Marriage by alendar


More Info

Status:                            Reviewed July 2007
Date Due for Review                July 2010

The issue
OPA may be a guardian for a person who is proposing to marry, may be asked for assistance by a person
with a disability who is proposing to marry, or may be asked for advice about the circumstances under
which a person with a disability may be prevented from marrying. OPA may also be appointed as
guardian to make decisions about divorce. This guideline is primarily focussed on marriage.

Relevant legislation
    •    Marriage Act 1961 [C'wealth]
    •    Guardianship and Administration Act 1986 [Vic]
    •    Family Law Act 1975 [C'wealth]

Guideline statement
OPA supports the position that a person with a disability can and should, if so desired, seek satisfying
emotional, physical and intellectual relationships with other people. Such relationships may be in the
form of marriage.

All OPA staff (in the role of guardian, advocate or TAS worker) can assist authorised marriage celebrants
in identifying the types of information that will shed light on the question of capacity where a person with
a disability is contemplating marriage.

OPA guardians cannot give consent to marriage for a represented person due to the highly personalised
nature of the marriage decision1. However, a guardian may attempt to influence a decision in a person’s
best interests or seek to counsel, advise or assist where possible.

Where a person with a disability has entered into a marriage and legitimate/serious concerns exist in
relation to that person’s capacity to understand his or her actions, an application may be made to the
Family Court to determine validity (application by a third party) or whether the marriage is void at law
(application by a party to the marriage). NB OPA has confirmed with the Office of the Commonwealth
Attorney General that there is no mechanism for a person's capacity to be determined in advance of the

  Interestingly, the June 1996 report of the Queensland Law Reform Commission Assisted and Substituted Decision-making by
and for people with a decision-making disability, characterises consenting to a person’s marriage (alongside making or
revoking a person’s will, enduring power of attorney or advance directive, exercising a person’s right to vote and consenting to
adoption of a child of the person) as “excluded personal decisions”.
See the decision of AA [2006] VCAT 1957 – referred to later in this guideline.
The definition and concept of marriage in Australia is found in two pieces of legislation – the Family Law
Act 1975 (section 43(a)) and the Marriage Act 1961 (section 46). There are four essential characteristics
of marriage from this law, namely that it is heterosexual, monogamous, consensual and intended to be for

It would seem that one of the key characteristics, in terms of OPA’s work, is that relating to the voluntary
& consensual nature of the union. In law (section 23 of the Marriage Act 1961), consent is not real if:

        it was obtained by duress or fraud;
        there has been a mistake in terms of the identity of one of the parties or in their understanding of
        the nature of the ceremony performed; or
        a party does not have the mental capacity to understand the nature and effect of the marriage

This means that where a person without capacity marries, that marriage is, at law, void. (It is as if it had
never taken place).

Competency, capacity and consent
Marriage is voluntary
A guardian cannot give consent (or refuse to give consent) to marriage on behalf of a represented person2.
Marriage is entered into voluntarily for life. A plenary guardian, who has all the powers and duties as “if
he or she were a parent and the represented person his or her child”3 is not able to provide consent to the
marriage of the represented person where that person is unable to provide consent for themselves. In the
matter of AA4 Deputy President Billings said –
         Under sections 13 and 14 of the Marriage Act the marriage of a minor cannot be solemnised
         without the consent of persons including, where relevant, parents. … It is not the case, of course,
         that a parent can decide that a minor will marry if this is not voluntary. Rather, consent can be
         given if the minor wishes to marry.
Deputy President Billings observed that there is no provision with the Marriage Act for a parent or
anyone else to consent to the marriage of another person who had reached majority. He concludes that “it
is clear that not even a plenary guardian appointed under the Guardianship and Administration Act can
make decisions concerning marriage”.

The test of competency or capacity to consent to marriage is set down in the case of In the Estate of Park;
Park v Park [1954]. In this case, the test was stated in the following terms:
       “Was the deceased…capable of understanding the nature of the contract into which he was
       entering, or was his mental condition such that he was incapable of understanding it? To ascertain
       the nature of the contract of marriage a man must be mentally capable of appreciating that it
       involves the responsibilities normally attached to marriage. Without that degree of mentality, it
       cannot be said that he understands the nature of the contract.”

