MARRIAGE (OVERSEAS).

No. 31 of 1955.

An Act relating to marriages of Australian Citizens, and marriages of members of the Defence Force, outside Australia.

[Assented to 16th June, 1955.]

BE it enacted by the Queen’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Part I.—Preliminary.

Short title.

1. This Act may be cited as the Marriage (Overseas) Act 1955.

Commencement

2.—(1.) Part I. of this Act shall come into operation on the day on which this Act receives the Royal Assent.

(2.) The remaining Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.

Parts.

3. This Act is divided into Parts, as follows:—

Part I.—Preliminary (Sections 1-8).

Part II.—Marriages by or before Marriage Officers (Sections 9-13).

Part III.—Marriages by Chaplains (Sections 14-16).

Part IV.—Provisions applicable to all Marriages under this Act (Sections 17-24).

Part V.—Miscellaneous (Sections 25-34).

Definitions.

4. In this Act, unless the contrary intention appears—

“ambassador” includes Minister, head of mission and charge d’affaires;

“Australia” includes the Territories to which this Act extends; “chaplain” means a minister of religion who, at the time material for the purposes of this Act—

(a) is or was authorized by or under the law of a State or Territory of the Commonwealth to celebrate marriages in that State or Territory; and

(b) is or was a member of the Defence Force;

“consul” includes consul-general, vice-consul, pro-consul and consular agent;

“marriage officer” means a person appointed under section seven of this Act as a marriage officer;

“official house”, in relation to a marriage officer, means—

(a) the official house of residence of the officer;

(b) an office in which the business of the officer is transacted; or

and, in the case of a marriage officer serving on the staff of an ambassador, includes—

(d) the official house of residence of the ambassador; and

(e) an office in which the business of the ambassador is transacted;

“overseas country” means a country or place other than a part of the Queen’s dominions, and includes a ship which is for the time being in the territorial waters of such a country or place;

“the Queen’s dominions” includes a British protectorate and a British protected State;

“the Register” means the Register of Overseas Marriages referred to in sub-section (1.) of section eight of this Act;

“the Registrar” means the Registrar of Overseas Marriages appointed under sub-section (1.) of section six of this Act.

Application of Act.

5. This Act applies both within and outside the Commonwealth and extends to all the Territories of the Commonwealth.

Registrar of Overseas Marriages.

6.—(1.) For the purposes of this Act, there shall be a Registrar of Overseas Marriages, who shall be appointed by the Attorney-General.

(2.) The Registrar shall have a seal, which shall be in such form as the Attorney-General determines.

(3.) The Attorney-General may appoint a person to be Deputy Registrar of Overseas Marriages and, in the event of the absence, through illness or otherwise, of the Registrar, or of a vacancy in the office of Registrar, the Deputy Registrar of Overseas Marriages has all the powers, and shall perform all the duties and functions, of the Registrar during the absence or vacancy.

Appointment of marriage officers.

7. The Attorney-General may, by writing under his hand, appoint as a marriage officer—

(a) a person appointed to hold or act in any of the following offices (being an office of the Commonwealth) in an overseas country:—

(i) ambassador;

(ii) high commissioner;

(iii) counsellor or secretary at an embassy, high commissioner’s office, legation or other post; and

(iv) consul; and

(b) any other person qualified under the regulations to be appointed as a marriage officer.

8.—(1.) The Registrar shall keep a register, to be called the Register of Overseas Marriages, in such form as the Attorney-General directs.

(2.) The Registrar shall register in the Register all marriages which by this Act he is required to register.

(3.) The Registrar shall keep an index of the entries in the Register

(4.) The regulations may provide for the correction of an error, omission or mis-statement in particulars of a marriage entered in the Register.

(5.) A person may, upon payment of the prescribed fee and upon satisfying the Registrar that his reasons for so doing are not improper, cause a search to be made for an entry in the Register and receive a copy of the entry, or an extract of the entry, certified by the Registrar, under his hand and seal, to be a copy of the entry or an extract of the entry, as the case may be.

(6.) A copy of an entry in the Register certified in accordance with the last preceding sub-section is, for all purposes, evidence of the marriage recorded in the entry.

