Australia's Marriage Act of 1961 - Essay Example

Australia's Marriage Act of 1961 Introduction The Australia’s Marriage Act 1961 was enacted by the Australian parliament to govern all marriages in the country. The commonwealth parliament was given the power to legislate on marriages, divorce and matrimonial causes, but prior to 1961 marriage law was administered by states and territories. The commonwealth parliament introduced this national marriage Act to regulate all circumstances of marriage. The Act makes provision in respect of prohibited relations, legitimation, marriageable age, marriage overseas, premarital education and other grounds for void marriages but does not cover legal dissolution of marriage. In addition, the 1961 legislation provided for the funding of marriage education and counselling programs as a response to the development of marriage guidance agencies. According to the Australian law contained in the Marriage Act 1961 (Cth), marriage is regarded as “the union of a man and a woman, an exclusion of all others, voluntarily entered into for life.” Background information After the Second World War, marriage revolution led to a significant increase in marriages in Australia. This was due to the unusual conditions that existed after the war and the increased proportion of ever married females. By this time the number of marriageable males had decreased as a result of the war deaths. According to Brain, Smith & Schuyers (1979), the male immigrants had also outnumbered the unmarried female immigrants and thus offsetting the surplus of Australian born females of marriageable age in 1955. The social attitude and changes in the marriage trend especially the extent to which marriage was conducted, the marriageable ages and issues of termination of marriages became of concern. At this time, marriage was conducted differently by various states and territories. To unify how marriages were conducted throughout the country, the section 51 of the Australian constitution delegated power to the commonwealth parliament to make laws in relation to marriage, divorce and matrimonial causes. Through such power, the commonwealth government passed the Marriage Act 1961 to regulate individuals’ status of marriage in which it was created (Kinley 1998). The opinions of the High Court, increasing interdependence of nations and the developments in the Australian politics greatly contributed to the growing use of the commonwealth power to impinge on the areas that were previously left to the control of the state such as marriage. Thus, the commonwealth entered in its pursuit of marriage as an object of legislation. Implementation Marriage Act 1961 The Australia’s Marriage Act 1961 came into its full operation on September 1st, 1961 (Australian Government 2008). The act directs the marriage celebrants on how to carry the ceremony, sets out those who are authorized to marry, and where and when the ceremony is to be conducted. The Act requires the authorized celebrants to inform the marriage couples on the nature of marriage in accordance to the Australian law under the subsection 46 (1) of the Act. All marriages in Australia are regulated under this Act and the family courts are required to protect the union as so defined. Marriages in Australia should be solemnised by three different classes of celebrants: ministers of recognized religion who are registered as an authorised celebrant under Subdivision A of Division 1of Part IV of the Act; Territory and State officers or by other persons authorised by the Commonwealth under subdivision C Division 1of Part IV of the Act (Australian Government, Comlaw 2001). The Act also allows marriages to be solemnised by a consular or diplomat officer of the foreigner’s country, in certain limited circumstances for marriages that involve at least one foreign national. The celebrant should be given a NOIM (notice of the intended marriage) within eighteen months prior to it, but not later than one month and one day. After the marriage, the celebrant lodges an official marriage certificate for registration at the district registrar in the territory or state where the marriage took place within 14 days. Outcomes of the Australia's Marriage Act of 1961 The Marriage Act 1961 presents three aspects of marriage: forms and requisites of marriage, laws guiding marriage, and the consequences of marriage upon the rights and obligations of the spouses. The fist aspect, forms and requisites of marriage covers the circumstances and conditions in which women and men enter into a marriage, the solemnisation of marriages, the method of entering into matrimony, and the impediments, incapacities and informalities that arise in marriages. Since its implementation, rules and regulations concerning matrimony have been followed. Only those identified to be legally allowed to marry have done so. Laws falling under marriage have greatly applied to