Jonah Patel
The Marriage Act 1961 (Cth) is a law in Australia that sets out the rules for marriage, including who can marry, who can perform the ceremony, and how and when it can be conducted. Before 2004, the Act did not define marriage, instead relying on common law definitions. However, in 2004, an amendment was passed that defined marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. This amendment also aimed to prevent the recognition of same-sex marriages performed in foreign jurisdictions. In 2017, same-sex marriage was legalised in Australia, and the Marriage Act was amended to reflect this, with marriage now defined as the union of two people.
| Characteristics | Values |
|---|---|
| Date of Enactment | 1961 |
| Definition of Marriage | The union of a man and a woman to the exclusion of all others, voluntarily entered into for life (before 2004) |
| The union of 2 people to the exclusion of all others, voluntarily entered into for life (after 2017) | |
| Recognition of Foreign Marriages | Recognised if valid in the country where they were performed and if legal under Australian law (before 2017) |
| All marriages lawfully solemnised overseas recognised irrespective of the sex or gender identity of the spouses (after 2017) | |
| Recognition of Same-Sex Marriages | Not recognised before 2017 |
| Recognised after the Marriage Amendment (Definition and Religious Freedoms) Act 2017 | |
| Political Opposition | The Australian Greens and Democrats opposed the bill |
| Labor initially opposed but changed its stance by 2011 | |
| Public Opinion | 61.6% of Australians voted in favour of same-sex marriage in a 2017 postal survey |
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What You'll Learn
Marriage equality
The Marriage Act 1961 (Cth) is the law regulating marriage in Australia. It sets out who may marry, who may perform the marriage ceremony, and how, where, and when it may be performed.
Before 2004, there was no definition of marriage in the 1961 Act, and the common-law definition used in the English case Hyde v Hyde (1866) was considered supreme. Celebrants were required to explain the legal nature of marriage in Australia to a couple as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". However, these words were descriptive rather than outlining what constituted a legally valid marriage in Australia.
In 2004, the then-federal attorney general, Philip Ruddock, introduced the Marriage Amendment Bill 2004 to incorporate a definition of marriage into the Marriage Act 1961 and to outlaw the recognition of same-sex marriages lawfully entered into in foreign jurisdictions. The bill passed the House of Representatives in June 2004 and the amendment passed the Parliament on 12 August 2004. The amendment defined marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". It also stated that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.
In 2017, Australians voted in favour of marriage equality via a postal survey. On 9 December 2017, the Marriage Act 1961 was updated to allow for marriage equality, giving same-sex couples the same right to marry as heterosexual couples. The Act now defines marriage as "the union of two people to the exclusion of all others, voluntarily entered into for life". This was the culmination of decades of campaigning by the lesbian, gay, bisexual, transgender, intersex, queer, and asexual (LGBTIQA+) communities and their supporters.
Since the changes to the Marriage Act 1961, it is possible for couples to be legally married in Australia irrespective of their sex or gender identity. All marriages lawfully solemnised overseas may also be recognised as lawful marriages in Australia, irrespective of the sex or gender identity of the spouses. However, there are still some restrictions on marriages performed overseas that will not be recognised in Australia, such as if either person is already married (i.e., a polygamous marriage) or if one person is under the age of 18.
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Recognition of foreign marriages
The Marriage Act 1961 defines the legal nature of marriage in Australia. Before 2004, the Act did not contain a definition of marriage, and instead, the common-law definition used in the English case Hyde v Hyde (1866) was considered supreme. On 27 May 2004, the then-federal attorney general Philip Ruddock introduced the Marriage Amendment Bill 2004 to incorporate a definition of marriage into the Act and to outlaw the recognition of same-sex marriages lawfully entered into in foreign jurisdictions. The bill passed the House of Representatives in June 2004 and the amendment passed the Parliament on 12 August 2004. The amendment defined marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".
The Act recognises marriages performed in foreign countries as long as they were valid in the country where they were performed and if the marriage would be legal under Australian law. A foreign marriage certificate is proof of marriage, and such marriages need not be registered in Australia. However, a foreign marriage will not be recognised if, for example, a person was already married (or the overseas divorce is not recognised in Australia), a person was aged under 18, the persons were direct descendants or siblings, or there was duress or fraud.
In 2017, Australians voted in favour of marriage equality via a postal survey. On 9 December 2017, the Marriage Act 1961 was updated to allow for marriage equality, and the Act now defines marriage as "the union of two people to the exclusion of all others, voluntarily entered into for life". The right to marry in Australia is no longer determined by sex or gender.
It is important to note that if you are planning to get married overseas, there may be additional legal requirements of which you must be aware. Each country decides what proof it will accept to demonstrate that an individual is not already married. Some foreign governments require a Certificate of No Impediment to Marriage issued by a government authority. The Department of Foreign Affairs and Trade (DFAT) in Australia can issue these, but some governments will only accept them if they are issued by the Australian embassy in their country.
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Legal requirements to marry
The Marriage Act 1961 defines marriage in Australia as 'the union of two people to the exclusion of all others, voluntarily entered into for life'. This definition was amended in 2017 to allow for marriage equality.
To get married in Australia, you must:
- Complete a Notice of Intended Marriage (NOIM) form and give it to an authorised marriage celebrant at least one month and no more than 18 months before your wedding. You can do this in person or remotely via an audio-visual link.
