An Act relating to Marriage
Part I—Preliminary
1
Short title
This Act may be cited as the Marriage
Act 1961.
2
Commencement
(1) Sections 1, 2 and 3, subsection 5(1),
section 9, Parts III and VIII and section 120 shall come into
operation on the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act
shall come into operation on a date to be fixed by Proclamation.
5
Interpretation
(1) In this Act, unless the contrary
intention appears:
Ambassador includes Minister, Head of Mission
and Chargé d’Affaires.
approved organisation means an organisation
approved or deemed to be approved under Part IA.
artificial conception procedure includes:
(a) artificial insemination; and
(b) the implantation of an embryo in
the body of a woman.
Australia includes Norfolk Island.
Australian Consular Officer and
Australian Diplomatic Officer have the same respective meanings as in
the Consular Fees Act 1955.
authorised celebrant
means:
(a) a minister of religion registered
under Subdivision A of Division 1 of Part IV; or
(b) a person authorised to solemnise
marriages by virtue of Subdivision B of Division 1 of Part IV; or
(c) a marriage celebrant.
celebrant registration charge: see subsection 39FA(1).
chaplain means a chaplain in the Defence
Force.
charge payment day: see subsection 39FA(2).
Consul includes Consul‑General, Vice‑Consul,
Pro‑Consul and Consular Agent.
Family Court of a State means a Family Court
of a State that has jurisdiction under the Family Law Act 1975 by virtue
of a Proclamation under section 41 of that Act.
Judge, in relation to the performance of a
function under this Act in a State or Territory, means a person who is:
(a) a Judge of the Family Court of
Australia, or a Judge of the Federal Circuit Court of Australia, who is
appointed by the Minister to be a person authorised to perform that function;
(b) a Judge of a court of that State
in respect of whom an appropriate arrangement in force under section 9 is
applicable; or
(c) a Judge of the Supreme Court of
that Territory.
magistrate means:
(a) in relation to a State—a person
who holds office as a Chief, Police, Stipendiary, Resident or Special
Magistrate of the State and in respect of whom an appropriate arrangement in
force under section 9 is applicable; and
(b) in relation to a Territory—a
person who holds office as a Chief, Police, Stipendiary, Resident or Special
Magistrate of the Territory.
marriage means the union of a man and a woman
to the exclusion of all others, voluntarily entered into for life.
marriage celebrant means a person registered
under Subdivision C of Division 1 of Part IV.
minister of religion means:
(a) a person recognised by a religious
body or a religious organisation as having authority to solemnise marriages in
accordance with the rites or customs of the body or organisation; or
(b) in relation to a religious body or
a religious organisation in respect of which paragraph (a) is not
applicable, a person nominated by:
(i) the head, or the
governing authority, in a State or Territory, of that body or organisation; or
(ii) such
other person or authority acting on behalf of that body or organisation as is
prescribed;
to be an authorised celebrant
for the purposes of this Act.
minor means a person who has not attained the
age of 18 years.
overseas country means a country or place
other than a part of the Queen’s dominions, and, in Part V, includes a
vessel which is for the time being in the territorial waters of such a country
or place.
prescribed authority means:
(a) in relation to a marriage proposed
to be solemnised in Australia—a person, being an officer or employee of
the Commonwealth, a State or a Territory, appointed by the Minister to be a
prescribed authority;
(c) in relation to a marriage proposed
to be solemnised in accordance with Division 3 of Part V—a chaplain.
recognised denomination means a religious
body or a religious organisation in respect of which a Proclamation under
section 26 is in force.
Territory means:
(a) the Australian Capital Territory;
or
(b) the Northern Territory; or
(c) Norfolk Island; or
(d) the Territory of Christmas Island; or
(e) the Territory of Cocos (Keeling) Islands.
the commencement of this Act means the time
of commencement of the provisions other than the provisions referred to in
subsection 2(1).
the Queen’s dominions includes a British
protectorate and a British protected State.
(2) Where:
(a) a marriage is solemnised in the
presence of a person, being a person in whose presence a marriage may, in
accordance with this Act, be lawfully solemnised; and
(b) that
person consents to the marriage being solemnised in his or her presence;
that person shall, for the purposes of this Act, be deemed
to solemnise the marriage.
(3) Any appointment or authorisation under
this Act may be an appointment or authorisation of:
(a) a named person only; or
(b) every person from time to time
holding or acting in a specified office of the Commonwealth or of a State or
Territory.
5A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
6 Act
not to exclude operation of certain State and Territory laws
This Act shall not be taken to exclude
the operation of a law of a State or of a Territory, in so far as that law
relates to the registration of marriages, but a marriage solemnised after the
commencement of this Act is not invalid by reason of a failure to comply with
the requirements of such a law.
7
Validity of certain marriages not affected
Subject to the operation of the Part repealed
by the Marriage Amendment Act 1976 before the date fixed under
subsection 2(2) of this Act, this Act does not affect the validity or
invalidity of a marriage that took place before the date so fixed.
8
Extension of Act to Territories etc.
(1) The whole
of this Act extends to the following Territories:
(a) Norfolk Island;
(b) the Territory of Christmas Island;
(c) the Territory of Cocos (Keeling) Islands.
(2) Part V applies both within and
without Australia.
(3) Part VII applies to and in relation
to:
(a) marriages solemnised, or intended
or purporting to be solemnised, in Australia; and
(b) marriages
solemnised, or intended or purporting to be solemnised, under Part V;
and, in relation to such marriages, applies both within
and without Australia.
(4) Section 73, Part VA and section 111
extend to all the external Territories.
9
Arrangements with State
(1) The Governor‑General may make
arrangements with the Governor of a State:
(b) for the performance by all or any
of the persons who from time to time hold office as Judges of any Court of that
State of the functions of a Judge under sections 12, 16 and 17;
(c) for the performance by all or any
of the persons who from time to time hold office as Chief, Police, Stipendiary,
Resident or Special Magistrates in that State of all or any of the functions of
a magistrate under this Act;
(d) for the performance by officers of
that State of the function of solemnising marriages in accordance with Division 2
of Part IV;
(e) for enabling officers of that
State to be appointed as prescribed authorities;
(f) for enabling officers of that
State to be appointed as Registrar and Deputy Registrar of Ministers of
Religion for that State under Subdivision A of Division 1 of Part IV;
and
(g) for enabling officers of that
State to be appointed as authorised officers for the purposes of section 51.
(2) A copy of each arrangement made under
this section shall be published in the Gazette.
9A
Persons who may exercise certain powers may be restricted by Proclamation
(1) The Governor‑General may, by Proclamation,
declare that, on and after a date fixed by the Proclamation, a power or
function under this Act that is specified in the Proclamation, being a power or
function expressed by this Act to be exercisable by a Judge, or by a Judge or
magistrate, is not to be exercised, or is not to be exercised in a specified
part of Australia, otherwise than by a Judge who is a Judge of the Family Court
of Australia or of the Family Court of a State or a Judge of the Federal
Circuit Court of Australia.
(2) Proclamations under this Part in respect
of different parts of Australia may be made from time to time.
Part IA—Marriage
education
9B
Grants to approved organisations
The Minister may, from time to time, out
of moneys appropriated by the Parliament for the purposes of this Part, grant
to an approved organisation, upon such conditions as the Minister thinks fit,
such sums by way of financial assistance as the Minister determines for the
conduct of programs of marriage education.
9C
Approval of voluntary organisations
(1) A voluntary organisation may apply to the
Minister for approval under this Part as an organisation conducting programs of
marriage education.
(2) The Minister may approve the organisation
if the Minister is satisfied that the organisation is willing and able to
conduct programs of marriage education.
(3) The approval of an organisation under
this section may be given subject to such conditions as the Minister
determines.
(4) Where the approval of an organisation is
subject to conditions, the Minister may, from time to time, revoke or vary all
or any of those conditions or add further conditions.
(5) The Minister may, at any time, revoke the
approval of an approved organisation where:
(a) the organisation has not complied
with a condition to which the approval of the organisation is subject;
(b) the organisation has not
furnished, in accordance with section 9E, a statement or report that the organisation
was required by that section to furnish; or
(c) the Minister is satisfied that the
organisation is not adequately carrying out programs of marriage education.
(6) Notice of the approval of an organisation
under this section, and notice of the revocation of the approval of an approved
organisation, shall be published in such manner as the Minister considers
appropriate.
9E
Reports and financial statements of approved organisations
(1) An approved organisation that has
received a grant under this Act in the period of 12 months that ended on 30 June
in any year shall, not later than 30 September in that year, furnish to
the Minister, in respect of that period of 12 months:
(a) an audited financial statement of
the receipts and payments of the organisation, in which receipts and payments
in respect of its marriage education activities are shown separately from other
receipts and payments; and
(b) a report on its marriage education
activities, including information as to the programs conducted by the organisation
during the period and the number of participants in those programs.
(2) Where the Minister is satisfied that it
would be impracticable for an organisation to comply with the requirements of subsection (1)
or that the application of those requirements to an organisation would be
unduly onerous, the Minister may, by writing signed by the Minister, exempt the
organisation, wholly or in part, from those requirements.
Part II—Marriageable age
and marriages of minors
10
Application of Part
(1) The whole of this Part applies,
notwithstanding any common law rule of private international law, in relation
to:
(a) marriages to which Division 2
of Part IV applies; and
(b) marriages under Part V.
(2) Sections 11 and 12 and, so far as
they have application in relation to those sections, sections 18 and 19
apply in relation to:
(a) marriages to which Division 3
of Part IV applies; and
(b) the marriage of a person domiciled
in Australia, wherever that marriage takes place.
11
Marriageable age
Subject to section 12, a person is
of marriageable age if the person has attained the age of 18 years.
12
Authorisation of marriage of person under age of 18 years in exceptional
circumstances
(1) A person who has attained the age of 16
years but has not attained the age of 18 years may apply to a Judge or
magistrate in a State or Territory for an order authorising him or her to marry
a particular person of marriageable age despite the fact that the applicant has
not attained the age of 18 years.
(2) The Judge or magistrate shall, subject to
subsection (4), hold an inquiry into the relevant facts and circumstances
and, if satisfied that:
(a) the applicant has attained the age
of 16 years; and
(b) the circumstances of the case are
so exceptional and unusual as to justify the making of the order;
the Judge or magistrate may, in his or her discretion,
make the order sought, but otherwise the Judge or magistrate shall refuse the
application.
(3) Subject to subsection (5), where a
Judge or a magistrate has made such an order, the person on whose application
the order was made is, in relation to his or her marriage to the other person
specified in the order, but not otherwise, of marriageable age.
(4) Where a Judge or a magistrate to whom an
application is made under this section is satisfied that the matter could more
properly be dealt with by a Judge or a magistrate sitting at a place nearer the
place where the applicant ordinarily resides, the Judge or magistrate may, in
his or her discretion, refuse to proceed with the hearing of the application,
but such a refusal shall not, for the purposes of section 19, be deemed to
be a refusal of the application.
(5) Where an order is made under this section
and the marriage to which the order relates does not take place within 3 months
after the date of the order, the order ceases to have effect.
13
Marriage of minor not to be solemnised without consent of parents etc.
(1) Subject to this Part, where a party to an
intended marriage, not having previously been married, is a minor, the marriage
shall not be solemnised unless there is produced to the person by whom or in
whose presence the marriage is solemnised:
(a) in respect of each person whose
consent is required by this Act to the marriage of the minor, not being a
person to whom paragraph (b) is applicable:
(i) the consent in writing
of that person, duly witnessed and dated not earlier than 3 months before the
date on which the marriage is solemnised or, in such cases as are prescribed,
such other evidence that the consent of that person to the intended marriage has
been given not earlier than that time as the regulations declare to be
sufficient for the purposes of this section; or
(ii) an effective consent
in writing of a magistrate or a Judge under this Part in place of the consent
of that person; and
(b) in respect of any person whose
consent to the marriage of the minor has been dispensed with by a prescribed
authority—the dispensation in writing signed by the prescribed authority.
(2) For the purposes of subsection (1),
the consent of a person is only duly witnessed if the signature of that person
was witnessed:
(a) if the consent is signed in Australia—by one of the following persons:
(i) an authorised
celebrant;
(ii) a Commissioner for
Declarations under the Statutory Declarations Act 1959;
(iii) a justice of the
peace;
(iv) a barrister or
solicitor;
(v) a legally qualified
medical practitioner;
(vi) a member of the
Australian Federal Police or the police force of a State or Territory; or
(b) if the consent is signed in any
other place—by one of the following persons:
(i) an Australian
Diplomatic Officer;
(ii) an Australian Consular
Officer;
(iii) a minister of religion
of that place;
(iv) a judge of a court of
that place;
(v) a magistrate or justice
of the peace of or for that place;
(vi) a notary public;
(vii) an employee of the
Commonwealth authorised under paragraph 3(c) of the Consular Fees Act
1955;
(viii) an employee of the
Australian Trade Commission authorised under paragraph 3(d) of the Consular
Fees Act 1955.
(3) A person shall not subscribe his or her
name as a witness to the signature of a person to a consent to a marriage
unless:
(a) the person is satisfied on
reasonable grounds as to the identity of that person; and
(b) the consent bears the date on
which the person subscribes his or her name as a witness.
(4) A person shall not solemnise a marriage
if the person has reason to believe that:
(a) a person whose consent in writing
to the marriage of one of the parties is or has been produced for the purposes
of this section has revoked his or her consent;
(b) the signature of a person to a
consent produced for the purposes of this section is forged or has been
obtained by fraud;
(c) a consent produced for the
purposes of this section has been altered in a material particular without
authority; or
(d) a dispensation with the consent of
a person that has been produced in relation to the marriage has ceased to have
effect.
14
Persons whose consent is required
(1) The person or persons whose consent is
required by this Act to the marriage of a minor shall, subject to this section,
be ascertained by reference to the Schedule according to the facts and
circumstances existing in relation to the minor.
(2) For the purposes of the Schedule, a minor
is an adopted child if the minor was adopted under the law of a State or
Territory or under the law of any other place.
(3) Where an Act, a State Act or an Ordinance
of any Territory of the Commonwealth provides that a person specified in the
Act, State Act or Ordinance is to be the guardian of a minor, or requires that
a specified person is to be deemed to be the guardian of a minor, to the
exclusion of any parent or other guardian of the minor, that person is the
person whose consent is required by this Act to the marriage of the minor.