Part II.—Marriages by or before Marriage Officers.

Solemnization of overseas marriages.

9.—(1.) Subject to this Act, a marriage between parties of whom one at least is an Australian citizen may be solemnized in an overseas country by or before a marriage officer.

(2.) A marriage solemnized under this Part, being a marriage which, if it had been solemnized in the Australian Capital Territory and the forms required by the law in force in that Territory had been duly observed, would, under the law of a State or Territory of the Commonwealth, have been a valid marriage, is, by force of this Act, valid in that State or Territory.

Notice of marriage.

10.—(1.) A marriage officer shall not solemnize a marriage under this Part, or permit a marriage under this Part to be solemnized before him, unless one of the parties intending marriage has given notice in writing of the intended marriage to the marriage officer and, except in a case where the marriage officer considers that the marriage should be solemnized without delay, the notice was received by the marriage officer—

(a) where both parties to the intended marriage are British subjects—at least three days before the intended marriage; and

(b) in any other case—at least fourteen days before the intended marriage.

(2.) A notice under the last preceding sub-section shall be in accordance with the prescribed form and shall be signed by the person giving the notice.

(3.) A marriage officer to whom notice of an intended marriage is given under sub-section (1.) of this section—

(a) shall keep the notice with the records of his office for such period as is prescribed and, upon the expiration of that period, deal with the notice in accordance with the regulations; and

(b) if one of the parties to the intended marriage is not a British subject—shall post up a copy of the notice in a conspicuous place in his office and keep it so posted up until the intended marriage is solemnized or the notice becomes void, whichever first occurs.

(4.) A notice kept with the records of a marriage officer under paragraph (a) of the last preceding sub-section and a copy of a notice posted up in the office of a marriage officer under paragraph (b) of that sub-section may be inspected, without fee, by any person at any reasonable time before the intended marriage to which the notice relates is solemnized or the notice becomes void, whichever first occurs.

(5.) A marriage officer shall not solemnize a marriage under this Part, or permit a marriage under this Part to be solemnized before him, if he has reason to believe that the notice given to him under this section in respect of the marriage contains a false statement or a defect or error.

(6.) A notice of an intended marriage given to a marriage officer under this section becomes void, and the marriage officer shall not solemnize the marriage, or permit the marriage to be solemnized before him, under the notice—

(a) if a caveat under the next succeeding section against the solemnization of the marriage has not been entered within a period of three months from the date on which the notice was given to the marriage officer—after the expiration of that period; or

(b) if a caveat has been so entered—after the expiration of a period of three months from the date on which the caveat was entered.

(7.) A person shall not give a notice to a marriage officer under this section if, to the knowledge of the person, the notice contains a false statement or a defect or error.

Caveat when one of the parties not a British subject.

11.—(1.) Where notice of an intended marriage has been given to a marriage officer under the last preceding section and one of the parties to the intended marriage is not a British subject, a person may, on payment of the prescribed fee, enter with the marriage officer a caveat against the solemnization of the marriage.

(2.) A caveat under the last preceding sub-section shall be in accordance with the prescribed form, shall be signed by or on behalf of the person entering the caveat and shall state the ground of his objection to the solemnization of the marriage.

(3.) Where a caveat against the solemnization of an intended marriage is entered with a marriage officer under sub-section (1.) of this section, the marriage officer shall not solemnize the marriage, or permit the marriage to be solemnized before him, until—

(a) the marriage officer has inquired into the ground of objection specified in the caveat and is satisfied that the caveat ought not to prevent the solemnization of the marriage; or

(b) the caveat is withdrawn by the person who entered it.

(4.) In case of doubt, the marriage officer may transmit a copy of the caveat, with such statement with respect to the caveat as he thinks fit, to the Attorney-General, who shall, after such inquiry, if any, as he thinks fit, give his decision in the matter to the marriage officer.

(5.) The marriage officer shall forthwith inform the person who entered the caveat and the parties to the intended marriage of the decision of the Attorney-General and shall conform to that decision.

(6.) A person shall not enter a caveat under this section if, to the knowledge of the person, the caveat contains a false statement or a defect or error.

Form and ceremony of marriage.

