Marriage Act 1961 (Australia)

The Australian Marriage Act 1961 is a law made by the Australian Parliament which regulates the rules for the recognition throughout Australia of marriages. The Act applies uniformly throughout Australia, and States and Territories are precluded from making any law inconsistent with the Act. Australian marriage law does not recognise any other forms of union, including traditional Aboriginal unions, same-sex unions, nor polygamous unions, but has since 2009 recognised de facto relationships, including homosexual relationships.

Before the Marriage Amendment Act 2004 there was no definition of marriage in the 1961 Act, and the definition was based in the common law. The 2004 Amendment incorporated the common law definition of marriage into the Act as:

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.
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.

Marriageable age and the marriage of minors is dealt with in Part II (s10-21). In the original 1961 law, marriageable age was set at 16 for females and 18 for males, but the age was equalised in 1991 by the Sex Discrimination Amendment Act 1991 which raised the marriageable age of females to 18. If there are 'unusual and exceptional circumstances’, the marriage of one person aged 16 or 17 to another aged over 18 is possible, subject to the consent of the younger person's parents and authorisation by a court. Part II establishes the procedures required in this instance. Prior to the 1991 change, the 'unusual and exceptional circumstances' procedures applied to a girl aged 14 or 15 (wanting to marry a male aged 18 or above) or a male aged 16 or 17 (wanting to marry a female aged 16 or above). For many years, courts have refused to accept the applicant's state of pregnancy as a pressing consideration in deciding whether to allow the marriage.

Part III entitled ‘void marriages’ establishes the circumstances in which a marriage is void. To preserve the validity of past marriages, this part is divided into years based on when amendments to this act were introduced.

A purported marriage is void if:

Part IV is a large Part dealing with the ‘Solemnization of Marriages in Australia’. It deals with who is authorised to be a wedding celebrant, and the procedures to be followed. It also contains a division on marriages by foreign diplomatic or consular officers.

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