LECTURE 2

MODERN MARRIAGE RULES

Now
License 1 month and a day notice
Conducted private/public
Parties >18 yrs
2 witnesses and register cert with BDM

Lord Hartwickes Act

Banns or license time delay and public
forewarning.
Public in church daylight, doors open
Parties >21 yrs
2 witnesses and recorded on parish register

HETERO NATURE OF MARRIAGE

Marriage:

union of a man and a woman to the exclusion of all others, voluntarily entered into for life: s5
Marriage Act 1961
o Inserted by Marriage Amendment Act 2004 (concern re overseas ss marriages being recog in
Aus).
Same definition in s43 FLA.

Same Sex Marriage:

Recog in some juris:

o Mid 2008: Belgium, Canada, Netherlands, Norway, South Africa, Spain, Massachusetts and
Connecticut (USA).
Recog as civil partnerships: esp in Europe. This is in ACT as Civil Partnerships Act 2008 (ACT)
Goodridge v DPP (2003)
ISSUE: whether it is against constitution to deny marriage to ss couples.
Majority:
Individual autonomy (equality is guiding principle)
History of marriage doesnt stop the constitutional issue
Modern marriage is CIVIL institution
Without choice to marry and WHO to marry individual denied full protection of law
Analogy to interracial marriage
Doesnt diminish marriage enhances it as not binary and exclusive
Marriage has already survived many changes
Denial of marriage lead to real hardship
Dissent:
SPINA:
o Marriage doesnt discriminate anyone can marry.
o No INTENTIONAL discrimination as in interracial marriage
o Power to regulate marriage is matter for LEGIS.
SOSMAN:
o Ct assume Parl has good judgment and defers to it
o No proof that same-sex families are equally as good as het, yet thus, Parl has right to entitle
het families with benefits.
CORDY:
o Marriage is regulator of het rel ensure legal/normative link between intercourse and family
responsibility (ensure father/child link)
o Marital family is best place to socialize/care for children.
o No proof that same-sex families dont harm children.
o Same-sex will increase children born into same-sex families.

o Marriage is sig organizing principle of society.

Opinions of the Justices to the Senate, Supreme Judicial Court of Massachusetts
ISSUE: civil union vs civil marriage.
Majority:
Separate is rarely equal (separate for a reason)
Not a semantic difference deliberate choice to relegate to 2nd status.
Dissent:
Squabble over names trivial and no issue of equality (rights are same).
Diff in Fed/State rules necessary to have different name.
Minister for Home Affairs v Fovie:
HELD: diff is not always discrimination but when separation implied repudiation, connotes distaste or
inferiority and perpetuates a caste-like status that it becomes unconstitutionally valid.
Civil Union different from Marriage:
UK union only open to ss. NZ/ACT open to all couples.
UK identical except terminology and no req to consummate marriage.
ACT: no ceremony to effect, no grounds for termination (just written notice by 1 party and 12 months
pass).
ACT: can term CU through another marriage (reflecting pref of marriage over CU).

Transexual Marriages Sex requirements of marriage?

Corbett v Corbett (Otherwise Ashley):
Test of sex is:
o Chromosomes
o Gonads
o Genitals
LAW: Sex is assessed and fixed AT BIRTH.
A-G for Cth v Kevin and Jennifer [2003]
FACT: K transgender (orig. woman). New birth cert issue. But AG refuse marriage invalid as K is
woman, thus, lesbian rel.
ISSUE: K woman or man?
HELD: K man.
o REJECT Corbett relevant time to assess sex is time of MARRIAGE.
o Also took into account other medical/social factors:
K perceived by others (family, friends, colleagues) as male
K perceived himself as male
Full process of surgical reassignment
Pain/suffering of change
K was man for social/legal purposes
K perceived by others to have male characteristics from brith
K accepted as man into IVF program
Marriage as man accepted by family etc.
SIG: major trigger for the Marriage Amendment Act 2004 (Cth)
o MAA 2004: insert man and a woman into Marriage Act 1961
o Canada have open same sex marriage (no residency req)
o Aus couples get married in Canada and come back to Aus to be recognized.
o Ironically, didnt affect transgender marriages.

NULLITY

Def: decree in law there marriage never exist (never valid in first place): In Marriage of Kapadia
[1991]

o Versus: decree of dissolution bring lawful marriage to end

o s51 FLA: An application under this Act for a decree of nullity of marriage shall be based on the
ground that the marriage is void.
Reasons: s23 and 23B(1) Marriage Act (Cth) 1961:
(a) either of the parties is, at the time of the marriage, lawfully married to some other person; bigamous also a Fed crime: s94 MA
(b) the parties are within a prohibited relationship; - incestuous
(c) by reason of section 48 the marriage is not a valid marriage; - fail formality
(d) the consent of either of the parties is not a real consent because:
(i)
it was obtained by duress or fraud;
(ii)
that party is mistaken as to the identity of the other party or as to the nature of the
ceremony performed; or
(iii)
that party is mentally incapable of understanding the nature and effect of the
marriage ceremony; or
(e) either of the parties is not of marriageable age;
and not otherwise.
Consequences: entitled to SAME relief (spousal maintenance and alteration of prop rights) as if
married: s71, 4(2) FLA.
Lengyel v Rasad (No 2) [1990]
o SIG: difference between void marriage and de facto.
o Void marriage recognisable ceremony of marriage BUT fails legally
o DF go to beach in moonlight, pledge eternal troth NOT recog cremeony of marriage.

