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Marriage

ON 9th DECEMBER 2017 the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into operation.

 

The Act changed the definition of marriage, removing the reference to ‘a man and a woman’ and replacing it with ‘two people’ and provided for marriage equality.

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For years, gay and lesbian couples had no legal recognition, despite being in loving, committed relationships. Now we have marriage equality and same-sex couples have the choice to have their relationship legally recognized, and with that, obtain all the rights attached to a marriage.

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If you want to get legally married in Australia, you must:

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  • not be married to someone else;

  • not be marrying a parent, grandparent, child, grandchild, brother or sister;

  • be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old;

  • understand what marriage means and freely consent to marrying;

  • use specific words during the ceremony;

  • give written notice of your intention to marry to your authorised celebrant, within the required time frame.[i]

 

You must complete a Notice of Intended Marriage at least 1 month before the ceremony and then after the wedding your celebrant must provide the signed paperwork to the Registry of Births, Deaths and Marriages in your state or territory within 14 days.

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Click here to download the Notice of Intended Marriage form:

 

https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Documents/New-notice-of-intended-marriage.pdf

 

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Overseas marriage

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Each county may have different requirements for a marriage to take place.

 

If you do want to get married overseas, you should contact the embassy or high commission of the country you wish to marry in for their specific advice. Generally speaking, a foreign country will most likely request from you a Certificate of no Impediment to Marriage (CNI). This Certificate is issued by the Department of Foreign Affairs and Trade (DFAT), however check whether the country requires the CNI from the Australian embassy, or an embassy within their country. 

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Fortunately, now if you marry overseas, your marriage is automatically recognised in Australia as a marriage, in all states. You don't register the marriage here. All you need to show is the official marriage certificate you received from the person who married you overseas, as proof of the marriage if required.

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An overseas marriage will generally be recognised in Australia if it:

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  • was a valid marriage in the overseas country;

  • would have been recognised as valid under Australian law if the marriage had taken place in Australia.[v]

 

If you do choose to marry in another country where same-sex marriage is legal, and then you separate from your partner, you would previously have had to get a divorce in that country.

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Prior to marriage equality, Australians who married in New Zealand who subsequently separated found themselves possibly ineligible for a divorce. To obtain a divorce in New Zealand, you must live there, or you must be living in another country but consider New Zealand your home and plan to return there.[vi]  That means if you live in Australia and consider Australia your home, you would have found it difficult to get a divorce if you were married in New Zealand.

 

Now because of marriage equality, you can obtain a divorce in Australia, even if you were married overseas.

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To read more about the requirements to marry in Australia go to:

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https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/marriage-equality.aspx#ssdivorce

 

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Footnotes

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[i] Attorney-General’s Department (2018), viewed 30 July 2018, https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx

[ii] Gov.UK (2016), viewed 4 October 2016, https://www.gov.uk/marriage-abroad

[iii] ABC News (2010), viewed 4 October 2016, http://www.abc.net.au/news/2010-09-29/tasmania-to-recognise-same-sex-marriage/2279158

[iv]NSW Justice: Registry of Births Deaths & Marriages (2016), viewed 4 October 2016, http://www.bdm.nsw.gov.au/Pages/marriages/relationship-register.aspx#marriages

[v] Attorney-General’s Department (2018), viewed 30 July 2018, https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/Getting-married.aspx

[vi]Ministry of Justice (2016), viewed 4 October 2016, http://www.justice.govt.nz/family-justice/separation/divorcing/who-can-apply-for-a-divorce

 

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Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.

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If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at nevans@nelawyers.com.au.

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