12.—(1.) A marriage by or before a marriage officer under this Part shall be solemnized—

(a) at the official house of the marriage officer, with open doors, between the hours of eight o’clock in the forenoon and eight o’clock in the afternoon in the presence of two or more witnesses; and

(b) by the marriage officer, or by another person in the presence of the marriage officer, according to such form and ceremony as the parties to the marriage see fit to adopt.

(2.) Unless, having regard to the form and ceremony of the marriage, the marriage officer considers it unnecessary for the parties to the marriage to do so, each of the parties shall, in some part of the ceremony and in the presence of the marriage officer, the witnesses and, if the marriage is being solemnized by a person other than the marriage officer, that person, say to the other the following:—

“I call upon the persons here present to witness that I, A.B. (or CD.), take thee, CD. (or A.B.), to be my lawful wedded wife (or husband).”.

(3.) A marriage officer shall not knowingly solemnize, or permit the solemnization before him, of a marriage under this Part otherwise than in accordance with this section.

Marriage fee.

13. The parties to a marriage solemnized by or before a marriage officer under this Part shall pay to the marriage officer the prescribed fee.

Part III.—Marriages by Chaplains.

Marriages of members of the Defence Force.

14.—(1.) Subject to this Act, a marriage between parties of whom one at least is a member of the Defence Force may be solemnized in an overseas country by a chaplain.

(3.) The Governor-General may, by proclamation, declare that a part of the Queen’s dominions which has been occupied by a state at war with the Commonwealth and in which facilities for marriage in accordance with the local law have not, in the opinion of the Governor-General, been adequately restored shall be deemed to be an overseas country for the purposes of this section.

Form and ceremony of marriage.

15.—(1.) A marriage by a chaplain under this Part shall be solemnized—

(a) at such place as the chaplain thinks fit, and, if indoors, with open doors, between the hours of eight o’clock in the forenoon and eight o’clock in the afternoon in the presence of two or more witnesses; and

(b) according to such form and ceremony as the chaplain thinks proper.

(2.) Unless, having regard to the form and ceremony of the marriage, the chaplain considers it unnecessary for the parties to the marriage to do so, each of the parties shall, in some part of the ceremony and in the presence of the chaplain and the witnesses, say to each other the following:—

“I call upon the persons here present to witness that I, A.B. (or CD.), take thee, CD. (or A.B.), to be my lawful wedded wife (or husband).”.

(3.) A chaplain shall not knowingly solemnize a marriage under this Part otherwise than in accordance with this section.

Marriages solemnized in overseas countries by chaplains before the commencement of this Act.

16.—(1.) A marriage purporting to have been solemnized by a chaplain on or after the third day of September, One thousand nine hundred and thirty-nine, and before the commencement of this Act—

(a) in an overseas country; or

(b) in a part of the Queen’s dominions which, after the third day of September, One thousand nine hundred and thirty-nine, and before the solemnization of the purported marriage, had been occupied by a state at war with the Commonwealth,

between parties of whom one at least was a member of the Defence Force shall be deemed to be, and to have been, as valid to all intents and purposes as if this Act had been in force at the time of the solemnization of the purported marriage and, in the case of a purported marriage solemnized in a part of the Queen’s dominions, that part of the Queen’s dominions had, at that time, been deemed to be an overseas country for the purposes of section fourteen of this Act.

(2.) Where—

(a) a person has been a party to a purported marriage to which the last preceding sub-section applies; and

(b) after the solemnization of the purported marriage but before the commencement of this Act that person entered into a valid marriage,

the validity of the later valid marriage is not affected by the last preceding sub-section and, where the purported marriage, if it had been a valid marriage, would have been subsisting at the time of the later valid marriage, the purported marriage (as validated by the last preceding sub-section) shall be deemed to have been dissolved immediately before the solemnization of the later valid marriage.

(3.) The last preceding sub-section does not apply where the later valid marriage was between the parties to a purported marriage to which sub-section (1.) of this section applies.

Part IV.—Provisions applicable to all Marriages under this Act.

Marriage of minors.

