Marriage Amendment Act 1985

No. 7 of 1985

TABLE OF PROVISIONS

Section

1. Short title, &c.

2. Commencement

3. Interpretation

4. Extension of Act to Territories, &c.

5. Amendment of heading to Part 1a

6. Grants to approved organizations

7. Approval of voluntary organizations

8. Approved marriage counselling organizations under Family Law Act

9. Reports and financial statements of approved organizations

10. Heading

11. Division to be subject to application of private international law

12. Grounds on which marriages are void

13. Insertion of new Division—

Division 2—Marriages solemnized after the commencement of section 13 of the Marriage Amendment Act 1985

23a. Application of Division

23b. Grounds on which marriages are void

14. Review of refusal to register or removal from register

15. Authorization of other celebrants

16. Notice to be given and declaration made

17. Repeal of section 55 and substitution of new section—

55. Solemnization of marriages in Australia by foreign diplomatic or consular officer

18. Recognition of marriages

19. Notice of marriage

20. Notice to become void after 6 months

TABLE OF PROVISIONS—continued

Section

21. Caveats

22. Restriction on solemnization of marriages under this Part

23. Insertion of new Part—

PART Va—RECOGNITION OF FOREIGN MARRIAGES

88a. Object of Part

88b. Interpretation

88C. Application of Part

88d. Validity of marriages

88e. Validity of certain marriages not affected by this Part

88f. Incidental determination of recognition of certain foreign marriages

88g. Evidence

24. Legitimation by virtue of marriage of parents

25. Repeal of section 90 and substitution of new section—

90. Legitimacy of children of certain foreign marriages

26. Operation of certain State and Territory laws

27. Solemnizing marriage where notice or declaration not given or made, &c.

28. Formal amendments

SCHEDULE

FORMAL AMENDMENTS

Marriage Amendment Act 1985

No. 7 of 1985

An Act to amend the Marriage Act 1961

[Assented to 29 March 1985]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title, &c.

1. (1) This Act may be cited as the Marriage Amendment Act 1985.

(2) The Marriage Act 19611 is in this Act referred to as the Principal Act.

Commencement

2. (1) Subject to sub-section (2), this Act shall come into operation on the twenty-eighth day after the day on which this Act receives the Royal Assent.

(2) Sections 4, 10, 11, 12, 13 and 23 shall come into operation on a day to be fixed by Proclamation.

Interpretation

3. Section 5 of the Principal Act is amended—

(a) by omitting “exercise that power or” from paragraph (a) of the definition of “Judge” in sub-section (1) and substituting “perform that”; and

(b) by inserting after the definition of “marriage officer” in sub-section (1) the following definition:

“‘medical procedure’ means artificial insemination or the implantation of an embryo in the body of a woman;”.

Extension of Act to Territories, &c.

4. Section 8 of the Principal Act is amended by omitting sub-section (4) and substituting the following sub-section:

“(4) Section 73, Part Va and section 111 extend to all the external Territories.”.

Amendment of heading to Part ia

5. The heading to Part Ia of the Principal Act is amended by omitting “PRE-MARITAL” and substituting “MARRIAGE”.

Grants to approved organizations

6. Section 9b of the Principal Act is amended by omitting “pre-marital” and substituting “marriage”.

Approval of voluntary organizations

7. Section 9c of the Principal Act is amended by omitting from sub-sections (1), (2) and (5) “pre-marital” and substituting “marriage”.

Approved marriage counselling organizations under Family Law Act

8. (1) Section 9d of the Principal Act is amended by omitting from sub-section (1) “pre-marital” and substituting “marriage”.

(2) Where a voluntary organization was, immediately before the commencement of this section, approved under Part Ia of the Principal Act as an organization conducting programs of pre-marital education, that organization shall, after that commencement, be deemed to have been approved under Part Ia of the Principal Act as amended by this Act as an organization conducting programs of marriage education.

