What Are The Grounds On Which A Marriage May Be Invalid in Australia?

Subsection 23B(1) of the Marriage Act sets out the grounds on which a marriage may be invalid.

They are:

1/           either of the parties is, at the time of the marriage, lawfully married to some other person

o       A marriage is void where either of the parties is, at the time of the marriage, lawfully married to another person (paragraph 23B(1)(a) of the Marriage Act).

2/           the parties are within a prohibited relationship

o A marriage is void where the parties are within a prohibited relationship (paragraph 23B(1)(b) of the Marriage Act).

o Prohibited relationships are marriages:

• between a person and an ancestor or descendant
• an ancestor is someone from whom a person is descended (parent or grandparent)
• a descendant is someone descended from the person (child/grandchild), or
• between a person and their brother or sister (whether whole or half-blood).

3/           by reason of section 48 of the Marriage Act the marriage is not valid

O      Under section 48 of the Marriage Act a marriage solemnised otherwise than in accordance with sections 40-47 is not a valid marriage. A marriage may be invalid where:

o       the vows do not comply with section 45 of the Marriage Act, or

o       there is doubt that the marriage ceremony took place.

4/           the consent of either of the parties is not a real consent because it was obtained by duress or fraud, a party was mistaken as to the identity of the other party or as to the nature of the ceremony performed or that party is mentally incapable of understanding the nature and effect of the marriage ceremony,

o       Under section 23B of the Marriage Act a person’s consent to a marriage is not real if:

• the consent is obtained by duress or fraud
• one of the parties is mistaken as to:
  • the identity of the other party, or
  • the nature of the ceremony performed, or
• a party is mentally incapable of understanding the nature and effect of the marriage ceremony.
• A determination of whether any of these grounds have rendered a marriage void is a matter for the Family Court.

5/            Either of the parties is not of marriageable age.

o       The marriageable age in Australia is 18 years for both males and females. (Section 11 of the Marriage Act) A person under the age of 16 cannot marry under any circumstances. Two people under the age of 18 cannot marry under any circumstances.

O      It is an offence for a person to solemnise, or purport to solemnise, a marriage if the person has reason to believe that one or both of the parties are not of marriageable age. The authorised celebrant must therefore carefully check the age of both parties from their birth certificates or extracts. It is also an offence for a person to go through a form of ceremony of marriage with a person who is not of marriageable age. (Section 95 of the Marriage Act)

O      For further information on offences, please refer to Part 11 of the Guidelines.

o       Where one of the parties to a marriage is not of marriageable age, the marriage is void unless the required orders and consents have been obtained

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When an authorised celebrant is approached by a couple to solemnise a marriage, the authorised celebrant must satisfy themselves that the marriage is not invalid by reason of any of the above grounds.

Each ground is further explored in detail in pages 92-103 of the Guidelines on the Marriage Act 1961 for Marriage Celebrants – July 2014