17.—(1.) If either party to an intended marriage under this Act, not being a person previously married, has not attained the age of twenty-one years, a marriage officer or chaplain shall not solemnize the marriage, and a marriage officer shall not permit the marriage to be solemnized before him, unless the marriage officer or the chaplain, as the case may be—

(a) is satisfied that consent to the marriage has been given by the prescribed person or persons; or

(b) is satisfied that it is impracticable to ascertain the views of the prescribed person or persons and dispenses with the consent of that person or those persons.

(2.) A person shall not falsely represent himself to be a person whose consent to a marriage under this Act is required by this section.

Marriage of a person under the age of 16 years not to be solemnized.

18. A marriage officer or chaplain shall not solemnize a marriage under this Act, and a marriage officer shall not permit a marriage under this Act to be solemnized before him, if, to the knowledge of the marriage officer or chaplain, as the case may be, a party to the marriage has not attained the age of sixteen years.

Oath or affirmation before marriage.

19.—(1.) A marriage officer or chaplain shall not solemnize a marriage under this Act, and a marriage officer shall not permit a marriage under this Act to be solemnized before him, unless each of the parties intending marriage has made and subscribed an oath or affirmation, in accordance with the prescribed form, before the marriage officer or chaplain, as the case may be—

(a) that he or she believes that there is no impediment to the marriage by reason of consanguinity or affinity or other lawful hindrance;

(b) that he or she has, or has not, as the case may be, attained the age of twenty-one years; and

(c) if he or she has not attained the age of twenty-one years—that consent to the marriage has been given by the prescribed person or persons or that it is impracticable to ascertain the views of the prescribed person or persons.

(2.) An oath or affirmation under the last preceding sub-section shall be signed by the marriage officer or chaplain, as the case may be, and shall, if practicable, be made and subscribed on the certificate that the marriage officer or chaplain, as the case may be, proposes to issue under section twenty-two of this Act in respect of the intended marriage.

(3.) A marriage officer or chaplain shall not solemnize a marriage under this Act, and a marriage officer shall not permit a marriage under this Act to be solemnized before him, if he has reason to believe that an oath or affirmation made under this section in respect of the marriage contains a false statement or a defect or error.

(4.) A person shall not make an oath or affirmation under this section which, to the knowledge of the person, contains a false statement or a defect or error.

Solemnization of marriages capable of celebration under local law.

20.—(1.) Subject to the next succeeding sub-section, a marriage officer or chaplain shall not solemnize a marriage under this Act, and a marriage officer shall not permit a marriage under this Act to be solemnized before him, in an overseas country, or in a country which is deemed to be an overseas country for the purposes of section fourteen of this Act, if a marriage in that country between the parties according to the law of that country would be recognized by the law of the Australian Capital Territory.

(2.) The last preceding sub-section does not apply where the marriage officer or chaplain is satisfied—

(a) that each party to the intended marriage is a British subject or a member of the Defence Force;

(b) that a party to the intended marriage who is not a British subject or a member of the Defence Force is not a subject or citizen of the overseas country;

(c) that, where a party to the intended marriage is not a British subject or a member of the Defence Force, sufficient facilities do not exist for the solemnization of the marriage in the overseas country in accordance with the law of that country; or

(d) that, where the woman about to be married is a subject or citizen of the overseas country, objection will not be taken by the authorities of that country to the solemnization of the intended marriage under this Act.

Solemnization of marriages where the man is not an Australian citizen or member of the Defence Force.

21.—(1.) Subject to the next succeeding sub-section, a marriage officer or chaplain shall not solemnize a marriage under this Act, and a marriage officer shall not permit a marriage under this Act to be solemnized before him, if the man about to be married is not an Australian citizen or a member of the Defence Force.

(2.) The last preceding sub-section does not apply where the marriage officer or chaplain is satisfied—

(a) that the marriage will be recognized by the law of the country to which the man about to be married belongs;

(b) that some other marriage ceremony, in addition to the ceremony under this Act, has taken place, or is about to take place, between the parties and that other ceremony is, or, when it has taken place, will be, recognized by the law of the country to which the man about to be married belongs; or

Marriage certificates and registration of marriages.

22.—(1.) A marriage officer or chaplain by whom, or a marriage officer before whom, a marriage is solemnized under this Act shall prepare a certificate, and two copies of that certificate, in accordance with the prescribed form, in respect of the marriage.