marriage relationships in Australia. Finlay (1983) classifies these laws into two: those concerned with marriage in its primary sense and those associated with the consequences of the relation as well as the status of the partners, their mutual rights and obligations, legitimacy of the children and their civil rights. The third aspect that the Act considered is the wider consequences of marriage on the rights and obligations of the partners. The commonwealth parliament legislated on the contractual and tortious responsibility of the spouses and legitimacy (McNamara 2007). The married spouses have maintained the custody of their marriages and dealt keenly on the concept of legitimacy of their children. Those who failed to follow these rights and obligations have been annexed with the consequences that the commonwealth had set under the offences section. Solemnization that lead to the formation of marriage and the status that arise from marriage are the two classes of matters covered within the concept of “marriage” in s 51 (xxi) of the constitution. With time, however, there arose issuesinvolving marriages such as divorces and arguments that seek the incorporation of same sex marriages within the Act. For instance, some groups lobbied for the creation of an institution for same sex marriages but this bill did not proceed (Australian Government 2008). The Ammendment Act 2004 had clearly defined what constituted to marriage and therefore limited Australia to a heterosexual marriage. The dissolution of marriages is covered under a separate Act, the Family Law Act 1975, which replaced the initial Matrimonial Causes Act 1959-66 (Charlesworth, Turner, & Foreman 2000). Significance of the Marriage Act 1961 Since its implementation, the Marriage Act 1961 has played a significant role in determining whether a marriage is legal or not by considering various aspects that deems the marriage valid. The significance of the act includes: i. Determining those who can legally engage in a marriage According to part (II) of the Marriage Act 1961, any person who has attained the age of 18 years can be allowed to marry as long as the person is legally able to consent the marriage, is not within a prohibited relationship with the other spouse, or is not married to another person. In exceptional circumstances, a marriage for a minor can be accepted if a person is at least 16 years of age and the other person is above 18 years and has obtained an order from the state or territory judge or magistrate authorising the marriage (Australian Government, Comlaw 2001). Besides, the parents must give consent for the solemnisation of the marriage or rather by the court just in case the parent or guardian has refused to give the consent. However, two underage persons can not be allowed to marry each other. ii. Determining the validity of the marriage The Act regards a valid ceremony to include a marriage that has been conducted by or in presence of an authorised celebrant on any day, at any time and at any place in Australia or within Australia’s territorial waters (Australian Government, Comlaw 2001). This excludes marriages performed in ships at sea and aircrafts as well as those may be conducted in Antarctica. The Act does not allow individuals who are not authorized celebrants to perform the functions that are supposed to be undertaken by the authorised celebrants even though they play a large part in the ceremony. In spite of its failure to give instructions on the minimum roles that the authorised celebrant should played, the act draws explicit distinctions between celebrants performing civil ceremonies and ministers of religion and enforces additional requirements on other marriage celebrants who are not ministers of religion. The authorised marriage celebrants are legally responsible for the legitimacy of the marriage. They therefore need to verify the documents required in the marriage that include evidence of place and date of birth, evidence of death, or divorce of a previous spouse and establish the identity of the marriage couples. According to (Harrison 2002), a marriage should be solemnised in the presence of at least two individuals who well knows the parties to marriage and are above the age of 18 years. This is essential because evidence will be made available to testify or establish the identity of the parties should an occasion arise requiring such information (Harrison 2002). iii. Identifies the recognized forms of marriages The forms of ceremonies can either be religious or non-religious if solemnised by a minister of religion or authorised celebrants who are not ministers of religion respectively. The celebrants should ensure that the minimum requirements, i.e. exchange of vows are satisfied according to the Act or otherwise the marriage is deemed void. In any marriage, it is not permissible to change the minimum words such as “husband” or “wife” to “partner” because