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Marriage and de facto relationships

Marriage and de facto relationships. marriage. Refer Hyde v Hyde (1866) – voluntary union for life of one man and one woman, to the exclusion of all others – confined marriage to unions between persons of the opposite sex

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Marriage and de facto relationships

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  1. Marriage and de facto relationships

  2. marriage • Refer Hyde v Hyde (1866) – voluntary union for life of one man and one woman, to the exclusion of all others – confined marriage to unions between persons of the opposite sex • now see Marriage Act 1961 (Cth): s 5 definition of "marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life. This definition was inserted into the Marriage Act in 2004 and was designed to put this beyond any doubt. • recognition of foreign marriages: Part V Marriage Act1961, s 88C, s88EA

  3. formalities of marriages in Australia: Marriage Act1961. • s 41: requirement of an authorised marriage celebrant (church, registry office, authorised civil celebrant) • s 42: notification requirement (one month) and proof of identity • s 43: a marriage may be solemnized "on any day, at any time and at any place" • s 44: witness requirement • s 45: form of ceremony/requirement of a marriage certificate - religious ceremonies may proceed in any form provided there is proof of the marriage (with a marriage certificate) but civil celebrants must use the prescribed wording

  4. formalities of marriages in Australia: Marriage Act1961. • Also note some key sections in Part II regarding marriageable age: • s 11: marriageable age: the age is .... • s 12: judicial power to authorise a marriage where one party is under age • s 13: parental consent • also note ss 14-21

  5. validity of marriage: s 113 • Ex Parte Willis [1997] FLC 92-725 (PP) • W v T [1998] FLC 92-808 authorised celebrant was present • In Re Kevin (Validity of Marriage of Transsexual) [2001] FLC 93-087 (PP) • Attorney-General for the Commonwealth and “Kevin” and “Jennifer” and the Human Rights and Equal Opportunities Commission [2003] FLC 93-127 (PP) • the Full Court of Family Court of Australia has interpreted such a definition to include a person registered as a female at birth who subsequently became a male transsexual by a medical operation so as to be capable of marrying as a male

  6. De facto relationships s 4AA meaning • (1)  A person is in a de facto relationship with another person if: •    (a)  the persons are not legally married to each other; and • (b)  the persons are not related by family (see subsection (6)); and •    (c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. • Paragraph (c) has effect subject to subsection (5). • Working out if persons have a relationship as a couple •    (2)  Those circumstances may include any or all of the following: • (a)  the duration of the relationship; •   (b)  the nature and extent of their common residence; •   (c)  whether a sexual relationship exists; •   (d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

  7.  (e)  the ownership, use and acquisition of their property; • (f)  the degree of mutual commitment to a shared life; • (g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; • (h)  the care and support of children; • (i)  the reputation and public aspects of the relationship. • (3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. • (4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

  8. (5)  For the purposes of this Act: • (a)  a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and • (b)  a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. • When 2 persons are related by family • (6)  For the purposes of subsection (1), 2 persons are related by family if: • (a)  one is the child (including an adoptedchild) of the other; or • (b)  one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or • (c)  they have a parent in common (who may be an adoptive parent of either or both of them). • For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

  9. Declarations: s 90RD Family Law Act 1975 (Cth) • Roy v Sturgeon [1986] 11 Fam LR 271 • Delany v Burgess [2007] NSWCA 360

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