What are the legal requirements to get married in Australia?

BrontePrice Uncategorised

You just decided to get married, now what? Well, apart from perhaps planning a wedding, there are some legal things you need to consider.

In Australia, marriage is highly regulated at the federal level. The relevant legal instruments are the Marriage Act 1961 and the Marriage Regulations 1963.

It doesn’t matter if you’re from Australia or from another country, if you’re planning on getting married in Australia, the legal requirements are basically the same. You don’t have to be an Australian citizen or a permanent resident of Australia to legally marry in Australia. You can find marriage visa information here, if you hope to live in Australia after your marriage.

Some countries don’t recognise marriages in Australia as valid, unless other requirements such as the prior granting of permission from that country’s embassy, are fulfilled. This can have implications for foreign citizens – particularly LGBTQIA couples – who intend to return to their country after getting married in Australia.

 

If your marriage involves an Australian citizen and a foreign citizen, you should obtain advice about immigration issues from the Department of Immigration and Border Protection or a registered migration agent. 

You may also find some useful migration related information in Plain English from Nick Hansen in his migration blog.

How is ‘marriage’ defined in Australia?

The Marriage Act 1961 defines marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life”. State and territory governments have until December 2018 to align their laws and regulations with this new definition that came into law on 9 December 2017. (Some state-based laws and regulatory requirements made it more difficult for some members of the LGBTQIA community to assert their right to get married than the majority of the population. That is being rectified.)

 

What are the minimum legal requirements to get married in Australia?

 

To be legally married in Australia, you must:

  • not be married to someone else
  • not be marrying a parent, grandparent, child, grandchild, brother or sister
  • be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old. Approval will not be given if both parties are aged below 16 years
  • understand what marriage means
  • freely consent to getting married
  • use specific words during the ceremony
  • give your celebrant written notice of your intention to marry, within the required time frame. This is explained further in the next section.

Your marriage celebrant will be able to explain each of these conditions to you in more detail.

What are the legal steps I need to take to get married in Australia?

Step 1: Complete and sign the Notice of Intended Marriage (NOIM)

The first thing you need to do is fill out a Notice of Intended Marriage (NOIM). You can download one here: https://www.ag.gov.au/FamiliesAndMarriage/Marriage/Documents/New-notice-of-intended-marriage.pdf

 

There are notes on the NOIM to help you fill it out. You should read those notes carefully, as you complete the NOIM.

 

What evidence do I need to provide?

Your celebrant needs to be satisfied that you and your partner are who you say you are. The evidence they need from you is:

  • evidence of your place and date of birth and evidence of your identity (you can use your passport for this, if you have one – alternatively, you can provide your driver’s license and birth certificate.
  • if one or both of you were previously married, evidence of your divorce or death of a previous partner. If you have been married more than once, then you only need to provide evidence about the most recent divorce or the death of your most recent partner.

 

What are the terms used in the NOIM?

Both parties to the marriage are required to tick one of three boxes that best describes them: ‘groom’, ‘bride’ or ‘partner’. It’s up to each party to decide which option they want to use to describe themselves. For example, it is completely fine for a person who identifies as a male to tick ‘bride’.

 

Do I need to provide evidence of my sex?

The celebrant doesn’t need to see evidence of your sex. Nor is it appropriate for your celebrant to question the sex or gender that’s recorded on a passport or driver’s license. The NOIM allows individuals to identify as female, male or as a gender other than the sex they were assigned at birth or to identify as ‘other than female or male’. In that case, they can tick the box labelled ‘X’. Your celebrant should be sensitive enough to understand that people may hold conflicting documents – for example, people who identify as ‘X’ may wish to have a different gender recorded in their passport to ensure their safety whilst travelling overseas. Whilst there is some indignation about non-binary genders being cobbled together under an erasing ‘X’, that’s the current public policy position of the Australian government. I’ve commented on this in further detail in a separate blog post.

 

What do I need to do if I’m living in Australia?

If you’re living in Australia, when you’ve finished completing the details in the NOIM, you can either get your signatures witnessed by a police officer (AFP or state / territory), a barrister or solicitor, a legally qualified medical practitioner (note: this doesn’t include a pharmacist or dentist), or a Justice of the Peace. You can then post it or email it to your marriage celebrant. Alternatively, you can meet with your celebrant and get them to witness you signing the NOIM. They can even help you fill out the form, if you wish.

 

What do I need to do if I’m living outside Australia?

