Marriage Act 1958

The Act defines key terms in section 3. “The Court” means the Supreme Court of Victoria. “Registrar of marriages” means any officer appointed by the Governor in Council for the purpose of celebrating marriages. “Guardian of minors” means any magistrate (subsection (2)(a); subsection (2)(b) was repealed). This definition is relevant to Part VII, but note that other sections use “guardian” in a generic sense, such as “guardian of the minor” under section 135 (testamentary guardian) and section 139 (guardian of the person and estate). The Act does not define “minor” but the context indicates a person under 18. Part VII uses the term “minor” repeatedly.

The central concept in guardianship is the “welfare of the minor as the first and paramount consideration” (section 133). This principle applies to proceedings concerning the administration of property of a minor. The Act makes clear that common law rights of the father are not to be treated as superior to those of the mother. Section 134 gives the mother equal powers to apply to court. The concept of “guardian” under Part VII includes a person with care and control of the person and, under section 139(1), also has all the rights, powers and duties of a guardian of the minor’s estate, including the right to receive and recover property. However, this estate power does not apply if there is a separate guardian of the estate alone (section 139(3)). The Act also introduces the concept of “testamentary guardian” appointed by deed or will by a parent (section 135(3)-(4)).

In property matters, the key concept is that a married woman has capacity as a “feme sole”. Section 156 lists five capacities: acquiring, holding and disposing of property; rendering herself liable; suing and being sued; being subject to enforcement; and acting in representative capacities. “Separate property” is abolished by section 157(1): all property that was separate property before the Marriage (Property) Act 1956, or belongs to a woman at marriage, or is acquired after that date, belongs to her as if she were a feme sole. The concept of “restraint on anticipation” is void under section 157(2) for instruments executed on or after the commencement of that Act.

For interspousal property disputes, section 161(4)(b) creates a statutory presumption that spouses who acquire a dwelling and its curtilage wholly or principally for occupation as their matrimonial home hold it as joint tenants. This presumption excludes the common law presumptions of advancement and resulting trust. It applies unless there is sufficient evidence of contrary intention or special circumstances that would make it unjust. Section 161(8A) introduces the concept of adjournment or stay where the spouses are separated less than 12 months and it is likely that proceedings under the Family Law Act 1975 (Cth) will be instituted. The court must be of the opinion that adjournment would not cause undue hardship and that the matter is more appropriately dealt with as ancillary to family law proceedings.

Part VII directly affects parents, guardians, minors, and magistrates who may act as guardians. Section 133 applies to any court (whether or not a court within the meaning of Part VII) that has before it a question concerning the administration of property of a minor. This includes, for example, the Supreme Court, County Court, and potentially the Magistrates’ Court in appropriate proceedings. The equal right of the mother to apply to court under section 134 ensures that mothers have the same standing as fathers. Section 135 addresses the rights of surviving parents: on the death of the father, the mother becomes guardian, and vice versa. This section also permits parents to appoint testamentary guardians, who then act jointly with the surviving parent unless the surviving parent objects. The children themselves are affected because the court may consult their wishes (section 153) and the father has no right to the child’s wages if the child is in the mother’s custody (section 148). Magistrates are affected because the definition of “guardian of minors” limits the term to magistrates (section 3(2)(a)). However, this definition is confined to the Act’s usage; other statutes may define guardian differently.

Part VIII affects married women and men, and any person dealing with them. Section 156 removes the common law disabilities of married women, so that a married woman can own property, contract, sue and be sued, and act as trustee or executrix. This affects all commercial and property transactions involving married women. Section 157 affects any woman who married after the commencement of the Marriage (Property) Act 1956 or who acquired property after that date: that property is her own as if she were single. This overrides any prior settlement or trust that attempted to impose restraints. Section 158 makes the will of a married woman executing a general power liable for her debts, affecting creditors and beneficiaries. Section 159 abolishes the husband’s liability for his wife’s torts and ante-nuptial debts, thereby affecting creditors and tort victims who might otherwise have looked to the husband. However, the Act does not abolish liability where the husband incurred liability through his own conduct; it only removes liability “by reason only of his being her husband”.

