Jonah Patel
The Australian Constitution does not define marriage, but Section 51(xxi) gives the Australian Parliament the power to make laws regarding marriage. The Marriage Act 1961 originally left the definition of marriage to the courts to apply the common law definition. In 2004, the Marriage Amendment Act defined marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. In 2017, the Marriage Amendment (Definition and Religious Freedoms) Act changed the definition of marriage to the union of two people to the exclusion of all others, voluntarily entered into for life, thereby legalising same-sex marriage in Australia.
| Characteristics | Values |
|---|---|
| Who can make laws about marriage | Australian Parliament |
| Recognition of overseas marriages | Valid if recognised as valid in the country of origin and if it would be considered valid under Australian law |
| Recognition of overseas same-sex marriages | Recognised as of 2017 |
| Who can get married | Two consenting adults who are not already married and are not closely related |
| Minimum age to get married | 18 years, with some exceptions |
| Binding nature of marriage | Binding relationship |
| Marriage fraud | Illegal |
| Annulment | Allowed under certain conditions, including if the marriage is illegal or prohibited, if one or both parties are already married, or if one party was not old enough to marry |
| Divorce | Allowed under the Family Law Act 1975 (Cth) |
| De facto relationships | Recognised and treated similarly to marriages in terms of social security, property division, and childcare |
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What You'll Learn
Marriage equality and same-sex marriage recognition
The Australian Constitution does not define marriage. Instead, Section 51(xxi) of the Constitution gives the Australian Parliament the power to make laws regarding marriage. The Marriage Act 1961 controls who can and cannot marry in Australia.
Before 2004, the Marriage Act 1961 did not contain a definition of marriage. 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 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 Marriage Amendment Bill 2004 was introduced 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 and Parliament.
In 2013, the Australian Capital Territory passed a same-sex marriage law that was struck down by the High Court for inconsistency with federal law. The Civil Union Act 2012 granted many of the same rights to same-sex couples as people married under the Marriage Act 1961. However, the Act was repealed in 2017, and civil unions were no longer accessible to same-sex couples.
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. The Act defines marriage as "the union of 2 people to the exclusion of all others, voluntarily entered into for life". Since then, same-sex marriages that took place overseas have been generally recognised in Australia, and same-sex married couples are treated the same as other married couples.
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Marriage Act 1961 and its amendments
The Australian Constitution does not define marriage. Instead, Section 51(xxi) of the Constitution gives the Australian Parliament the power to make laws about marriage. The Marriage Act 1961 controls who can and cannot marry in Australia.
Before 2004, the Marriage Act 1961 did not contain a definition of marriage. Instead, the common-law definition used in the English case Hyde v Hyde (1866) was considered supreme. However, 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".
In 2004, the Marriage Amendment Bill 2004 was introduced 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.
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. The amendment changed the definition of marriage to "the union of 2 people to the exclusion of all others, voluntarily entered into for life". It also repealed Section 88EA, which banned the recognition of overseas same-sex marriages. Consequently, when the Act went into effect on 9 December 2017, such couples became automatically recognised as married under the law.
The Marriage Act 1961 also establishes the circumstances in which a marriage is void. A purported marriage is void if either party is already married, the parties are in a prohibited relationship (direct descendants or siblings), the marriage was not solemnised by an authorised celebrant, or there is no consent. The Act also outlines the procedures to be followed for solemnising marriages in Australia and the requirements for marriage celebrants.
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Marriage definition evolution and inclusivity
The Australian Constitution does not define marriage; instead, it gives the Australian Parliament the power to make laws regarding marriage. The Marriage Act 1961, which originally did not include a definition of marriage, was amended in 2004 to define marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". This amendment was a response to the growing international recognition of same-sex unions and the potential for overseas same-sex marriages to be recognised under Australian law.
However, the definition of marriage in Australia has evolved to become more inclusive. In 2017, the Marriage Act 1961 was amended again, replacing the words "a man and a woman" with "2 people", thereby legalising same-sex marriage. This change followed a nationwide postal survey in which Australians voted in favour of marriage equality. The updated definition of marriage is now "the union of 2 people to the exclusion of all others, voluntarily entered into for life". This change also led to the recognition of overseas same-sex marriages, provided they were permitted in the country where they took place.
