Matrimonial Causes Act 1945

Legislation au C1945A00022 Not in force Act

Legislation content

MATRIMONIAL CAUSES.

 

No. 22 of 1945.

An Act relating to Matrimonial Causes.

[Assented to 16th August, 1945.]

[Date of commencement, 13th September, 1945.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Part I.—Preliminary.

Short title.

1. This Act may be cited as the Matrimonial Causes Act 1945.

Parts.

2. This Act is divided into Parts, as follows:—

Part I.—Preliminary.

Part II.—Institution of Matrimonial Causes against Members of Overseas Forces, and certain other Persons, not Domiciled in Australia.

Part III.—Institution of Matrimonial Causes by certain Persons Domiciled in Australia.

Part IV.—Miscellaneous.

Definitions.

3.—(1.) In this Act, unless the contrary intention appears—

“Australia” includes the Territories of the Commonwealth; “marriage” includes a purported marriage which was void ab initio;


“matrimonial causes” includes suits for the dissolution of marriage, nullity of marriage, restitution of conjugal rights and judicial separation, and also includes, as incidental to any such suit, matters in relation to damages, alimony, maintenance, the custody, maintenance and education of children, settlements, re-marriage, cross or counter-proceedings and costs, together with all other matters incidental to any such suit;

“suit” includes any action or original proceeding between parties;

“Territory” means Territory of the Commonwealth.

(2.) In this Act, any reference to the Supreme Court of a Territory shall, in relation to the Territory of Norfolk Island, be read as a reference to the Court of Norfolk Island sitting in its Full Jurisdiction.

Part II.—Institution of Matrimonial Causes against Members of Overseas Forces, and certain other Persons, not Domiciled in Australia.

Marriages to which Part II. applies.

4. This Part shall apply in relation to marriages celebrated in Australia, on or after the third day of September, One thousand nine hundred and thirty-nine, and before the appointed day, where the husband (whether a member of an overseas Naval, Military or Air Force, or not) was, at the time of the marriage, not domiciled in Australia, and the wife was, immediately before the marriage, domiciled in a State or Territory.

Institution of matrimonial causes in relation to marriages to which Part II. applies.

5.—(1.) Where the parties to a marriage in relation to which this Part applies are not domiciled in a State or Territory, either party may institute proceedings in any matrimonial cause in the Supreme Court of the State or Territory in which that party is resident, notwithstanding that that party is not, or has not been for any period required by the law of that State or Territory, domiciled in that State or Territory.

(2.) The Supreme Court of each State is hereby invested with Federal jurisdiction, and jurisdiction is hereby conferred on the Supreme Court of each Territory, to hear and determine matrimonial causes instituted under the last preceding sub-section.

(3.) Nothing in this section shall entitle a person to institute…

Overview

The Matrimonial Causes Act 1945 was enacted to address the legal complexities arising from marriages during and after World War II, particularly concerning service personnel and their spouses. This Act was introduced by the Commonwealth Parliament to provide a comprehensive legal framework for the institution and resolution of matrimonial causes, including the dissolution of marriages, nullity, restitution of conjugal rights, and judicial separation. It aimed to facilitate the processing of such cases by allowing jurisdiction in states and territories where parties were not domiciled, provided certain conditions were met, and aimed to ensure that judgments made under this Act would be recognised across Australian courts and in specified overseas jurisdictions. The Act’s policy objective was to provide a streamlined legal process for handling matrimonial issues that transcended traditional jurisdictional boundaries, particularly in the context of military personnel and their families.

Scope and Application

The Matrimonial Causes Act 1945 applies to individuals and entities involved in matrimonial causes, specifically suits for the dissolution of marriage, nullity of marriage, restitution of conjugal rights, and judicial separation, and includes related matters such as damages, alimony, maintenance, custody, education of children, settlements, and costs. The Act is applicable to marriages celebrated in Australia from 3 September 1939 to a specified appointed day, provided that the husband was not domiciled in Australia at the time of the marriage, and the wife was domiciled in a State or Territory immediately before the marriage. The Act extends Federal jurisdiction to the Supreme Courts of the States and Territories to hear and determine such matrimonial causes under certain conditions, including the requirement that proceedings must be commenced within five years after the appointed day. The Act also recognises the validity of judgments, decrees, and orders made by courts in other countries if those countries have laws that are substantially similar to the provisions made by the Matrimonial Causes Act 1945 for Australia. Additionally, the Act allows for the making of regulations by the Governor-General to address matters necessary for the enforcement of the Act, including substituted service of process and enforcement of judgments.

Key Provisions

  • The Matrimonial Causes Act 1945 provides a framework for the institution of matrimonial causes, which include suits for the dissolution of marriage, nullity of marriage, restitution of conjugal rights, and judicial separation, among other related matters. Part II of the Act allows for the institution of matrimonial causes against members of overseas forces or certain other persons not domiciled in Australia. Under section 5, either party to a marriage falling under this category may institute proceedings in the Supreme Court of the State or Territory where that party is resident, even if they are not domiciled in that jurisdiction. The Act invests the Supreme Courts of the States and Territories with the necessary jurisdiction to hear and determine these causes. However, if the parties have resided together in a country outside Australia where the husband was domiciled at the time of the residence, proceedings cannot be instituted under this Part (section 5(3)).
  • The Act imposes specific obligations on the parties involved in matrimonial causes. For instance, it mandates that proceedings must be initiated within five years from the appointed day specified by proclamation (section 5(5)). Furthermore, the law applied in proceedings under Part II must align with the law of the State or Territory where the last or only matrimonial home of the parties was situated, or, if not applicable, the law of the State or Territory where the marriage was celebrated (section 6). The Act also ensures the preservation of jurisdiction of any court of a State or Territory outside the scope of this Part (section 7).
  • Non-compliance with the provisions of the Act can lead to significant legal consequences. While the Act does not explicitly enumerate specific offences or penalties, it does authorise the Governor-General to make regulations prescribing matters necessary for the enforcement of judgments, decrees, orders, or sentences given or pronounced under this Act (section 14(a)). Additionally, any judgment, decree, order, or sentence given or pronounced by the Supreme Court of a State or Territory under this Act is of the same force and effect as if it had been given or pronounced by a court of the State or Territory in which the parties were domiciled (section 13). Failure to adhere to these provisions could potentially lead to legal actions for enforcement or challenges to the validity of court decisions.

Legal classification tags

Area of Law
Family Law
Instrument
Act
Concepts
Definitions & Interpretation
Commencement Provisions
Offence Provisions
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.