Menu

Legalities


Marriage to a relative
The Marriage Act prohibits people marrying:
– an ancestor or descendant; or
– their brother or sister (whether whole blood or half-blood siblings)
– These restrictions also apply to adoptive relationships even if these have been annulled, cancelled, discharged or cease to be effective for any reason (for example, a subsequent adoption order being made).

This means, for example, that a person cannot marry their parent, grandparent, child, grandchild, brother or sister. However, (depending of course on the gender of the party) a person may marry their aunt or uncle, niece or nephew or ‘first’ cousin.

Same-sex commitment ceremony
Subsection 5(1) of the Marriage Act 1961 defines marriage as ‘…the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ Accordingly, it is not possible for same-sex couples to marry under Australian law and same-sex marriages entered into under the laws of another country are also not recognised in Australia.

It is not illegal to conduct a commitment ceremony for same-sex couples, though, provided that ceremony does not purport to be a legal marriage.

Change of gender

In his decision in the case of Re Kevin, Chisholm J of the Family Court decided that a post-operative transsexual female to male person is a ‘man’ for the purposes of the Marriage Act and was able to enter into a valid marriage with a woman. On 21 February 2003, the Full Court of the Family Court upheld the original decision.
The decision of the Full Family Court to uphold the original decision does not affect the definition of marriage in Australia as ‘…the union of a man and a woman to the exclusion of all others voluntarily entered into for life’. The parties to a valid marriage must be a man and a woman. The issue in this case was the status to be assigned to ‘Kevin’ who had undergone sexual reassignment surgery and who had been issued with a new birth certificate reflecting his gender as a male. The decision is only applicable to post-operative transsexuals.
This decision means that a person who has undergone gender re-assignment surgery can marry as their reassigned gender as long as they fall within the parameters set down in the decision in Re Kevin.

The Certificate of Marriage to be issued to couples (Form 15)

A marriage celebrant must issue a prescribed Form 15 marriage certificate to you after your wedding as evidence of your marriage. Your marriage celebrant prepares three certificates of marriage containing the details of your marriage and you and your witnesses will be required to sign all three.

They are:
– the certificate retained by the marriage celebrant for their records;
– the certificate that will be forwarded to the Registry of Births, Deaths and Marriages for the registration of your marriage; and
– the certificate that will be given to you as a record of your marriage.
– How can we be sure we have been given the official certificate?
– The official certificate must be exactly as prescribed in the Marriage Regulations 1963. To see a sample of the prescribed Form 15 certificate use the link on the right hand side of this page.

You will see that it bears the Commonwealth Coat of Arms and a pattern on the front, and a number on the back that is unique to each certificate (and is traceable), but the security features of the new certificate will not be visible. These features make your marriage certificate significantly more secure as an official document because they protect it against alteration and reproduction.

While a certificate of marriage is not a proof of identity document, it is evidence of your change in marital status and in some situations (e.g. when applying for an Australian passport) you may be asked to produce a registered copy of it.