Statutory Rules
1977 No. 66
REGULATIONS UNDER THE MARRIAGE ACT 1961.*
I, THE ADMINISTRATOR of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Marriage Act 1961.
Dated this second day of June, 1977.
A. R. CUTLER
Administrator.
By His Excellency’s Command,
R. ELLICOTT
Attorney-General.
Amendments of the Marriage Regulations†
Parts.
1. Regulation 3 of the Marriage Regulations is repealed.
Interpretation.
2. Regulation 4 of the Marriage Regulations is amended by omitting the definition of “ filed ” in sub-regulation (1) and substituting the following definition:—
“ ‘ filed ’, in relation to a notice of application under Part II of the Act or to another document concerning such an application, means—
(a) where the application is made to a Judge—filed in an office of the appropriate court; and
(b) where the application is made to a magistrate—delivered to the clerk of the appropriate court of summary jurisdiction;”.
Consent by Judge or magistrate to marriage of minor.
3. Regulation 12 of the Marriage Regulations is amended—
(a) by omitting sub-regulation (1) and substituting the following sub-regulations:—
“ (1) A person intending to make application to a Judge under sub-section 16 (1) or (5) of the Act shall file notice of the application in an office of the appropriate court.
“ (1a) A person intending to make application to a magistrate under sub-section 16 (1) or (5) of the Act shall deliver notice of the application to the clerk of the appropriate court of summary jurisdiction.”;
(b) by inserting in sub-regulation (2), before the word “ magistrate ”, the words “ Judge or ”;
* Notified in the Australian Government Gazette on 3 June 1977.
† Statutory Rules 1963, No. 31 as amended by Statutory Rules 1971, No. 6; 1973, No. 129; 1974, Nos. 28, 188 and 246; and 1976, No. 8.
(c) by inserting, after paragraph (a) of sub-regulation (2), the following paragraph:—
“ (aa) shall be accompanied by a certificate in accordance with Form 5;”;
(d) by omitting from sub-regulation (3) the words “ that section ” and substituting the words “ that sub-section ”;
(e) by inserting in paragraph (a) of sub-regulation (3), before the word “ magistrate ”, the words “ Judge or ”;
(f) by inserting in paragraph (b) of sub-regulation (3), before the word “ magistrate ”, the words “ Judge or ”;
(g) by inserting in sub-regulation (4), after the words “ a previous application ”, the words “ to a magistrate ”;
(h) by inserting in sub-regulation (5), before the word “ magistrate ”, the words “ Judge or ”; and
(i) by omitting sub-regulation (7) and substituting the following sub-regulations:—
“ (7) The consent of a Judge or magistrate upon an application under sub-section 16 (1) of the Act shall be in accordance with Form 5a.
“ (8) The consent of a Judge or magistrate upon an application under sub-section 16 (5) of the Act shall be in accordance with Form 5b.”.
Definitions.
4. Regulation 19 of the Marriage Regulations is amended by omitting the definition of “ notice of an application ” and substituting the following definition:—
“ ‘ notice of an application ’ means notice of an application to a Judge or magistrate under section 12, or sub-section 16 (1) or (5), of the Act, and includes a request;”.
Prescribed authority to furnish report.
5. Regulation 21a of the Marriage Regulations is amended—
(a) by omitting from sub-regulation (1) the words “ delivers to the clerk of a court of summary jurisdiction a notice of application under sub-section (1) of section 16 of the Act for the consent of a magistrate ” and substituting the words “ files or delivers under regulation 12 a notice of application under sub-section 16 (1) of the Act for the consent of a Judge or magistrate ”;
(b) by omitting from sub-regulation (1) the words “ that court ” and substituting the words “ the court in which the inquiry is to be held ”;
(c) by omitting from sub-regulation (2) the words “ the clerk of the court of summary jurisdiction to whom the notice was delivered ” and substituting the words “ the appropriate officer of the court in which the notice was filed or the clerk of the court of summary jurisdiction to whom the notice was delivered, as the case requires,”; and
(d) by omitting from sub-regulation (4) the words “ clerk of the court of summary jurisdiction to whom the application was delivered,” and substituting the words “ appropriate officer of the court in which the application was filed or the clerk of the court of summary jurisdiction to whom the application was delivered, as the case requires,”.
Forwarding documents to Judge or magistrate on subsequent application.
6. Regulation 22 of the Marriage Regulations is amended by omitting from sub-regulation (1) the words “ of the Act, or a magistrate to whom an application is made under section 16 of the Act,” and substituting the words “, or subsection 16 (1) or (5), of the Act”.
Protection of Judges, &c.
