who are not related though family ties, and who have entered such union out of their own free will. The parties should not be in any other existing legally recognised marriage in Australia. The Constitution sets the legal age for marriage at 18 years, and lays some rules under which oversees marriages can be recognised as legal in Australia.

Section 73 Marriage Act 1961(Cth)

The legal requirements for a valid marriage in Australia New South Wales (NSW) are embedded in the section 73 of Marriage Act 1961(Cth), which states that a marriage “solemnised in Australia in accordance with division 2 of part IV…”1

The Constitution makes it very clear that states do not have room to legislate over marriage, and that the exclusive jurisdiction over such matters lie with the Commonwealth2. Specifically, Section 51(xxi) of the Australian Constitution states that “parliament shall… have power to make laws for peace, order, and good government of the Commonwealth with respect to: — marriage”3

Monogamous Heterosexuals

Other pieces of legislation that underline conditions under which the marriage union is recognised as valid under the law include the Marriage Regulation (1963), Section 43(a) of the Family Law Act 1975 (Cth), and sections 46(1) & 69(2) of the Marriage Act 1961. In a 2004 amendment, a more precise definition of marriage was given to indicate that ‘marriage’ “is a voluntary union for life of one man and one woman to the exclusion of all others”4. This amendment reflects that, marriage is formal and voluntary union between two heterosexual, monogamous individuals.

Of Legal Age

Legal marriages also need to be between people who have attained a legal age of 18 years. However, the Constitution leaves some room for couples to be wed before attaining 18 years in which case the ‘minor’ would have to prove that he or she has gained consent from his/her parents. In cases where the parent denies a ‘minor’ the consent to wed or be wed, a prescribed authority, a magistrate or a judge can issue consent after being satisfied that the minor has obligations that cannot be met until he or she gets married. Either way, a court has to issue a ‘Section 12’ order for a marriage between one or two minors to be solemnised5.

Subsequent Marriages

Widowed or divorced people need to prove that their previous marriages are void before remarrying. Specifically, a widowed person needs to provide a death certificate of his/her former partner, while a divorced person needs to provide a divorce certificate6.

Issuing notice

For a marriage to be legally valid in NSW, the people who wish to get married need to notify a marriage celebrant of the same using the Notice of Intended Marriage form (See link in appendix 1). The notice should not exceed 18 months, and should not less than one month and one day from the intended date that the couple wish to take their marriage vows. Additionally, only ‘authorised celebrant’ who is a ‘minister of religion’, ‘a person authorised to solemnise marriages’ or a ‘marriage celebrant’ is recognised as such. This gives the impression that a marriage officiated by a person who is not recognised by law as an authorised celebrant would be regarded void.

Overseas Marriages

In law, Australians who marry outside the country cannot have their unions registered in NSW. As such, parties to a marriage who wish to receive recognition in NSW need to obtain marriage certificate in the country where they got married and lodge it with the Department of Immigration and Citizenship on travelling to NSW. Only then can they be recognised as a legally married couple. However, marriages solemnised in the presence of an Australian consular or diplomatic in foreign territory, or where a certificate of ‘no impediment to marriage’ (see link in appendix 2) has been issued by the Department of Foreign Affairs and Trade are considered legal7.

Appendices

Appendix 1:

Download a Notice of Intended Marriage (NOIM form) from < http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~notice+of+intended+marriage+form.pdf/$file/notice+of+intended+marriage+form.pdf>

Appendix 2:

Download an application form for “a certificate of no impediment to marriage from<http://www.smartraveller.gov.au//no_impediment_marriage_form.pdf>

Bibliography

Australian Constitution. N.d. section 51(xxi).

Commonwealth Consolidated Acts (a). N.d. Marriage Act 1961 – Sect 73: validity of Marriages. http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s73.html (accessed August 30, 2011).

Commonwealth Consolidated Acts (b). N.d. Marriage Act 1961- Sect 88D: Validity of Marriages. http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s88d.html (accessed August 30, 2011)

Cooper, D. M. 2005. For richer for poorer, in sickness and in health: should Australia embrace same-sex marriage? Australian Journal of Family Law 19 (2): 1-19.

Ireland, I. 2002. The high court and the meaning of ‘marriage’ in Section 51 (xxi) of the constitution. Laws and Bills Digest Group. Research note 17. http://www.aph.gov.au/library/pubs/rn/2001-02/02rn17.htm (accessed August 30, 2011).

NSW Government. N.d. Getting married: NOIM- Notice of intended marriage. http://www.bdm.nsw.gov.au/marriages/gettingMarried.htm (accessed august 30, 2011).

1
Commonwealth Consolidated Acts (a) n.d. Marriage Act 1961- Sect 88D: Validity of Marriages. http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s88d.html (accessed August 30, 2011)

2 Ireland, Ian. 2002. The high court and the meaning of ‘marriage’ in Section 51 (xxi) of the constitution. Laws and Bills Digest Group. Research note 17. http://www.aph.gov.au/library/pubs/rn/2001-02/02rn17.htm (accessed August 30, 2011)

3
Australian Constitution n.d. section 51(xxi))

4 Cooper, Daniel. 2005. For richer for poorer, in sickness and in health: should Australia embrace same-sex marriage? Australian Journal of Family Law 19 (2): 2.

5 NSW government. N.d. Getting married: NOIM- Notice of intended marriage. http://www.bdm.nsw.gov.au/marriages/gettingMarried.htm (accessed august 30, 2011).

6 NSW Government. N.d. Getting married: NOIM- Notice of intended marriage. http://www.bdm.nsw.gov.au/marriages/gettingMarried.htm (accessed august 30, 2011)

7 Commonwealth Consolidated Acts (b) n.d. Marriage Act 1961 – Sect 73: validity of Marriages. http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/s73.html (accessed August 30, 2011).