Re-marrying after the death or divorce of your former spouse should be a stress-free occasion as you and your new partner enter the next stage of your lives together. While marriage the first time around has its own legal complexities, if you intend to re-marry, there are certain requirements you must meet before a civil marriage can be performed.
Generally, in Australia, when two parties are to marry, the marriage celebrant needs to be given:
- A notice of intention to marry, signed by both parties in the presence of an authorised celebrant, Justice of the Peace or solicitor;
- Passports or birth certificates of both parties; and
- Statutory declarations stating the parties’ current marital status
This is the case whether it is your first or a subsequent marriage. However, in the case of re-marriage, further documentation is required. If either party has been married previously, they must provide to the marriage celebrant either:
- A final divorce order (previously called a decree absolute); or
- the former spouse’s death certificate (s 42(10)).
Specifically, Section 42(10) of the Marriage Act states:
“where the declaration made by a party… states that that party is a divorced person or a widow or widower, an authorised celebrant shall not solemnise the marriage unless there is produced to him or her evidence of that party’s divorce, or of the death of that party’s spouse, as the case requires.”
Thus, in Australia, the law (Marriage Act 1961 (Cth)) indicates that a final divorce order, decree nisi or decree absolute is not necessary to be shown upon re-marrying where the former partner has died and proof of this, such as a death certificate, is given. This may reduce some stress in cases where one party may not have access to one of these documents – only one is necessary to show to the marriage celebrant.
The difference between a Decree Nisi, Decree Absolute and a Divorce Order
The old terms ‘decree nisi’, ‘decree absolute’ and currently-used term ‘divorce order’ are often used interchangeably despite their different meanings.
A decree nisi does not end the marriage – a decree nisi just means that the court is satisfied that the person who issued the divorce petition has proved the contents of the petition and is entitled to a divorce.
The divorce takes effect 1 month from the issuing of the decree nisi, becoming a ‘decree absolute’ – an older term for what we call a ‘divorce order’ today.
If you have any questions about the legal processes involved in your marriage, re-marriage or divorce, or for any other family law inquiries, give us a call on 02 8917 8700.