(4) Where, under a State Act or an Ordinance
of any Territory of the Commonwealth, a person specified in the State Act or
Ordinance is to be, or is to be deemed to be, a guardian of a minor in addition
to the parents or other guardian of the minor, the consent of that person is
required to the marriage of the minor in addition to the consent of the person
or persons ascertained in accordance with the Schedule.
15
Prescribed authority may dispense with consent in certain cases
(1) Subject to this section, a prescribed
authority may, upon application in writing by a minor, dispense with the
consent of a person to a proposed marriage of the minor where the prescribed
authority:
(a) is satisfied that it is
impracticable, or that it is impracticable without delay that would, in all the
circumstances of the case, be unreasonable, to ascertain the views of that
person with respect to the proposed marriage;
(b) has no reason to believe that that
person would refuse his or her consent to the proposed marriage; and
(c) has no reason to believe that
facts may exist by reason of which it could reasonably be considered improper
that the consent should be dispensed with.
(2) An application under this section shall
be supported by a statutory declaration by the applicant setting out the facts
and circumstances on which the application is based and may be supported by the
statutory declaration of some other person.
(3) The applicant shall state in his or her
statutory declaration whether he or she has made any previous applications
under this section that have been refused and the date on which each such
application was refused.
(4) This section does not authorise a
prescribed authority to dispense with the consent of a person to a marriage of
a minor where any other person whose consent to the marriage is required by
this Act has refused to give consent, unless a magistrate or a Judge has, in
pursuance of this Part, given consent in place of the consent of that other
person.
(5) For the purposes of this section, the
fact that a person does not reside in, or is absent from, Australia shall not of itself be deemed to make it impracticable to ascertain the views of
that person.
16
Consent by magistrate where parent etc. refuses consent etc.
(1) Where, in relation to a proposed marriage
of a minor:
(a) a person whose consent to the
marriage is required by this Act refuses to consent to the marriage; or
(b) an
application by the minor under section 15 to dispense with the consent of
a person to the marriage is refused;
the minor may apply to a Judge or magistrate for the
consent of a Judge or the magistrate to the marriage in place of the consent of
that person.
(2) The Judge or magistrate shall, subject to
subsections (2A) and (3), hold an inquiry into the relevant facts and
circumstances and, if satisfied:
(a) in a case to which paragraph (1)(a)
applies—that the person who has refused to consent to the marriage has refused
consent unreasonably; or
(b) in a
case to which paragraph (1)(b) applies—that, having proper regard for the
welfare of the minor, it would be unreasonable for the Judge or magistrate to
refuse consent to the proposed marriage;
may give consent to the marriage in place of the consent
of the person in relation to whose consent the application is made.
(2A) A Judge or magistrate shall not proceed
with an inquiry in accordance with subsection (2) unless:
(a) there has been produced to the
Judge or magistrate a certificate signed by a family counsellor certifying that
the applicant has received counselling from the family counsellor in relation
to the proposed marriage; or
(b) the Judge or magistrate is
satisfied that counselling by a family counsellor is not reasonably available
to the applicant.
(3) Where a magistrate to whom an application
is made under this section is satisfied that the matter could more properly be
dealt with by a magistrate sitting at a place nearer the place where the
applicant ordinarily resides, the magistrate may, in his or her discretion,
refuse to proceed with the hearing of the application, but such a refusal shall
not, for the purposes of sections 17 and 19, be deemed to be a refusal of
the application.
(4) Where a magistrate grants an application
under subsection (1), the magistrate shall not issue consent in writing to
the marriage before the expiration of the time prescribed for the purposes of
section 17 and if, within that time, a request for a re‑hearing is made
under that section, the magistrate shall not issue consent unless that request
is withdrawn.
(5) Where a Judge or magistrate gives consent
to the marriage of a minor in place of the consent of a person who has refused
to consent to the marriage, the Judge or magistrate may also, upon application
by the minor, give consent in place of the consent of any other person if the
Judge or magistrate is satisfied that it is impracticable, or that it is
impracticable without delay that would, in all the circumstances of the case,
be unreasonable, to ascertain the views of that person with respect to the
proposed marriage.
(6) For the purposes of subsection (5),
the fact that a person does not reside in, or is absent from, Australia shall not of itself be deemed to make it impracticable to ascertain the views of
that person.
(7) In this section family counsellor
has the same meaning as in the Family Law Act 1975.
17 Re‑hearing
of applications by a Judge
(1) Where:
(a) an application to a magistrate
under subsection 16(1) or (5) is refused; or
(b) an
application to a magistrate under subsection 16(1) is granted;
the applicant or the person in relation to whose consent
the application was made, as the case requires, may, in the prescribed manner
and within the prescribed time, request that the application be re‑heard by a
Judge in the State or Territory in which it was heard, and a Judge may re‑hear
the application accordingly.
(2) The provisions of subsections 16(2),
(5) and (6) apply, so far as they are applicable, in relation to the re‑hearing
of an application made under section 16 and, for the purpose of such a re‑hearing,
references in those provisions to the magistrate dealing with an application
shall be read as references to the Judge re‑hearing the application.
18
Provisions applicable to inquiries by Judge or magistrate
(1) In conducting an inquiry under this Part,
a Judge or a magistrate:
(a) is not bound by the rules of
evidence; and
(b) shall give to the applicant and,
so far as is reasonably practicable, any person whose consent to the marriage
of the applicant is required by this Act, an opportunity of being heard.
(2) An inquiry
by a Judge or a magistrate under this Part shall be held in private.
(3) An applicant or other person who is given
an opportunity of being heard at an inquiry under this Part may be represented
by a barrister or solicitor.
19
Restriction on applications under sections 12, 15 and 16
(1) Where, in relation to a proposed marriage
of a minor to a particular person:
(a) an application under section 15
has been refused by a prescribed authority;
(b) an application under section 16
has been refused by a magistrate or a Judge; or
(c) an
application under section 12 has been refused by a magistrate or a Judge;
a further application under the same section by the same
person in relation to the proposed marriage shall not be considered by any
prescribed authority, magistrate or Judge within 6 months after the refusal of
the application, unless the applicant satisfies the prescribed authority,
magistrate or Judge to whom the further application is made that there has been
a substantial change in the relevant facts or circumstances since the refusal
of the former application.
(2) The fact
that an application is heard or dealt with in contravention of subsection (1)
does not affect the validity of an order made, or the effectiveness of a
consent given, upon the application or the re‑hearing of the application or
make ineffective any dispensation with a consent granted on the application.
20
Effect of consent of magistrate or Judge
Subject to section 21, where a
magistrate or a Judge gives his or her consent to the marriage of a minor in
place of the consent of another person, his or her consent operates, for the
purposes of this Act, as the consent of that other person.
21
Consent by magistrate or Judge and dispensation with consent to be ineffective
after 3 months etc.
(1) A consent to a marriage given by a
magistrate or a Judge in place of the consent of another person ceases to have
effect if the marriage does not take place within 3 months after the date of
the consent.
(2) A dispensation with the consent of a
person to a marriage ceases to have effect if:
(a) the marriage does not take place
within 3 months after the date of the dispensation; or
(b) before the marriage takes place,
the person whose consent has been dispensed with notifies, by writing signed by
the person or in any other prescribed manner, the person to whom notice of the
intended marriage has been given under this Act or, in the case of an intended
marriage under Division 3 of Part V, the chaplain by whom or in whose
presence the marriage is intended to be solemnised, that the first‑mentioned
person does not consent to the marriage.
(3) Where a consent by a magistrate or a
Judge or a dispensation with the consent of a person by a prescribed authority
has ceased to have effect, the provisions of this Act apply as if the consent
had not been given or dispensed with, as the case may be.
Part III—Void marriages
Division 1—Marriages solemnised on or after 20 June 1977 and before
the commencement of section 13 of the Marriage Amendment Act 1985
22 Division
to be subject to application of private international law
Subject to section 10, Part V,
section 56 and any regulations made in accordance with paragraph 120(f),
this Division has effect subject to the common law rules of private
international law.
23
Grounds on which marriages are void
(1) A marriage that took place on or after 20 June
1977 and before the commencement of section 13 of the Marriage
Amendment Act 1985 is void where:
(a) either of the parties was, at the
time of the marriage, lawfully married to some other person;
(b) the parties are within a
prohibited relationship;
(c) by reason of section 48 the
marriage is not a valid marriage;
(d) the consent of either of the
parties was not a real consent because:
(i) it was obtained by
duress or fraud;
(ii) that party was
mistaken as to the identity of the other party or as to the nature of the
ceremony performed; or
(iii) that party was
mentally incapable of understanding the nature and effect of the marriage
ceremony; or
(e) either
of the parties was not of marriageable age;
and not otherwise.
(2) Marriages of parties within a prohibited
relationship are marriages:
(a) between a person and an ancestor
or descendant of the person; or
(b) between a brother and a sister
(whether of the whole blood or the half‑blood).
(3) Any relationship specified in subsection (2)
includes a relationship traced through, or to, a person who is or was an
adopted child, and, for that purpose, the relationship between an adopted child
and the adoptive parent, or each of the adoptive parents, of the child, shall
be deemed to be or to have been the natural relationship of child and parent.
(4) Nothing in subsection (3) makes it
lawful for a person to marry a person whom the first‑mentioned person could not
lawfully have married if that subsection had not been enacted.
(5) For the purposes of this section:
(a) a person who has at any time been
adopted by another person shall be deemed to remain the adopted child of that
other person notwithstanding that any order by which the adoption was effected
has been annulled, cancelled or discharged or that the adoption has for any
other reason ceased to be effective; and
(b) a person who has been adopted on
more than one occasion shall be deemed to be the adopted child of each person
by whom he or she has been adopted.
(6) For the purposes of this section:
adopted, in relation to a child, means
adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
ancestor, in relation to a person, means any
person from whom the first‑mentioned person is descended including a parent of
the first‑mentioned person.
Division 2—Marriages
solemnised after the commencement of section 13 of the Marriage Amendment
Act 1985
23A
Application of Division
(1) Notwithstanding subsection 42(2) of
the Family Law Act 1975, but subject to subsection (2) of this
section, this Division applies in relation to:
(a) all marriages solemnised in Australia; and
(b) all marriages under Part V.
(2) This Division does not apply in relation
to marriages to which Division 3 of Part IV applies.
23B
Grounds on which marriages are void
(1) A marriage to which this Division applies
that takes place after the commencement of section 13 of the Marriage
Amendment Act 1985 is void where:
(a) either of the parties is, at the
time of the marriage, lawfully married to some other person;
(b) the parties are within a
prohibited relationship;
(c) by reason of section 48 the
marriage is not a valid marriage;
(d) the consent of either of the
parties is not a real consent because:
(i) it was obtained by
duress or fraud;
(ii) that party is mistaken
as to the identity of the other party or as to the nature of the ceremony
performed; or
(iii) that party is mentally
incapable of understanding the nature and effect of the marriage ceremony; or
(e) either
of the parties is not of marriageable age;
and not otherwise.
(2) Marriages of parties within a prohibited
relationship are marriages:
(a) between a person and an ancestor
or descendant of the person; or
(b) between a brother and a sister
(whether of the whole blood or the half‑blood).
(3) Any relationship specified in subsection (2)
includes a relationship traced through, or to, a person who is or was an
adopted child, and, for that purpose, the relationship between an adopted child
and the adoptive parent, or each of the adoptive parents, of the child shall be
deemed to be or to have been the natural relationship of child and parent.
(4) Nothing in subsection (3) makes it
lawful for a person to marry a person whom the first‑mentioned person could not
lawfully have married if that subsection had not been enacted.
(5) For the purposes of this section:
(a) a person who has at any time been
adopted by another person shall be deemed to remain the adopted child of that
other person notwithstanding that any order by which the adoption was effected
has been annulled, cancelled or discharged or that the adoption has for any
other reason ceased to be effective; and
(b) a person who has been adopted on
more than one occasion shall be deemed to be the adopted child of each person
by whom the first‑mentioned person has been adopted.
(6) For the purposes of this section:
adopted, in relation to a child, means
adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
ancestor, in relation to a person, means any
person from whom the first‑mentioned person is descended including a parent of
the first‑mentioned person.
Part IV—Solemnisation
of marriages in Australia
Division 1—Authorised celebrants
Subdivision A—Ministers of religion
25
Interpretation
(1) In this Subdivision:
(a) a reference to a Registrar shall
be read as a reference to a Registrar of Ministers of Religion; and
(b) a reference to a register shall be
read as a reference to a register kept for the purposes of this Subdivision.
(2) For the purposes of this Subdivision, a
person who is serving outside Australia as a member of the Defence Force and
was, immediately before the person became a member of the Defence Force,
ordinarily resident in a State or Territory shall be deemed, while the person
is so serving, to be ordinarily resident in that State or Territory.
26
Recognised denominations
The Governor‑General may, by
Proclamation, declare a religious body or a religious organisation to be a recognised
denomination for the purposes of this Act.
27
Registers of ministers of religion
(1) For the purposes of this Subdivision,
there shall be, for each State and Territory, a Registrar of Ministers of
Religion and a Deputy Registrar of Ministers of Religion, who shall be appointed
by the Minister.
(2) In the event of the absence, through
illness or otherwise, of the Registrar, or of a vacancy in the office of the
Registrar, the Deputy Registrar has all the powers, and shall perform all the
duties and functions, of the Registrar during the absence or vacancy.
(3) Unless and until another person is
appointed to be the Registrar of Ministers of Religion for a particular
Territory, the person having, under the law of that Territory, the function of
maintaining a register of all marriages solemnised in that Territory shall be
the Registrar for that Territory.
(4) The Registrar for a State or Territory
shall keep a register, in such form as the Minister determines, of ministers of
religion ordinarily resident in the State or Territory who are entitled to
registration under this Subdivision.
28
Transfer of State registers
(1) The Governor‑General may make
arrangements with the Governor of a State for the transfer to the Commonwealth
of any register of persons authorised to solemnise marriages in that State kept
by an officer of that State immediately before the commencement of this Act.
(2) A copy of each arrangement made under
this section shall be published in the Gazette.
(3) A register of a State transferred to the
Commonwealth in pursuance of an arrangement made under this section, and a
register of persons authorised to solemnise marriages kept in relation to a
Territory immediately before the commencement of this Act, shall be deemed to
form part of the register kept for that State or that Territory, as the case
may be, for the purposes of this Subdivision.