If you’re living outside Australia and are planning on getting married in Australia, then when you’ve finished completing the details in the NOIM, you can either get your signatures witnessed by an Australian Consular Officer, and Australian Diplomatic Officer, a notary public, an employee of the Commonwealth authorized under paragraph 3(c) of the Consular Fees Act 1955, or an employee of the Australian Trade Commission authorized under paragraph 3(d) of the Consular Fees Act 1955.

 

You can search for a marriage celebrant on the official Attorney Generals Department website.

 

The NOIM must be received by your celebrant no later than one month before your wedding day. The lifespan of the NOIM is 18 months – that is, you can get married at any time between one month and eighteen months from when your celebrant receives your signed and witnessed NOIM.

What if I need to get married before the one month is due?

If there are extenuating circumstances that mean you need to get married within a month of your celebrant receiving your NOIM, you can apply to a prescribed authority (check out https://marriage.ag.gov.au/stateofficers/authorities) to see if it will approve a shortening of the notice time. There are only five circumstances that can be considered for a shortening of time. No other circumstances are able to be considered by the prescribed authority. And there is no guarantee that any application for a shortening of time will be successful.

 

The five categories of circumstances set out in the Regulations are:

  • Employment–related, or other travel commitments
  • Wedding or celebration arrangements, or religious considerations
  • Medical reasons
  • Legal proceedings, and
  • Error in giving notice

When making a decision, the Prescribed Authority will consider and assess the information provided in support of your application and may seek additional information.

If you’re going to apply for a shortening of time, then get prepared. Make sure you have all the necessary documentation that supports your request, before approaching a Prescribed Authority.

What steps do I need to take in applying for a shortening of time?

  • Contact a marriage celebrant who is willing to conduct a ceremony at short notice.
  • Complete a Notice of Intended Marriage (NOIM) and provide it to the celebrant (see earlier section on this). Make sure you don’t sign the NOIM until you are in the presence of the celebrant or other approved witness.
  • Choose a date and time for the ceremony – this can be changed, if necessary.
  • Ask the celebrant to supply you with a letter of support stating they have received a valid NOIM from you and is willing and available to conduct your marriage ceremony on the date and time nominated, provided the approval of a shortening of time is granted.
  • Go to a Prescribed Authority to request a shortening and take the NOIM with you so that it can be signed by the Prescribed Authority. When you receive approval for the shortening, you must return the signed NOIM to your celebrant.
  • Make sure you take all documents that you would require to be married (passports, or birth certificates + driver’s licences, divorce papers / death certificates, as relevant) and documentary evidence to support your reason for applying for the shortening, such as medical reports, employer’s evidence, wedding receipts etc.

Step 2: The Declaration of No Legal Impediment to Marriage

The Declaration of No Legal Impediment to Marriage must be signed as close as possible to your wedding day. It is a legal declaration that both of you are of marriageable age, are not in a prohibited relationship, are not married to someone else, and are not aware of any other legal impediment to your marriage taking place. Often, celebrants will combine the signing of the Declaration with a wedding rehearsal within the week before your wedding. Some celebrants might ask you to sign it immediately before your wedding ceremony on the day of your wedding. It is unlawful for it to be signed after your marriage ceremony has taken place.

Step 3: The Official Certificate of Marriage (x2) and Certificate of Marriage

On the day of your wedding, immediately after your marriage ceremony, you’ll sign three marriage certificates. Two of these are the Official Certificate of Marriage and the other is called a Certificate of Marriage. After you, your two witnesses and the celebrant have signed all three certificates, the celebrant will hand you the Certificate of Marriage – it is a record of your marriage that you can keep.

Within 14 days, the celebrant is required to provide your paperwork (the NOIM, the Declaration and one of the Official Certificates of Marriage) to the Registry of Births, Deaths and Marriages in the jurisdiction where the marriage took place, so your marriage can be officially registered. (Your celebrant is required to retain one copy of the Official Certificate of Marriage in a secure place for 6 years).

When the Registry has registered your marriage, you can apply for a copy of the registered Official Certificate of Marriage through the Registry of Births, Deaths and Marriages in the state or territory where you got married. Your celebrant will likely inform you when your marriage has been registered.

What if I’m getting married overseas?

If you’re planning to get married overseas, remember you can’t then come back to Australia and get married again. You’ll be already married. You can have a commitment ceremony, or a renewal of vows ceremony back here in Australia but whoever conducts that ceremony must make it clear to all who attend it that the ceremony is not a legal marriage ceremony.

If you want to get married overseas and want to involve a marriage celebrant from Australia, you need to be aware that marriage celebrants authorised in Australia can only perform legal marriages within Australia. Some overseas destinations – eg the USA – may allow Australians (including Australian celebrants) to satisfy their requirements to become an officiant and perform legal marriage ceremonies – but you need to carefully consider what those requirements are and be satisfied with the legalities of doing so, before proceeding.

