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 motherís name or if the mother and father agree it can be registered in the fatherís name. The child will be registered in the motherís 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 deceasedís 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 deceasedís 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 deceasedís 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 ďNotice of Intention to MarryĒ 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 womanís name will usually be changed by marriage since most women take their husbandís 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.

Childrenís surnames derive from their fatherís surname where their parents are married. They keep their fatherís 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 childrenís surname without the fatherís consent provided the birth certificate gives the motherís 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 fatherís surname, varies from State to State ó the above is a general guide only.)

 

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Australian Civil Liberties Union