(4) A person registered in a register so
transferred or kept who is, immediately after the commencement of this Act, a
minister of religion of a recognised denomination shall be deemed to be so
registered in pursuance of this Subdivision, and the Registrar by whom the
register is kept shall remove from that register the name of any other person.
29
Qualifications for registration under this Subdivision
Subject to this Subdivision, a person is
entitled to registration under this Subdivision if:
(a) the person is a minister of
religion of a recognised denomination;
(b) the person is nominated for
registration under this Subdivision by that denomination;
(c) the person is ordinarily resident
in Australia; and
(d) the person has attained the age of
21 years.
30
Registrar to register applicant
(1) Subject to this Subdivision, the
Registrar for a State or Territory shall, on application in writing by a person
ordinarily resident in that State or Territory who is entitled to registration
under this Subdivision, register that person in the register kept by that
Registrar.
(2) The particulars set out in an application
for registration under this Subdivision shall be verified by the applicant by
statutory declaration.
31
Applicant may be refused registration in certain circumstances
(1) A Registrar to whom an application for
registration under this Subdivision is made may refuse to register the
applicant if, in the opinion of the Registrar:
(a) there are already registered under
this Subdivision sufficient ministers of religion of the denomination to which
the applicant belongs to meet the needs of the denomination in the locality in
which the applicant resides;
(b) the applicant is not a fit and
proper person to solemnise marriages; or
(c) the applicant is unlikely to
devote a substantial part of his or her time to the performance of functions
generally performed by a minister of religion.
32
Effect of registration
A minister of religion who is registered
under this Subdivision in any register may solemnise marriages at any place in Australia.
33
Removal from register
(1) Subject to
this section, a Registrar shall remove the name of a person from the register
kept by that Registrar if he or she is satisfied that:
(a) that person has requested that his
or her name be so removed;
(b) that person has died;
(c) the denomination by which that
person was nominated for registration, or in respect of which that person is
registered, no longer desires that that person be registered under this Subdivision
or has ceased to be a recognised denomination;
(d) that person:
(i) has been guilty of
such contraventions of this Act or the regulations as to show him or her not to
be a fit and proper person to be registered under this Subdivision;
(ii) has been making a
business of solemnising marriages for the purpose of profit or gain; or
(iii) is not a fit and
proper person to solemnise marriages; or
(e) that person is, for any other
reason, not entitled to registration under this Subdivision.
(2) A Registrar shall not remove the name of
a person from a register under this section on a ground specified in paragraph (1)(d)
or (e) unless:
(a) the Registrar has, in accordance
with the regulations, served on the person a notice in writing:
(i) stating the
Registrar’s intention to do so on that ground unless, not later than a date
specified in the notice and being not less than 21 days from the date of
service of the notice, the person satisfies the Registrar that the person’s
name should not be removed from the register; and
(ii) informing the person
that any representations made to the Registrar before that date will be
considered by the Registrar;
(b) the Registrar has considered any
representations made by the person before the date specified in the notice; and
(c) the removal takes place within 14
days after the date specified in the notice.
(3) Where notice is served on a person under subsection (2),
that person shall not solemnise a marriage unless and until:
(a) the person is notified by the
Registrar that the Registrar has decided not to remove the person’s name from
the register;
(b) a period of 14 days has elapsed
from the date specified in the notice under subsection (2) and the
person’s name has not been removed from the register; or
(c) the person’s name, having been
removed from the register, is restored to the register.
34
Review of refusal to register or removal from register
(1) An application may be made to the
Administrative Appeals Tribunal for a review of a decision of a Registrar made
on or after 1 July 1976:
(a) refusing to register a person who
has applied for registration under this Subdivision; or
(b) removing the name of a person from
a register in pursuance of section 33.
(3) The reference in subsection (1) to a
decision of a Registrar includes a reference to a decision of a Deputy
Registrar of Ministers of Religion given in pursuance of subsection 27(2).
(4) Where the Tribunal sets aside a decision
refusing to register a person or a decision under section 33 removing the
name of a person from a register, the appropriate Registrar shall forthwith
register the person, or restore the name of the person to the register, as the
case requires.
(5) For the purposes of the making of an
application under subsection (1) and for the purposes of the operation of
the Administrative Appeals Tribunal Act 1975 in relation to such an
application, where a person has made application under subsection 30(1)
for registration under this Subdivision and, at the expiration of a period of 3
months from the day on which the application was made, the person has not been
registered and has not been notified by the Registrar that that person’s
application has been refused, the Registrar shall be deemed to have decided, on
the last day of that period, not to register that person.
35
Change of address etc. to be notified
(1) Where a person registered under this
Subdivision:
(a) changes his or her name, address
or designation; or
(b) ceases to exercise, or ceases to
be entitled to exercise, the functions of a minister of religion of the
denomination by which he or she was nominated for registration or in respect of
which he or she is registered;
the person shall, within 30 days thereafter, notify the
Registrar by whom the register in which the person is registered is kept of
that fact in accordance with the regulations.
(2) The Registrar may, upon receiving
notification of a change of name, address or designation under subsection (1)
or if the Registrar is otherwise satisfied that the particulars shown in the
register in respect of a person are not correct, amend the register
accordingly.
36
Transfer to another State etc.
(1) Where a person whose name is included in
the register for a particular State or Territory is ordinarily resident in
another State or Territory, the Registrar by whom the register is kept shall,
subject to this section, remove the name of that person from that register.
(2) Where the name of a person referred to in
subsection (1) is not included in the register for the State or Territory
in which the person is ordinarily resident, the Registrar for that State or
Territory may enter the name of that person in the register kept by that
Registrar, and the name of that person shall not be removed from a register by
virtue of subsection (1) unless and until it has been so entered.
37
Furnishing of information by recognised denominations
The regulations may make provision for,
and in relation to, the furnishing to Registrars by each recognised
denomination of:
(a) information as to matters
affecting the right to registration under this Subdivision of persons who are
so registered as ministers of religion of that denomination; and
(b) an annual list of persons
registered under this Subdivision as ministers of religion of that denomination
who are exercising the functions of a minister of religion of that
denomination.
38
Registrars to furnish information to Attorney‑General
Each Registrar shall, if the Secretary
of the Department so requests, furnish to the Secretary:
(a) a list of ministers of religion
registered by that Registrar under this Subdivision during the period specified
in the request, showing the full name, designation, residential or postal
address and religious denomination of each minister; and
(b) particulars of any other
alterations to the register kept by that Registrar under this Subdivision made
during that period.
Subdivision B—State and Territory officers etc.
39
Authorisation of State and Territory officers etc.
(1) A person who, under the law of a State or
Territory, has the function of registering marriages solemnised in the State or
Territory or a part of the State or Territory may solemnise marriages in that
State or Territory or in that part of the State or Territory, as the case may
be.
(2) The Minister may, by instrument in
writing, authorise other officers of a State or Territory to solemnise
marriages.
(3) An authorisation under subsection (2):
(a) may authorise a person to solemnise
marriages at any place in Australia or only in the part or parts of Australia specified in the instrument of authorisation; and
(b) is subject to such conditions (if
any) as are specified in the instrument.
Subdivision C—Marriage celebrants
39A Registrar of Marriage Celebrants
(1) There is to be a position occupied (on an
acting, permanent, full‑time or part‑time basis) by an APS employee in the
Department, the duties of which are expressed to consist of, or include, the performance
of the functions given to the Registrar of Marriage Celebrants by or under this
Act.
(2) The APS employee occupying the position
from time to time is the Registrar of Marriage Celebrants.
(3) The Registrar of Marriage Celebrants is
to perform those functions and has power to do all things necessary or
convenient to be done for or in connection with the performance of those
functions.
39B
Register of marriage celebrants
(1) The Registrar of Marriage Celebrants is
to maintain a register of marriage celebrants.
(2) The register may be kept in any way the
Registrar thinks appropriate, including by electronic means.
(3) The register may be made available for
inspection in any way the Registrar thinks appropriate.
(4) All information contained in the register
must be made available on the internet.
(5) Any or all of the information contained
in the register may also be disseminated in any other way the Registrar thinks
appropriate, including by electronic means.
39C
Entitlement to be registered as a marriage celebrant
(1) A person is only entitled to be
registered as a marriage celebrant if the person is an individual and the
Registrar of Marriage Celebrants is satisfied that the person:
(a) is aged 18 years or over; and
(b) has all the qualifications, and/or
skills, determined in writing to be necessary by the Registrar in accordance
with regulations made for the purposes of this paragraph; and
(c) is a fit and proper person to be a
marriage celebrant.
(2) In
determining whether the Registrar is satisfied that the person is a fit and
proper person to be a marriage celebrant, the Registrar must take into account:
(a) whether the person has sufficient
knowledge of the law relating to the solemnisation of marriages by marriage
celebrants; and
(b) whether the person is committed to
advising couples of the availability of relationship support services; and
(c) whether the person is of good
standing in the community; and
(d) whether the person has been
convicted of an offence, punishable by imprisonment for one year or longer,
against a law of the Commonwealth, a State or a Territory; and
(e) whether the person has an actual
or potential conflict of interest between his or her practice, or proposed
practice, as a marriage celebrant and his or her business interests or other
interests; and
(f) whether the person’s registration
as a marriage celebrant would be likely to result in the person gaining a
benefit in respect of another business that the person owns, controls or
carries out; and
(g) whether the person will fulfil the
obligations under section 39G; and
(h) any other matter the Registrar
considers relevant to whether the person is a fit and proper person to be a
marriage celebrant.
(3) Nothing in this section affects the
operation of Part VIIC of the Crimes Act 1914 (which includes
provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to
disregard them).
39D
Registration as a marriage celebrant
Applying for registration
(1) A person may apply, in writing, to the
Registrar of Marriage Celebrants to be registered as a marriage celebrant.
(1A) An application is taken to be made if, and
only if:
(a) the application complies with subsection (1);
and
(b) the applicant has either:
(i) paid the registration
application fee in respect of the application; or
(ii) been granted an
exemption from liability to pay the registration application fee.
Note: The application is made on the day on which paragraphs (a)
and (b) are first satisfied in relation to the application.
Registration application fees
(1B) The regulations may require a fee (a registration
application fee) to be paid in respect of an application.
(1C) The regulations may also do all or any of
the following:
(a) provide for the granting of
exemptions, on grounds specified in the regulations, from liability to pay a
registration application fee;
(b) require a fee to be paid in
respect of an application for an exemption;
(c) provide for internal review of
decisions to refuse to grant exemptions.
(1D) Regulations made for the purpose of subsection (1B)
or paragraph (1C)(b) may specify a fee, or provide for a fee to be
determined by the Minister by legislative instrument.
(1E) Regulations made for the purpose of paragraph (1C)(c)
must provide that the outcome of an internal review of a decision to refuse to
grant an exemption is either:
(a) that the refusal decision is
confirmed; or
(b) that an exemption is granted, with
effect from when the internal review decision is made.
How Registrar deals with applications
(2) The Registrar must deal with applications
in the order in which they are made (see subsection (1A)).
(3) In dealing with an application, the
Registrar:
(a) must have regard to the
information in the application; and
(b) may have regard to any other
information in his or her possession; and
(c) is not required to seek any
further information.
(4) The Registrar must register a person as a
marriage celebrant if:
(a) the person has made an application
(see subsection (1A)); and
(b) the Registrar is satisfied that
the person is entitled to be registered as a marriage celebrant.
The Registrar must not register a person as a marriage
celebrant in any other circumstances.
(5) The Registrar registers a person as a
marriage celebrant by entering in the register of marriage celebrants all
details relating to the person that are required by regulations made for the
purposes of this subsection.
(6) If the Registrar registers a person as a
marriage celebrant, the Registrar must, as soon as practicable, give the person
written notice of the registration.
(7) If the Registrar decides not to register
a person as a marriage celebrant after dealing with the person’s application,
the Registrar must, as soon as practicable, inform the applicant in writing of:
(a) the decision; and
(b) the reasons for it; and
(c) the person’s right under section 39J
(if any) to apply for review of the decision.
39F
Effect of registration
A person who is registered as a marriage
celebrant may solemnise marriages at any place in Australia.
39FA
Celebrant registration charge: liability to pay charge
(1) A person is liable to pay celebrant
registration charge to the Commonwealth in respect of a financial year
if:
(a) the person:
(i) is a marriage
celebrant on 1 July in that financial year; or
(ii) becomes a marriage
celebrant later in that financial year; and
(b) the person has not, before the end
of the charge payment day, been granted an exemption from liability to pay the
charge.
The charge must be paid by the end of the charge payment
day.
Note: For the imposition and rate of the charge, see
the Marriage (Celebrant Registration Charge) Act 2014.
(2) The Registrar of Marriage Celebrants
must, in respect of a financial year, send each person who is a marriage
celebrant on 1 July in the financial year, or who becomes a marriage
celebrant on a later day in the financial year, a notice that:
(a) specifies:
(i) the amount of
celebrant registration charge that is payable by the person (unless the person
is granted an exemption); and
(ii) the charge
payment day (being a day that is at least 30 days after the day on
which the notice is sent); and
(b) complies with any other
requirements prescribed by the regulations relating to the content of the
notice, or how it is to be sent.
(3) The regulations may do all or any of the
following:
(a) provide for the granting of
exemptions, on grounds specified in the regulations, from liability to pay
celebrant registration charge in respect of a financial year;
(b) require a fee to be paid in
respect of an application for an exemption;
(c) provide for internal review of
decisions to refuse to grant exemptions.
(4) Regulations made for the purpose of paragraph (3)(b)
may specify a fee, or provide for a fee to be determined by the Minister by
legislative instrument.
(5) Regulations made for the purpose of paragraph (3)(c)
must provide that the outcome of an internal review of a decision (the original
decision) is either:
(a) that the original decision is
confirmed; or
(b) that a different decision is
substituted for the original decision, with effect from the time when the
original decision was made.
(6) An amount of celebrant registration
charge that a person is liable to pay:
(a) is a debt due by the person to the
Commonwealth; and
(b) may be recovered by action in a
court of competent jurisdiction.
