MARRIAGE AND DE FACTO RELATIONSHIPS TOPIC 2 MARRIAGE AND DE FACTO RELATIONSHIPS Family Law Topic 2

formation/legal requirements of marriage (de jure relationship) In Topic 2 we will cover two related areas: formation/legal requirements of marriage (de jure relationship) formation/legal requirements of a de facto relationship relevant State (NSW) legislation and under the FLA in referring States Family Law Topic 2

(1) FORMATION OF MARRIAGE (a) Historical Requirements Hyde v Hyde [1866] per: Lord Penzance: 1. a monogamous union 2. a union between a man and a woman 3. a union for life 4. a voluntary union See: ss 5 , 46(1) Marriage Act/s43(a) FLA 2 Family Law Topic 2

Modern day prohibitions on: polygamy marrying close (blood) relatives forced marriages same-gender marriages 3 Family Law Topic 2

(b) Solemnization of Marriages in Australia Marriage Act (Part IV Division 2) authorised celebrant: s 41 notification/identity: s 42 marry any time and place: s 43 ceremony - two witnesses: s 44 form of ceremony: s 45 civil celebrant rules: ss 45, 46 minimum age: s 11 judicial consent: s 12 (ss 13-21) 4 Family Law Topic 2

(c) Solemnization of Australian Marriages Overseas Part V Historically our embassies could assist Now only extends to our defence force chaplains 5 Family Law Topic 2

(d) Recognition of Foreign Marriages common law: lex loci celebrationis/mutual religious exchange of vows now see Part VA distinguish between Australian and foreign nationals 5 Family Law Topic 2

2. DE FACTO RELATIONSHIPS Property (Relationships) Act 1984 (NSW) commenced 1 July 1985 significantly amended on 28 June 1999 by the Property (Relationships) Legislation Amendment Act 1999 to include same sex couples Act now distinguishes de facto relationships from domestic relationships But now all States except WA have referred their powers over de facto financial matters to the Cth, so also have to look at FLA 6 Family Law Topic 2

The PRA is divided into 6 parts: Part I: Preliminary Part II: Jurisdiction Part III: Proceedings for financial adjustment Part IV: Agreements Part V: Domestic violence and harassment Part VI: Miscellaneous 7 Family Law Topic 2

Section 4(1) is the definition section 3 essential elements: must be 2 adults the parties must not be married to one another nor related by family (see s 5A) ‘lived together like a couple’ 8 Family Law Topic 2

Powell J’s ‘Top 10’ D v McA (1986) but now see s 4(2) PRA 1. duration 2. common residence 3. sexual relationship 4. financial dependence 5. property 6. procreation of children 7. care and support of children 8. performance of household duties 9. degree of mutual commitment and support 10. reputation and ‘public’ aspects of the relationship 9 Family Law Topic 2

DE FACTO RELATIONSHIPS Federal legislation Commonwealth Powers (De Facto Relationships Act 2003 (NSW) came into effect for de facto Vic, Qld, SA and Tas have also ‘referred’ WA has not referred Commonwealth will use its powers for NT and ACT Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 So must also consider relevant de facto provisions in FLA for the referring States. 9 Family Law Topic 2