FL 2 Marriage

Table of Contents

FL 2 Marriage 1

Definition of Marriage 1

(1) voluntary union – see s 23B(1) MA 1

(2) one man and one woman 1

(3) to the exclusion of all others 2

Formalities of Marriage in Australia – s 48 3

Grounds of Nullity of Marriage: s 23B MA 4

Intro to 5 categories of nullity 4

A. Bigamy s 23B(1)(a); R v Yacoob 4

B. Prohibited Relationship s 23B(1)(b); proh rel defined in s 23B(2) 5

C. Formalities non-compliance with s 48: s 23B(1)(c) 5

Exceptions under s 48(2): 5

S 48 provisions 5

D. Lack of consent (i) duress or fraud, (ii) mistaken (iii)mental incapability): s 23B(1)(d) 10

Duress: s 23B(1)(d)(i) – Williams v In the Marriage of S 10

Fraud: s 23B(1)(d)(i) [same para as duress] – contrast Deniz with C v C 12

Mistaken as to identity of other or nature of ceremony: s 23B(1)(d)(ii) 13

Mentally incapable of understanding nature and effect of the marriage : s 23B(1)(d)(ii) 14

E marriageable age: s 23B(1)(e) 15

Parental consent in cases of marriage by a minor: 15

note that under s 48(2)(f) a marriage is not invalid by reason of failure to comply with requirements of s 13. 15

Definition of Marriage

• Hyde and Hyde definition of marriage is that it is: (1) voluntary union (2) one man and one woman (3) to the exclusion of all others.

voluntary union – see s 23B(1) MA

• eg see s 23B(1) MA –

• ‘union’ means ceremonial union: Ross Smith

• ‘for life’ means intention to have it be for life at time of ceremony. Just precludes marriages of a fixed term of years.

one man and one woman

• Note Corbett – UK – not held

Principles:

• First, when ascertaining validity of the marriage under Australian law, question whether person is of man or woman is to be determined as at date of marriage: Kevin (not following Corbett)

• Second: words ‘man’ and ‘woman’ have ordinary contemporary meaning according to Australian usage. Meaning includes post-operative transsexuals as men or women: R v Harris.

• Third: can be times when person at birth may be a man at marriage.

• What is relevant to deciding gender: “brain sex”, “cultural sex” and social acceptance.

• Note about the constitutional construction of ‘marriage’ – the approach is that it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition: kevin

  • And that we shouldn’t adopt narrow interpretation of marriage.

  • Marriage is not a secularized institution.

• Consummation or procreation is not a requirement to the creation of a valid marriage: kevin

• Example in: Kevin

  • Person at birth registered as a female, but at time of marriage was a post-operative transsexual person. 32 persons testified that Kevin was a man.

  • Always perceived himself to be a male, perceived by others to have had male characteristics since being a small child, prior to marriage went through full process of transsexual re-assignment, at time of marriage in appearance, characteristics and behavior was perceived as a man. Was accepted as a man for variety of social and legal purposes. His marriage as a man fully accepted by friends family and work colleagues.

to the exclusion of all others

Formalities of Marriage in Australia – s 48

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 section42, 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 section42, 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 section42, or a false statement, defect or error in such a statutory declaration;

(d) failure to comply with any other requirement of section42, or any contravention of that section;

(e) failure to comply with the requirements of section44 or 46;

(f) failure to comply with the requirements of section13.

(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.

Grounds of Nullity of Marriage: s 23B MA

• If a marriage is null then it never legally existed. Declaration of nullity.

Intro to 5 categories of nullity

A marriage to which this Division applies that takes place after the commencement of section13 of the Marriage Amendment Act 1985 is only void where:

• Bigamy: either of the parties is, at the time of the marriage, lawfully married to some other person: s 23B(1)(a)

• Incest: the parties are within a prohibited relationship: s 23B(1)(b)

• Lack of formalities: by reason of section48 the marriage is not a valid marriage: s 23B(1)(c)

• Lack of consent: the consent of either of the parties is not a real consent because uner s 23B(1)(d)

  • it was obtained by duress or fraud: s 23B(1)(d)(i)

  • that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed: : s 23B(1)(d)(ii)

  • that party is mentally incapable of understanding the nature and effect of the marriage ceremony: s 23B(1)(d)iii)

• Underage: either of the parties is not of marriageable age: s 23B(1)(e)

A. Bigamy s 23B(1)(a); R v Yacoob

• A person can only be married to one other person at a time.

Unusual case in R v Yacoob

• Facts: In course of robbery trial, competence and compellability of a prosecution witness turned on whether or not she had validly married the...

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