39FB
Celebrant registration charge: consequence of non‑payment
(1) If a person has not, by the end of the
charge payment day, paid an amount of celebrant registration charge that the
person is liable to pay, the Registrar of Marriage Celebrants must, as soon as
practicable after that day, send the person a notice in accordance with subsection (2),
unless the Registrar considers that the notice should not be sent at that time
because the person’s liability to pay the charge may be affected by:
(a) the outcome of an application for
internal review of a decision to refuse to grant an exemption; or
(b) any other circumstance of which
the Registrar is aware.
Note: Depending on the outcome of matters referred
to in paragraph (a) or (b), it may turn out that the person is not liable
to pay the charge.
(2) The notice referred to in subsection (1)
must:
(a) advise the person that, because
the person has failed to pay celebrant registration charge, the person will be
deregistered as a marriage celebrant after the day specified in the notice
(being a day that is at least 7 days after the day on which the notice is
sent); and
(b) comply with any other requirements
prescribed by the regulations relating to the content of the notice, or how it
is to be sent.
(3) The Registrar of Marriage Celebrants must
deregister the person as a marriage celebrant by removing his or her details
from the register of marriage celebrants as soon as practicable after the day
specified under paragraph (2)(a).
Note: If the person wishes to become a marriage
celebrant again, the person may reapply under section 39D.
39G
Obligations of each marriage celebrant
(1) A marriage celebrant must:
(a) conduct himself or herself in
accordance with the Code of Practice for marriage celebrants prescribed by
regulations made for the purposes of this paragraph; and
(b) undertake all professional
development activities required by the Registrar of Marriage Celebrants in
accordance with regulations made for the purposes of this paragraph; and
(c) notify the Registrar, in writing,
within 30 days of:
(i) a change that results
in the details entered in the register in relation to the person no longer
being correct; or
(ii) the occurrence of an
event that might have caused the Registrar not to register the person as a
marriage celebrant if the event had occurred before the person was registered.
Note: If a marriage celebrant fails to comply with
these obligations, the Registrar may take disciplinary measures under section 39I.
(2) Without limiting subsection (1), the
regulations may require a fee to be paid in respect of an application for an
exemption from requirements prescribed by regulations made for the purpose of paragraph (1)(b).
The regulations may specify the fee, or provide for the fee to be determined by
the Minister by legislative instrument.
39H
Performance reviews
(1) The Registrar of Marriage Celebrants may,
from time to time, review the performance of a marriage celebrant in respect of
a period to determine whether the Registrar considers that the celebrant’s
performance in the period is satisfactory.
Note: The period to which a review relates is at the
discretion of the Registrar.
(3) In reviewing the performance of a
marriage celebrant, the Registrar:
(a) must consider the matters
prescribed by regulations made for the purposes of this paragraph; and
(b) may have regard to any information
in his or her possession, but is not required to seek any further information.
(4) The Registrar must not determine that a
marriage celebrant’s performance in respect of a period was not satisfactory
unless:
(a) the Registrar has given the
marriage celebrant a written notice:
(i) stating the
Registrar’s intention to make the determination unless, before the date
specified in the notice (which must be at least 21 days after the date on which
the notice was given), the marriage celebrant satisfies the Registrar that the
marriage celebrant’s performance in respect of the period was satisfactory; and
(ii) informing the marriage
celebrant that any representations made to the Registrar before that date will
be considered by the Registrar; and
(b) the Registrar has considered any
representations made by the marriage celebrant before the date specified in the
notice; and
(c) the determination is made in
writing within 14 days after the date specified in the notice.
39I
Disciplinary measures
(1) The Registrar of Marriage Celebrants may
only take disciplinary measures against a marriage celebrant if the Registrar:
(a) is satisfied that the marriage
celebrant is no longer entitled to be registered as a marriage celebrant; or
(b) is satisfied that the marriage
celebrant has not complied with an obligation under section 39G; or
(c) has determined in writing under
section 39H that the marriage celebrant’s performance in respect of a
period was not satisfactory; or
(d) is satisfied that it is
appropriate to take disciplinary measures against the marriage celebrant after
considering a complaint in accordance with the complaints resolution procedures
established under paragraph 39K(c); or
(e) is satisfied that the marriage celebrant’s
application for registration was known by the marriage celebrant to be false or
misleading in a material particular.
(2) The only disciplinary measures that the
Registrar may take against a marriage celebrant are to:
(a) caution the marriage celebrant in
writing; or
(b) in accordance with regulations
made for the purposes of this paragraph, require the marriage celebrant to
undertake professional development activities determined in writing by the
Registrar; or
(c) suspend the marriage celebrant’s
registration for a period (the suspension period) of up to 6
months by annotating the register of marriage celebrants to include:
(i) a statement that the
registration is suspended; and
(ii) the dates of the start
and end of the suspension period; or
(d) deregister the marriage celebrant
by removing his or her details from the register of marriage celebrants.
Note: A decision to suspend a marriage celebrant’s
registration, or to deregister a marriage celebrant, is reviewable under
section 39J.
(3) If the Registrar suspends a marriage
celebrant’s registration for a particular period, section 39F does not
apply in respect of the marriage celebrant during the period.
(4) If the Registrar decides to take
disciplinary measures against a marriage celebrant, the Registrar:
(a) must give the marriage celebrant
written notice of:
(i) the decision; and
(ii) the reasons for it;
and
(iii) the disciplinary
measure that is being taken; and
(iv) the marriage
celebrant’s right under section 39J to apply for review of the decision;
and
(b) may inform the community, in any
way the Registrar thinks appropriate, including by electronic means, that the
disciplinary measure is being taken against the marriage celebrant.
39J
Review of decisions
(1) An application may be made to the
Administrative Appeals Tribunal for a review of a decision of the Registrar of
Marriage Celebrants:
(a) not to register a person as a
marriage celebrant; or
(b) to suspend a person’s registration
as a marriage celebrant; or
(c) to deregister a marriage celebrant
(including under subsection 39FB(3)).
(2) For the purposes of both the making of an
application under subsection (1) and the operation of the Administrative
Appeals Tribunal Act 1975 in relation to such an application, if:
(a) a person has made application for
registration as a marriage celebrant (see subsection 39D(1A)); and
(b) at the end of 3 months after the
day on which the application was made, the person has not been:
(i) registered; or
(ii) notified by the
Registrar that that person’s application has been refused;
the Registrar is taken to have decided, on the last day of
the 3 month period, not to register that person as a marriage celebrant.
(3) The Registrar must take such action as is
necessary to give effect to the Tribunal’s decision.
39K
Additional functions of the Registrar
The Registrar of Marriage Celebrants
must:
(a) amend the register of marriage
celebrants in accordance with regulations made for the purposes of this
paragraph; and
(b) keep records relating to marriage
celebrants, and the register of marriage celebrants, in accordance with
regulations made for the purposes of this paragraph; and
(c) establish complaints resolution
procedures, in accordance with regulations made for the purposes of this
paragraph, to resolve complaints about the solemnisation of marriages by
marriage celebrants; and
(d) perform any additional functions
specified in regulations made for the purposes of this paragraph.
39L
Registrar not liable for damages
The Registrar of Marriage Celebrants is
not liable to an action or other proceeding for damages in respect of anything
done, or omitted to be done, in good faith in:
(a) the exercise or performance; or
(b) the purported exercise or
performance;
of powers or functions under this Act.
39M
Evidence of registration etc.
A certificate, signed by the Registrar
of Marriage Celebrants, stating that, at a specified time, or during a
specified period:
(a) a person was registered as a
marriage celebrant; or
(b) a person’s registration as a
marriage celebrant was suspended; or
(c) a person was not registered as a
marriage celebrant;
is prima facie evidence of that fact.
Division 2—Marriages by
authorised celebrants
40
Application of Division
(1) Subject to subsection (2), this Division
applies to and in relation to all marriages solemnised, or intended to be solemnised,
in Australia.
(2) This Division does not apply to or in
relation to marriages to which Division 3 of this Part applies.
41
Marriages to be solemnised by authorised celebrant
A marriage shall be solemnised by or in
the presence of an authorised celebrant who is authorised to solemnise
marriages at the place where the marriage takes place.
42
Notice to be given and declaration made
(1) Subject to this section, a marriage shall
not be solemnised unless:
(a) notice in writing of the intended
marriage has been given in accordance with this section and has been received
by the authorised celebrant solemnising the marriage not earlier than 18 months
before the date of the marriage and not later than 1 month before the date of
the marriage;
(b) there has been produced to that authorised
celebrant, in respect of each of the parties:
(i) an official
certificate, or an official extract of an entry in an official register,
showing the date and place of birth of the party; or
(ii) a statutory
declaration made by the party or a parent of the party stating that, for
reasons specified in the declaration, it is impracticable to obtain such a
certificate or extract and stating, to the best of the declarant’s knowledge
and belief and as accurately as the declarant has been able to ascertain, when
and where the party was born; or
(iii) a passport issued by a
government of an overseas country, showing the date and place of birth of the
party; or
(iv) an Australian passport,
showing the date and place of birth of the party; and
(c) each of the parties has made and
subscribed before that authorised celebrant a declaration, in writing, as to:
(i) the party’s conjugal
status;
(ii) the party’s belief
that there is no legal impediment to the marriage; and
(iii) such other matters as
are prescribed.
(2) A notice under subsection (1):
(a) must contain such particulars in
relation to the parties as are prescribed; and
(b) must be signed by each of the
parties; and
(c) if a party signs the notice in Australia—must be signed in the presence of:
(i) an authorised
celebrant; or
(ii) a Commissioner for
Declarations under the Statutory Declarations Act 1959; or
(iii) a justice of the
peace; or
(iv) a barrister or
solicitor; or
(v) a legally qualified
medical practitioner; or
(vi) a member of the
Australian Federal Police or the police force of a State or Territory; and
(d) if a party signs the notice
outside Australia—must be signed in the presence of:
(i) an Australian
Diplomatic Officer; or
(ii) an Australian Consular
Officer; or
(iii) a notary public; or
(iv) an employee of the
Commonwealth authorised under paragraph 3(c) of the Consular Fees Act
1955; or
(v) an employee of the
Australian Trade Commission authorised under paragraph 3(d) of the Consular
Fees Act 1955.
(3) However, if the signature of a party to
an intended marriage cannot conveniently be obtained at the time when it is
desired to give notice under this section, a notice duly signed by the other
party and otherwise complying with the provisions of this section shall, if it
is signed by the first‑mentioned party in the presence of an authorised
celebrant before the marriage is solemnised, be deemed to have been a
sufficient notice.
(4) Where a party to an intended marriage is
unable, after reasonable inquiry, to ascertain all of the particulars in
relation to that party required to be contained in a notice under this section,
the failure to include in the notice such of those particulars as the party is
unable to ascertain does not make the notice ineffective for the purposes of
this section if, at any time before the marriage is solemnised, that party
furnishes to the authorised celebrant solemnising the marriage a statutory
declaration as to that party’s inability to ascertain the particulars not
included in the notice and the reason for that inability.
(5) Despite a notice required by subsection (1)
having been received later than 1 month before the date of the marriage, a
prescribed authority may authorise an authorised celebrant to solemnise a
marriage if the authority is satisfied that one or more of the circumstances
prescribed in the regulations have been met.
(5A) An authorised celebrant shall, as soon as
practicable after receiving the notice referred to in subsection (1), give
to the parties a document outlining the obligations and consequences of
marriage and indicating the availability of marriage education and counselling.
(6) Where, by reason of the death, absence or
illness of an authorised celebrant to whom a notice of intention to marry has
been given, or for any other reason, it is impracticable for that person to solemnise
the marriage, the marriage may be solemnised by any authorised celebrant who
has possession of the notice.
(7) The declarations of the parties required
by subsection (1) shall both be written on the one paper and on the same
side of that paper.
(8) An authorised celebrant shall not solemnise
a marriage:
(a) unless the authorised celebrant
has satisfied himself or herself that the parties are the parties referred to
in the notice given under this section in relation to the marriage; or
(b) if the authorised celebrant has
reason to believe that:
(i) a notice given under
this section; or
(ii) a
declaration made and subscribed under this section, or a statutory declaration
made for the purposes of this section;
in relation to the marriage, contains a false statement or
an error or is defective.
(9) An authorised celebrant may permit an
error in a notice under this section to be corrected in his or her presence by
either of the parties at any time before the marriage to which it relates has
been solemnised and may treat the corrected notice as having been originally
given in its corrected form.
(10) Where the declaration made by a party
under subsection (1) states that that party is a divorced person or a
widow or widower, an authorised celebrant shall not solemnise the marriage
unless there is produced to him or her evidence of that party’s divorce, or of
the death of that party’s spouse, as the case requires.
42A
Commissioner of Australian Federal Police or approved authority may issue
special notice
(1) If the Commissioner of the Australian
Federal Police or a person who is an approved authority for the purposes of the
Witness Protection Act 1994 gives to a Registrar a certificate under
section 14 of that Act stating that the person has received the evidence
referred to in paragraphs (b) and (c) of that section and the statutory
declaration referred to in paragraph (d) of that section, the Registrar:
(a) if he or she is to solemnise the
marriage himself or herself—is to treat the certificate as satisfying the
requirements of section 42; or
(b) in any other case—is to give to
the celebrant a notice stating that the celebrant should treat the requirements
of section 42 of this Act as having been met.
(2) The names specified in the certificate
are to be used in the marriage certificate.
43
Marriage may be solemnised on any day etc.
A marriage may be solemnised on any day,
at any time and at any place.
44
Witnesses
A marriage shall not be solemnised
unless at least 2 persons who are, or appear to the person solemnising the
marriage to be, over the age of 18 years are present as witnesses.
45
Form of ceremony
(1) Where a marriage is solemnised by or in
the presence of an authorised celebrant, being a minister of religion, it may
be solemnised according to any form and ceremony recognised as sufficient for
the purpose by the religious body or organisation of which he or she is a
minister.
(2) Where a
marriage is solemnised by or in the presence of an authorised celebrant, not
being a minister of religion, it is sufficient if each of the parties says to
the other, in the presence of the authorised celebrant and the witnesses, the
words:
“I call
upon the persons here present to witness that I, A.B. (or C.D.), take
thee, C.D. (or A.B.), to be my lawful wedded wife (or husband)”;
or words to that effect.
(3) Where a marriage has been solemnised by
or in the presence of an authorised celebrant, a certificate of the marriage
prepared and signed in accordance with section 50 is conclusive evidence
that the marriage was solemnised in accordance with this section.
