Several practical traps arise from the Act’s text and history. First, the definition of “guardian of minors” in section 3(2)(a) states that the expression means “any magistrate”. This is an unusually narrow definition and does not include a parent or testamentary guardian for the purposes of that definition. The definition applies to the phrase “guardian of minors” as used in any Act and any entry, register, certificate or other document, unless the contrary intention appears. A practitioner seeing “guardian of minors” in another statute must check whether the Marriage Act definition is imported. Section 3(2)(b), which previously extended the definition, was repealed. The effect is that, for example, a reference to “guardian of minors” in a certificate may mean a magistrate, not a parent.
Second, section 148 provides that no father has any right to the wages or earnings of any minor child while that child is in the control and custody of the mother. This is an archaic provision that creates a specific rule. It does not address the situation where the mother is not the custodial parent, nor does it apply to mothers claiming wages of a child in the father’s custody. The provision appears to be gender-specific and may raise issues under equal opportunity legislation, but as a literal enactment it remains in force.
Third, the presumption of joint tenancy in section 161(4)(b) is rebuttable by “sufficient evidence of intention to the contrary” or “special circumstances which appear to the Court to render it unjust”. The burden of rebuttal is on the party asserting sole ownership. The court must not take into account conduct not directly related to the acquisition of the property or its extent or value (section 161(4)(a)). This bars consideration of marital misconduct, such as adultery or domestic violence, in property adjustment, unless that conduct is directly linked to acquisition. This is a significant departure from the discretionary approach under the Family Law Act.
Fourth, the power to set aside dispositions under section 161(5) applies only to dispositions made to defeat an existing or anticipated order. The court must have regard to the interests of a bona fide purchaser. A spouse who transfers property to a third party before proceedings commence may find that transfer set aside if it was made to defeat a potential order. However, the third party’s protection is not absolute; the court can make any order proper for protection.
Fifth, the limitation on criminal proceedings in section 160(4) is strict. While spouses are living together, no criminal proceeding may be taken as to any property claimed by the other. If they are living apart, a criminal proceeding for an act done while living together is prohibited unless the property was wrongfully taken when leaving or deserting. This can be a trap for a spouse who wishes to pursue theft charges after separation for property taken during the marriage.
Sixth, the Act’s interaction with the Family Law Act 1975 (Cth) creates a trap for the unwary. Section 161(8A) allows the court to adjourn or stay proceedings if the parties have not been separated for 12 months and it is likely that family law proceedings will be instituted. A party who rushes to the Supreme Court for a property order without considering the Family Court’s jurisdiction may find the proceedings stayed. The court must be satisfied that the adjournment would not cause undue hardship and that the matter is more appropriately dealt with as ancillary to family law proceedings.
Seventh, Part VII is to be read “as in aid and not in derogation of” the Children, Youth and Families Act 2005 (section 132(2)). This means that the Part VII provisions do not override child protection laws. A guardian appointed under Part VII must still comply with the requirements of that Act, including reporting obligations.
Eighth, the Act uses gendered language throughout (husband, wife, father, mother), which may require adaptation in the context of same-sex marriages (recognised in Victoria since 2017). Section 161(4)(b) refers to “husband and wife” and “the marriage”. A court would likely read these as including same-sex spouses under the Sex Discrimination Act and the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), but the text itself is not gender-neutral.
Finally, the Act is a consolidation from 1958 and many provisions are historical survivals. Practitioners should not assume that the Act governs all matters within its title; most marriage law is now Commonwealth law. The Act’s operative core is essentially sections 156 to 161 (property) and a few sections in Part VII (guardianship). The rest is either repealed or spent.