Few Australians understand the complexities of our Marriage Act.
The Act was established in the middle of the last century based upon British legislation pioneered in 1836.
How is the Australian Marriage Act different?
1. Marriage in Australia does not support child and forced marriage.
Some countries allow child and what is in effect forced marriage. Marriage in Australia is currently for only consenting adults of the opposite sex.All marriage celebrants, whether religious or civil, employed or independent professionals, must ensure the same conditions are present before witnessing and registering a couple's marriage according to law. That is, the parties to the marriage must be: Adults - no child brides or grooms; Capable of making a free and informed decision to marry - no forced marriage, Not currently married to anyone else - no polygamous marriages (neither polygyny, polyandry or group marriage). Court approved marriages for those under 18 years of age, will only allow one party to be between the ages of 16 and 18 years (whether male or female) and no person under 16 years can legally marry in Australia.
2. Both organised religions and smaller religious groups can be approved under the Act to perform legal marriage on behalf of the government.
Unlike France, where all couples must attend a registry office to legally marry and religious marriages are not legal, only ceremonial, in Australia, couples are free to choose to be married in exactly the style of ceremony they wish by choosing from 4 types of marriage celebrants: Independent Civil Marriage Celebrants (Subdivision C) Independent Religious Marriage Celebrants (Subdivision C) Religious celebrants from Recognised Religions (Subdivision A) Marriage Officers in State and Territory Registry Offices (Subdivision B) This is because the civil function of witnessing and registering a marriage according to civil law has been granted to these different groups, including religious ones.
3. Couples can choose to marry anytime year round (24 x 365) and anywhere in Australia.
Some of the 4 groups listed above do negotiate with couples times and venues to suit the parties to the marriage.Unlike the UK, where couples choosing a civil marriage can only marry at venues the government designates Registry Office Staff to perform marriages, civil celebrants are authorised to marry anywhere within Australia. Even Prince Charles could not choose to marry Camilla anywhere in the UK!
4. Couples can arrange a unique personalised ceremony in conjunction with independent civil marriage celebrants.
This category of marriage celebrants was established in 1973 allows personalised ceremonies for couples to:
- Choose a marriage celebrant whose character, style, skill and values match their own.
- Choose when and where they marry - at anytime day or night, any day of the week, any week of the year.
- Work with their marriage celebrant to have a unique ceremony designed to match their values, their personal needs and the needs of their family.
- Have a beautiful, meaningful, ethical and dignified ceremony without discrimination on the basis of religion as can occur in some countries.
The other three groups offer restricted or standardised ceremonies.
All religious celebrants (Recognised Religious and independent religious) must deliver the ceremony that is the standard one for all couples of that particular faith under the Marriage Act.
The Registry Offices offer restricted services as officers are employed at hourly rates and government services are not supposed to make a profit from the public.
5. The Marriage Act grants special privileges to religious celebrants.
Religious celebrants have been granted the right by our government to conduct marriages on behalf of the Commonwealth of Australia. This happened because in 1961, when the Commonwealth assumed the responsibility for marriage, the existing groups providing marriage services in the states and territories were allowed to continue these functions. It could have been otherwise.
The government granting rights follows the historic development of marriage, which started and was for over a thousand years, a civil relationship, with witnesses and documentation coming much later. Churches were involved in the latter phase because priests in most villages were the only literate people able to perform such a task.
- Section 47 allows religious celebrants (Subdivision A and C) the right to discriminate against any couple on any grounds, and to add extra conditions on the couple before they can be legally married in a religious ceremony. Thus changes to the definition of marriage would not force any religious celebrant to conduct marriage ceremonies against their church's religious beliefs about marriage.
- In Australia, Sections 45 and 46 grant the religious celebrant the right to perform according to their religious rites, whether the ceremony requires public consent to the marriage by the couples or not, and Section 46 exempts celebrants from Recognised Religions from needing to give a definition of marriage and make a declaration that they authorised by the government to also witness and register the marriage.
- Under Section 113 of the Marriage Act, religious celebrants can not only witness and register a marriage on behalf of the government, they can also conduct a second religious ceremony, provided the couple are already married as is the case in France and many other countries.Section 113 even allows non-authorised religious celebrants to conduct second marriage ceremonies for their couples, which is not allowed for civil celebrants and their couples under the Act.
The positive side of the Marriage Act is that citizens' personal religious beliefs and the freedom to practise their choice of religion are respected religious couples have the freedom both marry according to civil law and religious law in the same ceremony.
The negative side of the Marriage Act is the public's inability, and perhaps even the marrying couple's inability, to know whether the religious wedding ceremony is valid according to law.
The lack of a common component as required under 45 and 46 for civil marriages means the erroneous assumption that marriage is a religious relationship because religious celebrants are granted rights to marry according to civil law and the historic roots of marriage in Australia.
This situation can inadvertently contribute to concerns about Child and Forced Marriage as guests at a wedding cannot be assured the religious wedding ceremony is valid according to Australian law.