Section 160 affects spouses directly: they can now sue each other in tort (for causes of action arising after 1 June 1968). This includes claims for personal injury, property damage, and other torts. The section also allows a spouse to take criminal proceedings for the protection and security of property, but with important limitations when they are living together (section 160(4)). Section 161 affects any person who has a question about title to or possession of property between husband and wife. This includes the spouses themselves, and any person on whom conflicting claims are made by the spouses. For example, a bank or trustee facing competing claims from a husband and wife can apply to the court. The court’s powers under section 161 can affect title to real property, chattels, and proceeds of sale. The presumption of joint tenancy in section 161(4)(b) applies to any dwelling acquired during or in contemplation of marriage for use as a matrimonial home. This affects how title is determined in disputes, and may rebut assertions of sole ownership.

Part VII imposes duties on courts and confers rights on parents and guardians. The primary duty is on any court deciding a question about the administration of a minor’s property: it must regard the welfare of the minor as the first and paramount consideration (section 133). This duty overrides any common law preference for the father. The court must not consider whether the claim of the father is superior to that of the mother, or vice versa. The mother has the right to apply to court in respect of any matter affecting the minor, equal to the father’s right (section 134). This is a procedural right that removes any historical restriction. On the death of one parent, the surviving parent is entitled to be the guardian of the minor, either alone or jointly with any guardian appointed by the deceased parent (section 135(1)-(2)). The parent has the right to appoint a guardian by deed or will (section 135(3)-(4)). That appointed guardian has the right to act jointly with the surviving parent, unless the surviving parent objects (section 135(5)). If both parents appoint guardians, those guardians act jointly after the death of the surviving parent (section 135(7)).

The court has a discretionary power under section 138 to remove a testamentary guardian if satisfied it is for the welfare of the minor, and to appoint a replacement guardian. This power is limited to testamentary guardians (not the surviving parent directly, though the court may have other jurisdiction). A guardian under Part VII has the right to receive and recover in his or her own name for the benefit of the minor any property the minor is entitled to, and has all rights, powers and duties of a guardian of the minor’s estate (section 139(1)). However, this does not apply if there is a separate guardian of the estate alone (section 139(3)). The father has no right to the wages or earnings of a minor child who is in the control and custody of the mother (section 148). This creates a duty on the father not to claim those earnings.

Under Part VIII, a married woman has the right to acquire, hold and dispose of property, to contract, to sue and be sued, and to act in representative capacities, all as if she were a feme sole (section 156). This is a right of capacity, not subject to any limitation based on marriage. She also has the right to have all her property belong to her as if she were a feme sole, free from any restraint on anticipation (section 157). The husband has a right not to be liable for his wife’s torts or ante-nuptial contracts solely by reason of being her husband (section 159(1)). He also has the right not to be sued or made a party to legal proceedings in respect of those matters.

Spouses have a mutual right to sue each other in tort (section 160(1)) for causes of action arising after the Marriage (Liability in Tort) Act 1968. This includes the right to civil remedies and criminal proceedings for the protection and security of property as if they were unmarried (section 160(2)). However, this right is qualified: while spouses are living together, no criminal proceeding may be taken for property claims (section 160(4)). If they are living apart, a criminal proceeding cannot be taken for an act done while living together unless the property was wrongfully taken when leaving or deserting the other.

In property disputes under section 161, either spouse or a person with conflicting claims may apply to the Supreme Court or County Court (section 161(1)). The court has the power to grant an injunction to restrain any threatened or apprehended disposition of property until the proceedings are heard and determined (section 161(2)). This is a significant interlocutory power. The court may make any order with respect to title, possession or disposition, including sale and division of proceeds, partition, and costs (section 161(3)). However, in exercising that power, the court must not defeat any common intention expressed by the husband and wife (section 161(4)(a)). The court must not take into account conduct not directly related to the acquisition of the property or its extent or value. The court must apply the presumption that the spouses hold the matrimonial home as joint tenants, unless sufficient evidence of contrary intention or special circumstances making it unjust (section 161(4)(b)). The court may set aside any conveyance, assignment, sale or other disposition that is made to defeat an existing or anticipated order under this section, but must have regard to the interests of a bona fide purchaser (section 161(5)). The court may hear the application in private if either party requires (section 161(7)). The court may adjourn or stay proceedings where the spouses are separated less than 12 months, if it is likely that family law proceedings will be instituted and the matter is more appropriately dealt with as ancillary to those proceedings, and the adjournment would not cause undue hardship (section 161(8A)). This duty to consider staying proceedings is important for coordination with Commonwealth family law jurisdiction.

