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

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

3. (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

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

5. (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

6. (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

7. (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

8. 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

9. 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

10. 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

11. 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

12. 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