#8554 - Marriage - Family Law

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

• 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.

• 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.

• 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.

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.

• If a marriage is null then it never legally existed. Declaration 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 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 defendant in 1971.

  • 55: W had married H1.

  • 64: divorced H1.

  • 65: W married H2.

  • 68: Married H3.

  • 69: Married H4.

  • 70: Marriage to H2 void because H2 was void because H2 had still been married to someone else.

  • 71: W married H5.

• Outcome: it would be marriage to H3.

• If a person is bigamous then it is possible that they will be convicted: s 94 Marriage Act 1961 (Cth). (imprisonment for 5 years).

• A marriage will be void where it is between:

  • A person and their ancestor or descendant: s 23B(2)(a)

  • A person and their brother or sister (whether whole blood or half-blood): s 23B(2)(b)

• (Uncles and aunties no longer prohibited).

Requirements:

• Authorised celebrant: Marriages have to be solemnized by or in the presence of an authorized celebrant who is authorized to solemnize marriages at the place where the marriage takes place: s 41 MA

• A marriage has to be solemnized in accordance with the preceding provisions of s 48 of the Division of MA or it will be invalid: s 48(1) MA

• Notice to be given and declaration made: s 42 MA.

• A marriage is not invalid by reason of all or any of the following:

  • failure to give the notice required bysection42, or a false statement, defect or error in such a notice: s 48(2)(a)

  • 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: s 48(2)(b)

  • failure to produce to theauthorisedcelebranta certificate or extract of an entry or a statutory declaration as required bysection42, or a false statement, defect or error in such a statutory declaration: s 48(2)(c)

  • failure to comply with any other requirement ofsection42, or any contravention of that section: s 48(2)(d

  • failure to comply with the requirements ofsection44or46: s 48(2)(e)

  • failure to comply with the requirements ofsection13.: s 48(2)(f)

    • Requirements of parental consent.

• Under s 48(3) the celebrant may not be authorised to perform the marriage but the marriage will be valid as long as one party believed that the person was lawfully authorised: s 48(3).

(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; and

(c) each of the parties has made and subscribed before that authorised celebrant a declaration, in accordance with the prescribed form, 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...