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Minors marriage consent bill passage recommended

24 May 2018

A bill which would require consent from a Family Court Judge for a 16 or 17-year-old to marry has received a recommendation that it be passed from the Justice select committee.

The committee has released its final report on the Marriage (Court Consent to Marriage of Minors) Amendment Bill. The bill is a Private Member's Bill in the name of Joanne Hayes MP.

At present, 16 and 17-year-olds who want to marry can do so with parental consent. The committee says this is done about 30 times a year, and mostly involves 16 and 17-year-old females. The bill aims to prevent possible forced marriages by changing the requirement for consent from parents to a judge.

A forced marriage is one in which pressure or abuse is used to coerce someone against their will to enter a marriage.

The committee recommends that the bill be amended so that it applies to civil unions and de facto relationships, as well as to marriages. It says this would entail amending the Civil Union Act 2004 and the Care of Children Act 2004, as well as the Marriage Act 1955, to replace parental and guardian consent requirements with that of a Family Court Judge.

"We note that while marriages and civil unions are straightforward examples of legally recognised relationships, de facto relationships are less clear. Unlike marriages or civil unions, legal recognition of a de facto relationship does not often involve the state," it says.

"Under existing law, a de facto relationship involving a 16 or 17-year-old is only legally recognised if that person has obtained the written consent of each of his or her guardians. Legal recognition gives the couple certain rights, duties and responsibilities under the law. For example, if a 16 or 17-year-old enters a legally recognised relationship they are no longer recognised as a child for the purposes of some laws.

"Some of us expressed concern that requiring a judge to consent to a de facto relationship would make legal recognition of such a relationship less accessible. Balanced against this, however, we recognise that requiring court consent for de facto relationships would help to protect 16 and 17-year-olds from being forced into any legally recognised relationship. Because the law generally treats legal relationships the same, a de facto relationship could be exploited in ways this bill aims to prevent if it were excluded from the requirement for court consent.

"Excluding one legally recognised relationship could also be contrary to the Human Rights Act 1993, which prohibits discrimination on the basis of marital status."

The committee has also recommended changing the proposed title of the legislation to the Minors (Court Consent to Relationships) Legislation Act. It says the title of the bill would need to reflect its omnibus nature if it was to amend more than just the Marriage Act.

Another recommendation is for an amendment to provide that the judge could obtain a cultural report to assist with the consideration of an application.

The committee also says the court should be given the ability to appoint legal representation to assist the applicant, and the ability to appoint a lawyer to assist the court.

Last updated on the 16th September 2019