(2.) Immediately after the solemnization of the marriage—

(a) the marriage officer or chaplain and, if the marriage was solemnized before but not by the marriage officer, the person by whom the marriage was solemnized;

(b) the parties to the marriage; and

shall sign the certificate and each copy of the certificate.

(3.) The marriage officer or chaplain shall—

(a) forward the certificate to the Registrar together with the oath or affirmation referred to in section nineteen of this Act made in respect of the marriage;

(b) hand one copy of the certificate to one of the parties to the marriage; and

(c) retain the other copy of the certificate in his possession for the prescribed period and, upon the expiration of that period, deal with the copy in accordance with the regulations.

(4.) Upon receipt by the Registrar of the certificate issued in respect of a marriage, the Registrar shall register the marriage.

(5.) In the month of January in each year, a marriage officer or chaplain by or before whom a marriage has been, or marriages have been, solemnized in the preceding year shall forward to the Registrar, in accordance with the prescribed form, particulars of that marriage or those marriages.

(6.) If the certificate of a marriage is not received by the Registrar, the marriage officer or chaplain by whom the certificate was issued shall, at the request of the Registrar, prepare a copy of the certificate, certify, by writing under his hand, that the copy is a true copy of the certificate and forward the copy to the Registrar.

(7.) A certified copy of a certificate prepared by a marriage officer or chaplain under the last preceding sub-section is, for all purposes, of the same force and effect as the certificate of which it is a copy.

Power to refuse solemnization of marriages.

23. A marriage officer or chaplain may refuse to solemnize a marriage under this Act, and a marriage officer may refuse to permit a marriage under this Act to be solemnized before him, on any grounds which appear to the marriage officer or chaplain to be sufficient and, in particular, on the ground that, in the opinion of the marriage officer or chaplain, the solemnization of the marriage would he inconsistent with international law or the comity of nations.

Validity of marriages under this Act.

24.—(1.) The validity of a marriage under this Act is not affected—

(a) by reason only that the marriage was solemnized in contravention of a provision of section ten, eleven, twelve, fifteen, seventeen, eighteen, nineteen, twenty or twenty-one of this Act; or

(b) by reason only that the notice given under section ten of this Act, or the oath or affirmation made under section nineteen of this Act, in respect of the marriage contained a false statement or a defect or error.

(2.) Where—

(a) a marriage which purports to have been solemnized under this Act by or before a marriage officer, or by a chaplain, has been registered under this Act; and

(b) a party to the marriage, at the time the marriage was solemnized, believed that the person by or before whom the marriage was solemnized was a marriage officer or chaplain, as the case may be,

the validity of the marriage is not affected by reason only that the person by or before whom the marriage was solemnized was not a marriage officer or chaplain, as the case may be.

Part V.—Miscellaneous.

Registration or overseas marriages attended by a marriage officer or chaplain.

25.—(1.) Where—

(a) a marriage officer or chaplain has attended a marriage in an overseas country between parties of whom one at least was an Australian citizen or a member of the Defence Force;

(b) the marriage officer or chaplain is satisfied that the marriage has been duly solemnized in accordance with the law of that country; and

(c) a party to the marriage informs the marriage officer or chaplain, in writing, that he or she desires the marriage to be registered under this section,

the marriage officer, upon payment of the prescribed fee, or the chaplain, as the case may be, shall forward to the Registrar a certificate, in accordance with the prescribed form, in respect of the marriage.

(2.) Upon receipt by the Registrar of a certificate under the last preceding sub-section in respect of a marriage, the Registrar shall, subject to the regulations, register the marriage.

Certificates of marriages solemnized in accordance with local law in an overseas country.

