VersionNo. 056
Marriage Act1958
No. 6306 of 1958
Version incorporating amendments as at
1 November 2017
table of provisions
SectionPage
1
SectionPage
1Short title and commencement
2Repeal
3Definitions
Part VII—Guardianship and custody ofminors
132Definitions
133Principle on which questions relating to minors are to be decided
134Equal right of mother to apply to court
135Rights of surviving parent as to guardianship
138Power to Court to remove guardian
139Saving
148Earnings of child
153Saving
155Rules
Part VIII—Provisions relating to property of married women &c.
156Capacity of married women
157"Separate property" and "restraint on anticipation" abolished
158Execution of general power
159Abolition of husband's liability for wife's torts and ante-nuptial contracts debts and obligations
160Husband or wife may sue each other for tort
161Questions between husband and wife as to property
Schedules
First Schedule
═══════════════
Endnotes
1General information
2Table of Amendments
3Amendments Not in Operation
4Explanatory details
1
VersionNo. 056
Marriage Act1958
No. 6306 of 1958
Version incorporating amendments as at
1 November 2017
Long Title amended by No. 9549 s.2(1)(Sch. item 11).
An Act to consolidate the Law relating to Marriage and to Divorce and Matrimonial Causes and to Guardianship and Custody of Minors.
1
Marriage Act1958
No. 6306 of 1958
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
S. 1
amended by Nos 8181 s.2(1)(Sch. item 136), 9549 s.2(1)(Sch. item 112), 57/1989 s.3(Sch. item130.1).
1Short title and commencement
This Act may be cited as the Marriage Act 1958, and shall come into operation on a day to be fixed by proclamation of the Governor in Council published in the Government Gazette.
2Repeal
(1)The Acts mentioned in the First Schedule to the extent thereby expressed to be repealed are hereby repealed accordingly.
(2)Except as in this Act expressly or by necessary implication provided—
(a)all persons things and circumstances appointed or created by or under the repealed Acts or existing or continuing under any of such Acts immediately before the commencement of this Act shall under and subject to this Act continue to have the same status operation and effect as they respectively would have had if such Acts had not been so repealed;
(b)in particular and without affecting the generality of the foregoing paragraph such repeal shall not disturb the continuity of status operation or effect of any regulation rule appointment application order decree authority direction declaration marriage registration certificate validation intervention security petition action judgment settlement appeal service agreement consent fee affidavit affirmation summons warrant notice notification liability or right made effected issued granted given presented passed fixed accrued incurred or acquired or existing or continuing by or under any of such Acts before the commencement of this Act; nor shall such repeal affect the operation of subsection (4) of section eight of the Marriage (Property) Act 1956.
No. 3726 s.3.
3Definitions
S. 3(1) substituted by No. 110/1986 s.140(2) (Sch.).
(1)In this Act—
the Court means the Supreme Court.
(2)In any Act and any entry register certificate or other document unless the contrary intention appears—
the expression registrar of marriages means any officer heretofore or hereafter appointed by the Governor in Council for the purpose of celebrating marriages; and
the expression guardian of minors means—
S. 3(2)(a) amended by No. 16/1986 s.30(Sch.).
(a)any magistrate; or
S. 3(2)(b) repealed by No. 57/1989 s.3(Sch. item130.2).
*****
Pts 1–6
(Headings and ss 4–131) repealed by No. 6959 s.13.[1]
*****
Pt 7 (Heading) amended by No. 9549 s.2(1)(Sch. item 113).
Part VII—Guardianship and custody ofminors
No. 3726 s.135.
132Definitions
S. 132(1) amended by No. 110/1986 s.140(2)
(Sch.), repealed by No. 59/1997
s. 8(a).
*****
S. 132(2) amended by Nos 9059 s.2(1)(Sch. item 25), 9075 s.5(1), 9427 s.5(Sch. 4 item 8), 9549 s.2(1)(Sch. item 114), 16/1987 s.4(3)(Sch. 1 item 15), 59/1997 s.8(b), 48/2006 s.42(Sch. item 25).
(2)Sections one hundred and thirty-three one hundred and thirty-four one hundred and thirty-five shall be read and construed as in aid and not in derogation of the provisions of the Children, Youth and Families Act 2005.
No. 3726 s.136.
S.133 amended by Nos 9075 s.5(1), 9427 s.5(Sch. 4 item 8), 59/1997
s. 8(c).