(3) Where the approval under Part Ia of the Principal Act of an organization to which sub-section (2) applies was subject to conditions determined by the Attorney-General, the approval of the organization under Part Ia of the Principal Act as amended by this Act that is deemed to have been effected by sub-section (2) is subject to the same conditions as those to which the first-mentioned approval was subject but nothing in this sub-section affects the operation of sub-section 9c (4) of the Principal Act as amended by this Act in relation to the second-mentioned approval.

Reports and financial statements of approved organizations

9. Section 9e of the Principal Act is amended by omitting from sub-section (1) “pre-marital” (wherever occurring) and substituting “marriage”.

Heading

10. Before section 22 of the Principal Act the following heading is inserted in Part III:

“Division 1—Marriages solemnized on or after 20 June 1977 and before the commencement of section 13 of the Marriage Amendment Act 1985”.

Division to be subject to application of private international law

11. Section 22 of the Principal Act is amended by omitting “this Part” and substituting “this Division”.

Grounds on which marriages are void

12. Section 23 of the Principal Act is amended—

(a) by omitting from sub-section (1) “takes place after the commencement of this Act” and substituting “took place on or after 20 June 1977 and before the commencement of section 13 of the Marriage Amendment Act 1985”;

(b) by omitting from paragraph (1) (a) “is” and substituting “was”;

(c) by omitting from paragraph (1) (d) “is” (wherever occurring) and substituting “was”; and

(d) by omitting from paragraph (1) (e) “is” and substituting “was”.

13. After section 23 of the Principal Act the following Division is inserted in Part III:

“Division 2—Marriages solemnized after the commencement of section 13 of the Marriage Amendment Act 1985

Application of Division

“23a. (1) Notwithstanding sub-section 42 (2) of the Family Law Act 1975, but subject to sub-section (2) of this section, this Division applies in relation to—

(a) all marriages solemnized in Australia; and

(b) all marriages under Part V.

“(2) This Division does not apply in relation to marriages to which Division 3 of Part IV applies.

Grounds on which marriages are void

“23b. (1) A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where—

(a) either of the parties is, at the time of the marriage, lawfully married to some other person;

(b) the parties are within a prohibited relationship;

(c) by reason of section 48 the marriage is not a valid marriage;

(d) the consent of either of the parties is not a real consent because—

(i) it was obtained by duress or fraud;

(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e) either of the parties is not of marriageable age,

and not otherwise.

“(2) Marriages of parties within a prohibited relationship are marriages—

(a) between a person and an ancestor or descendant of the person; or

(b) between a brother and a sister (whether of the whole blood or the half-blood).

“(3) Any relationship specified in sub-section (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.

“(4) Nothing in sub-section (3) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that sub-section had not been enacted.

“(5) For the purposes of this section—

(a) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and

(b) a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first-mentioned person has been adopted.

“(6) For the purposes of this section—

‘adopted’, in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children;

‘ancestor’, in relation to a person, means any person from whom the first-mentioned person is descended including a parent of the first-mentioned person.”.

Review of refusal to register or removal from register

14. Section 34 of the Principal Act is amended by omitting sub-section (2).

Authorization of other celebrants

15. Section 39 of the Principal Act is amended—

(a) by omitting from sub-section (2) “suitable” and substituting “fit and proper”; and

(b) by adding at the end the following sub-section:

“(4) A person, not being a minister of religion, who is authorized under sub-section (2) to solemnize marriages is not entitled to demand the payment, for the solemnization of a marriage by that person, of a fee that exceeds the fee prescribed by regulations made under section 120 that is applicable to the solemnization of that marriage by that person.”.

Notice to be given and declaration made

16. Section 42 of the Principal Act is amended—

(a) by omitting from paragraph (1) (a) “3 months” and substituting “6 months”;

(b) by inserting in paragraph (2) (b) “an Australian Diplomatic Officer, an Australian Consular Officer,” after “Statutory Declarations Act 1959,”; and

(c) by omitting from sub-section (5a) “pre-marital” and substituting “marriage”.