The Act itself does not create criminal penalties for breach of its provisions, with one limited exception. Section 160(4) provides that no criminal proceeding shall be taken by a husband or wife against the other by virtue of Part VIII while they are living together as to any property claimed by him or her, nor while they are living apart as to any act done while living together, unless the property was wrongfully taken when leaving, deserting, or about to leave or desert the other. This is a limitation on the right to bring criminal proceedings, not a penalty provision. If the limitation is disregarded, the proceeding may be invalid. However, the Act does not specify any fine or imprisonment for contravention of its provisions.

Enforcement of orders under Part VIII is primarily through civil process. Section 156(1)(d) provides that a married woman is subject to the enforcement of judgments and orders. Orders under section 161, such as orders for sale and division of proceeds, can be enforced in the ordinary way through execution. The injunctive power under section 161(2) is backed by contempt of court. Section 161(5)(a) empowers the court to set aside conveyances or other dispositions made to defeat an anticipated order. This is a strong remedial power that can be used to unwind transactions, but it is qualified by the requirement to protect the interests of a bona fide purchaser or other person interested (section 161(5)(b)). The court may also direct an inquiry touching the matters in question (section 161(3)). Costs are at the court’s discretion.

In guardianship matters, enforcement of orders for the custody or control of a minor would likely be through contempt or wardship jurisdiction, though the Act itself does not specify enforcement mechanisms. Section 138 allows the court to remove a testamentary guardian; if the guardian refuses to give up office, enforcement would be through the court’s inherent power. The court’s power to consult the wishes of the child (section 153) is not a penalty provision but a procedural safeguard.

The Act does not create statutory penalties for failure to comply with a duty. For example, if a father claims wages of a child in the mother’s custody (contrary to section 148), the mother could seek an injunction or order for repayment, but no criminal penalty attaches. Similarly, if a husband attempts to rely on his common law liability to his wife’s torts, the wife could assert her right under section 159 to have him not be liable, but there is no penalty for the husband. The practical enforcement lies in the court’s ability to grant declaratory, injunctive and monetary remedies.

The Act expressly provides for its relationship with other statutes. Part VII is to be read and construed “as in aid and not in derogation of the provisions of the Children, Youth and Families Act 2005” (section 132(2)). This means that the guardianship provisions in Part VII supplement, rather than replace, the child protection and welfare legislation. The Children, Youth and Families Act 2005 contains a comprehensive scheme for the protection of children, and the Marriage Act’s provisions must be applied consistently. Similarly, the Act was amended by the Commonwealth Powers (Family Law-Children) (Amendment) Act 1997 (No. 59/1997) which repealed many sections in Part VII (sections 140 to 147, 149 to 152, and parts of sections 132, 135, 139). That amendment was necessary to give effect to the referral of powers to the Commonwealth in relation to children’s matters. Consequently, many guardianship and custody matters are now governed by the Family Law Act 1975 (Cth), and Part VII only operates where the Commonwealth Act does not cover the field. Section 161(8A) of Part VIII explicitly contemplates that property disputes may be more appropriately dealt with as ancillary to proceedings under the Family Law Act 1975 (Cth) and gives the court power to adjourn or stay proceedings for up to 12 months to allow such proceedings to be instituted.

Part VIII interacts with the Administration and Probate Act 1958. Section 159(3) provides that where there is a decree for judicial separation or decree nisi for dissolution or nullity, if the husband or wife dies intestate while the separation continues or before the decree nisi is made absolute, the property devolves as if the surviving spouse had predeceased the deceased. However, the Supreme Court may, on application of the surviving spouse within six months of the grant of letters of administration, order that the surviving spouse is entitled to a charge on the residuary estate for such sum as the court determines, not exceeding what the spouse would have been entitled to if there had been no decree. This provision references the definition of “residiary estate” in section 3(1) of the Administration and Probate Act 1958 (section 159(3) proviso, as amended by No. 41/2017). Section 161(2) references the Supreme Court Act 1986 (section 37) and the County Court Act 1958 (section 50) in relation to injunctive powers, making clear that the powers under section 161 are in addition to and not in limitation of those general powers. Section 161(2) is thus a specific additional power, not a substitute.

