Last Updated 16 November 2016
The Marriage Act 1961 (Cth) (Marriage Act) provides that a person may marry if they are:
- unmarried at the time of the marriage ceremony
- of marriageable age
- not marrying a person in a prohibited relationship
- able to freely consent to the marriage.
Persons already married
A marriage is void (i.e. legally the marriage never occurred) if one or both parties are, at the time of the marriage, already legally married to someone else (s 23 Marriage Act). This is called ‘bigamy’, which is an offence punishable by up to seven years imprisonment (s 360 Criminal Code Act 1899 (Qld)). If a bigamous marriage has occurred, one or both of the parties may apply to the court for a decree of nullity, which legally declares that the marriage is void.
Polygamous marriages (i.e. marriages where a person has more than one husband or one wife) are not valid in Australia. Such a marriage is, however, recognised if it occurred outside Australia (e.g. in Islamic countries) (s 6 Family Law Act 1975 (Cth)).
Under the Marriage Act, a person can marry at 18 years of age (s 11 Marriage Act).
A person over 16 but under 18 years of age can marry, but only with the consent of their parent/s, a relevant person, or a judge or magistrate (ss 12–13 Marriage Act). If a child needs to obtain parental consent, the following applies:
- When both parents are alive and living together, consent should be obtained from both parents.
- If the parents are living separately, the child must obtain the consent of the parent with whom they are living.
- If the child does not live with either parent and the parents have never been married, the consent of the mother is required.
- If either or both parents are dead, both parents have been deprived of the care of the child by a court order or the child is adopted, the consent is required from the people listed in the schedule to the Marriage Act.
The consent must be written, witnessed and presented to the person celebrating the marriage within three months of the marriage ceremony (s 13 Marriage Act).
If the parent refuses to give consent, the child may apply to a judge or magistrate for consent (s 16 Marriage Act). A magistrate or judge can only provide consent if the other proposed spouse is over 18 years (s 12(1) Marriage Act).
A marriage involving a person under 18 years where parental and court consent has not been obtained is void (s 23B(1)(e) Marriage Act). A person who goes through a marriage ceremony without that consent may be guilty of an offence punishable by up to five years imprisonment (s 95(1) Marriage Act).
A marriage will not be valid if the parties are in a ‘prohibited relationship’ (s 23B(1)(b) Marriage Act). A prohibited relationship is one between a brother and sister (including half-blood) or between a person and an ancestor (i.e. a parent or grandparent) or descendant (i.e. a child or grandchild). For an adopted child, these rules apply to their adopted family as well as their natural family. It is not unlawful for cousins to marry one another. A marriage between parties in a prohibited relationship is void.
A marriage must be entered into freely and consensually. A marriage will be void where:
- there is fraud or duress
- there is a mistake by one or both parties about the identity of either party or the nature of the marriage ceremony
- one of the parties is mentally incapable of understanding the nature and effect of the marriage ceremony (s 23B(1)(d)(iii) Marriage Act).
Transsexual persons can validly enter into marriage. In the landmark case of Re Kevin: Validity of Marriage of a Transsexual  FamCA 1074, the court established that the meaning of the word ‘man’ in the Marriage Act may include a post-operative female-to-male transsexual person. It also established that whether or not a person is a man or a woman is determined at the date of marriage and not at birth.
Same-sex marriages are not currently recognised as valid marriages in Australia. In 2004, the Marriage Act was redefined to explicitly recognise marriage as the union of a man and a woman.
The Marriage Act specifically states that same-sex marriages solemnised in another country are not recognised in Australia (s 88EA Marriage Act).
Legislation in several states of Australia allows all couples including same-sex couples to register their relationship. It is expected that this type of legislation will be re-introduced in Queensland in 2016.