17. Section 55 of the Principal Act is repealed and the following section is substituted:

Solemnization of marriages in Australia by foreign diplomatic or consular officer

“55. Nothing in this Act prevents the solemnization in Australia of a marriage to which this Division applies by or in the presence of a diplomatic or consular officer of a proclaimed overseas country if—

(a) neither of the parties is an Australian citizen; and

(b) the marriage, were it a marriage to and in relation to which Division 2 of this Part applied, would not be void by reason of a circumstance set out in paragraph 23b (1) (a), (b) or (e).”.

Recognition of marriages

18. Section 56 of the Principal Act is amended—

(a) by omitting “A marriage” and substituting “Subject to sub-section (2), a marriage”; and

(b) by adding at the end the following sub-section:

“(2) Sub-section (1) does not apply in relation to a marriage where, if the marriage were a marriage to and in relation to which Division 2 of this Part applied, the marriage would be void by reason of a circumstance set out in paragraph 23b (1) (d).”.

Notice of marriage

19. Section 66 of the Principal Act is amended by omitting from sub-section (6) “, if one of the parties to the intended marriage is not a British subject,”.

Notice to become void after 6 months

20. Section 67 of the Principal Act is amended by omitting “3 months” (wherever occurring) and substituting “6 months”.

Caveats

21. Section 68 of the Principal Act is amended by omitting from sub-section (1) “and one of the parties to the intended marriage is not a British subject”.

Restriction on solemnization of marriages under this Part

22. Section 77 of the Principal Act is amended by omitting from paragraphs (1) (a) and (b) “a British subject” and substituting “an Australian citizen”.

23. After Part V of the Principal Act the following Part is inserted:

“PART Va—RECOGNITION OF FOREIGN MARRIAGES

Object of Part

“88a. The object of this Part is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages signed at The Hague on 14 March 1978.

Interpretation

“88b. (1) In this Part, unless the contrary intention appears—

‘Australia’ includes the external Territories;

‘local law’, in relation to a marriage solemnized in a foreign country, means the law in force in the foreign country or in that part of the foreign country in which the marriage was solemnized.

“(2) A marriage shall be taken, for the purposes of this Part, to have been solemnized in a foreign country by or in the presence of a diplomatic or consular officer of another foreign country if the marriage was solemnized in the first-mentioned foreign country by or in the presence of a person who was recognized by the government of that country as a diplomatic or consular representative of the other foreign country.

“(3) In this Part, a reference to a marriage includes a reference to a purported marriage that is void or voidable but does not include a reference to a marriage solemnized under Part V.

Application of Part

“88c. (1) This Part applies to and in relation to every marriage solemnized, whether before or after the commencement of this Part, in a foreign country where—

(a) under the local law, the marriage was, at the time when it was solemnized, recognized as valid; or

(b) if the marriage was solemnized by or in the presence of a diplomatic or consular officer of another foreign country—

(i) under the law of that other foreign country, the marriage was, at the time when it was solemnized, recognized as valid; and

(ii) at the time when it was solemnized, the solemnization of the marriage was not prohibited by the local law.

“(2) Where a marriage (not being a marriage referred to in sub-section (1)) that was solemnized, whether before or after the commencement of this Part, in a foreign country—

(a) is, at any time in relation to which the validity of the marriage falls to be determined, recognized as valid under the local law; or

(b) if the marriage was solemnized by or in the presence of a diplomatic or consular officer of another foreign country and, at the time when it was solemnized, the solemnization of the marriage was not prohibited by the local law—is, at any time in relation to which the validity of the marriage falls to be determined, recognized as valid under the law of that other foreign country,

this Part applies to and in relation to the marriage from and including that time.

Validity of marriages

“88d. (1) Subject to this section, a marriage to which this Part applies shall be recognized in Australia as valid.