Will my overseas marriage be recognised in Australia?

Although lots of overseas marriages are recognised in Australia, overseas marriages cannot be registered in Australia, and the marriage certificate you will be issued with when you get married overseas will be your evidence that the marriage took place. As with all Certificates of Marriage, it’s your responsibility to ensure you keep this certificate in a secure place as it may not be easy to replace if lost and it provides the only evidence of your marriage.

An overseas marriage will generally be recognised in Australia if it:

  • was a valid marriage in the overseas country where the marriage ceremony took place.
  • would have been recognised as valid under Australian law if the marriage had taken place in Australia.

Useful information for LGBTQIA couples thinking of getting married overseas can be found in this SmartTraveller’s blog.

For further information, I would recommend you to know more about planning an overseas wedding.

Is my overseas same sex marriage recognised in Australia?

The Marriage Act 1961 recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country. Same-sex marriages solemnised in Australia by a diplomatic or consular officer under the law of a foreign country before 9 December 2017 are also recognised. A couple whose foreign same-sex marriage is recognised in Australia cannot marry each other again in Australia, unless there is doubt as to the validity of the foreign marriage. You can have a commitment ceremony, or a renewal of vows ceremony back here in Australia but whoever conducts that ceremony must make it clear to all who attend it that the ceremony is not a legal marriage ceremony.

 

What’s the language used in the Australian legal marriage vows, for members of the LGBTQIA community, in particular?

The legal vows that must be said by each party to each other, during their marriage ceremony, in the presence of the celebrant and the two witnesses are as follows:

‘I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (husband or spouse)’; or words to that effect.

Under subsection 45(2) of The Marriage Act 1961, marrying couples can make a personal choice about the terms to be used in their marriage vows that best reflect their relationship. The following wording substitutions and changes are acceptable given the inclusion of ‘words to that effect’ in subsection 45(2):

  • ‘husband’, or ‘wife’ or ‘spouse’ may be changed to ‘partner in marriage’
  • ‘call upon’ may be changed to ‘ask’
  • ‘persons’ may be changed to ‘people’
  • ‘thee’ may be changed to ‘you’
  • ‘persons here present’ may be changed to ‘everyone here’ or ‘everybody here’ or ‘everyone present here’ or ‘everybody present here’, or
  • the couple may leave out either ‘lawful’ or ‘wedded’, but not both

Therefore, it is completely lawful for the following vows to be said by LGBTQIA couples, who may find the use of the gendered terms ‘husband’, ‘wife’ and ‘spouse’ offensive, and who wish to have a more contemporary set of vows that better reflects how they live their lives:

‘I ask everyone here to witness that I, A.B. (or C.D.), take you, C.D. (or A.B.), to be my lawful partner in marriage’.

or

‘I ask everyone present here to witness that I, A.B. (or C.D.), take you, C.D. (or A.B.), to be my wedded partner in marriage’.

Why we should avoid using the terms “same sex marriage” and “same sex wedding”

CreativeOTHRS Uncategorised

Until the postal vote was announced as the mechanism by which Australians would decide whether or not all Australians would be given the right to marry in Australia, the terms “same sex marriage” and “same sex wedding” had rarely appeared in public debate. The battle-lines had been drawn on either side of the much broader and inclusive term, “marriage equality”. The introduction of the term “marriage equality” into the debate some years prior had been a masterstroke by the team advocating for equal rights for all Australians. The people who introduced and normalised its use were clever enough to understand that a majority of Australians would support it as they’d know that the denial or refusal of it meant we weren’t giving all Australians a fair go, one of the main social mores that underpin Australian society.

And so, when the Liberal and National Party coalition introduced the term “same sex marriage” into the debate, it knew that it was appealing to the conservative heartland and its hatred of this thing called ‘same sex’ or ‘homosexuality’. Those views and the vile homophobia they encouraged had been relegated to the past.

Or so we thought, until the term “same sex marriage” was reintroduced at the start of the postal vote period. The one thing that term has going for it is that it’s well branded – most people have an idea of what’s meant when it’s used. It also rolls off the tongue easily. And that’s the main reason the media picked up on it and used it so readily during the postal vote period.

So what’s wrong with using it, now that we have marriage equality?