133Principle on which questions relating to minors are to be decided
Where in any proceeding before any Court (whether or not a Court within the meaning of thisPart) the administration of any property belonging to or held on trust for a minor, or the application of the income thereof is in question, the Court in deciding that question shall regard thewelfare of the minor as the first and paramountconsideration, and shall not take intoconsideration whether from any other point ofview the claim of the father or any right at common law possessed by the father in respect of such administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.
No. 3726 s.137.
S.134 amended by Nos 9075 s.5(1), 9427 s.5(Sch. 4 item 8).
134Equal right of mother to apply to court
The mother of a minor shall have the like powers to apply to the Court in respect of any matter affecting the minor as are possessed by the father.
No. 3726 s.138.
S. 135 amended by Nos 9075 s.5(1), 9427 s.5(Sch. 4 item 8).
135Rights of surviving parent as to guardianship
S. 135(1) amended by No. 59/1997
s. 8(d)(i).
(1)On the death of the father of a minor the mother, if surviving, shall, subject to the provisions of this Part, be guardian of the minor, either alone or jointly with any guardian appointed by the father.
S. 135(2) amended by No. 59/1997
s. 8(d)(ii).
(2)On the death of the mother of a minor the father, if surviving, shall, subject to the provisions of this Part, be guardian of the minor, either alone or jointly with any guardian appointed by the mother.
(3)The father of a minor may by deed or will appoint any person to be guardian of the minor after his death.
(4)The mother of a minor may by deed or will appoint any person to be guardian of the minor after her death.
(5)Any guardian so appointed by the father or the mother shall act jointly with the mother or father, as the case may be, of the minor so long as the mother or father remains alive unless the mother or father objects to his so acting.
S. 135(6) repealed by No. 59/1997
s. 8(d)(iii).
*****
(7)Where guardians are appointed by both parents, the guardians so appointed shall after the death of the surviving parent act jointly.
S. 135(8)(9) repealed by No. 59/1997
s. 8(d)(iii).
*****
S. 136 repealed by No. 8602 s.12.
*****
S. 137 repealed by No. 9407 s.5(a).
*****
No. 3726 s141.
S. 138 amended by Nos 9075 s.5(1), 59/1997
s. 8(e).
138Power to Court to remove guardian
The Court in its discretion shall, on being satisfied that it is for the welfare of the minor, remove from his office any testamentary guardian, and may also if it deems it to be for the welfare of the minor appoint another guardian in place of the guardian so removed.
No. 3726 s.142.
S. 139 substituted by No. 9407 s.5(b).
139Saving
(1)Subject to subsection (3), a guardian under this Part besides being guardian of the person of the minor, shall have all the rights powers and duties of a guardian of the minor's estate including in particular the right to receive and recover in his own name for the benefit of the minor property of whatever description and wherever situated which the minor is entitled to receive or recover.
(2)Nothing in subsection (1) shall restrict or affect the power of the Court to appoint a person to be or to act as the guardian of a minor's estate either generally or for a particular purpose or to vary or revoke any such appointment.
(3)Subsection (1) shall not apply to a guardian under this Part so long as there is a guardian of the minor's estate alone.
S.140 amended by No. 9075 s.5(1), repealed by No. 59/1997
s. 8(f).
*****
S.141 amended by Nos 9075 s.5(1), 9427 s.5(Sch. 4 item 8), repealedby No. 59/1997
s. 8(f).
*****
S. 142 amended by No. 9075 s.5(1), repealed by No. 59/1997
s. 8(f).
*****
S. 143 amended by Nos 8602
s. 12, 9075 s.5(1), 9427
s. 5(Sch. 4 item 8), repealedby No. 59/1997 s.8(f).
*****
S. 144 amended by No. 9554 s.2(2)(Sch. 2 item 211), repealed by No. 59/1997
s. 8(f).
*****
S. 145 repealed by No. 59/1997
s. 8(f).
*****
S. 146 amended by Nos 9075 s.5(1), 9427 s.5(Sch. 4 item 8), repealedby No. 59/1997
s. 8(f).
*****
S. 147 amended by Nos 8602 s.12, 9075 s.5(1), 9427 s.5(Sch. 4 item 8), repealedby No. 59/1997
s. 8(f).
*****
No. 3726 s.151.
S. 148 amended by No. 9075 s.5(1).
148Earnings of child
No father shall have any right to the wages or earnings of any minor child while such child is in the control and custody of the mother thereof.
Ss 149–152 repealed by No. 59/1997
s. 8(f).
*****
No. 3726 s.156.
153Saving
Nothing in this Part contained shall interfere with or affect the power of the Court to consult the wishes of the child in considering what order ought to be made, or diminish the right which any child now possesses to the exercise of its own free choice.