Fail formality s48

o Many exceptions
o Irregularity of giving notice/declaration not void
o Absence of witnesses not void
o Unauthorised celebrant not void if parties believe he was authorised
In Marriage of Rewal [1991]
o FACT: Priest 1 not authorised. Got 2nd priest rings exchanged, docs signed. But no vows (thought
Priest had already done it).
o HELD: VOID parties knew Priest 1 (who did vows) was unauthorised.

Duress
o Issue: level of coercion to vitiate consent.
Scott (falsely called Sebright) v Sebright (1886):
o HELD: no consent if in such a state of mental incompetence that they are unable to resist pressure
improperly brought to bear.
o Mental incompetence natural weakness of intellect, fear (even if no reason to be afraid).
Cooper (falsely called Crane) v Crane [1891]
o FACT: M arrange ceremony in church. Deceive woman to go there. Then threaten to suicide if she
didnt marry. W knew he usually carry revolver.
o HELD: not duress insufficient. Apply Scott strictly.
Szechter v Szechter [1971]
o HELD: coercion must be product of immediate danger to life, limb or liberty.
o SIG: stricter test than Scott.

DIVORCE

Prev: fault based (eg. adultery had sig influence on child custody)
1975: removed all fault based grounds for divorce no fault
Now: Requirements:
o Aus citizen, or be resident of NSW for 1 yr (some connection to NSW): s39(3)
Diff from other marriage actions (no time req for residency): s39(4)

o Irreconcilable differences: s48

o Evidenced by 12 months of separation (not nec physical)
Can be in same house and separated
o May be without the consent of other party.

Filing an application for divorce:

o Proceedings instituted at date of application.
o Can be instituted by either or both parties: s44(1A).
Do parties need to be present?
o Parties do not need to be present at proceedings:
o Request served on Respondent at least 28 days before hearing and no children <18.
o If joint application and no children <18 divorce by post
When Divorce comes into effect?
o Divorce order takes effect 1 MONTH after Divorce Order: s55
o Divorce order (with children) s55A takes effect ON day Order made: s55
o Period can be reduced: s55(2)
o Can be rescinded if reconciliation: s57 or miscarriage of justice: s58.
o Cannot remarry until Divorce Order takes effect: s59
Sparnoss:
FACT: H lived with other woman (preg). But still sexual rel with wife. W argue not separated.
HELD: separated sex is not determinative!
o Objective test: circ show that rel was over. H shared life with other woman.

Arrangements for childrens welfare s55A

Divorce order where children s55A FLA
(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared
that it is satisfied:
(a) that there are no children of the marriage who have not attained 18 years of age; or
(b) that the only children of the marriage who have not attained 18 years of age are the children
specified in the order and that:
(i) proper arrangements in all the circumstances have been made for the care, welfare
and development of those children; or
(ii) there are circumstances by reason of which the divorce order should take effect even
though the court is not satisfied that such arrangements have been made.
(2) Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the
arrangements made for the care, welfare and development of a child of the marriage are proper in all
the circumstances, the court may adjourn the proceedings until a report has been obtained from a
family consultant regarding those arrangements.
(3) For the purposes of this section, a child (including an ex-nuptial child of either the husband or the wife,
a child adopted by either of them or a child who is not a child of either of them) is a child of the
marriage if the child was treated by the husband and wife as a child of their family at the relevant time.
(4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the
husband and wife separated or, if they have separated on more than one occasion, the time immediately
before the time when they last separated before the institution of the proceedings in which the divorce
order was made.

Refusal to grant Divorce Order s55A:

Rarely occurs.
In Marriage of Evans [1990]: divorce refused amount of child support H agree to pay too low.
Maunder v Maunder (1999):
FACT: Married 2 children, lived in Brunei. Separate, W move back to Aus with children. $750/month
for child maintenance. $15K of joint savings. H divorce: children lived with W and saw children 2/yr.
W oppose application has own applications:

o 70% of common prop

o Stop H from leaving Aus until sure he will pay support
o Interim: pay $800/week for wife maintenance, $700/week for children, private health insurance
for wife/kids, indemnify for medical insurer gaps, pay for reasonable extracurriculars of kids.
o Pay wife for permanent maintenance as Ct decides just
HEARING: divorce granted DESPITE Ct not satisfied re s55A.
o Reason: shouldnt hold divorce order as ransom, whilst other issues still debated.
APPEAL: what were the CIRCUMSTANCES (exceptions) which let them grant s55A divorce anyway?
o Hs submissions:
(a) Short period of marriage
(b) Period of separation (2+ years)
(c) Distance of H and Ws residencies
(d) Clear indication that marriage broken and no hope of reconciliation
(e) Hs voluntary payments of maintenance
(f) Existence of applications for maintenance/prop settlement etc.
(g) Absence of any attempt (pre divorce application) to get more money.
o BUT NONE of these make circumstances to overlook children.
Purpose of s55A is to protect children balance right of parents v best circumstances for
children.
F and G may be bcos H was overseas
A and C not sufficient.

