Marriage Act 1961 3171145 226002330 2008-07-16T11:51:00Z Ewawer 5125019 inserted ref to Amendment Act The '''Marriage Act 1961''' (Cth) is an [[Act of Parliament|act]] of the [[Parliament of Australia]] which governs legal [[marriage]] in [[Australia]]. It does not deal with the legal dissolution of marriage (divorce). Marriage is a commonwealth power under s51(xxi) of the [[Australian constitution]], but prior to 1961 states and territories administered marriage law. ==Preliminaries== Part I of the Act deals with preliminary matters. The most important of these is a definition of ‘marriage’. Prior to 2004, marriage was not defined in the act. The [[Same-sex marriage in Australia|Marriage Legislation Amendment Act 2004]] inserted a definition into s5(1) of the act that reads: “Marriage, means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life." The effect of [[Same-sex marriage in Australia|this amendment]] was to address the issue of gay marriage. Prior to this amendment there was uncertainty as to: if the Marriage Act 1961 by its own terms allowed gay marriage or if the Marriage Act 1961 did not ‘cover the field’ nor exclude gay marriage such that states could legalise gay marriage. Arguably, as the breadth of Commonwealth legislation is limited to powers in [[Section 51 of the Australian Constitution]] it may not have had power to allow gay marriage as ‘marriage’ in s51(xxi) means heterosexual unions. Arguably, if this is the case then the states may still have a residual power to authorise gay unions. For the time being, the Marriage Act 1961 now seems to exclude the possibility of gay marriage in Australia. ==Marriage education== Part IA, titled ‘marriage education’ allows the government to make grants to approved organisations for marriage counselling. ==Marriage Age== Part II (s10-21) deals with the marriageable age and the marriage of minors. The marriageable age was set in the original 1961 act at 16 for girls and 18 for boys, raised to 18 for both genders in 1991 by the Sex Discrimination Act 1991. In ‘exceptional circumstances’ the marriage of persons under 18 but over 16 may be authorised by the court. Part II establishes the procedures required in this instance. ==Void Marriages== Part III entitled ‘void marriages’ establishes the circumstances in which a marriage is void. To preserve the validity of past marriages, this part is divided into years based on when amendments to this act were introduced. A current purported marriage is void if: *the parties are already married *the parties are in a prohibited relationship: direct descendants or siblings, including adopted (by law) relationships. *the marriage was not solemnized by an authorised celebrant (as in Part IV, Div 2) *there is no consent (due to duress, fraud, mistake as to identity, mistake as to nature of ceremony, mental incapacity, or below marriageable age in Part II) ==Solemnization of Marriages in Australia== Part IV is a large part dealing with the ‘Solemnization of Marriages in Australia’. It deals with who is authorised to be a wedding celebrant, and the procedures to be followed. It also contains a division on marriages by foreign diplomatic or consular officers. ===Authorised Celebrants=== Division one deals with authorised celebrants. Under the current Act three types of celebrants are allowed: ministers of religion, State and Territory officers, and (civil) marriage celebrants). ====Religious Ministers==== Under Subdivision A, a register is kept of ministers of religion (s27) of ‘recognised’ denominations (s26). The only requirements for registration is that a person is a minister of religion, that a person is nominated by their denomination, they are resident in Australia and over 21 years (s29). A minister will be registered (s30) unless the register refuses registration as there are sufficient ministers of that denomination, the minister is ‘not a fit and proper person’, or will not devote sufficient time to functions of a minister of religion (s31). In general, the act establishes a broad scheme which allows religious ceremonies to be recognised as conducted by a valid celebrant provided only that the religious official register. ====Registry Office Marriages==== Subdivision B (Section 39) preserves the power of ‘state and territory officers’, allowing people who register marriages (under a state law) to also solemnize marriages (i.e. registry marriages). ====Civil Celebrants==== Subdivision C deals with ‘marriage celebrants’, or the authorisation of people to conduct civil ceremonies. Section 39B allows the register to be kept and sections 39D-E are procedural and seek to set up processes to control the number of celebrants. This section was introduced by the Marriage Amendment Act 2002, after an Attorney-General inquiry into the Civil Celebrants Program. Prior to the passage of this amendment the authorisation of celebrants was entirely contained in s39, which had a s39(2) allowing the recognition of other ‘fit and proper persons’ as civil marriage celebrants, religious celebrants outside a recognised denomination, and celebrants with special community needs. The original 1961 act therefore allowed civil ceremonies, and the first civil celebrants were authorised in 1973. By the time the amendments were introduced civil celebrants performed over 50% of marriages. The changes therefore provide legislative recognition to civil celebrants, and