(4) Nothing in subsection (3) makes a
certificate conclusive:
(a) where the fact that the marriage
ceremony took place is in issue—as to that fact; or
(b) where the identity of a party to
the marriage is in issue—as to the identity of that party.
46
Certain authorised celebrants to explain nature of marriage relationship
(1) Subject to subsection (2), before a
marriage is solemnised by or in the presence of an authorised celebrant, not
being a minister of religion of a recognised denomination, the authorised
celebrant shall say to the parties, in the presence of the witnesses, the
words:
“I am duly authorised
by law to solemnise marriages according to law.
“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.
“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.
(2) Where, in the case of a person authorised
under subsection 39(2) to solemnise marriages, the Minister is satisfied
that the form of ceremony to be used by that person sufficiently states the nature
and obligations of marriage, the Minister may, either by the instrument by
which that person is so authorised or by a subsequent instrument, exempt that
person from compliance with subsection (1) of this section.
47
Ministers of religion not bound to solemnise marriage etc.
Nothing in this Part:
(a) imposes an obligation on an authorised
celebrant, being a minister of religion, to solemnise any marriage; or
(b) prevents such an authorised
celebrant from making it a condition of his or her solemnising a marriage that:
(i) longer notice of
intention to marry than that required by this Act is given; or
(ii) requirements
additional to those provided by this Act are observed.
48
Certain marriages not solemnised in accordance with this Division to be invalid
(1) Subject to this section, a marriage solemnised
otherwise than in accordance with the preceding provisions of this Division is
not a valid marriage.
(2) A marriage is not invalid by reason of
all or any of the following:
(a) failure to give the notice
required by section 42, or a false statement, defect or error in such a
notice;
(b) failure of the parties, or either
of them, to make or subscribe a declaration as required by section 42, or
a false statement, defect or error in such a declaration;
(c) failure to produce to the authorised
celebrant a certificate or extract of an entry or a statutory declaration as
required by section 42, or a false statement, defect or error in such a
statutory declaration;
(d) failure to comply with any other
requirement of section 42, or any contravention of that section;
(e) failure to comply with the
requirements of section 44 or 46;
(f) failure to comply with the
requirements of section 13.
(3) A marriage is not invalid by reason that
the person solemnising it was not authorised by this Act to do so, if either
party to the marriage, at the time the marriage was solemnised, believed that
that person was lawfully authorised to solemnise it, and in such a case the
form and ceremony of the marriage shall be deemed to have been sufficient if
they were such as to show an intention on the part of each of the parties to
become thereby the lawfully wedded spouse of the other.
49
Authorised celebrant to retain consents, statutory declarations etc.
An authorised celebrant to whom a
consent, dispensation with consent or statutory declaration is produced under
this Act shall retain it in his or her possession until he or she deals with it
in accordance with section 50.
50
Marriage certificates
(1) Where an authorised celebrant solemnises
a marriage, the authorised celebrant shall:
(a) prepare a certificate of the
marriage, in accordance with the prescribed form, for the purpose of issue to
the parties to the marriage; and
(b) prepare 2 official certificates of
the marriage.
(1A) Notwithstanding paragraph (1)(b), the
regulations may provide that the person for the time being holding or acting in
a specified office of a specified State or Territory shall prepare only 1
official certificate under that paragraph.
(2) Immediately after the solemnisation of
the marriage, the authorised celebrant, each of the parties to the marriage and
2 witnesses of the marriage who are, or appear to the authorised celebrant to
be, over the age of 18 years shall sign each of the certificates so prepared.
(3) One of the official certificates or the
official certificate, as the case may be, shall be on the reverse side of the
paper bearing the declarations made by the parties under section 42.
(4) The authorised celebrant shall hand the
certificate referred to in paragraph (1)(a) to one of the parties to the
marriage on behalf of the parties, and:
(a) where 2 official certificates have
been prepared:
(i) within 14 days after
the solemnisation of the marriage, forward the official certificate to which subsection (3)
applies, together with the notice under section 42, the order (if any)
under section 12 and any statutory declarations, consents and
dispensations with consents relating to the marriage that are in his or her
possession, to the appropriate registering authority of a State or Territory
ascertained in accordance with the regulations; and
(ii) retain the other
official certificate and deal with it in accordance with the regulations; or
(b) where only 1 official certificate
has been prepared—retain that certificate and deal with it in accordance with
the regulations.
(5) Where the authorised celebrant dies
without having prepared and signed the certificates of the marriage, or where
by reason of other special circumstances the Minister thinks it necessary to do
so, the Minister may, if satisfied that the marriage was duly solemnised,
prepare and sign the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the
Minister under subsection (5) has the same force and effect as if it had
been prepared and signed, in accordance with this section, by the authorised
celebrant.
(7) The regulations may make provision for
and in relation to the furnishing of a substitute certificate in the event of
the loss or destruction of a certificate of a marriage previously forwarded in
pursuance of this section.
51
Incorrect marriage certificates
(1) Where an authorised officer is satisfied,
by statutory declaration or otherwise, that any particular in a certificate of
marriage prepared and signed under section 50 is incorrect, the authorised
officer may:
(a) in the case of a certificate that
has been handed to a party to the marriage or retained by the authorised
celebrant—correct the certificate; and
(b) in the case of a certificate that
has been forwarded to a registering authority—certify to that authority that a
specified correction is necessary.
(2) For the purposes of exercising his or her
powers under paragraph (1)(a) in relation to a certificate, an authorised
officer may, by notice in writing served on a party to the marriage, or the authorised
celebrant, as the case requires, require the party or the authorised celebrant
to produce or forward the certificate to the authorised officer within a period
(not being less than 7 days from the date of service of the notice) specified
in the notice.
(2A) Where a marriage has been solemnised, or
purports to have been solemnised, under this Part, and the marriage is void, an
authorised officer may, by notice in writing served on a party to the marriage,
require the party to deliver or forward to the authorised officer, within a
period (not being less than 7 days from the date of service of the notice)
specified in the notice, the certificate required, by subsection 50(4), to
be handed to a party to the marriage.
(3) A notice referred to in subsection (2)
or (2A) may be served by post.
(4) In this section, authorised officer
means a person authorised by the Minister to perform the functions of an authorised
officer under this section.
Division 3—Marriages by
foreign diplomatic or consular officers
52
Interpretation
In this Division, unless the contrary
intention appears:
diplomatic or consular officer, in relation
to an overseas country, means a person recognised by the Government of the
Commonwealth as a diplomatic or consular representative of that overseas
country in Australia.
proclaimed overseas country means an overseas
country in respect of which a Proclamation under section 54 is in force.
the Registrar means the Registrar of Foreign
Marriages.
53
Application of Division
This Division applies to marriages, in
accordance with the law or custom of a proclaimed overseas country, between
parties of whom one at least possesses the nationality of that country.
54
Governor‑General may declare countries to be proclaimed overseas countries
The Governor‑General may declare by
Proclamation that a country is a proclaimed overseas country for the purposes
of this Division if he or she is satisfied that the country’s law or custom authorises
the solemnisation, by or in the presence of either or both diplomatic or
consular officers of that country, of marriages outside that country.
55 Solemnisation
of marriages in Australia by foreign diplomatic or consular officer
Nothing in this Act prevents the solemnisation
in Australia of a marriage to which this Division applies by or in the presence
of a diplomatic or consular officer of a proclaimed overseas country if:
(a) neither of the parties is an
Australian citizen; and
(b) the marriage, were it a marriage
to and in relation to which Division 2 of this Part applied, would not be
void by reason of a circumstance set out in paragraph 23B(1)(a), (b) or
(e).
56
Recognition of marriages
(1) Subject to subsection (2), a
marriage solemnised in Australia by or in the presence of a diplomatic or
consular officer of a proclaimed overseas country, being a marriage to which
section 55 was applicable, shall be recognised as valid in Australia if:
(a) the marriage is recognised as a
valid marriage by the law or custom of the overseas country; and
(b) the marriage has been registered
under this Division.
(2) Subsection (1) does not apply in
relation to a marriage where, if the marriage were a marriage to and in
relation to which Division 2 of this Part applied, the marriage would be
void by reason of a circumstance set out in paragraph 23B(1)(d).
57
Registrar and Deputy Registrar of Foreign Marriages
(1) For the purposes of this Division, there
shall be a Registrar of Foreign Marriages, who shall be appointed by the
Minister.
(2) The Registrar shall have a seal, which
shall be in such form as the Minister determines.
(3) The Minister may appoint a person to be
Deputy Registrar of Foreign Marriages and, in the event of the absence, through
illness or otherwise, of the Registrar, or of a vacancy in the office of
Registrar, the Deputy Registrar has all the powers, and shall perform all the
duties and functions, of the Registrar during the absence or vacancy.
(4) The Deputy Registrar appointed under this
section may, during any such absence, or vacancy in the office, of the
Registrar, certify copies of entries, or extracts of entries, in the Register
of Foreign Marriages Solemnised in Australia under his or her signature and the
seal of the Registrar, and a copy or extract so certified has the same force
and effect as if it had been certified by the Registrar under his or her signature
and seal.
58
Register of Foreign Marriages Solemnised in Australia
(1) The Registrar shall keep a register, to
be called the Register of Foreign Marriages Solemnised in Australia, in such form as the Minister directs.
(2) The Registrar shall register in the
Register every marriage notified to the Registrar that he or she is satisfied:
(a) is a marriage to which section 55
was applicable; and
(b) has been solemnised in Australia by or in the presence of a diplomatic or consular officer of a proclaimed
overseas country who was competent to solemnise the marriage.
(3) The Registrar shall keep an index of the
entries in the Register.
59
Searches and certified copies
(1) Subject to payment of the prescribed fee,
a person may, upon satisfying the Registrar that the person has good reason for
so doing, cause a search to be made for an entry in the Register of Foreign
Marriages Solemnised in Australia and receive a copy of the entry, or an
extract of the entry, certified by the Registrar under his or her signature and
seal to be a copy of the entry or an extract of the entry, as the case may be.
(2) A copy of an entry in the Register
certified in accordance with subsection (1) is, for all purposes, evidence
of the marriage recorded in the entry.
Part V—Marriages of
members of the Defence Force overseas
Division 3—Marriages of members of the Defence Force overseas
71
Marriages of members of the Defence Force overseas
(1) Subject to this Part, a marriage between
parties of whom one at least is a member of the Defence Force may be solemnised
in an overseas country by or in the presence of a chaplain.
(2) The Governor‑General may, by
Proclamation, declare that a part of the Queen’s dominions that has been
occupied by a state at war with the Commonwealth and in which facilities for
marriage in accordance with the local law have not, in the opinion of the
Governor‑General, been adequately restored shall be deemed to be an overseas
country for the purposes of this section.
72
Form and ceremony of marriage
(1) A marriage under this Division shall be solemnised:
(a) at such place as the chaplain
thinks fit, in the presence of at least 2 witnesses who are, or appear to the
chaplain to be, over the age of 18; and
(b) according to such form and
ceremony as the chaplain thinks proper.
(2) Unless,
having regard to the form and ceremony of the marriage, the chaplain considers
it unnecessary for the parties to the marriage to do so, each of the parties
shall, in some part of the ceremony and in the presence of the chaplain and the
witnesses, say to each other the words:
“I call
upon the persons here present to witness that I, A.B. (or C.D.), take
thee, C.D. (or A.B.), to be my lawful wedded wife (or husband)”;
or words to that effect.
Division 4—General
73
Validity of marriages
A marriage solemnised under this Part,
being a marriage which, if it had been solemnised in Australia in accordance
with Division 2 of Part IV would have been a valid marriage, is valid
throughout Australia and the external Territories.
74
Declaration to be made before chaplain
(1) A marriage shall not be solemnised under
this Part unless each of the parties to the marriage has made and subscribed
before the chaplain solemnising the marriage a declaration as to:
(a) the party’s conjugal status;
(b) the party’s belief that there is
no legal impediment to the marriage; and
(c) such other matters as are
prescribed.
(2) The declarations of the parties required
by subsection (1) shall both be written on the one paper and on the same
side of that paper.
(3) A chaplain shall not solemnise a marriage
under this Part if he or she has reason to believe that a declaration made and
subscribed under this section in relation to the marriage contains a false
statement or an error or is defective.
75
Chaplain to be satisfied of parties’ identity
A chaplain shall not solemnise a
marriage under this Part unless the chaplain has satisfied himself or herself
as to the identity of the parties.
76
Additional consent to marriage of minor domiciled outside Australia
(1) Where:
(a) a party to an intended marriage
under this Part, not being an Australian citizen, has not attained the age of
18 years and is domiciled in a place outside Australia; and
(b) the
law of that place requires the consent of a person, other than a person whose
consent is required under Part II, to the marriage of that party;
the marriage shall not be solemnised unless the chaplain
is satisfied that consent to the marriage has been given by that person.
(2) The requirement of subsection (1) is
in addition to the requirements of Part II with respect to consents to the
marriages of minors.
77
Restriction on solemnisation of marriages under this Part
(1) A marriage shall not be solemnised in an
overseas country under this Part unless the chaplain is satisfied:
(a) that each of the parties to the
intended marriage is an Australian citizen or a member of the Defence Force;
(b) where 1 party to the intended
marriage is not an Australian citizen or a member of the Defence Force:
(i) that that party is not
a subject or citizen of the overseas country; or
(ii) that sufficient
facilities do not exist for the solemnisation of the marriage in the overseas
country in accordance with the law of that country;
(c) where 1 party to the intended
marriage is a subject or citizen of the overseas country, that objection will
not be taken by the authorities of that country to the solemnisation of the
intended marriage under this Part; or
(d) that a marriage in the overseas
country between the parties in accordance with the law of that country would
not be recognised throughout Australia.
(2) In this section, overseas country
includes a country that is deemed to be an overseas country for the purposes of
section 71.
78 Solemnisation
of marriages where a party to the marriage is not an Australian citizen etc.
(1) Subject to subsection (2), a
marriage shall not be solemnised under this Part if 1 party to the intended
marriage (in this section called the non‑Australian) is not
an Australian citizen or a member of the Defence Force.
(2) Subsection (1)
does not apply where the chaplain is satisfied:
(a) that the marriage will be recognised
by the law of the country to which the non‑Australian belongs;
(b) that some other marriage ceremony,
in addition to the ceremony under this Part, has taken place, or is about to
take place, between the parties and that the other ceremony is, or, when it has
taken place, will be, recognised by the law of the country to which the non‑Australian
belongs; or
(c) that the Minister has approved of
the solemnisation of the marriage under this Part.