Requirement of Separation:
Divorce s48 FLA
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground
that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to
have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the
parties separated and thereafter lived separately and apart for a continuous period of not less than 12
months immediately preceding the date of the filing of the application for the divorce order.
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of
cohabitation being resumed.
separated and thereafter lived separately and apart
May be so EVEN IF still reside in same residence or render household service to each other: s49(2)
Physical separation not necessary or sufficient.
o Couples may live physically separately for various reasons eg. hospital, jail, abroad: Price and
Underwood [2008]
o Means a departure from a state of things rather than from a particular place: In Marriage of
Falk [1977]
o Means more than physical separation it involves the destruction of the marital relationship:
In Marriage of Todd (No 2) [1976], now breakdown of In Marriage of Pavey [1976]
If FAIL must file application AGAIN (cant just amend to later date, even if 12 mths passed by time
of hearing): In Marriage of Whiteoak [1980]
In Marriage of Pavey [1976]
FACT: H affair. H sleep in lounge. W sleep in matri bed with lock. H force into bed and rape W. H then
sleep in matri bed. W sleep in lounge. W get $30/wk maintenance Ct order. Separate social lives. W
sometimes cooked for H (convenience) but ate separately. W did Hs washing/ironing. Didnt speak,
only communicate thru their adult sons.
TRIAL: divorce denied period of separation FAIL.
APPEAL: divorce given.
o Approved In Marriage of Todd (No 2) [1976]
Breakdown of marital relationship not destruction (fault based)

Only where 1 or both form intention to sever and not resume NOT where separate in
hope of reconciliation etc.
What compromises each marriage will vary NO single test, so look at the rel and not
what the rel SHOULD be.
Todd: may be living together, sex, mutual society and protection, recognition of
marriage by both spouses in public/private rels.
Pavey: added nuture and support of the children.
Contrast state of rel before and after alleged separation.
o Approach: if in same residence
Unlikely that marriage broken.
Evidence must be MORE than inexact proofs, indefinite testimony and indirect
inferences (usually req witnesses).
Must explain WHY continue to share residence and that there has been a change in their
relationship.
o Pavey: W got Ct order for maintenance evidence that H fail duty to wife (mutual society and
protection) sustained only by Ct order.
In Marriage of Caretti [1977]
FACT: Italian marriage deteriorate agree to pay W to move out (give matri home to H). Didnt move
out. Bought prop. H threaten proceedings. No proceedings. Thus, separate finances and prop. Still
sleeping in same bed (no sex).
ISSUE: same bed for past 18 months 12 mths separation
o Slept back to back, no physical contact, no discussion.
o H moved into spare room. But moved back cold and want to force W to move out.
o Worried about what others think in Italian community (but ppl had stopped visiting house).
HELD: not separated even thou marriage irreconciliable.
o Considered culture (Italian community) BUT regardless M who say separately but then
returns to her in marital bed own risk.

Requirement of Communication:

Need to communicate separation (if not mutual).

In Marriage of Falk [1977]
HELD:
o Where only 1 party form attitude/intention to separate must communicate to other party
either directly or indirectly = CANNOT claim secret intention.
o May be continued hostility, contempt, disregard for other party.
o May be thinly disguised disregard or withdrawal.
o May still perform some services (convenience/civil) but doesnt obscure fact rel is over.
In Marriage of Lane (No 1) [1976]:
FACT: Different beds for 2yrs, no communication. H withdraw and intend to divorce. But no courage
to unequivocally say to her until later (afraid she wouldnt accept etc).
HELD: not separated insufficient!
o Did not do ultimate severance thru unequivocal conduct or direct communication re his
intention.
o LAW: where same residence and 1 party intends to end must carry that intention our
OVERTLY, UNEQUIVOCALLY and SPECIFICALLY.
o Rationale: shouldnt allow spouse to enjoy marital cohabitation, divorcing when it suits them.
In Marriage of Tye [1976]
CF HELD: unilateral intention to divorce (not comm to spouse) may be effective if already
physically separated.
Price and Underwood [2008]
FACT: H and W live separately for many years (while in marital rel).
HELD: need communication of intention approve In Marriage of Lane (No 1).

Resumption of cohabitation:
Effect of resumption of cohabitation s50
1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated,
they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of
cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of
the application, the periods of living separately and apart before and after the period of cohabitation
may be aggregated as if they were one continuous period, but the period of cohabitation shall not be
deemed to be part of the period of living separately and apart.
2) For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during
any interruption of the cohabitation that, in the opinion of the court, was not substantial.
MEANS: if there is ONE period of <3mths resumption of cohabitation the separations before/after
can be joined together to form the 12mth period.