“(2) A marriage to which this Part applies shall not be recognized as valid in accordance with sub-section (1) if—

(a) either of the parties was, at the time of the marriage, a party to a marriage with some other person and the last-mentioned marriage was, at that time, recognized in Australia as valid;

(b) where one of the parties was, at the time of the marriage, domiciled in Australia—either of the parties was not of marriageable age within the meaning of Part II;

(c) the parties are within a prohibited relationship within the meaning of section 23b; or

(d) the consent of either of the parties was not a real consent for a reason set out in sub-paragraph 23b (1) (d) (i), (ii) or (iii).

“(3) Where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognized as valid in accordance with sub-section (1) at any time while the female party is under the age of 14 years or the male party is under the age of 16 years.

“(4) A marriage solemnized in a foreign country, being a marriage to which this Part applies, shall not be recognized as valid in accordance with sub-section (1) at any time while the marriage is voidable—

(a) except in a case to which paragraph (b) applies—under the local law; or

(b) if the marriage was solemnized in a foreign country by or in the presence of a diplomatic or consular officer of another foreign country—under the law of that other foreign country.

“(5) Notwithstanding any other provision of this Part, where—

(a) a marriage (in this sub-section referred to as the ‘initial marriage’) has, whether before or after the commencement of this Part, been solemnized in a foreign country;

(b) at the time of the solemnization of the initial marriage, that marriage was not recognized in Australia as valid;

(c) after the solemnization of the initial marriage, and whether before or after the commencement of this Part, either party to that marriage entered into another marriage (in this sub-section referred to as the ‘subsequent marriage’); and

(d) at the time when the subsequent marriage was solemnized—

(i) the subsequent marriage was recognized in Australia as valid; and

(ii) the initial marriage was not recognized in Australia as valid,

the initial marriage shall not be recognized at any time in Australia as valid.

Validity of certain marriages not affected by this Part

“88e. (1) Subject to sub-section (2), a marriage solemnized in a foreign country that would be recognized as valid under the common law rules of private international law but is not required by the provisions of this Part apart from this sub-section to be recognized as valid shall be recognized in Australia as valid, and the operation of this sub-section shall not be limited by any implication arising from any other provision of this Part.

“(2) Notwithstanding sub-section (1), a marriage of a person domiciled in Australia, being a marriage solemnized in a foreign country, shall not be recognized in Australia as valid if, at the time of the marriage, either party to the marriage was not of marriageable age within the meaning of Part II.

“(3) Where a marriage solemnized in a foreign country is not required by virtue of this Part to be recognized in Australia as valid, this Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that provides, expressly or impliedly, for such a marriage to be recognized as a valid marriage for the purposes of the law in which the provision is included.

“(4) This Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that deems a union in the nature of a marriage to be a marriage for the purposes of the law in which the provision is included.

Incidental determination of recognition of certain foreign marriages

“88f. Notwithstanding any other law, the question whether a marriage solemnized in a foreign country is to be recognized in Australia as valid shall be

determined in accordance with the provisions of this Part, whether or not the determination of the question is incidental to the determination of another question.

Evidence

“88g. (1) A document purporting to be either the original or a certified copy of a certificate, entry or record of a marriage alleged to have been solemnized in, or under the law of, a foreign country and purporting to have been issued by—

(a) in the case of a marriage alleged to have been solemnized in a foreign country—an authority of that country or of that part of the country in which the marriage was allegedly solemnized; or

(b) in the case of a marriage alleged to have been solemnized under the law of a foreign country—an authority of that country,

is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates.

“(2) Sub-section (1) does not apply to or in relation to a document if it is proved that the authority of the foreign country or of the part of a foreign country by which the document purports to have been issued was not, at the time of issue, a competent authority.

“(3) In sub-section (2), ‘competent authority’ means—

(a) in relation to a foreign country—

(i) any authority that is prescribed in relation to that country by regulations made for the purposes of this paragraph; or

(ii) any other authority that is competent, under the law in force in that country, to issue the original or a certified copy of a certificate, entry or record of a marriage solemnized in, or under the law of, that country; and

(b) in relation to a part of a foreign country—

(i) any authority that is prescribed in relation to that part of that country by regulations made for the purposes of this paragraph; or

(ii) any other authority that is competent, under the law in force in that part of that country, to issue the original or a certified copy of a certificate, entry or record of a marriage solemnized in that part of that country.”.