26.—(1.) Where—

(a) a marriage is solemnized in a prescribed overseas country in accordance with the law of that country between parties of whom one at least is an Australian citizen or a member of the Defence Force;

(b) a party to the marriage who is an Australian citizen or a member of the Defence Force produces to a marriage officer or chaplain in the country in which the marriage was celebrated—

(i) a copy of the entry in respect of the marriage in the marriage register of that country certified by the appropriate authority in that country to be a true copy of that entry; and

(ii) if the copy of that entry is not in the English language—a translation into the English language of that copy; and

(c) the marriage officer or chaplain is satisfied that the copy of the entry in the marriage register is a true copy and that the translation, if any, is a true translation,

the marriage officer, upon the payment of the prescribed fee, or the chaplain, as the case may be, shall certify, upon the copy, that he is satisfied that the copy is a true copy of the entry in the marriage

register and, upon the translation, that he is satisfied that the translation is a true translation of the copy and shall transmit the copy and the translation to the Registrar.

(2.) The Registrar shall, upon payment of the prescribed fee, issue to a person who so desires a copy of any document received by him under the last preceding sub-section certified by the Registrar, under his hand and seal, to be a true copy of that document.

(3.) A document relating to a marriage in an overseas country issued under the last preceding sub-section shall be admitted in evidence in any proceedings as if it were a certificate duly issued by the authorities of that country.

Offences.

27. A person who contravenes or fails to comply with a provision of this Act is guilty of an offence punishable upon conviction by a fine not exceeding Two hundred and fifty pounds or imprisonment for a period not exceeding six months.

Jurisdiction of courts.

28.—(1.) Subject to the succeeding provisions of this section—

(a) the several courts of summary jurisdiction of the States are invested with federal jurisdiction; and

(b) jurisdiction is conferred on the several courts of summary jurisdiction of the Territories of the Commonwealth,

with respect to offences against this Act or the regulations, whether committed within or outside Australia.

(2.) The jurisdiction invested in or conferred on courts of summary jurisdiction by the last preceding sub-section is invested or conferred within the limits (other than limits having effect by reference to the places at which offences are committed) of their several jurisdictions, whether those limits are as to subject-matter or otherwise.

(3.) The jurisdiction with which a court of summary jurisdiction of a State is invested by this section is subject to the conditions and restrictions specified in sub-section (2.) of section thirty-nine of the Judiciary Act 1903-1955.

(4.) Nothing in this section affects jurisdiction invested in or conferred on courts other than courts of summary jurisdiction by the Judiciary Act 1903-1955 or by or under any other Act.

(5.) Except as provided by this section, the Judiciary Act 1903-1955 applies in relation to offences against this Act or the regulations

(6.) In this section, “court of summary jurisdiction”, in relation to a Territory of the Commonwealth, includes a court of that Territory sitting as a court for the making of summary orders or the summary punishment of offences under the law of the Territory.

Evidence

29. A notice, certificate or other document kept in pursuance of this Act or the regulations by any person, or in the records of his office, is admissible in evidence on its mere production from the custody of that person or from the custody of an officer of the Attorney-General’s Department.

Judicial notice.

30. Judicial notice shall be taken of the signature of the Registrar, a marriage officer or a chaplain appearing on a document under this Act and of the fact that, at the time the document was signed by him, he was the Registrar, a marriage officer or a chaplain, as the case may be.

Validity of marriages otherwise than under this Act not affected.

31. Nothing in this Act in any way affects the validity of a marriage solemnized in an overseas country otherwise than under this Act.

Imperial Foreign Marriage Acts.

32.—(1.) Subject to the next succeeding sub-section, this Act shall not be taken to repeal or amend the Imperial Acts known as the Foreign Marriage Acts, 1892 and 1934, insofar as those Acts are part of the law of the Commonwealth.

(2.) Section twenty-two of the Imperial Act known as the Foreign Marriage Act, 1892, insofar as that Act is part of the law of the Commonwealth, is repealed.

Fees.

33. Fees received by the Registrar or a marriage officer under this Act shall be deemed to have been received by the Registrar or the marriage officer, as the case may be, on behalf of the Commonwealth.

Regulations.

34. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and, in particular—

(a) prescribing the forms to be used under this Act;

(b) prescribing the conditions under which, and the manner in which, marriages solemnized in accordance with the law of an overseas country may be registered under section twenty-five of this Act;

(c) making provision for the recognition in Australia of marriages solemnized under a law in force in a place outside Australia, being a law which makes provision appearing to the Governor-General to be similar to any provision made by this Act; and

(d) prescribing penalties not exceeding a fine of One hundred pounds for offences against the regulations.