prescribe a regime beyond being ‘fit and proper’ in order to control the quality and number of celebrants. Section 39C now lists a number of requirements to be registered as civil celebrant, in addition to being over 18 and ‘fit and proper’. The register will take into account: knowledge of the law, a commitment to advising about relationship counselling, good community standing, criminal record, the existence of a conflict of interest or benefit to business, and ‘any other matter’. Section 39G imposes ‘obligations’ on civil celebrants. These include professional development and an adherence to a code of practice. Section 39H, I, and J set up a review of celebrants and a disciplinary system. Significantly, subdiv C deals only with marriage celebrants (civil or not a recognised religion), not with ministers of religion which are governed by Subdiv A. As a result, Ministers of Religion are not subject to the same obligations – including adherence to the Code of Practice. ===Marriages by Authorised Celebrants=== Part IV Div 2 then deals with the technical requirements of a marriage conducted by an authorised celebrant (as set out in Div 1). It applies to all marriages solemnised in Australia. Marriages must be solemnized by an authorised celebrant, as established in Div 2. Notice needs to be given at least 1 month before the marriage. Section 42 sets out the requirements of this form of notice etc. This is one of the most important requirements for people intending to marry and is dealt with on the marriage registry sections of most state government sites. Section 43 clarifies that a marriage may be solemnized at any time and day. Section 44 requires 2 witnesses over 18 (or who appear to the celebrant as over 18) to be present. Section 45 and 46 set out the form of ceremony and sets out that: *religious ceremonies may be held in any way recognised by the religion with no words to any effect required *In non-religious ceremonies it must be said: “I call upon the persons here present to witness that I, A.B., take thee, C.D., to be my lawful wedded wife (or husband) ”; or words to that effect. *In non-religious ceremonies the celebrant has to say: “I am duly authorized by law to solemnize marriages according to law”; and “Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.”; and “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”; or words to that effect. Section 47 allows ministers of religion to refuse to solemnize marriages or to require addition (e.g. religious membership) requirements Section 48 deals with the situation of marriages not conducted in accordance with the requirements. The section seeks to preserve the validity of marriages. In effect, a failure to comply with technical requirements (e.g. of words) will not invalidate a marriage. However, a marriage must be solemnized by an authorised celebrant unless there was a reasonable mistaken belief. Section 50 deals with marriage certificates and section 51 with incorrect certificates. ==Recognition of Foreign Marriages== Part VA deals with recognition of foreign marriages. This division reflects the Act's tendency to seek to uphold the validity of marriages. Marriages will be recognised if they were valid in the country where they were performed if the marriage would be legal under Australian law. The foreign marriage certificate is proof of marriage and marriages need not be registered. Section 88EA however provides that marriages performed in another country between a man and another man or a woman and another woman must not be recognised as a marriage in Australia. As a marriage must be legal under Australian law a foreign marriage will not be recognised if a person was already married (or the overseas divorce is not recognised in Australia), were under 18 (subject to some exceptions), were siblings or parent/child, or there was duress or fraud. ==Other Sections== *Marriages by Foreign Diplomatic or Consular Officers (Division 3 of Part IV): there are currently no Australian diplomatic or consular officers appointed to solemnise marriages overseas under Australian law. *Marriages of Members of the Defence Force Overseas: Part V of the act deals with marriages of members of the Defence Force overseas. *Legitimation of children (Part VI) *Offences (Part VII): e.g. bigamy, marrying a person below marriageable age (child marriages), a celebrant solemizing a marriage when believe legal impediment etc *Miscellaneous provisions in Part IX – interpreters, publication of lists of celebrants, etc. == The 2004 Marriage Amendment Bill == On [[May 27]], [[2004]], approximately two months after the UK proposed its ''[[Civil Partnership Act 2004]]'', the then federal Attorney-General [[Philip Ruddock]] introduced the ''Marriage Amendment Bill 2004''<ref>[http://parlinfoweb.aph.gov.au/piweb/translatewipilink.ASPX?Folder=oldbills&Criteria=BILL_ID:r2123;SEQ_NUM:0; Marriage Amendment Bill 2004]</ref>, intending to incorporate the common law definition of marriage into the ''[[Marriage Act 1961]]'' and the ''Family Law Act''.<ref>http://parlinfoweb.aph.gov.au/piweb/translatewipilink.ASPX?Folder=HANSARDR&Criteria=DOC_DATE:2004-05-27;SEQ_NUM:42;</ref> In June 2004, the bill passed the [[Australian House of Representatives|House of Representatives]]. On [[August 13]], [[2004]], the Senate passed the amendment by 38 votes to 6. The bill subsequently received royal assent, becoming the ''Marriage Amendment Act 2004''. === Specifications of the bill === The amendment specifies the following: <blockquote>''Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.''