There are various types of marriages that are legalised in Australia. For every type of marriage, there are several formal rulings which dictate how they are officially recognised.
Same-sex marriage in Australia and elsewhere
Same-sex couples and their children are entitled to receive the same level of protection under the law as heterosexual couples and their families in Australian law. Same-sex couples and their families are recognised and have the same entitlements as opposite-sex de facto couples when it comes to matters such as child support, workers compensation, veterans’ entitlements, health care and social security.
Same-sex marriages which have occurred overseas are also recognised in Australia – regardless of whether or not they took place before same-sex marriage was legalised in Australia.
Sharia regulates the legal relationships a lot of Australian Muslims enter into and out of, including marriage, divorce, inheritance and custody, as well as contractual and commercial dealings. Most Australian Muslims strongly prefer having legal questions answered and disputes settled by persons with Islamic credentials. This does not mean there is rejection of Australian laws, but rather a desire to conform with Sharia law when it is possible to do so.
The approach that is currently being taken is complying with both systems of laws (dual compliance). The Marriage Act 1961 (Cth) accommodates Islamic marriages by allowing marriages to be performed and registered by a Muslim marriage celebrant, without the need for a separate registering event or ceremony. However, Polygynist marriages remain problematic – being unlawful under section 94 of the Act.
Compliance with both systems is also possible with divorce. A husband and wife can serve out the 12-month period of separation both to have a valid divorce under Australian Family law on the grounds of irretrievable breakdown of marriage and also comply with the extra-judicial form of divorce, known as talaq in Islamic law. A husband can pronounce talaq, and if all the legal requirements are met, the marriage is terminated – although there is a three-month reconciliation period.
However, compliance with both systems can be problematic for wives. A wife does not have the same extra-judicial divorce option. If her husband does not agree to pronounce talaq, she must find someone with authority to hear her case and grant her an Islamic divorce. Islamic law does provide divorce options for wives, but each requires a third party to make the determination. In Muslim countries, this role is fulfilled by Sharia courts, but in Australia there is no judicial equivalent. Since a divorce decree from the Family Court lacks any Islamic currency, it can mean that in the eyes of her community, she is not really divorced from her husband. Muslim women have to find a Muslim organisation or person with Islamic credentials to hear her case and make a determination since there is an absence of an established Sharia court, tribunal or body in Australia.
Legal definition of marriage
The 2017 amendment of the Marriage Act 961 defines marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.”
Formalities of marriage in Australia
To get married in Australia, you must:
- 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 1 person is 16-18 years old
- not be married
- use specific words during the ceremony
- understand what marriage means and freely agree to marry
- give a notice of intended marriage form to an authorised marriage celebrant at least 1 month and no more than 18 months before your wedding
- be married by an authorised marriage celebrant
You do not have to be:
- an Australian citizen; or
- a permanent resident of Australia
If you want to live in Australia after your marriage and you are not an Australian citizen or permanent resident of Australia, you should look into getting a visa.