There are three main things wrong with it:

  1. It relies on and reinforces an outdated view of the existence of the simplistic binary form of ‘sex’ – same sex implies a male marrying a male or a female marrying a female. What about someone who is indeterminate? And, whilst we know that gender identification is different from ‘sex’, the problem with using ‘same sex’ it also potentially excludes people who identify as bisexual, intersex, trans or genderfluid, who may or not marry someone of the ‘same sex’. By using the term “same sex”, we’re invalidating or, worse still, erasing other genders that exist.
  2. In a narrow sense, it reinforces latent homophobia. In recent decades, LGBTI+ advocates and activists had worked hard to avoid using terms associated with “sex” as they hearken back to when homophobes’ fear and repugnance of anal sex (also known as homosexual acts) led to Acts of Parliament being passed to make it illegal to carry them out or be associated with them. For many years, those views were reinforced by the police and the judiciary, further isolating and marginalising LGBTI+ people. And so to continue using terms that take us back decades to what were very dark times for the LGBTI+ community is a regressive step.
  3. It reduces the significance of the fact that the fight for marriage equality was always about that – giving all Australians the same rights at law, rather than continuing the homophobia-based denial of those rights to members of the rainbow community. The use of “same sex marriage” was an attempt to convince Australians that it was simply gay men who wanted to marry gay men and lesbians who wanted to marry lesbians rather than acknowledging and embracing the diversity within our community – and, of course, there were those hysterically wrong predictions about how many LGBTI+ couples would get married and the economic boon that would follow, as evidence that we we all going to rush (dare I say, mince!) to the pink altar along a rainbow encrusted aisle! But the reality is that lots of LGBTI+ couples don’t want to marry – and never will. And even though not all of our LGBTI+ community are ‘same sex’, an overwhelming majority within that community sure as heck did want the right to marry.

The Main Things I Have Found in Working with LGBTI Couples Getting Married

CreativeOTHRS Uncategorised

Main finding #1: Many LGBTI couples are private and closeted

As I am about to take my 50th LGBTI wedding booking since marriage equality became law in Australia, one of the main things I have found is that lots of LGBTI couples looking to get married are very private people – and deeply closeted.

And, in a way, that’s hardly surprising. Given the amount of harassment, vitriole, discrimination and vilification that LGBTI people have had to endure for much of their lives, it’s simply safer for couples to remain in the closet. It protects them and their privacy. It’s a way in which they can take control and maintain a level of comfort and safety within their lives. And whilst it’s easy for those in the broader community who have never been discriminated against or led a closeted life to judge them for continuing to live their lives in the closet (“I think it’s so sad” or “why can’t they just admit they’re gay and get on with their lives?”), such judgement indicates a low level of engagement with the diverse community that is the LGBTI population.

LGBTI people are emerging from decades when it was not only a societal norm to view LGBTI people as a group to be spurned, hated and reviled, but the legislative framework in Australia condoned it, backed up, of course by the police and the judiciary. And so, it should surprise no-one that a proportion of our rainbow community remains deeply private and fundamentally untrusting of those institutions. And whilst it is easy – almost patronisingly flippant – for people who don’t belong to the LGBTI community to say that marriage equality is here, that we should be grateful for that and we should now all just get on with our lives and treat everyone the same, to make such a suggestion underlines just how little such people understand the rainbow community.

The attainment of marriage equality was always going to be only one more little step in the path towards genuine equality for LGBTI people. Moreover, the process by which it was gained, providing 80% of Australians with an opportunity to vote on whether or not LGBTI people should have the same legal rights as every other Australian when it came to marriage, also gave the nay-sayers the social and political licence to go in hard against that right. And, predictably, they did. The harassment and discrimination during the period of the postal vote did enormous damage to members of the LGBTI community.

And it will take years to recover from that. It’s not just the rainbow community that will take time to heal – when daggers were thrown at us during that debate, those daggers also went through the hearts of our friends, allies and supporters, erasing progress in social justice and trust that had been built in the years prior.

So, next time a deeply private LGBTI couple comes to me as a wedding supplier, as someone who lived a closeted life for more than four decades, I can truly say that I understand – indeed empathise – with them and their decision to remain closeted. It behoves other wedding suppliers to do the same, if they’re serious about providing products and services to the LGBTI community in a respectful way.

Let’s get the language right, now that we have marriage equality in Australia

CreativeOTHRS Uncategorised

I write the following as a cisgender gay male, who is also an authorised marriage celebrant. I also am the co-founder of The Equality Network (wwwtheequalitynetwork.com.au) which has been established to educate straight wedding suppliers and others about how to work respectfully with LGBTI+ couples.

Currently, discussions are taking place between representatives of of celebrant associations in Australia and the Attorney General’s Department. Some of these discussions are focused on the wording of the Marriage Act 1961 associated with the recent amendments that enabled marriage equality to take place in Australia – eg whether or not the wording in the legal vows should be broadened to include terminology more pertinent to LGBTI+ couples.  

