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’.
‘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’.