7. Regulation 30 of the Marriage Regulations is amended—
(a) by omitting from sub-regulation (1) the words “ of a Court of a State or Territory,” and substituting the words “ performing a function under the Act in a State or Territory,”;
(b) by omitting from sub-regulation (2) the words “ of a Court of a State or Territory,” and substituting the words “ performing a function under the Act in a State or Territory,”;
(c) by omitting from sub-regulation (3) the words “ of a Court of a State or Territory,” and substituting the words “ performing a function under the Act in a State or Territory,”; and
(d) by omitting from sub-regulation (4) the words “ of a Court of a State or Territory ” and substituting the words “ performing a function under the Act in a State or Territory ”
8. After regulation 39 of the Marriage Regulations the following regulation is inserted:—
Document relating to marriage, premarital education and counselling.
“ 39a. For the purposes of sub-section 42 (5a) of the Act, the prescribed form is Form 14a.”.
Interpretation.
9. Regulation 52 of the Marriage Regulations is amended—
(a) by omitting from the definition of “ Australian consulate ” in sub-regulation (1) the words “ Nationality and Citizenship Act 1948–1960 ” and substituting the words “ Australian Citizenship Act 1948 ”;
(b) by omitting from the definition of “ Register of Births Abroad ” in sub-regulation (1) the words “ Nationality and Citizenship Act 1948–1960 ” and substituting the words “ Australian Citizenship Act 1948 ”; and
(c) by inserting in paragraph (c) of the definition of “ the appropriate registering authority ” in sub-regulation (1), after the word “ Immigration ” (wherever occurring), the words “ and Ethnic Affairs ”.
First Schedule.
10. The First Schedule to the Marriage Regulations is amended—
(a) by inserting in the heading to Form 4, before the word “ MAGISTRATE ”, the words “ JUDGE OR ”;
(b) by inserting in paragraph 1 of Form 4, before the word “ magistrate ”, the words “ Judge or to a ”;
(c) by inserting in Form 4, after paragraph 6, the following paragraphs:—
“ *7. A certificate signed by a marriage counsellor certifying that I have received counselling from him in relation to my proposed marriage is annexed.
or
*7. Counselling by a marriage counsellor is not reasonably available to me because (state reason).”;
(d) by inserting in Form 4, before the word “ magistrate ” (second last and last occurring), the words “ Judge or ”;
(e) by omitting Form 5 and substituting the following forms:—
“ Form 5 Sub-regulation 12 (2)
Commonwealth of Australia
Marriage Act 1961
CERTIFICATE BY MARRIAGE COUNSELLOR
I, (full name and address), a marriage counsellor within the meaning of the Family Law Act 1975, hereby certify that (full name and address) has, on the day of 19 ,
received counselling from me in relation to his (or her) proposed marriage with (full name and address).
Dated the day of 19 .
(Signature)
“ Form 5a Sub-regulation 12 (7)
Commonwealth of Australia
Marriage Act 1961
CONSENT OF JUDGE OR MAGISTRATE ON APPLICATION UNDER SUB-SECTION 16(1)
Upon holding an inquiry into the relevant facts and circumstances concerning the application made by (full name, address and occupation) under sub-section 16 (1) of the Marriage Act 1961 for my consent to his (or her) proposed marriage with (full name and address) in place of the consent of (full name, address, description and relationship to applicant) of the above-named (full name), I, (full name), a person who holds office as a Judge or as a Magistrate of the (if applicable, and in respect of whom an appropriate arrangement under section 9 of that Act is applicable) am satisfied
* that the above-named (full name), who refused to consent to the marriage, so refused unreasonably
* that, having proper regard for the welfare of the above-named (full name), it would be unreasonable for me to refuse my consent to the marriage
and I therefore give my consent to the proposed marriage in place of the consent of the above-named (full name).
*2. There has been produced to me a certificate signed by a marriage counsellor certifying that the applicant has received counselling from him (or her) in relation to the proposed marriage.
*2. I am satisfied that counselling by a marriage counsellor is not reasonably available to the applicant.
Dated this day of 19 .
(Signature)
(Title)
* Strike out whichever is inapplicable.
“ Form 5b Sub-regulation 12 (8)
Commonwealth of Australia
Marriage Act 1961
CONSENT OF JUDGE OR MAGISTRATE ON APPLICATION UNDER SUB-SECTION 16 (5)
Upon application made by (full name, address and occupation) under subsection 16 (5) of the Marriage Act 1961 for my consent to his (or her) proposed marriage with (full name and address) in place of the consent of (full name, address, description and relationship to the applicant) of the above-named (full name), I, (full name), a person who holds office as a Judge or as a Magistrate of the (if applicable, and in respect of whom an appropriate arrangement under section 9 of that Act is applicable), having, on 19 , given my consent to the proposed marriage in place of the consent of (full name, address, description and relationship to the applicant) of the above-named (full name), am satisfied that
* it is impracticable to ascertain the views of the above-named (full name) with respect to the proposed marriage
* it is impracticable without delay that would, in all the circumstances of the case, be unreasonable to ascertain the views of the above-named (full name) with respect to the proposed marriage
and I therefore give my consent to the proposed marriage in place of the consent of the above-named (full name).