The Act also saved the operation of subsection (4) of section 8 of the Marriage (Property) Act 1956 (section 2(2)(b)). The First Schedule repeals a series of earlier Acts, including the Marriage Act 1928 and other enactments, but section 2(2) ensures continuity. The Act was amended by the Age of Majority Act 1977 (No. 9075), which altered references to age throughout, and by the County Court (Amendment) Act 1989 (No. 19/1989) and Magistrates’ Court (Consequential Amendments) Act 1989 (No. 57/1989), which adjusted jurisdiction references. The long title was amended by No. 9549 (Statute Law Revision Act 1981) and the section heading for Part VII was amended by the same Act.

The most significant interaction is with the Commonwealth Marriage Act 1961. The repeal of Parts I to VI by No. 6959/1962 was explicitly a consequence of that Commonwealth Act (see Explanatory details endnote 1). Thus, the Marriage Act 1958 no longer governs marriage celebration, divorce, or matrimonial causes. Practitioners must look to the Commonwealth Act for those matters.

The Marriage Act 1958 (No. 6306) was assented to on 30 September 1958 and came into operation on 1 April 1959. It consolidated earlier Victorian marriage legislation. The Act has been amended by more than twenty subsequent Acts. The First Schedule (section 2) repealed a list of earlier Acts, including the Marriage Act 1928, various amending Acts, and the Marriage (Property) Act 1956 (in part). The most substantial early amendment was the Registration of Births Deaths and Marriages (Amendment) Act 1962 (No. 6959), which repealed Parts I to VI (sections 4 to 131) as a consequence of the Commonwealth Marriage Act 1961 assuming jurisdiction. This left only Parts VII and VIII, plus the short title, definitions, and schedules.

The Marriage (Property) Act 1962 (No. 6924) substituted section 161 and inserted the current property dispute regime, including the joint tenancy presumption and the power to adjourn in anticipation of family law proceedings. The Marriage (Liability in Tort) Act 1968 (No. 7668) substituted section 160(1) to allow spouses to sue each other in tort generally. The Age of Majority Act 1977 (No. 9075) amended several sections in Part VII to update age references, and amended section 156 (repealing subsection (2)). The Imperial Law Re-enactment Act 1980 (No. 9407) substituted section 139 (saving provision for guardian powers) and repealed sections 137 and 136. The Commonwealth Powers (Family Law-Children) (Amendment) Act 1997 (No. 59/1997) made extensive repeals to Part VII: it repealed sections 132(1), 140 to 147, 149 to 152, and parts of sections 135, 139, 155, and 159. This was to give effect to the referral of legislative power to the Commonwealth regarding children after the High Court’s decision in Re Wakim; ex parte McNally, and the subsequent COAG agreement. Section 8 of No. 59/1997 came into operation on 1 November 1998.

The Children, Youth and Families (Consequential and Other Amendments) Act 2006 (No. 48/2006) amended section 132(2) to replace the reference to the Children and Young Persons Act 1989 with the Children, Youth and Families Act 2005. The Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 (No. 41/2017) amended the proviso to section 159(3) to update the reference to the Administration and Probate Act 1958. Other amendments were made by the Statute Law Revision Acts of 1959 (No. 6505), 1971 (No. 8181), 1977 (No. 9059), 1980 (No. 9427), and 1981 (No. 9549), which primarily made minor or formal changes. The Supreme Court Act 1986 (No. 110/1986) and County Court (Amendment) Act 1989 (No. 19/1989) amended references to the court and judges. The Magistrates’ Court (Consequential Amendments) Act 1989 (No. 57/1989) attempted to amend sections 3(2)(b), 161(2)-(8A) and others, but many of those amendments were not included because the County Court (Amendment) Act had already made the same or different amendments (as explained in Explanatory details endnotes 2 to 11). The version incorporates amendments up to No. 41/2017, and there are no amendments not in operation at the date of publication.

The source text of the Marriage Act 1958 does not refer to any specific cases. However, the Act’s provisions have been the subject of judicial interpretation in Victoria. Section 161, in particular, has generated significant case law in the Supreme Court and County Court concerning the presumption of joint tenancy, the power to set aside dispositions, and the interaction with family law proceedings. The presumption in section 161(4)(b) that spouses hold the matrimonial home as joint tenants, subject to contrary intention or special circumstances, has been litigated as a statutory displacement of the equitable presumptions of advancement and resulting trust. The court’s power under section 161(5) to set aside conveyances to defeat an anticipated order has been considered in the context of protecting bona fide purchasers. The requirement to exclude conduct not directly related to acquisition (section 161(4)(a)) has also been judicially considered.

