Marriage in Australia
Marriage is the legal union of two people under Australian law, regardless of sex or gender. The Marriage Act 1961 sets out who can marry and the formalities that make a marriage legally valid.
- Both people must freely consent and understand what marriage means.
- Both must generally be at least 18. In limited circumstances, a court may authorise a marriage involving a person aged 16 or 17, but not two people under 18.
- Neither person can already be married, and certain close family relationships are prohibited.
- An authorised celebrant must receive a Notice of Intended Marriage generally between one and 18 months before the ceremony. Limited exceptions to the one-month notice period may apply.
Getting married may affect your financial, inheritance and other legal position. However, marriage does not automatically transfer ownership of every asset to both spouses. If you separate, property division depends on the applicable law, your circumstances, and any valid agreement or court order.
De facto relationships
You do not need to be married to have rights under family law. A de facto relationship generally involves two people who are not married to each other or related by family, and who live together as a couple on a genuine domestic basis. The court assesses the overall relationship, not one single factor. See our de facto relationships guide.
For the federal family-law courts to make de facto financial orders, there must generally be an eligible de facto relationship and a relevant jurisdictional connection. At least one gateway usually must be met: a relationship of at least two years; a child of the relationship; registration under a recognised state or territory law; or substantial contributions where refusing an order would cause serious injustice.
This means two years is not a universal definition of a de facto relationship, nor is it the only pathway to financial orders. Eligibility can be complicated, particularly for relationships with interstate or overseas connections.
Separation and divorce
Separation occurs when a relationship has ended; spouses can be separated even if they continue living at the same address. If married and seeking divorce, you must demonstrate an irretrievable breakdown of the marriage through at least 12 months of separation. Separation under one roof is possible, but additional evidence may be required.
Australia has no-fault divorce: the court does not decide who caused the marriage to end. Divorce legally ends the marriage, but does not itself divide property, determine financial support or settle parenting arrangements. Read our divorce in Australia guide.
People leaving a de facto relationship do not apply for divorce, but may still need to resolve financial and parenting matters. Our guide to ending a de facto relationship explains the distinction.
Property and financial support
If a marriage or qualifying de facto relationship breaks down, property settlement may involve real estate, savings, debts, businesses, superannuation and other interests. A property settlement is not automatically a 50/50 split. The outcome depends on the legal criteria and the parties’ circumstances. See how property settlement works.
Spousal or de facto partner maintenance is separate from property division. It is not automatic; entitlement depends on factors including one party’s inability to adequately support themselves and the other party’s capacity to pay.
For most married couples, court applications for financial or property orders must be started within 12 months after the divorce becomes final. For qualifying de facto couples, the usual limit is two years after separation. Extensions may require court permission and are not guaranteed. Learn more about property settlement time limits. These are general deadlines; exceptions and different rules can apply.
Children and parenting
Being married or unmarried does not itself determine parenting outcomes. When making parenting orders, the court focuses on the best interests of the child, including safety and the individual circumstances of the family. Divorce and parenting issues are dealt with separately.
Parents may also have responsibilities for child support regardless of whether they were married. Parenting arrangements, child support and financial claims between former partners are different legal matters.
Same-sex relationships
Same-sex couples can marry in Australia and may form de facto relationships under the same general principles as other couples. Their rights and responsibilities in relation to marriage, divorce and family-law financial matters are not determined by the sex of the partners.
Prenups and financial agreements
Australian law provides for financial agreements that may be made before, during or after a marriage, or in relation to de facto relationships. They can deal with matters such as property and maintenance in certain circumstances.
These agreements are not made legally binding simply because both people sign a document. Among other statutory requirements, each party must generally receive independent legal advice about the agreement’s effect on their rights and its advantages and disadvantages. Courts can set aside agreements on specified legal grounds. Specialist advice is important before signing.
What should you do next?
Start by identifying whether you are married, separated or in a de facto relationship; note important dates; and list major property, debts and any children’s arrangements. Be aware of deadlines before agreeing to a settlement or signing legal documents.
Aussie Divorce offers plain-English information to help you understand the process. It is not a law firm and this article is general information, not legal advice. If your rights or a deadline are in doubt, consult an Australian family lawyer.