There is no well-defined statement of the level of mental capacity necessary to enter into a valid marriage
contract apart from that of demonstrating an understanding of the essential characteristics derived from

  A guardian is not legally prevented from marrying a person for whom he or she has been appointed as guardian if that person
is capable of validly consenting to the union. In these highly unusual circumstances, however, a test of competency should be
conducted and the advice of the Tribunal sought under s30 of the Act
  Guardianship and Administration Act 1986 s24(1).
  [2006] VCAT 1957 at paragraph 36
the Marriage Act 1961 (above). A person who has lost their long-term planning ability as a result of a
brain injury and has little capacity to foresee the consequences of their actions may be able to speak quite
eloquently about marriage but be unable to understand the ramifications of entering into a marriage
contract which will have fundamental, long-term ongoing impact on his or her life and finances.

Clearly, the particular nature of each marriage and the responsibilities and duties involved will vary from
couple to couple. In Dunne vs Brown (1982) this was acknowledged in that the marriage did not involve
either party taking on new responsibilities or living together as would normally be the case. However, in
general, the level of understanding necessary to make a valid marriage is accepted in law as lower than
that for decisions of a more complex nature, for example, the making of a will (Durham v Durham
(1885)). This Common law interpretation drawn from the Durham and Park cases. It is noted that the
cases on which the common law interpretation rests are very dated and that a court today may make a
different determination. OPA does not accept the common law interpretation as it is counter-intuitive and
at odds with the importance the community places on marriage. It is also at odds with concerns about the
societal consequences of marriage breakdown and with the reality that marriage is one of the few
contracts where the involvement of a Court is required to dissolve the contract.

It may be that a professional report may assist in shedding light on the question of capacity. It is now
generally agreed that the level of competence necessary to make a particular decision needs to be higher
when the significance and impact of the decision is higher. A report which assesses domain-specific
capacity in the context of the personal and societal significance of the decision is considered by OPA to
be the most suitable form of assessment. It would also seem sensible to consider in the assessment
whether the person proposing to enter marriage has the capacity to understand the grounds on which a
marriage may be annulled (that is, where the law does not recognize it as a valid marriage)5 . A family
law solicitor may also provide advice to a person contemplating marriage on the legal implications of the

At present the responsibility for assessing competency to marry rests entirely with the authorised
marriage celebrant. It is for this person to determine, after consideration of the conditions of the parties
involved and the circumstances of the union, whether a party has capacity to consent to marriage. Note
that section 100 of the Marriage Act 1961 creates an offence where a person solemnizes a marriage where
he or she “has reason to believe the marriage would be void,” (for example, where consent of one of the
parties is not real).

Where a marriage has taken place without the requisite capacity, a party to the marriage may put an
argument that the marriage is void at law. A declaration may also be sought by a third party as to the
validity of the marriage. The forum for such applications is the Family Court.

Role of OPA guardian or advocate
It is acknowledged that whilst a guardian cannot consent or refuse to consent to a marriage, a guardian or
advocate may attempt to influence an outcome if he or she is of the belief that a decision to marry is not
in the best interests of the person with a disability or if other parties are attempting to prevent a valid
marriage for their own purposes. A guardian or advocate may also act as counsellor or give advice to a
person with a disability. A guardian or advocate's opinion and whether or not she or he is in favor of a
marriage may be influential in any subsequent court hearing.