79
Chaplain to retain consents etc.
A chaplain to whom a consent, dispensation
with consent or statutory declaration is produced under this Act shall retain
it in the possession of the chaplain until he or she deals with it in
accordance with section 80.
80
Marriage certificate and registration of marriages
(1) Where a chaplain solemnises a marriage
under this Part, the chaplain shall:
(a) prepare a certificate of the
marriage, in accordance with the prescribed form, for the purpose of issue to
the parties to the marriage; and
(b) prepare 2 official certificates of
the marriage.
(2) Immediately after the solemnisation of
the marriage:
(a) the chaplain; and
(b) each of the parties to the
marriage; and
(c) 2 witnesses of the marriage who
are, or appear to the chaplain to be, over the age of 18 years;
shall sign each of the certificates so prepared.
(3) One of the official certificates shall be
on the reverse side of the paper bearing the declarations made by the parties
under section 74.
(4) The
chaplain shall:
(a) hand the certificate referred to
in paragraph (1)(a) to one of the parties to the marriage on behalf of the
parties;
(b) forward the official certificate
referred to in subsection (3), together with any statutory declarations,
consents or dispensations with consents relating to the marriage that are in his
or her possession, to the Registrar; and
(c) retain the other copy of the
certificate in his or her possession for the prescribed period and, upon the
expiration of that period, deal with the copy in accordance with the
regulations.
(5) Where the chaplain dies without having
prepared and signed the certificates of the marriage, or where by reason of
other special circumstances the Minister thinks it necessary to do so, the
Minister may, if satisfied that the marriage was duly solemnised, prepare and sign
the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the
Minister under subsection (5) has the same force and effect as if it had
been prepared and signed, in accordance with this section, by the chaplain.
(7) Upon the receipt by the Registrar of the
official certificate required to be forwarded to the Registrar in respect of a
marriage, the Registrar shall register the marriage.
(8) In the month of January in each year, a
chaplain by whom, or in whose presence, a marriage has been, or marriages have
been, solemnised in the preceding year shall forward to the Registrar written
notice of the marriage, or of each of the marriages, stating the following:
(a) the date and place of the
marriage;
(b) the full name of each party to the
marriage;
(c) such other particulars as are
prescribed.
(9) If the certificate of a marriage is not
received by the Registrar, the chaplain by whom it was issued shall, at the
request of the Registrar:
(a) prepare a copy of the certificate;
(b) certify, by writing signed by the
chaplain, that the copy is a true copy of the certificate; and
(c) forward the copy to the Registrar.
(10) A certified copy of a certificate prepared
by a chaplain under subsection (9) has, for all purposes, the same force
and effect as the certificate of which it is a copy.
81
Power to refuse to solemnise marriage
A chaplain may refuse to solemnise a
marriage under this Part on any grounds which appear to the chaplain to be
sufficient and, in particular, on the ground that, in the opinion of the
chaplain, the solemnisation of the marriage would be inconsistent with
international law or the comity of nations.
82
Marriages may be solemnised on any day and at any time
A marriage under this Part may be solemnised
on any day and at any time.
83
Validity of marriages under this Part
(1) A marriage under this Part is not invalid
by reason of all or any of the following:
(d) failure of the parties, or either
of them, to make or subscribe a declaration required by section 74, or a
false statement, defect or error in such a declaration;
(e) the fact that the marriage was solemnised
in contravention of any provision of section 72, 74, 75, 76, 77 or 78;
(f) failure to comply with the
requirements of section 13.
(2) A marriage under this Part is not invalid
by reason that the person solemnising it was not a chaplain if either party to
the marriage, at the time the marriage was solemnised, believed that that
person was lawfully authorised to solemnise it, and in such a case the form and
ceremony of the marriage shall be deemed to have been sufficient if they were
such as to show an intention on the part of each of the parties to become
thereby the lawfully wedded spouse of the other.
84
Registration of overseas marriages attended by a chaplain
(1) Where:
(a) a chaplain has attended a marriage
in an overseas country between parties of whom at least one was an Australian
citizen or a member of the Defence Force; and
(b) the chaplain is satisfied that the
marriage has taken place in accordance with the law of that country; and
(c) a
party to the marriage informs the chaplain, in writing, that he or she desires
the marriage to be registered under this section;
the chaplain shall forward to the Registrar a certificate
in respect of the marriage.
(2) Upon receipt by the Registrar of a
certificate under subsection (1) in respect of a marriage, the Registrar
shall, subject to the regulations, register the marriage.
85
Certificates of marriages solemnised in accordance with local law in an
overseas country
(1) Where:
(a) a marriage takes place in a
prescribed overseas country in accordance with the law of that country between
parties of whom one at least is an Australian citizen or a member of the
Defence Force;
(b) a party to the marriage who is an
Australian citizen or a member of the Defence Force produces to a chaplain in
the country in which the marriage was solemnised:
(i) a copy of the entry in
respect of the marriage in the marriage register of that country certified by
the appropriate authority in that country to be a true copy of that entry; and
(ii) if the copy of that
entry is not in the English language—a translation into the English language of
that copy; and
(c) the
chaplain is satisfied that the copy of the entry in the marriage register is a
true copy and that the translation, if any, is a true translation;
the chaplain shall certify, upon the copy, that he or she
is satisfied that the copy is a true copy of the entry in the marriage register
and, upon the translation, that he or she is satisfied that the translation is
a true translation of the copy and shall transmit the copy and the translation
to the Registrar.
(2) The Registrar shall, upon payment of the
prescribed fee, issue to a person who so desires a copy of any document
received by the Registrar under subsection (1) certified by the Registrar,
under his or her signature and seal, to be a true copy of that document.
(3) A document relating to a marriage in an
overseas country transmitted in pursuance of section 26 of the Marriage
(Overseas) Act 1955 and received by the Registrar of Overseas Marriages
appointed under that Act shall, for the purposes of this section, be deemed to
have been, in pursuance of this section, transmitted to, and received by, the
Registrar of Overseas Marriages appointed, or deemed to have been appointed,
under this Act.
(4) A document relating to a marriage in an
overseas country issued under subsection (2) is admissible in evidence in
any proceedings as if it were a certificate duly issued by the authorities of
that country.
86
Evidence
A notice, certificate or other document
kept in pursuance of this Part by any person, or in the records of the office
of any person, is admissible in evidence on its mere production from the
custody of that person or from the custody of an officer of the Department.
87
Validity of marriages otherwise than under this Part not affected
Nothing in this Part in any way affects
the validity of a marriage solemnised in an overseas country otherwise than
under this Part.
88
Imperial Foreign Marriage Acts
This Act shall not be taken to repeal or
amend the Imperial Acts known as the Foreign Marriage Acts, 1892 and 1934, in
so far as those Acts are part of the law of the Commonwealth.
Part VA—Recognition of
foreign marriages
88A
Object of Part
The object of this Part is to give
effect to Chapter II of the Convention on Celebration and Recognition of the
Validity of Marriages signed at The Hague on 14 March 1978.
88B
Interpretation
(1) In this Part, unless the contrary
intention appears:
Australia includes the external Territories.
local law, in relation to a marriage solemnised
in a foreign country, means the law in force in the foreign country or in that
part of the foreign country in which the marriage was solemnised.
(2) A marriage shall be taken, for the
purposes of this Part, to have been solemnised in a foreign country by or in
the presence of a diplomatic or consular officer of another foreign country if
the marriage was solemnised in the first‑mentioned foreign country by or in the
presence of a person who was recognised by the government of that country as a
diplomatic or consular representative of the other foreign country.
(3) In this Part, a reference to a marriage
includes a reference to a purported marriage that is void or voidable but does
not include a reference to a marriage solemnised under Part V.
(4) To avoid doubt, in this Part (including
section 88E) marriage has the meaning given by subsection 5(1).
88C
Application of Part
(1) This Part applies to and in relation to
every marriage solemnised, whether before or after the commencement of this
Part, in a foreign country where:
(a) under the local law, the marriage
was, at the time when it was solemnised, recognised as valid; or
(b) if the marriage was solemnised by
or in the presence of a diplomatic or consular officer of another foreign
country:
(i) under the law of that
other foreign country, the marriage was, at the time when it was solemnised, recognised
as valid; and
(ii) at the time when it
was solemnised, the solemnisation of the marriage was not prohibited by the
local law.
(2) Where a marriage (not being a marriage
referred to in subsection (1)) that was solemnised, whether before or
after the commencement of this Part, in a foreign country:
(a) is, at any time in relation to
which the validity of the marriage falls to be determined, recognised as valid
under the local law; or
(b) if
the marriage was solemnised by or in the presence of a diplomatic or consular
officer of another foreign country and, at the time when it was solemnised, the
solemnisation of the marriage was not prohibited by the local law—is, at any
time in relation to which the validity of the marriage falls to be determined, recognised
as valid under the law of that other foreign country;
this Part applies to and in relation to the marriage from
and including that time.
88D
Validity of marriages
(1) Subject to this section, a marriage to
which this Part applies shall be recognised in Australia as valid.
(2) A marriage to which this Part applies
shall not be recognised as valid in accordance with subsection (1) if:
(a) either of the parties was, at the
time of the marriage, a party to a marriage with some other person and the last‑mentioned
marriage was, at that time, recognised in Australia as valid;
(b) where one of the parties was, at
the time of the marriage, domiciled in Australia—either of the parties was not
of marriageable age within the meaning of Part II;
(c) the parties are within a
prohibited relationship within the meaning of section 23B; or
(d) the consent of either of the
parties was not a real consent for a reason set out in subparagraph 23B(1)(d)(i),
(ii) or (iii).
(3) Where neither of the parties to a
marriage to which this Part applies was, at the time of the marriage, domiciled
in Australia, the marriage shall not be recognised as valid in accordance with subsection (1)
at any time while either party is under the age of 16 years.
(4) A marriage solemnised in a foreign
country, being a marriage to which this Part applies, shall not be recognised
as valid in accordance with subsection (1) at any time while the marriage
is voidable:
(a) except in a case to which paragraph (b)
applies—under the local law; or
(b) if the marriage was solemnised in
a foreign country by or in the presence of a diplomatic or consular officer of
another foreign country—under the law of that other foreign country.
(5) Notwithstanding any other provision of this
Part, where:
(a) a marriage (in this
subsection referred to as the initial marriage) has, whether
before or after the commencement of this Part, been solemnised in a foreign
country;
(b) at the time of the solemnisation
of the initial marriage, that marriage was not recognised in Australia as valid;
(c) after the solemnisation of the
initial marriage, and whether before or after the commencement of this Part,
either party to that marriage entered into another marriage (in this subsection
referred to as the subsequent marriage); and
(d) at the time when the subsequent
marriage was solemnised:
(i) the subsequent
marriage was recognised in Australia as valid; and
(ii) the
initial marriage was not recognised in Australia as valid;
the initial marriage shall not be recognised at any time
in Australia as valid.
88E
Validity of certain marriages not affected by this Part
(1) Subject to subsection (2), a
marriage solemnised in a foreign country that would be recognised as valid
under the common law rules of private international law but is not required by
the provisions of this Part apart from this subsection to be recognised as
valid shall be recognised in Australia as valid, and the operation of this
subsection shall not be limited by any implication arising from any other
provision of this Part.
(2) Notwithstanding subsection (1), a
marriage of a person domiciled in Australia, being a marriage solemnised in a
foreign country, shall not be recognised in Australia as valid if, at the time
of the marriage, either party to the marriage was not of marriageable age
within the meaning of Part II.
(3) Where a marriage solemnised in a foreign
country is not required by virtue of this Part to be recognised in Australia as
valid, this Part shall not be taken to limit or exclude the operation of a
provision of any other law of the Commonwealth, or of a law of a State or
Territory, that provides, expressly or impliedly, for such a marriage to be recognised
as a valid marriage for the purposes of the law in which the provision is
included.
(4) This Part shall not be taken to limit or
exclude the operation of a provision of any other law of the Commonwealth, or
of a law of a State or Territory, that deems a union in the nature of a
marriage to be a marriage for the purposes of the law in which the provision is
included.
88EA
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.
88F
Incidental determination of recognition of certain foreign marriages
Notwithstanding any other law, the
question whether a marriage solemnised in a foreign country is to be recognised
in Australia as valid shall be determined in accordance with the provisions of
this Part, whether or not the determination of the question is incidental to
the determination of another question.
88G
Evidence
(1) A document
purporting to be either the original or a certified copy of a certificate,
entry or record of a marriage alleged to have been solemnised in, or under the
law of, a foreign country and purporting to have been issued by:
(a) in the case of a marriage alleged
to have been solemnised in a foreign country—an authority of that country or of
that part of the country in which the marriage was allegedly solemnised; or
(b) in
the case of a marriage alleged to have been solemnised under the law of a foreign
country—an authority of that country;
is, for all purposes, prima facie evidence of the
facts stated in the document and of the validity of the marriage to which the
document relates.
(2) Subsection (1) does not apply to or
in relation to a document if it is proved that the authority of the foreign
country or of the part of a foreign country by which the document purports to
have been issued was not, at the time of issue, a competent authority.
(3) In subsection (2), competent
authority means:
(a) in relation to a foreign country:
(i) any authority that is
prescribed in relation to that country by regulations made for the purposes of
this paragraph; or
(ii) any other authority
that is competent, under the law in force in that country, to issue the original
or a certified copy of a certificate, entry or record of a marriage solemnised
in, or under the law of, that country; and
(b) in relation to a part of a foreign
country:
(i) any authority that is
prescribed in relation to that part of that country by regulations made for the
purposes of this paragraph; or
(ii) any other authority
that is competent, under the law in force in that part of that country, to
issue the original or a certified copy of a certificate, entry or record of a
marriage solemnised in that part of that country.
Part VI—Legitimation
89
Legitimation by virtue of marriage of parents
(1) A child (whether born before or after the
commencement of this Act) whose parents were not married to each other at the
time of his or her birth but have subsequently married each other (whether
before or after the commencement of this Act) is, by virtue of the marriage,
for all purposes the legitimate child of his or her parents as from his or her
birth or the commencement of this Act, whichever was the later.
