The recent decision of KADAR and GYUSZI  FCWA 133 held that the parties’ 25 year long marriage, which produced 5 children, was invalid. The parties had married in a refugee camp when the husband was 23 years old and the wife 14 years old. A Marriage Certificate was issued however it was not registered either in the parties’ home country or upon their arrival in Australia. O’Brien J ruled that as the marriage would not have been a valid marriage in the country in which they were married, as the wife was not of the age to be married, he was unable to declare the marriage as valid in Australia.
O’Brien J also acknowledged that the parties were unable to register their marriage as they were living in a nation in which a State of Emergency had been declared. Whilst he expressed his sympathy for the situation the parties were now facing, the husband’s application for divorce was ultimately dismissed.
Formal requirements for a valid marriage
There are a number of requirements for a marriage to be held a legal marriage in Australia:
- You cannot be lawfully married to any other person (polygamous marriages are not permitted in Australia);
- You cannot marry a parent, grandparent, child, grandchild brother or sister;
- You must be over the age of 18 years; and
- Both parties must freely consent to the marriage.
Marrying under the age of 18
Under section 12 of the Marriage Act 1961 (the Act) a person over the age of 16 may apply to the Family Court for an order permitting them to marry a person over the age of 18.
There must be exceptional and unusual circumstances for this order to be made. Parental consent, the impending birth of a child and cultural or religious tradition are examples of factors which may be taken into consideration by the Family Court, however there is no minimum requirement, each decision is made on the circumstances of each individual case. If the parent of the child applying for permission to marry does not consent to the marriage, the Family Court will be required to consider whether an order dispensing for the parent’s consent is appropriate under section 5 of the Act.
Form requirements for the wedding ceremony
There are formal requirements for the marriage ceremony itself in that you are required to comply with:
- You must complete a Notice of Intention to marriage form and provide that form to your chosen celebrant one month and one day before your marriage. You will also need to provide your celebrant with a copy of your birth certificate and if applicable your divorce orders;
- Your ceremony must be performed by an authorised marriage celebrant; and
- Your ceremony must be witnessed by two people over the age of 18.
We recommend that you read the requirements of the Attorney-General’s Department to make sure your marriage will be valid in Australia: Getting Married
The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.