  The reasons why a marriage is not valid at law are: where the person was already married at the time, where the family
relationship prohibits marriage, where the person is under age, where the ceremony was not valid, where is was never intended
for the marriage to be a real marriage (a joke, for immigration purposes, to primarily legitimise children, to obtain financial
benefit, to avoid tax, where either person did not intend to engage in sexual intercourse, where either person did not intend to
have children, where people had no intention of living together), where either person did not give their real consent (if they
were not mentally capable, if they were drunk or drugged, in cases of mistaken identity, if there was force or duress, if there
was fraud)
In seeking to exert influence, an OPA advocate/guardian may make contact with a marriage celebrant in
advance of the marriage to discuss concerns they may have about the forthcoming marriage. It is noted
that a marriage celebrant is not required to lodge notice of an Intention to Marry until after the marriage
has taken place and the necessary forms must then be forwarded to the Attorney-Generals Department. It
is also possible for a person who is refused by one celebrant to simply find another who is willing to
perform the ceremony. Even where there is genuine concern that a person may be under duress to marry
or lack capacity to legally consent to marriage, there is no way of finding out whether the couple has
made arrangements to marry or the name of the celebrant. Changes to the Marriage Celebrants program in
2003, following a review and submission by OPA, have not addressed this issue.

Some examples of circumstances where OPA may seek to influence whether a person with a disability
• Where the person's disability results in them being highly susceptible to influence and eager to please
   and co-operate with a person who has strong and definite opinions.
• Where a third party or parties are trying to prevent the marriage for their own purposes, for example
   in order to prevent a parent from making provision in their will for a new spouse.
• Where a third party is favouring the marriage and will receive a benefit if the marriage goes ahead.
• Where OPA considers that the consent is not real and there is not a genuine understanding of the
   nature of the contract. In these circumstances OPA would attempt to have an assessment undertaken
   to provide further information.
• Where a person with a disability is proposing to marry a person who is seeking residency in Australia
   from another country, OPA may act as an advocate for the person with a disability (a marriage
   undertaken for immigration purposes only may be annulled).
• Where the relationship is thought to be exploitative and abusive of the person with a disability or
   where there is a very significant imbalance of power between the two parties to the marriage.

Divorce is different from marriage in two important ways. First, it does not require the consent of both
parties to dissolve a marriage. Second, a legally appointed substitute decision-maker6 may lodge an
application for divorce on behalf of another person.

There may be a role for both a guardian and an administrator in making decisions about divorce on behalf
of a Represented Person. A guardian could be involved in making a decision about whether it is in the
best interests of a represented person to initiate divorce proceedings. This would be considered on a case
by case basis but a guardian would place great significance on the person's views and actions before s/he
lost capacity. As a general rule, a guardian would not make a decision that divorce proceedings should be
initiated if the Represented Person was stating that s/he did not wish to do so. In situations where a wish
to obtain a divorce seems to be driven by the person's disability, for example a delusional belief about
their partner, a guardian would be very cautious about supporting this decision.

The role of the administrator deals with the legal proceedings involved in being either an applicant or a
respondent in a divorce action. State Trustees provide some general guidelines in respect of divorce
proceedings and these are broadly applicable to all administrators. These guidelines state:

•     It is outside the scope of an administrator’s role to determine if a divorce is in the client’s best
•     If there are no assets, or a claim to assets, the administrator has a role in ensuring the assets are dealt
      with fairly. This may involve referral to a solicitor and the provision of instructions to the solicitor
      prior to approving final settlement of the client’s claim.

    A Case Guardian is appointed under Part 6.3 of the Family Law Rules 2004.
As noted, a Case Guardian may be appointed in these circumstances. The need for this is determined by
the Family Court on a case by case basis and is not mandatory.

Sometimes it may be in a person's financial interests to obtain a divorce but their personal views are
unclear. In these circumstances a property settlement rather than a divorce could be considered.

Because questions about marriage and divorce are highly personal, the focus of any involvement by OPA
staff in these matters needs to be particularly sensitive. The role will generally be that of acting as an
advocate to promote the person's autonomy or to attempt to limit exploitation and abuse. OPA staff may
also provide advice when capacity is under question or provide general information about the law on
marriage as it relates to people with a disability. Staff should be careful, however, to refer people to a
lawyer for specific legal advice on marriage and divorce.
Office of the Public Advocate
Level 5, 436 Lonsdale Street, Melbourne, Victoria 3000
PO Box 13175 Law Courts, Victoria 8010. DX 210293
Tel: 1300 309 337 Fax: 1300 787 510

To top