S. 154 repealed by No. 110/1986 s.140(2) (Sch.).
*****
No. 3726 s.158.
155Rules
S. 155(1) repealed by No. 110/1986 s.140(2) (Sch.).
*****
S. 155(2) amended by Nos 9059 s.2(1)(Sch. item 26), 59/1997 s.8(g).
(2)The Rules of law and practice of the Court relating to proceedings in forma pauperis shall with the necessary modifications apply to proceedings in the Court relating to any matter or thing authorized or permitted under this Part.
Part VIII—Provisions relating to property of married women &c.
No. 6050 s.2.
156Capacity of married women
(1)Subject to this Part a married woman shall—
(a)be capable of acquiring holding and disposing of any property whatsoever;
(b)be capable of rendering herself and being rendered liable in respect of any tort contract debt or obligation whether committed entered into or contracted before or after marriage;
(c)be capable of suing and being sued in respect of any such tort contract debt or obligation or otherwise;
(d)be subject to the enforcement of judgments and orders;
S. 156(1)(e) amended by Nos 9075 s.5(1), 9427 s.5(Sch. 4 item 8).
(e)be capable of being appointed and acting as trustee, executrix, administratrix, next friend, guardian or guardian ad litem of a minor or in any other representative or fiduciary capacity whatsoever and of doing any act in the law either in such a capacity or in her personal capacity—
in all respects as if she were a feme sole and whether separately or jointly or in common with any other person including her husband.
S. 156(2) repealed by No. 9075 s.5(2).
*****
No. 6050 s.3.
157"Separate property" and "restraint on anticipation" abolished
(1)Subject to this Part all property whatsoever which—
(a)immediately before the commencement of the Marriage (Property) Act 1956 was the separate property of a married woman or held for her separate use in equity; or
(b)belongs at the time of her marriage to a woman married after the commencement of the Marriage (Property) Act 1956; or
(c)after the commencement of the Marriage (Property) Act 1956 is acquired by or devolves upon a married woman—
shall belong to her in all respects as if she were a feme sole and may be disposed of accordingly.
(2)Any instrument executed on or after the commencement of the Marriage (Property) Act1956 shall be void in so far as it purports to attach to the enjoyment of any property by a woman any restriction upon anticipation or alienation which could not have been attached to the enjoyment of that property by a man.
No. 6050 s.4.
158Execution of general power
The execution of a general power by will by a married woman shall have the effect of making the property appointed liable for her debts and other liabilities in the same manner as her estate is liable under this Part.
No. 6050 s.5.
159Abolition of husband's liability for wife's torts and ante-nuptial contracts debts and obligations
(1)Subject to this Part the husband of a married woman shall not, by reason only of his being her husband, be liable—
(a)in respect of any tort committed by her whether before or after the marriage, or in respect of any contract entered into or debt or obligation incurred by her before the marriage; or
(b)to be sued or made a party to any legal proceeding brought in respect of any such tort contract debt or obligation.
S. 159(2) repealed by No. 59/1997
s. 8(h).
*****
S. 159(3) amended by No. 110/1986 s.140(2) (Sch.).
(3)In the case of a decree for judicial separation or adecree nisi for dissolution or nullity of marriage if, while the separation continues or (as the case may be) before the decree nisi is made absolute ordischarged or reversed, the husband or wife dies intestate as to any property such property shall devolve as if the surviving spouse had predeceased the deceased:
S. 159(3) Proviso amended by No. 41/2017 s.26.
Provided that in any such case where there is a total intestacy the Supreme Court may on the application of the surviving spouse, made within six months of the grant of letters of administration of the estate or such further time as the court allows, at its discretion order that the surviving spouse shall be entitled to and shall have a charge upon the residuary estate (within the meaning of section 3(1) of the Administration and Probate Act 1958) of the deceased spouse for such sum as the court determines but not exceeding the amount or value which the court considers the surviving spouse would have been entitled to if there had been no such decree; in which case the court shall direct that a certified copy of such order be made upon the letters of administration of the estate of the deceased and for that purpose shall retain in custody such letters of administration until such copy is made:
S. 159(3)
Further Proviso inserted by No. 6924 s.2.
Provided further that nothing in this subsection shall deprive the surviving spouse of any rights other than rights of succession under the intestacy as widow or widower of the intestate.
160Husband or wife may sue each other for tort
S. 160(1) substituted by No. 7668 s.2.
(1)A husband or a wife may sue the other for anycause of action in tort arising after the commencement of the Marriage (Liability in Tort) Act 1968.
(2)A husband or wife shall have against the other the same civil remedies and remedies and redress by way of criminal proceedings for the protection and security of his or her property as if they were both unmarried.