I must say that I find it unbelievable that discussions about the LGBTI+ community are being held and decisions affecting us are being made by a group consisting predominantly of cis straight people. As someone who has been a career senior public servant, I know that good policy (where it affects people) is created in collaboration with the people being affected. But not in this case. Imagine policy and legislation being created that affected indigenous people without any consultation or opportunity for input by indigenous people. Privileged straight people shouldn’t get to make decisions that affect LGBTI+ people, by themselves. But it continues to happen. And that fact is an indicator of how far we still have to go until LGBTI+ people has equal rights with other Australians.

The wording in the legal vows

Let’s be clear about the fact that marriage and the entire wedding industry that has evolved around it, is highly gendered. The words and terms, the rituals and symbols associated with (straight) weddings reflect that, over time, (straight) married couples have lived their lives along gendered lines. He mows the lawns, she does the washing, he fixes things, she cooks meals and so on. And the words Bride and Bridegroom, as well as the litany of other wedding-related terms, have also been highly gendered. And they remain so – and that’s great, if you’re straight.

But gay and lesbian people don’t live our lives along gendered lines. Despite it being hard for some straight people to get their head around who might be the male and who might be the female in a gay relationship, that remains their problem to struggle with. But it has relevance in the wording in the Marriage Act.

At the moment, there are words in the legal vows that cause offence to gay and lesbian people. I have now married arguably more couples from the LGBTI+ community than any other celebrant. My comments that follow are based on my discussions with those couples.

“Husband” and “wife” are gendered terms. Numbers of gay and lesbian couples I have married have been angry, upset, and offended at having to use either one of those words or the equally abhorrent “spouse”. It’s like having that square that people of colour have to place an X in alongside the other square labelled “white”. It’s abhorrent – and seen as the second-best consolation prize. It’s hetero-normative and it’s inappropriate.

When I have pointed out that those are the only choices available, they have asked me to register their disapproval of that terminology.    

When I have asked what terms they’d prefer, they are quick to respond with “committed life partner” or “life partner” or “partner”.

I understand that there is a view in AGD that the word “spouse” applies to a married couple and that “partner” applies to someone who is not married.

With respect, that view is held through a straight person’s filter. Try to imagine that you’re a member of a community whose country’s legal system has denied you the right to call each other husband or wife until a few months ago. Imagine, too, that your federal legal system required celebrants to state – in front of family and friends – that even though this day of your commitment ceremony was as special as you could get because you were denied the right to get married – that this ceremony was not a legal marriage ceremony. The federal legal system rubbed our noses in it, as well as those of our families and friends.

And now that the Marriage Act has been amended to refer to “two people” being able to get married, the terminology remains the same old, tired, out-of-date, offensive, gendered terminology.  

We members of the LGBTI+ community have been forced to use terms such as de facto or partner when endeavouring to define and explain our relationships. We have done that forever. We are comfortable using those terms. Many of us are also comfortable using the term “husband” or “wife”. But just as there needs to be an inclusive approach to describing our “sex”, as outlined above, there needs to be a more inclusive approach to the legal vows. Based on my discussions with the gay and lesbian couples I have married, I’d suggest “committed life partner” or “life partner” or “partner” be added to the other three options in the legal vows. There is no need to add any other words – it could just read “lawful wedded committed life partner” or “lawful wedded life partner” or “lawful wedded partner”.

Bronte Price is Amongst the Best Australian Marriage Celebrants for Offering Customisable Ceremonies to All

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Getting married is a lengthy and complicated procedure that requires not just extra care to make your special day truly unique, but requires legalities to be handled as well. This is where Australian marriage celebrants come into play: they take the technicalities off your hands and work with you to bring your dream wedding to life. What separates the services provided by Bronte Price is the willingness to work with the LGBTI community and to offer complete customisation with regards to the ceremony you wish to set up. Where other Australian marriage celebrants might limit those they service or the range of celebrations they can create, Bronte Price keeps a non-judgemental, open mind and allows his clients to forge a ceremony entirely to meet their specifications.

Marriages are occasions that need to be carefully tailored to each bride and groom. No two weddings are alike because no two couples are the same. Figuring out exactly what you desire for your special day is no simple task and can be made a lot easier with professional assistance. While still holding true to who you are, I work to flesh out your vision while managing the logistics and legal specifications of your wedding. In short, I hold your hand through the process of bringing your vision to reality. Unless you have managed several weddings before, it can be hard to anticipate how all of the moving parts need to come together before the special day arrives. That is why it is always important to seek out the best of Australian marriage celebrants.