Dated this day of 19 .
(Signature)
(Title)
* Strike out whichever is inapplicable.
(f) by omitting Form 12 and substituting the following form:—
“ Form 12 Regulation 33
Commonwealth of Australia
Marriage Act 1961
NOTICE OF INTENTION TO REMOVE NAME OF PERSON FROM THE REGISTER
To:
In pursuance of sub-section 33 (2) of the Marriage Act 1961, I hereby give you notice that it is my intention to remove your name from the register kept by me for the purposes of Division 1 of Part IV of that Act on the ground that (specify ground) unless, not later than (specify a date being not less than 21 days from the date of service of this notice), you satisfy me that your name should not be removed from the register.
Any representations made to me before that date will be considered by me.
Dated the day of 19 .
Registrar of Ministers of Religion.
NOTE.—Under the Marriage Act 1961, a person who solemnizes a marriage after notice is served on him under sub-section 33 (2) of that Act but before—
(a) he has been notified by the Registrar that the Registrar has decided not to remove his name from the register;
(b) a period of 14 days has elapsed from the date specified in the notice in accordance with that sub-section and his name has not been removed from the register; or
(c) his name, having been removed from the register, is restored to the register,
is guilty of an offence and is liable, upon conviction, to a fine not exceeding $500 or to be imprisoned for a term not exceeding 6 months.
(g) by omitting paragraph 2 of Form 14 and substituting the following paragraph:—
“ 2. I believe that there is no legal impediment to my marriage with (full name, address and occupation of the other party to the proposed marriage) by reason of—
(a) either of us being lawfully married to some other person;
(b) our being within a prohibited relationship;
(c) either of us not being of marriageable age; or
(d) any other circumstance.”: and
(h) by inserting, after Form 14. the following form:—
“ Form 14a Regulation 39a
Commonwealth of Australia
Marriage Act 1961
DOCUMENT OUTLINING THE OBLIGATIONS AND CONSEQUENCES OF MARRIAGE AND INDICATING THE AVAILABILITY OF PRE-MARITAL EDUCATION AND COUNSELLING
You have given notice that you intend to marry. This document tells you—
(a) something of what it means to be married;
(b) the duties of marriage;
(c) about some pre-marital education programs which help people prepare themselves for marriage; and
(d) about pre-marital counselling which is available to people with problems.
What this document is about
This document is intended to let you know that our society and the laws of the land see marriage as very important. It lets you know how marriage can affect you under the law.
It does not contain advice on religious or moral issues; these are personal matters. Ministers of religion will help you work through these.
If you have any doubts about your decision regarding the marriage, you might like to consider discussing the matter with specially trained counsellors. You may also find it helpful to attend a pre-marital education program.
Marriage: its importance
Marriage and family life have been basic to the strength of our society for a long time.
The Parliament, in the Family Law Act 1975, has placed great stress on their importance. Indeed, section 43 of that Act requires courts, when dealing with any legal proceedings under the Act, to have regard to—
‘ (a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children; [and]
(c) the need to protect the rights of children and to promote their welfare;’.
These provisions afford some guide to couples contemplating marriage as to the goals they might adopt for their married life.
Pre-marital education programs
Before you marry you may feel that you would like to prepare yourself better for what is probably the most important personal relationship you will enter into in your life. You should not hesitate to make enquiries about attending pre-marital education programs which can help to provide a sound basis for your marriage relationship. Programs conducted by approved organizations are subsidized by the Commonwealth Government. Worthwhile programs are also conducted by other voluntary organizations, such as local churches and education authorities. There may be one in your area.
Marriage: legal consequences
There used to be very different rules applying to contracts and civil damages claims arising as between husbands and wives, because of the view of the old common law that a husband and wife became ‘ one ’ on marriage.
Many of these old laws have since been changed. Husbands and wives can sue each other in contract and for civil damages (with restrictions in some States); persons can give evidence in most cases involving their spouses; and marriage does not prevent women from retaining ownership of their property.
Passing of property on death
However, as far as property is concerned, marriage does change certain things. If you die without making a will, your spouse will inherit some or all of your property. If you have already made a will, your marriage operates to revoke that will unless it is clear that you made it in contemplation of the marriage. You should consult your solicitor about the need to make a will or, change your existing will, or as to any provisions it should contain to provide for your spouse or children.
Joint ownership
When you and your future spouse both want to put your money into buying property of a substantial nature—a house, for instance—you should consider whether you want the property to be held in the names of both of you or one of you. You should consult your solicitor about this, as one form of ownership may suit your needs better than the other.