(3)In any proceeding under this section—
(a)it shall be sufficient to allege that the property is the property of the husband or wife (as the case may be);
(b)the husband or wife shall be competent togive evidence against the other notwithstanding any statute or rule of
law to the contrary.
(4)No criminal proceeding shall be taken by any husband or wife against the other by virtue of thisPart while they are living together as to or concerning any property claimed by him or her, nor while they are living apart as to or concerning any act done while they were living together concerning property claimed by him or her, unless such property has been wrongfully taken by the husband or wife when leaving or deserting or about to leave or desert the other.
No. 6050 s.7.
S. 161 substituted by No. 6924 s. 3, amended by No. 110/1986 s.140(2) (Sch.).
161Questions between husband and wife as to property
(1)In any question between husband and wife as to the title to or possession or disposition of property (including any question as to investment by one of moneys of the other without consent) either the husband or the wife or any person on whom conflicting claims are made by the husband and wife may apply to the Supreme Court or (at the option of the applicant irrespective of the value of the property in dispute) to the County Court.
S. 161(2) amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.1), 57/1989 s.3(Sch. item 130.3(a)(b)).[2]
(2)In addition to and without in any way limiting the powers conferred by section 37 of the Supreme Court Act 1986 or section fifty of the County Court Act 1958 the Supreme Court or the county court (as the case requires) may, upon the application of any party to proceedings under this section, grant an injunction restraining any person from making any threatened or apprehended conveyance, assignment, sale, or other disposition of any property in question in the proceedings until the proceedings are heard and determined.
S. 161(3) amended by Nos 110/1986 s.140(2) (Sch.2), 19/1989 s.16(Sch. item 38.2 (a)(b)).[3]
(3)Subject to the next succeeding subsection but notwithstanding any other Act or law to the contrary the Court may make such order with respect to the title to or possession or disposition of the property in dispute (including any order for the sale of the property and the division of the proceeds of sale, or for the partition or division of the property) and as to the costs of and consequent on the application as it thinks fit and may direct any inquiry touching the matters in question to be made in such manner as it thinks fit.
(4)Upon the hearing of any application between husband and wife under this section—
S. 161(4)(a) amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.3
(a)–(c)).[4]
(a)the Court shall not exercise the power conferred upon it by the last preceding subsection so as to defeat any common intention which it is satisfied was expressed by the husband and the wife and shall not take into account in exercising that power in relation to the property in question any conduct of the husband or of the wife which is not directly related to the acquisition of the property or to its extent or value; and
S. 161(4)(b) amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.3(a)).[5]
(b)husband and wife shall, to the exclusion of any presumption of advancement or other presumption of law or equity, be presumed, in the absence of sufficient evidence of intention to the contrary and in the absence of any special circumstances which appear to the Court to render it unjust so to do, to hold or to have held as joint tenants so much of any real property in question as consists of a dwelling and its curtilage (if any) which the Court is satisfied was acquired by them or either of them at any time during or in contemplation of the marriage wholly or principally for occupation as their matrimonial home.
S. 161(5)(a), amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.4(a)).[6]
(5) (a)For the purpose of giving effect to any order made under this section the Court may set aside any conveyance, assignment, sale or other disposition of any property in question in the proceedings if it is made to defeat an existing or anticipated order with respect to that property.
S. 161(5)(b) amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.4 (a)(b).[7]
(b)In exercising its powers under this subsection the Court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
S. 161(6) amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.5 (a)(b)), repealed by No. 57/1989 s.3(Sch. item130.7).
*****
S. 161(7) amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.6).[8]
(7)The Court, if either party so requires, may hear any such application in private.
(8)If any person other than the husband or wife is the applicant such person shall in the matter of any such application for the purposes of costs or otherwise be treated as a stakeholder only.
S. 161(8A) inserted by No. 9002 s. 2, amended by Nos 110/1986 s.140(2) (Sch.), 19/1989 s.16(Sch. item 38.7(a)).[9]
(8A)The power of the Court to adjourn a hearing or stay an order extends and shall be deemed to have always extended to the granting of an adjournment or the staying of an order where—
(a)the husband and wife are living separately and apart but have not lived separately and apart for a continuous period of 12 months immediately preceding the date of the order for adjournment or the order staying the order; and
S. 161(8A)(b) amended by Nos 110/1986 s. 140(2) (Sch.), 19/1989 s.16(Sch. item 38.7(b)).[10]
(b)the Court is of the opinion that—
(i)the adjournment or the staying of the order would not cause undue hardship to the husband or wife;