(2) Subsection (1) applies in relation
to a child whether or not there was a legal impediment to the marriage of his
or her parents at the time of his or her birth and whether or not the child was
still living at the time of the marriage or, in the case of a child born before
the commencement of this Act, at the commencement of this Act.
(3) Subsection (1) does not apply in
relation to a child unless:
(a) at the time of the marriage of the
child’s parents:
(i) where that marriage
took place before the commencement of section 24 of the Marriage
Amendment Act 1985—the child’s father was domiciled in Australia; or
(ii) in any other case—one
of the child’s parents was domiciled in Australia; or
(b) the marriage of the child’s
parents took place in Australia, or outside Australia under Part V of this
Act or under the Marriage (Overseas) Act 1955.
(4) Nothing in this section renders
ineffective any legitimation that took place before the commencement of this
Act by or under a law of a State or Territory or shall be taken to exclude the
continued operation of such a law in relation to such a legitimation.
(5) This section does not apply in relation
to a child so as to affect any estate, right or interest in real or personal
property to which a person has become, or may become, entitled, either
mediately or immediately, in possession or expectancy, by virtue of a
disposition that took effect, or by devolution by law on the death of a person
who died, before the marriage of the parents of the child or the commencement
of this Act, whichever was the later.
90
Legitimacy of children of certain foreign marriages
(1) Where:
(a) the parents of a child born
illegitimate have married each other or the parents of a child born in a place
the law of which did not recognise the status of illegitimacy have married each
other;
(b) the marriage took place outside Australia;
(c) neither parent of the child was
domiciled in Australia at the time of the marriage; and
(d) the
law of the place where a parent of the child was then domiciled did not recognise
the status of illegitimacy or, if the law of the place where a parent of the
child was then domiciled did recognise that status, the child was, by that law,
legitimated by virtue of the marriage;
the child is for all purposes the legitimate child of his
or her parents as from the time of the marriage or the commencement of section 25
of the Marriage Amendment Act 1985, whichever was the later.
(2) Where the relationship of a child and his
or her father and mother is, for the purposes of the law of a place, required
by a law in force in that place to be determined irrespective of whether or not
the father and mother are or have been married to each other, the law of that
place shall, for the purposes of this section, be taken not to recognise the
status of illegitimacy.
(3) Subsection (1) applies in relation
to a child:
(a) whether the child was born before
or after the commencement of section 25 of the Marriage Amendment Act
1985, whether the marriage of the parents of the child took place before or
after that commencement and whether or not the child was still living at the
time of the marriage or, in the case of a child born before that commencement,
at that commencement; and
(b) in the case of a child born
illegitimate who, by virtue of the marriage of the child’s parents, was
legitimated by the law of the place where a parent of the child was domiciled
at the time of the marriage—whether or not the law of the place in which that
parent or the other parent was domiciled at the time of the birth of the child
permitted or recognised legitimation by subsequent marriage.
91
Legitimacy of children of certain void marriages
(1) Subject to this section, a child of a
marriage that is void shall be deemed for all purposes to be the legitimate
child of his or her parents as from his or her birth or the commencement of
this Act, whichever was the later, if, at the time of the intercourse that
resulted in the birth of the child or the time when the ceremony of marriage
took place, whichever was the later, either party to the marriage believed on
reasonable grounds that the marriage was valid.
(2) Subsection (1) does not apply unless
one of the parents of the child was domiciled in Australia at the time of the
birth of the child or, having died before that time, was domiciled in Australia immediately before his or her death.
(3) Subsection (1) applies in relation
to a child whether the child was born before or after the commencement of this
Act, whether the ceremony of marriage took place before or after the
commencement of this Act and whether the ceremony of marriage took place in or
outside Australia.
(4) This section does not apply in relation
to a child so as to affect any estate, right or interest in real or personal
property to which a person has become, or may become, entitled, either
mediately or immediately, in possession or expectancy, by virtue of a
disposition that took effect, or by devolution by law on the death of a person
who died, before the birth of the child or the commencement of this Act,
whichever was the later.
92
Declarations of legitimacy etc.
(1) A person may apply to the Family Court of
Australia, the Federal Circuit Court of Australia, a Family Court of a State or
the Supreme Court of a State or Territory for an order declaring:
(a) that the person is the legitimate
child of his or her parents; or
(b) that
the person or his or her parent or child or a remoter ancestor or descendant is
or was a legitimated person;
and the Court may, in its discretion, make the order.
(2) The Supreme Courts of the States and any
Family Court of a State are invested with federal jurisdiction and jurisdiction
is conferred, to the extent that the Constitution permits, on the Supreme
Courts of the Territories, to hear and determine applications under this
section.
(4) The Court to which an application under
this section is made may:
(a) direct that notice of the
application be given to such persons (who may include the Attorney‑General of
the Commonwealth or of a State or the Northern Territory) as the Court thinks
fit;
(b) direct that a person be made a
party to the application; or
(c) permit a person having an interest
in the matter to intervene in, and become a party to, the proceedings.
(5) Where the Court makes an order upon the
application, it may include in the order such particulars in relation to the
legitimacy or legitimation of the person to whom it relates as the Court finds
to be established.
(6) An order made under this section binds
the Crown in right of the Commonwealth or of a State or the Northern Territory
or Norfolk Island, whether or not notice was given to the Attorney‑General of
the Commonwealth or of that State or Territory, but does not affect:
(a) the rights of another person
unless that other person was:
(i) a party to the
proceedings for the order or a person claiming through such a party; or
(ii) a person to whom
notice of the application for the order was given or a person claiming through
such a person; or
(b) an earlier judgment, order or
decree of a court of competent jurisdiction, whether in exercise of federal
jurisdiction or not.
(7) The Governor‑General may, by
Proclamation, fix a date as the date on and after which proceedings under this
section may not be instituted in, or transferred to, the Supreme Court of a
State or Territory specified in the Proclamation and that Supreme Court shall
not hear and determine any such proceedings so instituted in, or transferred
to, that Court on or after that date.
93
Operation of certain State and Territory laws
(1) Nothing in this Part shall be taken to
operate in relation to a child so as to affect the validity or effect of an
adoption of the child, whether the adoption took place before, or takes place
after, the commencement of this Act.
(2) Nothing in this Part shall be taken to
exclude the operation of a law of a State or Territory in so far as it provides
for the making or altering of entries in a register, but a legitimation under
this Part is not affected by any failure to comply with such a law.
(3) Nothing in this Part shall be taken to
affect the validity or effect of a law of a State or Territory (however
expressed and whether enacted before or after the commencement of this
subsection) that operates to require a child born to a woman as a result of the
carrying out of a artificial conception procedure in relation to the woman:
(a) to be treated as the child of the
woman;
(b) to be treated as the child of the
woman and a particular man; or
(c) to be treated as the child of a
particular man.
Part VII—Offences
94 Bigamy
(1) A person who is married shall not go
through a form or ceremony of marriage with any person.
Penalty: Imprisonment for 5 years.
(1A) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of circumstance, that the
person was married when the form or ceremony took place.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) It is a defence to a prosecution for an
offence against subsection (1) if the defendant proves that:
(a) at the time of the alleged
offence, the defendant believed that his or her spouse was dead; and
(b) the defendant’s spouse had been
absent from the defendant for such time and in such circumstances as to
provide, at the time of the alleged offence, reasonable grounds for presuming
that the defendant’s spouse was dead.
(3) For the purposes of subsection (2),
proof by a defendant that the defendant’s spouse had been continually absent
from the defendant for the period of 7 years immediately preceding the date of
the alleged offence and that, at the time of the alleged offence, the defendant
had no reason to believe that the defendant’s spouse had been alive at any time
within that period is sufficient proof of the matters referred to in paragraph (2)(b).
(3A) To avoid doubt, section 9.2 of the Criminal
Code (mistake of fact) does not apply in relation to the matters mentioned
in subsections (2) and (3).
(4) A person
shall not go through a form or ceremony of marriage with a person who is
married, knowing, or having reasonable grounds to believe, that the latter
person is married.
Penalty: Imprisonment for 5 years.
(5) It is not an offence against this section
for a person to go through a form or ceremony of marriage with that person’s
own spouse.
(6) In a prosecution for an offence against
this section, the spouse of the accused person is a competent and compellable
witness for either the prosecution or the defence.
(7) In a prosecution for an offence against
this section, the fact that, at the time of the alleged offence, a person was
married shall not be taken to have been proved if the only evidence of the fact
is the evidence of the other party to the alleged marriage.
(7A) In a prosecution for an offence against
this section, the court may receive as evidence of the facts stated in it a
document purporting to be either the original or a certified copy of a
certificate, entry or record of a marriage alleged to have taken place whether
in Australia or elsewhere.
(8) This section operates to the exclusion of
any law of a State or Territory making it an offence:
(a) for a person who is married to go
through a form or ceremony of marriage with any person; or
(b) for
a person to go through a form or ceremony of marriage with a person who is
married;
but does not affect the operation of such a law in
relation to acts and things done before the commencement of this Act.
95
Marrying person not of marriageable age etc.
(1) A person shall not go through a form or
ceremony of marriage with a person who is not of marriageable age.
Penalty: Imprisonment for 5 years.
(1A) For the purposes of an offence against subsection (1),
strict liability applies to the physical element of circumstance, that the
person is not of marriageable age.
Note: For strict liability, see section 6.1
of the Criminal Code.
(2) A person shall not go through a form or
ceremony of marriage with a person (in this subsection referred to as the
other party to the marriage) who is a minor unless:
(a) the other party to the marriage
has previously been married; or
(b) the
written consent of the person, or of each of the persons, whose consent to the
marriage of the other party to the marriage is required by this Act, has been
given or dispensed with in accordance with this Act.
Penalty: $500 or imprisonment for 6 months.
(2A) For the purposes of an offence against subsection (2),
strict liability applies to the physical element of circumstance, that the
other party to the marriage is a minor.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) It is a defence to a prosecution for an
offence against subsection (1) if the defendant proves that he or she
believed on reasonable grounds that the person with whom he or she went through
the form or ceremony of marriage was of marriageable age.
(3A) To avoid doubt, section 9.2 of the Criminal
Code (mistake of fact) does not apply in relation to the matters mentioned
in subsection (3).
(4) It is a defence to a prosecution for an
offence against subsection (2) if the defendant proves that he or she
believed on reasonable grounds:
(a) that the person with whom he or
she went through the form or ceremony of marriage had attained the age of 18
years or had previously been married; or
(b) that the consent of the person, or
of each of the persons, referred to in paragraph (2)(b) had been given or
dispensed with in accordance with this Act.
(5) To avoid doubt, section 9.2 of the Criminal
Code (mistake of fact) does not apply in relation to the matters mentioned
in subsection (4).
98 Contravention of subsection 13(3)
(2) A person shall not subscribe his or her
name as a witness to the signature of a person to a consent to the marriage of
a minor in contravention of subsection 13(3).
Penalty: $500 or imprisonment for 6 months.
99 Solemnising
marriage where notice or declaration not given or made etc.
(1) An authorised celebrant shall not solemnise
a marriage under Division 2 of Part IV in contravention of section 42
or 44.
(3) A chaplain shall not solemnise a marriage
under Division 3 of Part V in contravention of section 74, 75,
76, 77 or 78.
(4) A person shall not solemnise a marriage
in contravention of section 13 or 112.
(5) A person shall not solemnise a marriage
in contravention of subsection 33(3).
(6) A person
shall not, in contravention of subsection 113(1), purport to solemnise a
marriage between persons who inform the first‑mentioned person that they are
already legally married to each other or whom the first‑mentioned person knows
or has reason to believe to be already legally married to each other.
Penalty: $500 or imprisonment for 6 months.
100 Solemnising
marriage where reason to believe there is a legal impediment
A person shall not solemnise a marriage,
or purport to solemnise a marriage, if the person has reason to believe that
there is a legal impediment to the marriage or if the person has reason to
believe the marriage would be void.
Penalty: $500 or imprisonment for 6 months.
101 Solemnisation
of marriage by unauthorised person
A person shall not solemnise a marriage,
or purport to solemnise a marriage, at a place in Australia or under Part V
unless the person is authorised by or under this Act to solemnise marriages at
that place or under that Part, as the case may be.
Penalty: $500 or imprisonment for 6 months.
103
Going through ceremony of marriage before person not authorised to solemnise it
A person shall not go through a form or
ceremony of marriage with another person knowing that the person solemnising
the marriage is not authorised to solemnise it and having reason to believe
that the other party to the marriage believes that the person solemnising the
marriage is so authorised.
Penalty: $500 or imprisonment for 6 months.
104
Giving defective notice etc.
(1) A person shall not give a notice to an authorised
celebrant under section 42, or sign a notice under section 42 after
it has been given, if, to the knowledge of that person, the notice contains a
false statement or an error or is defective.
Penalty: $500 or imprisonment for 6 months.
105 Failure
to comply with notice under section 51
(1) A person on whom a notice under section 51
has been duly served shall not fail to comply with the notice.
Penalty: $100.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of
the Criminal Code).
(3) Subsection (1)
is an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
106
Failure by interpreter to furnish certificate etc.
A person who has acted as interpreter at
the solemnisation of a marriage shall not:
(a) fail to comply with subsection 112(3);
or
(b) intentionally make a false
statement in a certificate under that subsection.
Penalty: $500 or imprisonment for 6 months.
Part VIII—Transitional
provisions
107
Exercise of powers etc. before commencement of Act
(1) Section 4 of the Acts
Interpretation Act 1901 applies in relation to the provisions that are to
come into operation on a date to be fixed by Proclamation as if those
provisions were an Act.
(2) For the purpose of enabling marriages to
be solemnised in Australia in accordance with Division 2 of Part IV
from the commencement of this Act:
(a) a notice of intention to marry may
be given, and a declaration may be made, under section 42;
(b) any consent to the marriage of a
minor required by Part II may be given; and
(c) any
power conferred on a prescribed authority may be exercised;
at any time after the day on which the Proclamation under
section 2 has been published in the Gazette and before the
commencement of this Act, as if the provisions of this Act to which the
Proclamation relates had come into operation on that day.
(3) For the purposes of the operation of subsection (2),
any person who is authorised under a law of a State or Territory to solemnise
marriages shall be deemed to be an authorised celebrant.
