When are you actually legally married?

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by Jennifer Cram (08/02/2019) |  Categories: | Wedding Ceremony | Wedding Legals |
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                      - When are you actually legally married?There are many incorrect assumptions about when in the sequence of the ceremony, the signing, and the registration of their marriage a couple is actually legally married.  You can't be blamed for this because, in Australia, we are continually fed a diet of weddings in movies and TV programs made in other countries, together with information in multiple overseas websites, where the legal situation is different.

The most common misunderstanding (thank you, US movies, TV and websites) is that you are not married until the celebrant has pronounced you married (Husband and Wife, Wife and Wife, or Husband and Husband). The Australian Government does not vest any power in a celebrant to pronounce you married! So saying those words would be misleading. Instead, most celebrants will just declare (or pronounce) that you are married, without reference to Government. It's tradition, and a nice climax to the ceremony, leading in to the final punctuating moment, the kiss.

Occasionally, people share with me their belief that you have to have rings to be legally married - which would suggest that the point at which you marriage becomes legal is the ring exchange. Isn't is fascinating how long the folk-memory of Victorian melodramas where eloping couples resorted to using a brass curtain ring, has persisted. Yes, at one time the Church of England did require that the bride receive a ring, but it was never a legal requirement.

Every now and then, someone indicates their belief that it is the signing of the Marriage Register Review of Jennifer Cram, Brisbane Marriage
                      Celebrantand Certificates that puts the legal seal on the marriage. Nope. What that is is creation of documentary evidence that the marriage has already taken place.

And then there is the belief that a couple isn't married until the marriage has been registered. I've had a couple of situations where, soon after the wedding, one of the parties who were married has contacted me and asked me not to send in the marriage papers to register their marriage, because they'd changed their minds. I've had to explain that I have a statutory obligation to register their marriage.

When are you legally married?

In Australia, in a very real sense, the couple marries themselves. So, when each of you has said the mandatory legal words (in front of your celebrant and two witnesses) you are legally married.

I call upon the persons here present, to witness that I __________________,
take you, _______________________
to be my lawful wedding wife/husband/spouse/partner in marriage


NB you can say "I ask everyone here"
and it is your choice as to whether you say wife/husband OR spouse OR partner in marriage

What about Annulment?

The press from other countries would suggest that it is quite easy to get a marriage annulled. That is not the case in Australia, where the only grounds for annulment are that the marriage was void in the first place.

When is an Australian Marriage Void?

In Australia, a void marriage is regarded for all legal purposes as no marriage at all, in other words, legally it was deemed never to have happened because
  • The marriage was illegal because
    • one or both parties were underage at the time of the marriage (you have to be 18 to legally marry without court and parental permission)
    • the parties were in a prohibited relationship (that is, they are siblings, or parents, grandparents, children, grandchildren etc of one another - either by blood or adoption)
    • one or both parties were forced or tricked into the marriage
    • one or both parties were not mentally competent enough to understand that they were getting married or what marriage is (for example, suffering from dementia or intellectually challenged)
    • one or both parties where already legally married to someone else (bigamy)
  • The marriage was not properly solemnised or the parties did not comply with the requirements of the Marriage Act.
When is an Australian Marriage Voidable?
A voidable marriage is considered a valid marriage until it was annulled by a court. But not in Australia, where you can only get a decree of nullity (i.e. have the marriage annulled),  if the marriage is void.  Australia is unusual in that non-consummation of the marriage does not open the door to having it annulled. Our lawmakers very wisely decided that, as it was impossible to be 100% sure that consummation of a marriage was consensual, consummation is not required. So, if your marriage was a legal marriage, annulment is not an option. If you've changed your mind the only course is a legal divorce.