Legitimation by virtue of marriage of parents

24. Section 89 of the Principal Act is amended by omitting sub-section (3) and substituting the following sub-section:

“(3) Sub-section (1) does not apply in relation to a child unless—

(a) at the time of the marriage of the child’s parents—

(i) where that marriage took place before the commencement of section 24 of the Marriage Amendment Act 1985—the child’s father was domiciled in Australia; or

(ii) in any other case—one of the child’s parents was domiciled in Australia; or

(b) the marriage of the child’s parents took place in Australia, or outside Australia under Part V of this Act or under the Marriage (Overseas) Act 1955.”.

25. (1) Section 90 of the Principal Act is repealed and the following section is substituted:

Legitimacy of children of certain foreign marriages

“90. (1) Where—

(a) the parents of a child born illegitimate have married each other or the parents of a child born in a place the law of which did not recognize the status of illegitimacy have married each other;

(b) the marriage took place outside Australia;

(c) neither parent of the child was domiciled in Australia at the time of the marriage; and

(d) the law of the place where a parent of the child was then domiciled did not recognize the status of illegitimacy or, if the law of the place where a parent of the child was then domiciled did recognize that status, the child was, by that law, legitimated by virtue of the marriage,

the child is for all purposes the legitimate child of his or her parents as from the time of the marriage or the commencement of section 25 of the Marriage Amendment Act 1985, whichever was the later.

“(2) Where the relationship of a child and his or her father and mother is, for the purposes of the law of a place, required by a law in force in that place to be determined irrespective of whether or not the father and mother are or have been married to each other, the law of that place shall, for the purposes of this section, be taken not to recognize the status of illegitimacy.

“(3) Sub-section (1) applies in relation to a child—

(a) whether the child was born before or after the commencement of section 25 of the Marriage Amendment Act 1985, whether the marriage of the parents of the child took place before or after that commencement and whether or not the child was still living at the time of the marriage or, in the case of a child born before that commencement, at that commencement; and

(b) in the case of a child born illegitimate who, by virtue of the marriage of the child’s parents, was legitimated by the law of the place where a parent of the child was domiciled at the time of the marriage—whether or not the law of the place in which that parent or the other parent was domiciled at the time of the birth of the child permitted or recognized legitimation by subsequent marriage.”.

(2) The repeal effected by sub-section (1) does not render ineffective any legitimation effected before the commencement of this section by section 90 of the Marriage Act 1961 as in force, or as amended and in force, at any time

before that commencement, and section 90 of that Act as in force immediately before that commencement continues to operate in relation to such a legitimation.

Operation of certain State and Territory laws

26. Section 93 of the Principal Act is amended by adding at the end the following sub-section:

“(3) Nothing in this Part shall be taken to affect the validity or effect of a law of a State or Territory (however expressed and whether enacted before or after the commencement of this sub-section) that operates to require a child born to a woman as a result of the carrying out of a medical procedure in relation to the woman—

(a) to be treated as the child of the woman;

(b) to be treated as the child of the woman and a particular man; or

(c) to be treated as the child of a particular man.”.

Solemnizing marriage where notice or declaration not given or made, &c.

27. Section 99 of the Principal Act is amended by omitting from sub-section (5) “(4) of section 33” and substituting “33 (3)”.

Formal amendments

28. The Principal Act is amended as set out in the Schedule.

SCHEDULE    Section 28

FORMAL AMENDMENTS

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NOTE

1. No. 12, 1961, as amended. For previous amendments, see No. 93, 1966; Nos. 35 and 216, 1973; No. 209, 1976; and No. 2, 1982.

[Ministers second reading speech made in—

Senate on 22 February 1985

House of Representatives on 20 March 1985]