108
Application of offence provisions to notices etc. given before commencement of
this Act
(1) The provisions of section 98 and
subsection 104(1) apply to and in relation to acts done, notices given and
declarations made before the commencement of this Act in relation to marriages
that take place in Australia after the commencement of this Act or that have
not taken place but were intended to be solemnised in Australia in accordance
with this Act.
(2) For the purposes of the application of
section 98 and subsection 104(1) to and in relation to an act done or
a notice given at a time before the commencement of this Act in relation to
such a marriage, a person who at that time was authorised under a law of a
State or Territory to solemnise marriages shall be deemed to have been an authorised
celebrant at that time.
109
Consents etc. given under State or Territory laws
(1) A consent in writing to the marriage of a
minor given by a person before the commencement of this Act in accordance with
the law of a State or Territory shall, if the marriage in respect of which the
consent was given takes place after the commencement of this Act in that State
or Territory, be deemed to have been duly given and witnessed for the purposes
of section 13.
(2) Where the consent of a person to the
marriage of a minor has, before the commencement of this Act, been dispensed with
in pursuance of a law of a State or Territory, the consent of that person
shall, if the marriage in respect of which it was dispensed with takes place
after the commencement of this Act in that State or Territory, be deemed to
have been dispensed with by a prescribed authority under Part II.
(3) Where a person or authority has, before
the commencement of this Act, in pursuance of a law of a State or Territory,
given consent to the marriage of a minor in place of the consent of a person
whose consent would otherwise be required, the consent so given shall, if the
marriage in respect of which the consent was given takes place after the
commencement of this Act in that State or Territory, be deemed to have been
given by a magistrate under Part II.
Part IX—Miscellaneous
111
Certain marriages and legitimations to be valid in all the Territories
(1) A marriage solemnised in accordance with
Division 2 of Part IV that is a valid marriage in Australia is valid in the external Territories.
(2) A person who is, or is deemed to be, as
from a particular time, the legitimate child of that person’s parents by virtue
of section 89, 90 or 91 is, or shall be deemed to be, for all purposes the
legitimate child of that person’s parents as from that time in the external
Territories.
(3) The operation of subsection (2) in
relation to a child to whom section 89 or 91 applies is subject to a like
qualification to that provided by subsection 89(5) or 91(4), as the case
requires.
(4) Subsection (2) shall not be taken to
operate in relation to a child so as to affect the validity or effect of an
adoption of the child, whether the adoption took place before, or takes place
after, the commencement of this Act.
111A
Abolition of action for breach of promise
(1) A person is not entitled to recover
damages from another person by reason only of the fact that that other person
has failed to perform a promise, undertaking or engagement to marry the first‑mentioned
person.
(2) This section does not affect an action
for the recovery of any gifts given in contemplation of marriage which could
have been brought if this section had not been enacted.
112
Interpreters at marriage ceremonies
(1) Subject to this section, where the person
by whom or in whose presence a marriage is to be solemnised considers that it
is desirable to do so, the person may use the services of an interpreter, not
being a party to the marriage, in or in connexion with the ceremony.
(2) A person shall not solemnise a marriage
in or in connexion with the ceremony of which the services of an interpreter
are used unless the person has received a statutory declaration by the
interpreter stating that the interpreter understands, and is able to converse
in, the languages in respect of which he or she is to act as interpreter.
(3) A person who has acted as interpreter in
or in connexion with a ceremony of marriage shall, forthwith after the ceremony
has taken place, furnish to the person solemnising the marriage a certificate
signed by the first‑mentioned person of the faithful performance of the first‑mentioned
person’s services as interpreter.
(4) This section applies in relation to
marriages to which Division 2 of Part IV applies and marriages under
Part V.
113
Second marriage ceremonies
(1) Except in accordance with this section:
(a) persons who are already legally
married to each other shall not, in Australia or under Part V, go through
a form or ceremony of marriage with each other; and
(b) a person who is authorised by this
Act to solemnise marriages shall not purport to solemnise a marriage in
Australia or under Part V between persons who inform the first‑mentioned
person that they are already legally married to each other or whom the first‑mentioned
person knows or has reason to believe to be already legally married to each
other.
(2) Where:
(a) 2 persons have gone through a form
or ceremony of marriage with each other, whether before or after the
commencement of this Act; and
(b) there is a doubt:
(i) whether those persons
are legally married to each other;
(ii) where the form or
ceremony of marriage took place outside Australia, whether the marriage would
be recognised as valid by a court in Australia; or
(iii) whether
their marriage could be proved in legal proceedings;
those persons may, subject to this section, go through a
form or ceremony of marriage with each other in accordance with Division 2
of Part IV or under Part V as if they had not previously gone through
a form or ceremony of marriage with each other.
(3) Where 2 persons wish to go through a form
or ceremony of marriage with each other in pursuance of subsection (2),
they shall furnish to the person by whom, or in whose presence, the form or
ceremony is to take place or be performed:
(a) a statutory declaration by them
stating that they have previously gone through a form or ceremony of marriage
with each other and specifying the date on which, the place at which and the
circumstances in which they went through that form or ceremony; and
(b) a certificate by a barrister or
solicitor, being a certificate endorsed on the statutory declaration, that, on
the facts stated in the declaration, there is, in his or her opinion, a doubt
as to one of the matters specified in paragraph (2)(b).
(4) The person by whom or in whose presence a
form or ceremony of marriage takes place or is performed in pursuance of subsection (2)
shall make an endorsement in accordance with the regulations on each
certificate issued in respect of it.
(4A) A marriage which takes place after the
commencement of this subsection in pursuance of subsection (2) is not
invalid by reason of any failure to comply with the requirements of subsection (3)
or (4).
(5) Nothing in this Act shall be taken to
prevent 2 persons who are already legally married to each other from going through
a religious ceremony of marriage with each other in Australia where those
persons have:
(a) produced to the person by whom or
in whose presence the ceremony is to be performed a certificate of their
existing marriage; and
(b) furnished to that person a
statement in writing, signed by them and witnessed by that person, that:
(i) they have previously
gone through a form or ceremony of marriage with each other;
(ii) they are the parties
mentioned in the certificate of marriage produced with the statement; and
(iii) they have no reason to
believe that they are not legally married to each other or, if their marriage
took place outside Australia, they have no reason to believe that it would not
be recognised as valid in Australia.
(6) The provisions of sections 42, 44,
50 and 51 do not apply to or in relation to a religious ceremony of marriage in
accordance with subsection (5) and the person by whom, or in whose
presence, the ceremony is performed shall not:
(a) prepare or issue in respect of it
any certificate of marriage under or referring to this Act; or
(b) issue any other document to the
parties in respect of the ceremony unless the parties are described in the
document as being already legally married to each other.
(7) A person who is not an authorised
celebrant does not commit an offence against section 101 by reason only of
his or her having performed a religious ceremony of marriage between parties
who have complied with the requirements of subsection (5) of this section.
114
Correction of errors in marriage registries
(1) In this section, the registrar
means the Registrar of Foreign Marriages or the Registrar of Overseas
Marriages.
(2) Where the registrar is satisfied that a
register of marriages kept by the registrar contains an error or a mis‑statement
in, or an omission from, the particulars of a marriage entered in it, the
registrar may correct the register by causing the true particulars of the
marriage or the particulars omitted from the register, as the case may be, to
be entered in the margin of the register opposite to the entry of the marriage.
(3) Where the registrar causes particulars to
be entered in the margin of a register under this section, the registrar shall
sign his or her name immediately under those particulars and write in the
margin the date on which the particulars were so entered.
(4) The registrar may, before correcting an
error, mis‑statement or omission under this section, require the true
particulars of the marriage, or the particulars omitted from the register, as
the case may be, to be verified by the statutory declaration of the parties to
the marriage or a person who satisfies the registrar that that person has
personal knowledge of those particulars.
(5) Subject to subsection (6), where a
copy of, or extract from, an entry in a register of marriages that has been
corrected under this section is issued, the copy or extract shall contain the
particulars that would be contained in the entry if the particulars in fact
contained in the entry were corrected so as to accord with the particulars
entered in the margin of the register.
(6) A copy of, or extract from, an entry in a
register shall contain the particulars contained in the entry and the
particulars entered, in relation to the entry, in the margin of the register if
the registrar is satisfied that the person requiring a copy or extract has
proper reasons for requiring a copy or extract containing those particulars.
115
Publication of lists of authorised celebrants
(1) The Minister shall cause to be published
in such manner as the Minister considers appropriate:
(a) a list of the persons who are authorised
celebrants; and
(b) a list of the persons who are
prescribed authorities in relation to marriages in Australia.
(2) The list referred to in paragraph (1)(a)
shall show:
(a) in respect of each minister of
religion registered under Subdivision A of Division 1 of Part IV—his
or her full name, designation, address and religious denomination; and
(b) in respect of each other
person—his or her full name, designation (if any) and address and, where
appropriate, the religious body or religious organisation to which he or she
belongs.
(3) The list referred to in paragraph (1)(b)
shall show the full name, designation (if any) and address of each
prescribed authority.
(4) The inclusion of the name of a person in
the latest list published in pursuance of paragraph (1)(a) is evidence
that that person is an authorised celebrant and inclusion of the name of a
person in the latest list published in pursuance of paragraph (1)(b) is
evidence that that person is a prescribed authority.
116
Judicial notice of signatures of Registrars, celebrants etc.
(1) Judicial notice shall be taken of the
signature of a person who holds or has held, or is acting or has acted in, the
office of:
(a) Registrar of Foreign Marriages;
(b) Deputy Registrar of Foreign
Marriages;
(c) Registrar of Overseas Marriages;
or
(d) Deputy
Registrar of Overseas Marriages;
appearing on a document under this Act and of the fact
that, at the time the document was signed by the person, he or she held, or was
acting in, that office.
(2) Judicial notice shall be taken of the
signature of a person who is, or has been, an authorised celebrant or chaplain
appearing on a document under this Act and of the fact that, at the time the
document was signed by the person, he or she was an authorised celebrant or
chaplain, as the case may be.
(3) Judicial notice shall be taken of the
signature of a person who has, at any time:
(a) performed the functions of a Judge
or magistrate under Part II of this Act or of a Judge under the Part repealed
by the Marriage Amendment Act 1976;
(b) performed the functions of a
prescribed authority under this Act; or
(c) kept
a register under Division 1 of Part IV of this Act;
appearing on a document under this Act and of the fact
that, at the time the document was signed, that person was duly authorised to
perform those functions or to keep that register, as the case may be.
117
Evidence of registration etc.
(1) A certificate under the hand of a person
by whom a register under a Subdivision of Division 1 of Part IV
(other than Subdivision C of that Division) is kept stating that a specified
person was, at a date specified in the certificate, registered under that Subdivision
in the register kept by the first‑mentioned person for the purposes of that Subdivision
is evidence that the person specified in the certificate was registered under
that Subdivision at the date so specified.
(2) A certificate under the hand of the
Minister stating that a person specified in the certificate was not, at a date
specified in the certificate, registered under a Subdivision of Division 1
of Part IV (other than Subdivision C of that Division) is evidence that
the person specified in the certificate was not registered under that Subdivision
at the date so specified.
(2A) A certificate under the hand of the
Minister stating that a specified person was at a specified date:
(a) a person authorised under section 39
to solemnise marriages at the place and subject to the conditions (if any)
specified in the certificate; or
(b) an officer or employee of
the Commonwealth, a State or a Territory, appointed by the Minister to
be a prescribed authority;
is prima facie evidence of the matters stated in
the certificate.
(3) In a prosecution for an offence against
this Act, an averment by the prosecutor in the information or complaint that
the defendant or any other person specified in the averment is identical with
the person specified in a certificate under this section is evidence of that
fact.
118
Right of ministers of religion to receive fees
Nothing in this Act affects the right of
a minister of religion who is an authorised celebrant to require or receive a
fee for or in respect of the solemnisation of a marriage.
119
Approved forms
(1) The Minister may, in writing, approve a
form for the purpose of a provision of this Act or the regulations. If the
Minister approves a form, that form must be used.
(2) An approved form may do any of the
following:
(a) require the form to be accompanied
by specified documents;
(b) require documents or information
to be verified by statutory declaration.
(3) The Minister must ensure that an approved
form is in force for each of the following provisions:
(a) subsection 30(1) (application
for registration of minister of religion);
(b) subsection 39D(1)
(application for registration as a marriage celebrant);
(c) paragraph 42(1)(a) (notice of
intended marriage);
(d) paragraph 42(1)(c)
(declaration by parties to marriage);
(e) paragraph 50(1)(b) (official
certificate of marriage);
(f) subsection 74(1)
(declaration to be made before chaplain);
(g) paragraph 80(1)(b) (official
certificate of marriage);
(h) subsection 84(1) (certificate
of overseas marriage);
(i) subsection 112(3)
(interpreter’s certificate);
(j) any provision of the regulations
specified by the regulations for the purpose of this paragraph.
120
Regulations
The
Governor‑General may make regulations, not inconsistent with this Act,
prescribing all matters which by this Act are required or permitted to be
prescribed, or which are necessary or convenient to be prescribed for carrying
out or giving effect to this Act, and, in particular:
(b) prescribing the practice and
procedure in relation to inquiries under Part II by a Judge or a
magistrate, including the summoning of witnesses, the production of documents,
the taking of evidence on oath or affirmation, the administering of oaths or
affirmations and the payment to witnesses of fees and of allowances for
expenses;
(c) prescribing the manner of making
application for registration under Division 1 of Part IV;
(e) prescribing the conditions under
which, and the manner in which, marriages solemnised in accordance with the law
of an overseas country may be registered under section 84;
(f) making provision for the
recognition in Australia of marriages solemnised under a law in force in a
place outside Australia, being a law which makes provision appearing to the
Governor‑General to be similar to any provision made by Part V;
(g) requiring the furnishing, to the
persons by whom registers of births are kept under a law of the Commonwealth or
a State or of any Territory, of information with respect to:
(i) legitimations effected
by sections 89, 90 and 91; and
(ii) orders made under
section 92;
(h) making provision for and in
relation to:
(i) registration of
legitimations effected by sections 89, 90 and 91 in cases where the births
of the legitimated children are not registered in any register of births kept
under a law of the Commonwealth or a State or of any Territory (including
provision requiring the furnishing of information); and
(ii) the issue and effect
of certificates in respect of any such registration; and
(j) prescribing penalties not exceeding
a fine of $200 for offences against the regulations.