valid and void marriages in australia
the marriage act defines marriage as the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. the present definition of marriage leaves no room for same sex marriages.
In fact, ACT legalized same sex marriages but the legislation was held constitutionally invalid for being in contravention of marriage as defined under the Marriage Act. So, there is as yet no same sex marriage celebrated in Australia.
The Marriage Act is the applicable law to all matters related to marriage like the marrying age of a person, conduct of marriage ceremonies, authorized marriage celebrants, consent to the marriage, void and bigamous marriages, and recognition of foreign marriages.
The illegality of same-sex marriages in Australia might give citizens the idea to have a same sex marriage ceremony conducted abroad. However, such a marriage would still not be considered valid in Australia. Section 88EA of the Marriage Act provides that same-sex marriages solemnized abroad will not be recognized as a valid marriage in Australia. A foreign marriage is recognized as a valid marriage in Australia if it is in accordance with Australian laws.
A marriage is void if the parties have a previous marriage not yet dissolved; the marriage is void by reason of the prohibited relationship between the parties such as if they are siblings, direct descendants and adopted-adopter; the marriage was solemnized by an unauthorized celebrant and lack of consent which includes consent given under duress, fraud, mental incapacity, mistake as to identity, mistake as to the nature of the ceremony and if the party is below 18 years of age. The aforementioned marriages will be considered void in Australia even if validly contracted abroad.
As of the present, same sex unions are considered as de facto relationships under the Family Law Act 1975. A de facto relationship is a relationship between two persons, whether of the same or opposite sex, who live together on a genuine domestic basis and are not legally married to each other or related as family. Even the definition of de facto relationship reflects the prohibition against same sex marriages because while same sex partners may live together on a domestic basis, they must not be married to each other.
Australia, through the Family Law Act 1975, recognizes same sex unions and bestows certain rights upon the couple and their children. Same sex unions actually have almost the same rights as a married couple such that they are now entitled to child support, property settlement, spouse maintenance and other reliefs in connection with financial matters. Partners are also now entitled to benefits and privileges like war or widower’s pension, social security, family assistance, bereavement benefits, tax concessions and Medicare.
The recognition of same sex unions and the benefits granted to them has not stopped the calls to reform the Marriage Act. The ACT legislation, even if it was later declared unconstitutional, only whet the thirst of the gay community for same sex marriage especially since other countries already allow it.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.