LAWS5121 Legislation Notes

Jurisdiction

  • s 51 Constitution

(xxi) marriage;
(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

  • s 31(1)(a) Family Law Act
    • Jurisdiction in Matrimonial causes
  • s 31(1)(b) Family Law Act
    • Jurisdiction for causes under Marriage Act
  • s31(1)(d)
    • Jurisdiction for other Commonwealth legislation

Marriage

  • Jurisdictional nexus
    • s 39(3) divorce proceedings: either party in divorce proceedings Australian, domiciled in Australia or ordinary resident and have been so resident for 12 months preceding that date.
    • s 39(4)(a) declaration of validity: proceedings under para (b) of definition of matrimonial cause
    • s 39(4)(a) proceedings between parties to marriage (e.g. property, maintenance, nullity, etc) proceedings in other matrimonial causes except definition matrimonial cause (f)
    • s 39(4)(b) proceedings not between parties to the marriage (e.g. nullity, enforcement of property order against estate of deceased party to marriage): any party to proceedings must be Aust citizen or ordinarily resident in Aust, or present in Aust.
  • Validity
    • s 5 Marriage Act: union of a man and a woman to the exclusion of all others, voluntarily entered into for life. See Hyde v Hyde – Utah, possible polygamist marriage.
    • s 51 FLA – if marriage is not valid, decree of nullity possible. Sole ground for nullity, marriage void s23 & s23B Marriage Act.
    • Formal validity – requirements of ceremony, etc.
    • Essential validity – capacity to marry, consent, age, etc.
    • Formal validity:
      • s 23(1)(c) – form requirements
      • s 41-48 Marriage Act.
  • s 41 requirement for authorised celebrant to be present or solemnized
  • s 42 requirement for notice, certificates, declarations, etc
  • s 43 marriages can occur at any time at any place
  • s 44 two adult witnesses
  • s 45(1) no requirement of form for registered minister of religion
  • s 45(2) form requirement if minister of religion not involved
  • s 47 religious ministers not forced to perform marriages
  • s 48(2) saves marriage from invalidity if form requirements not met, exceptions to this….
  • s 48(2)(f) failure to comply with marriageable age (s13 MA) requirement
  • s 48(3) saves from invalidity where one party believes celebrant was authorised (when not authorised)
    • Essential validity:
      • s 23(1)(a); s 23B(1)(a) – both parties must be free to marry
      • s 23(1)(b); s 23B(1)(b) – parties not be within prohibited degree of relationship
      • s 23(1)(d); s 23B(1)(d) – consent requirements
        • Duress
        • Fraud
        • Mistake
        • Mental incapacity
      • s 23(1)(e); s 23B(1)(e) – marriageable age
  • s 11 MA 18 yrs old
  • s 12 MA reduction of marriageable age (for one party to marriage ONLY)
  • s 15 MA alternative where impracticable for minor to seek consent
  • s 16 MA where relevant person refuses consent, magistrate/judge can consent

Divorce

  • s 4 FLA: termination of marriage otherwise than by the death of a party to the marriage
  • Jurisdiction
    • s 4(1)(a)(i), s 44(1A), s 39(3)
    • Short marriage requirement for counselling, s 44(1B), s 44(1C).
    • Also s 98A(1) divorce requested by 1 pty to marriage and no defence from respondent, court can determine.
  • s 48(1) Ground – irretrievable breakdown
  • s 48(2) Establishment of Ground – year and a day separation; Bozinovic: time test is to be a year and a day
    • Separately and apart
    • Mental and physical element
      • Intention to separate
      • Actual separation
      • See cases in learning guide.
  • s 41(3) Likelihood of resumption of cohabitation
    • Consortium vitae breakdown
      • See cases in learning guide

Nullity

  • Application for decree of nullity, s 4 FLA. Marriage must be void, s 51 FLA. What’s a void marriage: s 23, s 23B MA.
  • If divorce and nullity application, nullity to be determined first s 52 FLA.