Requirements for a Requirements for a Valid MarriageValid Marriage

© Karen Devine 2010

Requirements for a Valid MarriageRequirements for a Valid Marriage

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

© Karen Devine 2010

Requirements for a Valid MarriageRequirements for a Valid Marriage

The Marriage Act The Marriage Act contains:contains:

a)a) Who may marry.Who may marry.

b)b) Who may perform the Who may perform the marriage.marriage.

c)c) How the marriage How the marriage ceremony is to be ceremony is to be conducted.conducted.

d)d) Where and when it is Where and when it is to be performed.to be performed.

© Karen Devine 2010

Marriageable Age

Males and females Males and females must both be over must both be over 18.18.On rare occasions On rare occasions consent may be consent may be given by parents given by parents and the court to and the court to marry between the marry between the ages of 16-18.ages of 16-18.

© Karen Devine 2010

Consanguinity

Couples must be Couples must be within the degrees within the degrees of consanguinityof consanguinity.. That is, they That is, they cannot marry cannot marry ancestors or ancestors or descendants. descendants. However, However, marriage to a first marriage to a first cousin is allowed.cousin is allowed.

© Karen Devine 2010

Gender

A couple must be male A couple must be male and female. and female. Historically, one’s sex for Historically, one’s sex for marriage is determined by marriage is determined by their sex at birth.their sex at birth.However recent case law However recent case law (in Kevin’s Case 2003) (in Kevin’s Case 2003) has meant that has meant that transsexuals may marry. transsexuals may marry. This has overturned This has overturned Corbett’s case from 1970.Corbett’s case from 1970.

© Karen Devine 2010

Statutory Requirements for a Valid Statutory Requirements for a Valid MarriageMarriage

a)a) The parties must be free to marry.The parties must be free to marry.

b)b) They must be of marriageable age.They must be of marriageable age.

c)c) They must be within the degrees of consanguinity.They must be within the degrees of consanguinity.

d)d) Parental and judicial consent is required if one or both of Parental and judicial consent is required if one or both of the parties are minors.the parties are minors.

e)e) One month’s notice of intention to marry must be given to One month’s notice of intention to marry must be given to an authorised celebrant.an authorised celebrant.

f)f) Documentary proof may be required of death, divorce or Documentary proof may be required of death, divorce or annulment.annulment.

g)g) Marriage must be solemnised by an authorised celebrant.Marriage must be solemnised by an authorised celebrant.

h)h) Two witnesses aged over 18 must be present and sign the Two witnesses aged over 18 must be present and sign the marriage certificate.marriage certificate.

i)i) A marriage certificate must be prepared in triplicate.A marriage certificate must be prepared in triplicate.

© Karen Devine 2010

Common Law Requirements for a Common Law Requirements for a Valid MarriageValid Marriage

According to Hyde v Hyde According to Hyde v Hyde and Woodmansee (1866) and Woodmansee (1866) and now incorporated into and now incorporated into the Marriage Act (Cth) 1961, the Marriage Act (Cth) 1961, marriage must be:marriage must be:

a)a) A voluntary union.A voluntary union.

b)b) Between a man and a Between a man and a woman.woman.

c)c) Voluntarily entered into for Voluntarily entered into for life.life.

d)d) To the exclusion of all others.To the exclusion of all others.

© Karen Devine 2010

Pause PointPause Point

Read about Kevin’s case.

© Karen Devine 2010

Question Time?Question Time?

Should marriage Should marriage law be changed to law be changed to allow same sex allow same sex couples to marry?couples to marry?

© Karen Devine 2010