<br> ''Certain unions are not marriages. A union solemnised in a foreign country between: (a) a man and another man; or (b) a woman and another woman; must not be recognised as a marriage in Australia.''<ref>http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=1541&TABLE=OLDBILLS</reF></blockquote> === Support for the bill === Ruddock and other [[Liberal Party of Australia|Liberal]]s argued that bill was necessary to protect the institution of marriage, by ensuring that the common law definition was put beyond legal challenge.<ref>http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=1014809&TABLE=HANSARDS</ref> The [[Australian Labor Party|Labor]] shadow Attorney-General [[Nicola Roxon]] on the same day the amendment was proposed said that the Labor [[Opposition (Australia)|Opposition]] would not oppose the section of the legislation amending the [[Marriage Act 1961|Marriage Act]]. The bill was supported by Labor policy. Labor argued that the amendment did not affect the legal situation of same-sex relationships, merely putting into statute law what was already common law. The [[Family First Party|Family First]] and [[Christian Democratic Party (Australia)|Christian Democratic]] parties supported the bill. The bill was also supported by the [[National Party of Australia|National]]s. === Opposition to the bill === Despite having support of the major parties the bill was bitterly contested by sections of the community, human rights groups and some minor political parties. The [[Australian Greens]] opposed the bill, calling it the "Marriage Discrimination Act". The [[Australian Democrats]] also opposed the bill. Democrat Senator [[Andrew Bartlett]] stated that the legislation devalues his marriage, and Greens Senator [[Bob Brown]] referred to [[John Howard]] and the legislation as "hateful".<ref>http://parlinfoweb.aph.gov.au/piweb/translatewipilink.ASPX?Folder=HANSARDS&Criteria=DOC_DATE:2004-08-12;SEQ_NUM:324;</ref><ref>{{cite web |url= http://www.abc.net.au/news/newsitems/200408/s1176303.htm |title= Coalition, Labor pass same-sex marriage ban |date=2004-08-13 |publisher= ABC News Online}}</ref> Brown was asked to retract his statements, but refused. Bob Brown also quoted as Australia having a "straight Australia policy". Not all of Labor was in support of the bill. During the bill's second reading, [[Anthony Albanese]], Labor MP for [[Grayndler]] said, "what has caused offence is why the government has rushed in this legislation in what is possibly the last fortnight of parliamentary sittings. This bill is a result of 30 bigoted backbenchers who want to press buttons out there in the community."<ref>{{cite web |title= Marriage Legislation Amendment Bill 2004: Second Reading |author= Albanese, Anthony |date= 2004-06-16 |publisher= Anthony Albanese MP |url= http://www.anthonyalbanese.com.au/news/407/index.html |accessdate= 2008-05-26}}</ref> === Changes to the Marriage Amendment Act === In the runup to the [[2007]] federal elections, there was speculation that the Labor Party might change or reverse the same-sex marriage ban provided by the ''Marriage Amendment Act 2004''. The Labor Party appears to have ruled out changing the bill. On [[21 March]] [[2007]], [[Australian Labor Party|Labor]] [[Member of Parliament|MP]] [[Tanya Plibersek]], herself married, told ''[[The Sydney Morning Herald]]'', ''"Labor does not support changing the Marriage Act to allow same-sex marriage".''<ref>[http://www.smh.com.au/news/opinion/the-discrimination-that-makes-a-lie-of-equality/2007/03/20/1174153063800.html?page=2 The discrimination that makes a lie of equality]</ref> On [[10 August]] [[2007]] [[Kevin Rudd]], who has since become [[Prime Minister of Australia|Prime Minister]], as reported by the [[AM (ABC Radio)|AM]] radio program said, "I have a pretty basic view on this, as reflected in the position adopted by our party, and that is, that marriage is between a man and a woman."<ref>[http://www.abc.net.au/am/content/2007/s2001400.htm AM - Howard, Rudd make pitch to Christian voters]</ref> Rudd repeated his opposition to same-sex marriage in an interview with radio host [[Kyle Sandilands]] on [[23 October]] [[2007]],<ref>http://www.abc.net.au/news/video/2007/10/23/2067936.htm?site=elections/federal/2007 ABC video of interview</ref> but is fully supportive of a national registry for both opposite-sex and same-sex partnerships. ==External sources== [http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/index.html Marriage Act 1961 on Austlii] Frank Bates, [http://www.newcastle.edu.au/centre/cispr/conferences/land/batespaper.pdf The History of Marriage and the Modern Law] [http://www.ag.gov.au/agd/WWW/attorneygeneralHome.nsf/Page/Speeches_2000_Speeches_Launch_of_proposal_to_reform_the_Civil_Marriage_Celebrants_Programme Proposal to Reform the Civil Marriage Celebrants Programme] [http://www.ag.gov.au/agd/Department/Publications/publications/celebrants.htm Discussion Paper on Civil Celebrants Programme] (October 1997) [http://www.aph.gov.au/library/pubs/bd/2001-02/02bd112.htm Bills Digest on the Marriage Amendment Act 2002] [http://www.smartraveller.gov.au/marriage_os.html Recognition of Foreign Marriages] [[Category:1961 in law]] [[Category:Australian legislation]]