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Marriages Notes

Law Notes > Family Law Notes

This is an extract of our Marriages document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Marriage Marriage definition:

* There was a definition inserted in the Marriage Act 1961 (Cth) with effect in 2004 : marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life (s 5). This was also found in Hyde v Hyde, US case.

* S 46 for example requires a civil marriage celebrant to inform the parties during the ceremony that marriage according to law is the union of a man and a woman to the exclusion of all others voluntarily entered into life, under the Marriage Act 1961. See also s 43 of the FLA.

* The requirement of voluntariness is said to be fundamental. If it cannot be shown that the consent of one of the parties was not 'real' for reasons of fraud, duress, mistake or mental capacity, the marriage will be void under s 23(B)(1) of the Marriage Act 1961 (Cth). Thus specific performance cannot be granted on an agreement to marry.

* 'Union' implies relationship. This suggests informal or de-facto relationships. Yet the usual view taken by courts is that a ceremonial union is required (Ross Smith v Ross Smith per Lord Morris). Thus a defacto relationship doesn't come under Hyde definition. Further the ceremony in Australia must comply with the Marriage Act 1961.

* Corbett v Corbett (1971) UK case: o He had been registered as a male at birth. Had a sex change to remove the testicles and then constructed artificial vagina. Then lived as a woman. Then married a man. Then they split up. Husband wanted to find the marriage void because it was not a woman. She argued she should be accepted as a woman. The main argument was, was the marriage valid?
o Ormrod J found that biology was important and was interested in birth organs and chromosomes. It is curious to use reproduction as a definition. When he says sex, he means gender.

* Attorney General (Cth) v Kevin (full family court Australia in 2003) o Kevin was post operative tran-sexual who was registered a female at his birth. Kevin is recognised under State and Cth law as a man for various purposes. Corbett does not represent Australian law. 30 friends came to say he was male and we don't know how much weight was given to this evidence (but what if it was not unanimous? Would this be decisive? Is some degree of medical intervention required? In Kevin's case he had hormone treatment and an operation) o In deciding who is a male and a woman, the court can apply a contemporary type definition. Does not need to be decided at the time of birth. o 'brain sex' refers to Kevin's perception of himself as a bloke. Concept of a void marriage:

* Marriage Act 1961 (we do not need a copy of). S 23B(1) sets out what makes a marriage void. A marriage to which this division relates is void if either of the parties is at the time of the marriage, lawfully married to someone else, the parties are in a prohibited relationship, by reason of s 48 the marriage is not valid, the consent of either parties is not real because of duress/fraud/mistaken identity/mentally incapable or parties are not of marriageable age.

* There is no such thing as a voidable marriage now. This was an intermediate possibility that no longer exists - that meant it is valid until one party challenges it - this was maybe for the law of succession being challenged by a third party. It is now valid or void.

* If it is void the marriage just does not get off the ground. It has a fundamental flaw.

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