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Why Is It Important For To Establish That The Proposed Marriage Is Valid?

This very question is covered in section 8.1  of the Guidelines for Marriage Celebrants.

A valid marriage changes the legal status of the parties to the marriage.

This has potentially far-reaching implications for the parties which include:

  • official identity documentation –
    • a married person can obtain official identity documentation, such as an Australian passport, in their married name (subject to the Australian Passport Office rules)
  • financial arrangements –
    • provisions in the Family Law Act 1975 (Cth) regulate how the married couple’s financial arrangements will be determined should they separate
  • inheritance of property –
    • marriage invalidates any will made by either party to the marriage prior to the marriage (unless the will is made in contemplation of the particular marriage).
    • Also, dissolution of marriage may revoke, or otherwise affect the operation of, the will of a party.

An authorised celebrant must be satisfied that a proposed marriage will be valid at all times prior to the conclusion of the marriage ceremony.

WHAT ARE THE CONSEQUENCES FOR THE AUTHORISED CELEBRANT AND THE COUPLE IF THE MARRIAGE IS NOT VALID OR IF THE AUTHORISED CELEBRANT BELIEVES IT MAY NOT BE VALID?

The authorised celebrant may have committed an offence.

  • Under section 100 of the Marriage Act it is an offence for a person to solemnise a marriage or purport to solemnise a marriage if he or she has reason to believe there is a legal impediment to the marriage or it would be void. (For further details on the offence in the Marriage Act please refer to Part 11 of the Guidelines. )
  • The Registrar of Marriage Celebrants may also take disciplinary measures against a Commonwealth-registered marriage celebrant. (See Section 39 of the Marriage Act)
  • One of the negative consequences for the couple may be that they have to apply to the Family Court for a declaration as to the validity of their marriage.
  • They may also have to go through a second marriage ceremony under section 113 of the Marriage Act 1961 (Cth) (see Part 10 of the Guidelines).
  • A valid marriage usually invalidates any existing will.
  • The position of each member of the couple and members of their families may be considerably affected if a marriage is not valid.

Each of these processes can be stressful, expensive and difficult for the couple (not to mention the Celebrant).

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