You went through a previous marriage and met a new partner; you both decide to enter the next stage of your lives together through remarriage. Your previous marriage either ended through divorce or death of a spouse, and now you want to say "I do" again to someone new.
In first marriages, many couples or older adults face challenges legally and emotionally. And while a first marriage has its own legal complexities, if you intend to remarry, there are certain requirements you must meet before going through with a subsequent marriage.
If either party has had a previous marriage, there are some documents that they need to provide before proceeding with the wedding ceremony. The Family Law Act 1975 and the Marriage Act 1961 govern laws relating to remarriage in Australia. This article discusses matters pertaining to second marriages or remarriage.
Remarriage in Australia
Generally, in Australia, when two parties decide to go ahead with a marriage, the parties need to give the marriage celebrant:
- A Notice of Intended Marriage form (discussed below),
- Passports or birth certificates, and
- Statutory declarations stating the parties' current marital status.
This is the case regardless of whether it is your first or second marriage. But, for any subsequent marriage, you will require further documentation. If either party has had a previous marriage, they must provide to the marriage celebrant either:
- A final divorce order (formerly called a "decree absolute"), or
- the former spouse's death certificate.
Specifically, Section 42 (10) of the Marriage Act provides that an authorised celebrant shall not solemnise the marriage unless the divorced person or a widow/ widower produces evidence of the party's divorce, or the death of that party's spouse, as the case may be.
Further, an authorised celebrant may either be a:
- a minister of religion,
- the Registrar of Marriages for the state or territory where the marriage is to take place, or
- a person authorised by the Commonwealth Attorney-General.
Remarriage after Divorce
Some people choose to remain legally married even though they have separated. However, this can affect their legal obligations and impact a number of Family Law issues such as the distribution of a deceased's estate, family provision claims, and the right to remarry. Hence, for remarriage to be valid, one must first file for divorce.
However, while the thought of marrying your new life partner seems exciting, you cannot remarry straight away. It is illegal to remarry before your divorce becomes final. To do so constitutes bigamy and renders your second marriage void (not legal and binding).
You and your former spouse probably entered into a new relationship. But in order to remarry, you first must obtain a divorce order. Section 59 of the Family Law Act 1975 states if a divorce order in relation to a marriage has taken effect, a party to the marriage may marry again.
When a person files for divorce, they get a listing date for a hearing for their divorce application to take place. It is at that hearing when the divorce is granted. However, one must not assume that the divorce will be granted at the first court hearing. For instance, you may be told at the first hearing that you need to provide more information.
In addition, if you are planning to remarry, you must ensure that there is sufficient time to allow for the divorce to finalise, especially if the other party is overseas, cannot be located, or plans to oppose the divorce application for whatever reason. All of these factors can cause significant delays to the approval of the divorce.
For a divorce to be approved, the Court needs to be satisfied of the following:
- you have provided a valid marriage certificate,
- your marriage has irretrievably broken down,
- you have lived separately for 12 months and a day,
- any children of the marriage have been adequately provided for in terms of care and financial support,
- you are eligible to apply for divorce within Australian jurisdiction,
- you have made communication to the other party of the intention to divorce, and
- if the marriage has lasted for less than two years, you have participated in prescribed marriage counselling.
Read more on the steps of the divorce process in Australia here.
When Does a Divorce Order Take Effect?
A divorce order takes effect one month and one day after the court grants divorce. After such a period, it is safe for a person to remarry.
Notice of Intended Marriage
It is advisable not to make plans on remarriage until your divorce order is finalised. The divorce process takes time and is not automatically granted at the first court hearing. As mentioned earlier, your application may be deficient or there may be further questions about a particular part of your application, which would require you to provide more information.
Nevertheless, you may complete and lodge a Notice of Intended Marriage form with an authorised celebrant even before the divorce order is finalised. If you intend to remarry, you must give your marriage celebrant the Notice of Intended Marriage form at least one month before the wedding date.
You must note, however, that even though you may complete and lodge the Notice of Intended Marriage form before the divorce order is finalised, the marriage celebrant must still obtain a copy of the divorce order before the wedding ceremony can take place.
The Difference between a Decree Nisi, Decree Absolute, and a Divorce Order
The old terms "decree nisi" and "decree absolute" are often used interchangeably with the present term "divorce order". But these terms have different meanings.
A divorce order was formerly called "decree absolute". On the other hand, a "decree nisi" does not end the marriage. The term merely means that the Court is satisfied that the person who filed for the divorce petition met the legal requirements for divorce and is entitled to one.
The divorce takes effect one month from the issuing of the "decree nisi", becoming a "decree absolute", or in today's terms, a "divorce order".
Remarriage after Death
Falling in love after loss often leads to new relationships or a second marriage. A new partnership may cause family issues between family members, but legally, remarriage after death does not really involve a complicated procedure. The widow or widower simply needs to provide evidence of the death of his or her spouse, such as a death certificate.
Seeking Legal Advice from Expert Family Lawyers
You may have gone through a divorce or the death of a spouse, but have found love again. You may have gone through a messy previous relationship which affected your mental health, but now you have plans to remarry. But perhaps you have not yet obtained a divorce order.
JB Solicitors can help you deal with your situation. Our leading team of expert family lawyers can provide you legal services and assist you with the divorce application process, as well as the process of remarriage and other legal matters.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.