While marriage is a beautiful union that brings two hearts together, it also comes with a complex web of legal rights, responsibilities, and implications. Marriages must be entered into genuinely and not as a means to gain legal or financial advantages. The legal recognition of marriage in Australia extends to overseas marriages, which are generally recognised as long as they are valid in the country where they were performed and comply with Australian law.
The evolution of the definition of marriage in Australia reflects a significant step towards equality and inclusivity. The amendments to the Marriage Act demonstrate a shift towards recognising the rights of all individuals to marry the person of their choice, regardless of gender. This change ensures that all Australians have the opportunity to experience the legal and social benefits associated with marriage, fostering a more inclusive and equitable society.
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Marriage legal rights and privileges
Marriage is mentioned briefly in Australia's Constitution, but only from a division of powers perspective between the Commonwealth and the states. Section 51(xxi) of the Australian Constitution gives the Australian Parliament the power to make laws about marriage. It does not, however, define what marriage is. The details of how marriages are conducted in Australia are contained in the Marriage Act 1961.
The legal definition of marriage in Australia has evolved over time to become more inclusive, now encompassing the legal union of any two consenting adults. The original Marriage Act did not include a definition of marriage, leaving it to the courts to apply the common law definition. The Marriage Amendment Act 2004 defined, for the first time by statute, marriage as "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. On 9 December 2017, the Marriage Act 1961 was updated to allow for marriage equality. The Act defines marriage as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'. Since 9 December 2017, same-sex marriages that took place overseas have generally been recognised in Australia. Same-sex married couples are treated the same as other married couples in Australia.
Marriage is distinct from de facto partnerships in Australia. De facto relationships, which can include both same-sex and opposite-sex couples, are defined as committed, intimate relationships where the couple lives together on a genuine domestic basis. De facto couples generally enjoy many of the same legal rights and protections as married couples under Australian law, but there are some notable differences. De facto relationships are automatically recognised by law after the couple has lived together for a certain period, rather than requiring a formal ceremony or registration.
Prenuptial agreements, known as binding financial agreements, are legally enforceable in Australia if they comply with the legal requirements and are properly drafted and executed. Marriages performed abroad are normally recognised in Australia if entered into in accordance with the applicable foreign law and do not require registration in Australia.
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Marriage recognition for overseas marriages
The Australian Constitution does not define marriage. Instead, Section 51(xxi) of the Constitution gives the Australian Parliament the power to make laws regarding marriage. The Marriage Act 1961 and Marriage Regulations 2017 set the rules for marriages in Australia.
Overseas marriages are not registered in Australia. However, in most cases, marriages that take place overseas are legally recognised in Australia if they are recognised in the country where the marriage took place. For example, same-sex marriages that took place overseas before December 2017 are recognised in Australia.
To be recognised in Australia, an overseas marriage must be:
- Valid under the law of the country where it took place
- Valid under Australian law if it had occurred in Australia
A foreign marriage certificate is usually accepted as proof of marriage, but it may not be accepted as proof of a name change. Evidence of the marriage, including official, commemorative, or keepsake documents from the ceremony, may be required. If you were born or married overseas, you cannot automatically take your spouse's family name.
Before getting married overseas, it is important to contact the country's embassy, consulate, or local representative in Australia to understand the legal requirements. Some countries may ask you to prove that you are not already married, and each country decides what proof it will accept.
If you are an Australian citizen or permanent resident of Australia and want to live in Australia after your marriage, you should find out about getting a visa.
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Frequently asked questions
The Australian Constitution does not define marriage. Instead, Section 51(xxi) of the Constitution gives the Australian Parliament the power to make laws about marriage. The Marriage Act 1961 controls who can and cannot get married in Australia.
The Marriage Act 1961 initially did not include a definition of marriage, leaving it to the courts to apply the common law definition. In 2004, the Marriage Amendment Act defined marriage as "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". In 2017, the Marriage Act was amended to redefine marriage as "the union of two people to the exclusion of all others, voluntarily entered into for life", thus legalising same-sex marriage in Australia.
Marriages performed abroad are generally recognised in Australia if they are valid under the law of the country where they were entered into and if they would be legal under Australian law. Foreign marriage certificates are proof of marriage, and such marriages do not need to be registered in Australia.
To get married in Australia, couples must meet legal requirements such as being over 18 and not already married. They must also complete a Notice of Intended Marriage form at least one month before the wedding. Marriage celebrants are required to declare their authorisation under Australian law to perform marriage ceremonies and must state the definition of marriage as set out in the Marriage Act 1961.
