Marriage and De Facto relationships

Contributed by Heinrich Moser and current to 1 September 2005

Marriages are regulated by the Marriage Act 1961 (Cth) (“the Act”) which is a Commonwealth law. It sets out who may marry, who may perform marriage services and how services may be conducted.

De facto relationships are partnerships between two persons which are not formalized under a law. They are governed by the law of the State of Western Australia. These relationships include relationships of persons who are of the same sex.

MARRIAGE

Who may marry

A marriage is, in legal terms, the union between a man and a woman. At present it is not possible to formalise a partnership between persons of the same sex. However, in WA same sex partners can be recognised as being in a de facto relationship, see ‘DE FACTO RELATIONSHIP’ below.

Any person over the age of 18 may marry, provided they are able to give legal consent, are not already married and the relationship is not “prohibited” (for example, sister, grandparent etc.) (ss.11, 23). A person over 16 but under 18 must have the written consent of their parents (s.13). The written consent must be witnessed and given not more than 3 months before the marriage takes place. A marriage celebrant cannot proceed with the marriage of a minor without this consent unless a judge or magistrate has made an order dispensing with the parent’s consent. A judge or magistrate may only make an order if the person is 16 years old and the circumstances of the case are so exceptional and unusual as to justify making the order.

Procedure

Australia recognises civil marriages, religious marriages and marriages performed in other countries (s.96). Marriages performed in other countries are called foreign marriages and will be recognised if they have been performed in accordance with the laws of that country and do not conflict with the laws of Australia such as prohibited marriages (for example, to a brother or father).

Polygamous marriages performed in accordance with the laws of another country are not recognised. However, the Family Law Act 1975 (Cth) provides that, for the purpose of proceedings under that Act, polygamous marriages are recognised as valid marriages.

The person who performs the ceremony is called the marriage celebrant. Civil marriage celebrants may charge a fee to perform the ceremony. Religious marriage celebrants usually ask for a donation.

Notice of intention to marry must be given to the celebrant not more than 3 months or less than 1 month before the date of the ceremony. Birth certificates or certified extracts of birth certificates for both people must be produced. If birth certificates cannot be obtained, a statutory declaration setting out why this is so and the person’s current marital status must be provided.

Changing names

There is no legal requirement that either person change his or her name upon marriage.

Proof of marriage

The marriage certificate is proof of marriage. It is needed for a number of different purposes including obtaining passports, as evidence in probate matters and in any applications before the Family Court.

Marriage certificates are prepared on the day of the ceremony and are signed by:

• the husband;
• the wife;
• the celebrant; and
• two adult witnesses.

Three copies of the certificate are usually prepared, one for the husband and wife, one for the celebrant and one to be forwarded to the Registrar of Births, Deaths and Marriages within 14 days so the details can be officially recorded.

Foreign certificates

If a person is required to provide evidence of a foreign marriage, an official extract from the registry of the country concerned is sufficient. If the certificate is not in English, it must be translated by a qualified translator, and an affidavit must be sworn by that person about his or her qualifications and the accuracy of the translation.

If foreign marriage certificates are not available, the person concerned may need to prepare an affidavit setting out the facts and circumstances of the marriage and why a copy of the official record cannot be obtained.

Australians who wish to marry overseas may have their marriage witnessed by a marriage officer (usually an Australian Consular official) and have the marriage recorded in Australia in the Registrar of Overseas Marriages. Australians wishing to marry overseas should consult their local consular office.

Property

Property (including land, houses, furniture, bank accounts, vehicles belonging to the parties before their marriage) remains their individual property. There is no legal requirement for either person to transfer his or her property into joint names. This property can, however, be taken into account when considering the needs of each person should a dispute arise under the Family Law Act. The position is different with regard to property acquired after the marriage (see ‘PROPERTY & SPOUSAL MAINTENANCE’ below).

It is common when buying land or homes for the couple to be registered as joint owners. In these circumstances, neither person can sell or give away the property without the consent of the other, regardless of who provided the finance for the purchase.

It is also common for the property to be mortgaged. Sometimes the mortgage is in one person’s name only, and often one person ceases employment and the other person’s income is all that is available to make repayments. Neither of these circumstances alters the fact that the property is jointly owned.

If the couple do not want to jointly own land or homes, another form of registration is as tenants in common. This separates the interest of the parties and enables each person to deal individually with his or her own share.

It should be noted, however, that under the Family Law Act and the Family Court Act 1997 (WA) orders can be made about the disposal of property regardless of whose name it is held in.

Wills and estates

Unless a will specifically says it was made in anticipation of a marriage, the marriage will revoke the will. This is because the law presumes that spouses intend to provide for each other and that any previous arrangements have been set aside by the marriage. Each person should, therefore, consider whether to make fresh wills to set out their intentions.

If there is a later divorce, however, the divorce does not set aside a will.

Where a person dies intestate (without a will) in Western Australia, problems may arise for the surviving spouse who must apply under the Administration Act 1903 (WA) to the Supreme Court (Probate Division) for Letters of Administration in order to administer and distribute any assets. See WILLS, ESTATES AND FUNERALS .

Sexual relations

Marriage gives no right to a wife or husband to have sexual intercourse with the other. If either spouse is sexually assaulted by the other, he or she may make a complaint to the police which may result in criminal charges.

Family planning

Contraception is legal in Australia. Information about contraception can be easily obtained from local family planning clinics and doctors. Until May 1998 abortion was illegal in WA under the WA Criminal Code. Now abortion is legal in WA if performed by a qualified medical practitioner, provided that a doctor is consulted, counselling is offered and the woman gives her informed consent. A second doctor then carries out the abortion.

DE FACTO RELATIONSHIP

What is a de facto relationship?

A de facto relationship exists when two persons are in a relationship which has marriage-like qualities. No two de facto relationships are the same, but there are a number of factors that are taken into account to establish whether a de facto relationship exists.

In WA they are set out in s.13A of the Interpretation Act 1984 (WA). They include the length of the relationship; whether the 2 persons have resided together; the nature and extent of common residence; whether there is, or has been, a sexual relationship between them; the degree of financial dependence or interdependence, and any arrangements for financial support between them; the ownership, use and acquisition of their property (including property they own individually); the degree of mutual commitment by them to a shared life; whether they care for and support children; and the reputation, and public aspects, of the relationship between them.

In addition, it makes no difference whether the partners in the relationship are of the same sex, or whether either of the partners is still validly married to another person.

When does a de facto relationship start or end?

Because there is usually no ceremony when two persons start or end a de facto relationship, there are no exact rules and each case has to be looked at individually in light of the factors set out above.

As a general rule, most de facto relationships start when the partners move in with each other and end when they stop sharing the same residence, but it is possible for a de facto relationship to exist without the partners ever sharing a common residence.

Wills and estates

Starting or ending a de facto relationship has no effect on any valid will. It is therefore necessary to review one’s will when starting a de facto relationship, and after it has ended, to make sure that the will still sets out what should happen with one’s estate.