Australian Civil Liberties Union
Your Rights 2005
Chapter 6
BIRTHS, DEATHS, MARRIAGES, AND NAMES
How
to register births. Death Certificates. Funerals. Change of Name. Deed
Polls.
Births
It
is important for births of children to be registered with the Registrar of
Births Deaths
and Marriages. A birth certificate can be used to establish you are an
Australian citizen,
and can be helpful in tracing your ancestors. It is necessary to produce your
birth certificate
if you wish to marry or obtain a passport. A birth certificate can also be
helpful in
proving your identity, for instance if you are claiming unemployment benefits or
a pension.
If
a child is born in Australia it must be registered within 60 days. This applies
even if the
child is stillborn. Where birth takes place in a hospital the parents will be
given the relevant
form required to register the birth, while if the birth takes place at home the
parents
can ask for a registration form from a public or private hospital or they can
ask for
a form from the Registrar of Births.
When
a child is born to parents who are not married, it will be registered in the
mother’s
name or if the mother and father agree it can be registered in the father’s
name. The
child will be registered in the mother’s name if the father does not consent to
his name
being used or if the mother does not want his name to be
used.
Death
Certificates, Funerals
When
a person dies the death must be registered with the Registrar of Births Deaths
and
Marriages within a certain time limit (usually 21 days). The Registrar will
require evidence
of the cause of death contained in a medical certificate which should be
obtained
either from the doctor who normally treated the deceased or from the last
doctor
who saw the deceased before he died. The Registrar would normally be notified
of
the death by hospital authorities where death occurs in a
hospital.
The
Registrar will decide whether to issue a death certificate when he has obtained
a medical
certificate, and details of the place and date of the deceased’s death, and
other relevant
details such as his name, address and age. The certificate from the Registrar is
necessary
to allow the funeral to be held.The certificate is also necessary to permit
claims to
be made on insurance policies in the deceased’s name, and to allow his estate to
be dealt
with by the executors of the estate.
All
people should make a Will to ensure that their property is dealt with in
accordance
with their wishes. People should advise their friends where theirWill can be
located.
The people named as executors in theWill of the deceased should be contacted
and
they should ask for a solicitor or Trustee Company to give effect to the Will
and obtain
probate. The Courts must appoint someone to be an administrator of the
deceased’s
estate if the executor does not wish to act or if the deceased leaves no
Will.
Marriages
People
intending to marry must fill out a “Notice of Intention to Marry” and give it
to
the minister of religion or civil marriage celebrant who will conduct the
marriage. The Notice
must be given at least a month and no longer than three months before the
ceremony.
As well as giving the notice to the marriage celebrant the parties must produce
their
birth certificates and the former spouses death certificate where one of the
parties has
been widowed. Where either of the parties to the proposed marriage has already
been named
and obtained a divorce, a decree from the Family Court proving the divorce must
be
shown to the marriage celebrant. If you are already married and go through a
form of marriage
you can be charged with the offence of bigamy.
Males
and females are of marriageable age when they turn 18 and it is an offence to
marry
under these ages. A marriage cannot be solemnized if either of the parties is a
minor
(under 18) unless the parent or guardian of the minor consents in writing to the
marriage
or in the absence of a parent or guardian, the effective consent of a magistrate
or
judge is obtained.
It
is illegal to marry close relatives. Thus a parent and children, sisters and
brothers, and
parents and grandchildren are barred from marrying each other. When the marriage
takes
place it must be witnessed by two people aged over 18 years. If you are married
outside
Australia and it is a valid marriage according to the laws of the country in
which it
takes place the marriage would almost invariably be recognized as valid by
Australian Courts.
After
the marriage if the husband does not adequately support his wife and children
his
wife may apply for an order for maintenance even if they share the same house.
If the husband
tries to sell the family house, force the wife out, or assault her she should
immediately
seek legal advice. See the chapter on Family Law for
further details.
Change
of Name
A
woman’s name will usually be changed by marriage since most women take their
husband’s
name. However it is not obligatory for a woman to do this and some women
retain
their maiden name after marriage.
Indeed
people can use any name they wish provided a different name is not used for
purposes
of illegal deception or fraud. If you have changed your name informally, and you
are
required to provide proof of the name you are using, you can obtain a statutory
declaration
form from a Law Stationer and state on that form what name you are
using.
If
you wish to change your name formally you can complete a deed poll which is
taken to the
appropriate office to be registered after stamp duty and a registration fee are
paid.
The
deed poll should show your existing name and your proposed new name. You must
sign
the deed and have it witnessed. If you are named and your partner wishes to
change names
too, the deed can be used to cover that change as well. If you change your name
by
deed poll or statutory declaration you should advise all people you customarily
deal with
such as your trade union, your employer, your bank manager, and electricity and
telephone
authorities, that your name has been changed. You should also arrange for
your
drivers licence, passport and medicard etc., to carry your new name. You could
ensure
that as many people as possible know of the name change by placing an
advertisement
in a local paper.
Children’s
surnames derive from their father’s surname where their parents are married.
They keep their father’s surname if their parents separate or are divorced.
Where the
children are living with one of their parents and that parent wishes to change
the surname
the name can be changed if the other party to the marriage consents, or if
consent
is not given, if the Family Court consents to the change. Where a woman with
children
obtains a divorce and remarries she can give the children the surname of the new
husband
if her former husband consents, or where consent is not given, if the Family
Court
agrees to the change. An unmarried mother can change her children’s surname
without
the father’s consent provided the birth certificate gives the mother’s surname.
If the
children are registered with the surname of the father he must consent to any
change in
the surname. (The law relating to change of name, and whether a child takes the
father’s
surname, varies from State to State — the above is a general guide
only.)
Australian Civil Liberties Union