the meaning of the vows will completely change, but instead, one can be allowed to lengthen or personalize them in accordance to the parties’ wish (Australian Government 2008). In addition, when it comes to names to be used when taking vows, the Australian Marriage Act 1961 states the minimum words to be used should include the first and the middle names rather than including the surnames since the vows spoken are personal. However, the full names, including the surnames, are used in the initial stages of the marriage ceremony for identification purposes (Australian Government, Comlaw 2001). Nicknames may also follow the full names when taking vows but cannot be used to replace the latter. Before taking vows, the statements contained in section 46 should form part of the marriage ceremony and the words they contain should not be diluted or substituted since this can alter the meaning. iv. Gives provision for the evidence of marriage through certification The marriage celebrant should prepare a marriage certificate on the day of the marriage. The celebrant, husband and wife, and two witnesses who are above 18 years then sign the marriage certificate which is then issued to the couple after the ceremony (Australian Government, Comlaw 2001). The Marriage Act 1961 requires the second certificate to be presented to the Registrar of Births, Deaths and Marriages within 14 days by the marriage celebrants for official recording of the marriage. Australia does not recognize polygamous marriages. v. Gives provision for foreign marriages A foreign marriage is considered valid in Australia if it is valid in the country at which it was celebrated and the parties are not within the prohibited relationship as per the Australian constitution. Foreign marriages can be proved to be valid in Australia if there is an official extract from the registry of the foreign country (McNamara 2007). An Australian marriage can take place overseas if an Australian consular official witnesses the marriage ceremony in accordance to the Marriage Act 1961 and vice versa. These marriages are then recorded in the Registry of the country in which the marriage took place. vi. It highlights the offences within the marriage The Marriage Act 1961 does not give a right to sexual intercourse by any spouse and such an individual may be convicted to sexual offences against his or her spouse. The Act prohibits: bigamy; marrying a person not of a marriageable age; solemnisation of a marriage where NOIM (notice of intended marriage) has not been made; marriage by unauthorised person; a marriage that is believed to be void; giving a defective notice; and failure by an interpreter furnishing the certificate (Australian Government, Comlaw 2001). Conclusion The Australian Marriage Act 1961 highlights the marriage requirements that determine the validity of marriage within Australia. Prior to the actual marriage, partners are supposed to lodge a Notice of Intended Marriage according to the law. Evidence of birth, nationality and divorce or death (in case of divorce or death respectively) is required when completing and signing a Notice of Intended Marriage. Consent of marriage is also necessary for marriages involving minors. The Australian Marriage Act 1961 only recognizes marriages between individuals of opposite sex who have attained the age of 18 years. However, under special circumstances, a person over the age of 16 years can marry with an authorization from the court. Generally, the act gives provision on the conditions required for marriages, either local or foreign, to be recognised as formal within Australia. It clearly prohibits some relationships and highlights the offences within marriage. List of references Australian Government 2008, Explanatory Material on the Marriage Act 1961 for Marriage Celebrants. [Online] Available at: [Accessed 27 June 2011]. Australian Government, Comlaw 2001, Marriage Act 1961- C2011C00192. [Online] Available at: [Accessed 27 June 2011]. Brain, PJ., Smith, RL & Schuyers GP 1979, Population, immigration, and the Australian economy, Taylor & Francis, London. Charlesworth, S., Turner, JN & Foreman L 2000, Disrupted families: The law, Federation Press, Leichardt, NSW. Finlay HA 1983, Family law in Australia, Butterworths, Melbourne. Finlay HA 2005, To have but not to hold: A history of attitudes to marriage and divorce in Australia 1858-1975, Federation Press, London. Harrison J 2002, Excel senior high school: Community and family studies, Pascal Press, Sydney, NSW. Kinley D 1998, Human rights in Australian law: principles, practice and potential, Federation Press, Leichardt, NSW. McNamara L 2007, Human rights controversies: The impact of legal form, Taylor & Francis, London. Pilkinton, R., Legal Aid NSW & Women’s Legal Services NSW 2000, Family Law: Marriage, separation and divorce in The Law Handbook: Your Practical Guide to the Law 11th edn, pp. 656-707 Read More