Section 133, which makes the welfare of the minor the first and paramount consideration, has been applied in guardianship and property administration cases. Although Part VII is now residual given the Family Law Act 1975 (Cth), the principle remains relevant in any court dealing with a minor’s property under Victorian law. Section 160, allowing tort claims between spouses, has been litigated in personal injury and property damage cases, particularly in the context of motor vehicle accidents and domestic torts. The criminal proceeding limitation in section 160(4) has been considered in relation to theft and property offences between spouses.

The High Court of Australia has not been called upon to interpret the Act in its current form, but the interpretation of the earlier provisions (now repealed) was part of the development of Australian family law. The Act’s interaction with the Commonwealth Marriage Act and Family Law Act has been considered in the context of the federal system. Given the repeal of many provisions, contemporary litigation under the Act is likely limited to section 161 property disputes, section 160 tort claims, and occasional applications under Part VII where Commonwealth jurisdiction does not apply. The Act’s preservation of the court’s power to consult the child (section 153) may be relevant in proceedings that are not covered by the Family Law Act.

No cases are named in the source, and the Act does not include a schedule of litigated matters. The practitioner should consult Victorian law reports and databases for specific applications of sections 161, 160, and 133.

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.

Compliance with the Marriage Act 1958 is largely about understanding its limited scope and acting accordingly. For most practitioners, the most relevant compliance obligations arise under Part VIII, particularly section 161. Any spouse who wishes to resolve a property dispute with the other spouse should consider applying to the Supreme Court or County Court under section 161(1). The applicant must decide which court to use: the applicant may choose the County Court irrespective of the value of the property. The application should include the details of the property in dispute, the alleged title and possession, and any evidence of the spouses’ intentions regarding ownership. The applicant should be aware that the court will apply the presumption in section 161(4)(b) to any dwelling acquired during or in contemplation of the marriage as a matrimonial home; the presumption can be rebutted by sufficient evidence of a contrary intention or special circumstances rendering the presumption unjust. To rebut the presumption, the party asserting sole ownership should provide evidence of the purchase contract, financing arrangements, statements of intention, or any written agreements. The court will not consider conduct not directly related to the acquisition or value of the property (section 161(4)(a)). Therefore, evidence of marital fault is irrelevant unless it bears on acquisition.

If a spouse believes the other is about to dispose of property to defeat an order, the spouse can apply ex parte for an injunction under section 161(2). The court may grant an injunction restraining any threatened or apprehended conveyance, assignment, sale or other disposition until hearing. The spouse should act quickly and provide evidence of the threat. If a disposition has already occurred, the court may set it aside under section 161(5) if it was made to defeat an existing or anticipated order. The spouse should identify the recipient and allege knowledge of the purpose. The court must protect bona fide purchasers, so a third party who acquired the property for value and without notice may be protected.

In relation to tort claims, a spouse who suffers damage from the other spouse’s tort (for example, a motor vehicle accident) may sue under section 160(1). The cause of action must have arisen after the Marriage (Liability in Tort) Act 1968 (1 June 1968). The spouse should bring the claim in the ordinary civil jurisdiction. Criminal proceedings for property protection must comply with the limitations in section 160(4): while living together, no criminal proceeding may be taken; while living apart, proceedings may be taken only for property wrongfully taken when leaving or deserting. A spouse who wishes to pursue criminal charges should ensure that the conduct falls within this exception.

For guardianship matters, compliance requires that any proceeding concerning a minor’s property administration must apply the welfare principle (section 133). The court must not prefer one parent over the other based on common law rights. The mother has equal standing to apply (section 134). If a parent dies, the surviving parent may become guardian automatically (section 135(1)-(2)), but should also consider any testamentary guardian appointed by the deceased parent. The father must not claim the child’s wages if the child is in the mother’s custody (section 148). A testamentary guardian who is removed by the court must comply with the removal order (section 138).

Overall, compliance with the Act is not a matter of filing a return or obtaining a licence; it is about observing the rights and duties it creates. The key is to be aware of the Act’s existence and to ground any claim or defence in its specific provisions.