- Sign the NOIM in front of your celebrant or another authorised individual, such as a police officer, barrister, solicitor, Justice of the Peace, or a legally qualified medical practitioner.
- Have your wedding ceremony officiated by a registered celebrant or authorised individual to be legally recognised. This can be a state/territory-appointed celebrant, a Commonwealth civil celebrant, or a minister of religion, depending on whether you choose a civil or religious ceremony.
- Sign a declaration before the marriage ceremony, stating that there are no legal impediments to your marriage.
- Ensure that you, your celebrant, and your witnesses sign two official marriage certificates and one ceremonial certificate. The ceremonial certificate will be given to you on the day, and the official certificates will be submitted by your celebrant to the registry of births, deaths, and marriages in the state or territory where the marriage took place.
- Apply for your official marriage certificate from the registry after the marriage has been registered.
It is important to note that you do not have to be an Australian citizen or permanent resident to get married in Australia. However, if you plan to live in Australia after your marriage, you should consider visa requirements. Additionally, some countries may require permission from their Embassy for your marriage in Australia to be recognised.
While not a legal requirement, some couples choose to enter into a prenuptial agreement before marriage, outlining how assets will be divided if the relationship ends. This agreement must be validated by both parties receiving independent legal advice before signing.
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Religious freedoms
The Marriage Act 1961 (Cth) is a law that regulates marriage in Australia. The Act sets out who may marry, who may perform the marriage ceremony, and how, where, and when it may be performed. Before 2004, there was no definition of marriage in the Act, and the common-law definition used in the English case Hyde v Hyde (1866) was considered supreme. In 2004, the then-federal attorney general, Philip Ruddock, introduced the Marriage Amendment Bill to incorporate a definition of marriage into the Act and to outlaw the recognition of same-sex marriages lawfully entered into in foreign jurisdictions. The bill passed the House of Representatives in June 2004 and the amendment passed the Parliament on 12 August 2004. The definition of marriage included in the amendment was "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life".
In 2017, Australians voted in favour of marriage equality via a postal survey. This led to the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which amended the federal Marriage Act on 9 December 2017, giving same-sex couples the same right to marry as heterosexual couples. The Act now defines marriage as "the union of two people to the exclusion of all others, voluntarily entered into for life".
The religious freedoms protected by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 include:
- Protections for ministers of religion and marriage celebrants with religious beliefs about marriage. After the Marriage Act changed, existing Commonwealth-registered marriage celebrants could choose to be religious marriage celebrants. Religious marriage celebrants can choose to marry people in line with their religious beliefs.
- The Sex Discrimination Act 1984 (Cth) was amended to ensure that it is not unlawful discrimination for a minister of religion or religious marriage celebrant to refuse to marry a couple based on their sexuality or gender.
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Marriage and sexuality
The Marriage Act 1961 (Cth) is the law regulating marriage in Australia. It sets out who may marry, who may perform the marriage ceremony, how the ceremony is to be conducted, and where and when it may be performed.
Before 2004, there was no definition of marriage in the 1961 Act. Instead, the common-law definition used in the English case Hyde v Hyde (1866) was considered supreme. Celebrants were required to explain the legal nature of marriage in Australia to a couple as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". However, these words were descriptive or explanatory rather than outlining what constituted a legally valid marriage in Australia.
In 2004, the federal attorney-general Philip Ruddock introduced the Marriage Amendment Bill 2004 to incorporate a definition of marriage into the Marriage Act 1961 and to outlaw the recognition of same-sex marriages lawfully entered into in foreign jurisdictions. The bill passed the House of Representatives in June 2004 and the amendment passed the Parliament on 12 August 2004. The amendment defined marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". It also stated that a union solemnised in a foreign country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia.
In 2017, Australians voted in favour of marriage equality via a postal survey. On 9 December 2017, the Marriage Act 1961 was updated to allow for marriage equality, giving same-sex couples the same right to marry as heterosexual couples. The Act now defines marriage as "the union of two people to the exclusion of all others, voluntarily entered into for life".
It is important to note that marriage does not give the right to sexual intercourse. A person may be convicted of a sexual offence if they engage in sexual intercourse with their spouse without their spouse's consent.
In terms of foreign marriages, a marriage celebrated overseas is generally recognised as valid in Australia if it is valid according to the laws of the country in which it took place. However, the marriage will not be valid in Australia if either person is still married (i.e., in a polygamous marriage), if it involves prohibited relationships (such as that of a grandparent, parent, or sibling), or if it involves individuals under the age of 18.
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Frequently asked questions
The Marriage Act 1961 (Cth) is a law that regulates marriage in Australia. It sets out who may marry, who may perform the marriage ceremony, and how, where, and when it may be performed.
In 2017, Australians voted in favor of marriage equality via a postal survey. On December 9, 2017, the Marriage Act was amended to give same-sex couples the same right to marry as heterosexual couples. This was the result of decades of campaigning by the LGBTQIA+ communities and their supporters.
The current definition of marriage in Australia, as of the amendment in 2017, is "the union of two people to the exclusion of all others, voluntarily entered into for life". Marriages performed in foreign countries will be recognized as valid in Australia if they are considered legal in the country where they were performed and if they would be legal under Australian law.