Where you want substantial property to be held in both names, you should also consult your solicitor about different types of co-ownership. Property owned by 2 persons jointly passes automatically to the survivor on the death of one of them. This applies not only to land but also to other property such as motor vehicles, insurance policies and bank accounts. On the other hand, property owned by 2 persons as ‘ tenants in common ’ does not pass automatically to the survivor.
Taxation
Marriage may affect your income tax liability. This may happen immediately if your spouse is not earning income. Otherwise it will happen when you have children. The Australian Taxation Office or a tax agent or accountant will be able to answer any query you have in this regard.
Health insurance and welfare benefits
You will also need to consult with your Health Insurance Fund as to the changes you should make in your health insurance arrangements. If you are receiving social security, repatriation or other benefits, you should consult the appropriate government department about the effect your marriage may have on these benefits.
In general, you should give thought to how marriage will change your material circumstances. If you are in doubt, you should seek legal or other advice where necessary.
Change of surname on marriage
The adoption by a woman of her husband’s surname on marriage is based on a very widely practised and convenient custom in Australia and other similar societies. However, it is not a matter of legal obligation, and in fact some women do continue to use their own surnames after marriage.
Marriage: legal obligations to each other and to children
A major obligation imposed on a person by marriage is to maintain his or her spouse should circumstances arise where the spouse becomes in need of support. Originally this obligation was limited to the husband alone.
However, under the present law, the obligation to provide maintenance is not limited to husbands. The Family Law Act 1975 provides that either party who is in need is entitled to maintenance from the other, to the extent that the other can afford to provide it.
Both husband and wife have an obligation, according to their respective means, to maintain the children of the marriage.
Obviously, these obligations would be put to the test only if a husband and wife came into conflict. In such circumstances, the question of custody of the children and division of property might also arise. If any of these things happened, early contact with a marriage counsellor could be very helpful.
Both parents have an obligation for the education of children between the minimum and maximum ages specified under State or Territory law. You should consult appropriate government departments regarding health facilities, family allowances and other benefits or obligations.
Problems prior to marriage
Don’t forget that if you do have any doubts or problems at any stage before—or indeed after—the marriage, you can obtain advice and counselling from marriage counsellors. You may also find it helpful to attend a pre-marital education program.”.
Fourth Schedule.
11. The Fourth Schedule to the Marriage Regulations is amended—
(a) by omitting the words—
“ Kingdom of Greece ”,
and substituting the words—
“ Hellenic Republic ”;
(b) by omitting the words—
“ Portuguese Timor ”,
and substituting the words—
“ Polish People’s Republic ”;
(c) by omitting the words—
“ Spanish State ”,
and substituting the word—
“ Spain ”; and
(d) by omitting the words—
“ Republic of Vietnam ”.
Further amendments of the Marriage Regulations.
12. The Marriage Regulations are amended as set out in the Schedule.
SCHEDULE Regulation 12
Provision | Amendment |
Sub-regulation 6 (3)........... | Omit. |
Sub-regulation 13 (1).......... | Insert, after “ application ” (first and second occurring), “ to a magistrate ”. |
Sub-regulation 13 (2).......... | Omit “ of a Court ”. |
| Omit “ under section 16 ”, substitute “t o a magistrate under sub-section 16 (1) ”. |
| Omit “ appropriate office of the Court ”, substitute “ office of the appropriate court ”. |
Sub-regulation 13 (4).......... | Omit “ section 16 ”, substitute “ sub-section 16 (1) ”. |
Sub-regulation 14 (1).......... | Omit “ under section 16 ”, substitute “ to a magistrate under sub-section 16 (1) or (5) ”. |
| Omit “ who heard the application ”. |
Sub-regulation 14 (2).......... | Omit from paragraph (a) “ (1) of regulation 12 of these Regulations ”, substitute “ 12 (1a) ”. |
Regulation 19............... | Omit from the definition of “ request ” the words and figures “ under section 16 ”, substitute “ to a magistrate under sub-section 16 (1) or (5) ”. |
Sub-regulation 21 (4).......... | Omit “ or 16 ” substitute “, or sub-section 16 (1) or (5),”. |
Sub-regulation 48 (3).......... | Omit from paragraph (a) “ Naval Forces of the Commonwealth ”, substitute “ Navy ”. |
| Omit from paragraph (a) “ those Naval Forces ”, substitute “ the Navy ”. |
| Omit from paragraph (b) “ Military Forces of the Commonwealth ”, substitute “ Army ”. |
| Omit from paragraph (b) “ those Military Forces ”, substitute “ the Army ”. |
| Omit from paragraph (c) “ Royal Australian ”. |
| Omit from paragraph (c) “ that ”, substitute “ the ”. |
Regulation 73............... | Omit “ (2) of section 113 ”, substitute “ 113 (2) ”. |
24486/78—9