Basic information for all marriage celebrants

Requirements of ALL marriage celebrants to ensure the marriage is vaild according to Marriage Law in Australia

magnifying_glass_contract_md_clrBASIC INFORMATION:

Types of Celebrants

In Australia, there are three subdivisions of celebrants under the Marriage Act 1961.

•    Division 1—Authorised celebrants - Subdivision A—Ministers of religion

•    Division 1—Authorised celebrants - Subdivision B—State and Territory officers etc.

•    Division 1—Authorised celebrants - Subdivision C—Marriage celebrants (Note: Includes independent civil and religious celebrants)

Types of marriage

In Western tradition, marriage commenced and continues to be a secular function. Churches became involved to record marriages.

Australia, granting religious tolerance, allowed religions to marry couples on behalf of the government, unlike other countries, such as France.

Therefore under the Australian Marriage Act, all marriage celebrants are authorised to provide the "civil legal function" of the marriage, whether the ceremony is religious or civil; or whether the celebrant religious or not; or whether regulated by

  • the Marriage Law and Celebrant Section of the Commonwealth
    i.e. Subdivision C—Marriage celebrants


    OR
  • the Registry Office of Birth, Deaths and Marriage of  State and Territory in which the celebrant resides.
    i.e. Subdivision A—Ministers of religion and Subdivision B—State and Territory officers
    Note: Islam is a Subdivision A Recognised Religion

Second marriages

Unlike some countries, Australia does not permit second marriages.

Civil Marriage celebrants cannot provide a second marriage ceremony, whether the couple is married or not.

The exception under Section 113 of the Marriage Act, due to religious tolerance,  allows religious celebrants to perform a second religious ceremony for a couple who are already married. The marriage must not use Forms 13,14, 15, nor 16 nor be registered.

i.e. in Australia, a celebrant must not provide a religious marriage ceremony if the couple is not already married by law.

Requirements of ALL marriage celebrants to ensure marriages are valid according to Marriage Law in Australia .

ALL marriage celebrants must ensure these 4 conditions are present before conducting a marriage.

1. A man and a woman - both 18 years or older.

Only exception is where 

• only one of the parties is 16 years or older but less than 18 years 

AND 

• the Court grants approval upon formal application from the couple to the court. 

    i.e. two people under the age of 18 years cannot marry.

It is very rare for this to be granted in Australia. 

2. Both the parties must give their informed and free consent to the marriage

This means a marriage should not take place where 

  • one or both of the parties is considered not mentally competent to make such a mature decision 

  e.g. where the person is underage as outlined above.

  e.g. where the person has a moderate to severe intellectually disability

  e.g. where the person has age or other related onset of moderate to severe dementia 

  e.g. when a  person is grossly affected by alcohol or other drugs

  e.g. when a person with mental illness is severely affected by a psychotic episode

  • where the person is forced into a marriage with threats of physical, mental or other violence

e.g. criminals or other groups forcing women or men into marriage for financial gain (usually associated with Immigration fraud)

  • where the person is coerced into a marriage with implied or actual threats of withdrawal of family and community support

e.g. a surprise wedding, where one or both of the parties, has not had time to fully consider their decision and strong social pressure can affect the person’s decision-making ability.

3. Both the parties must not be validly married to any other person.  

i.e. In Australia, marriage is a legal relationship between two people. 

Legal Definition of Marriage:

“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”;

i.e. a man cannot have more than one legal/ valid wife, or a women more than one legal/ valid husband.

4. One Month’s Notice must be received in person or by mail by the registered celebrant from both parties to the marriage on a form designated by the Marriage Act called a Notice of Intended Marriage - Form13).

This form must be signed by both parties to the intended marriage and witnessed by the authorised celebrant (or by another person authorized under the Act – see page 3 of  the Notice).

This time is so the authorized celebrant can perform their legal duties, which are

  • Truthfully note on the Notice Form the actual date the completed and signed Form was received. Note, in some special circumstances the Form can be submitted by one party but the Celebrant must verify that the other party knows about the lodgment of the form.

  • Ensure both parties are over 18 years
    - Sight Birth Certificates if Australian born (not photocopies)
    - Sight Birth Certificates or Overseas Passports if not Australian born
    - Have the person make a Commonwealth Statutory Declaration as to their date and place of birth, giving evidence to support this declaration e.g. Citizenship papers; expired (not cancelled) passport
     
  • Are free to marry
    - Sight Divorce papers or Death Certificates (not photo copies) OR a Statement from the Family Court of marital status if any question of the person having been through a marriage ceremony elsewhere.

  • Check the identities of the parties to the marriage – (Suggested at least 3 items)
    - Sight photo ID, Passports, Drivers Licences etc

  • Ensure both parties understand the content and implications of  Form 14 Marriage Declaration and have both parties to the marriage complete and sign this Marriage Declaration. There are legal penalties for giving false information on this document (or receiving such a document knowing it has false information). This should be done as close as possible to the day of the marriage, and certainly must be done prior to the marriage.

  • Complete two copies of Form 16 Marriage Certificates (one which goes to the Registry of BDM in state or territory where the marriage was held – the other is held as the celebrants register) and one copy of the Form 15 Marriage Certificate – which is given to the couple.

  • The only difference on all these Forms is the recording of the Rites Used – religious celebrants write the name of their church; civil celebrants write according to Marriage Act 1961.

  • The Celebrant must ensure there are two witnesses over the age of 18 years present to hear and observe the marriage, and sign the marriage certificates

  • The Celebrant must ensure all parties understand the marriage ceremony where any of the parties do not understand English or the language in which it is delivered.

  • All celebrants must register the marriage within 14 days of the marriage with the Registry of BDM in state or territory where the marriage was held i.e. send to the RBDM the Form 14 signed before the Marriage; Form 16 signed at the Marriage Ceremony; and any Stat. Declarations made by the couple.

In what ways is the Marriage Act different or confusing for celebrants and couples?

Consent:

Section 45 (2) of the Marriage Act 19611, requires the marrying couple to formally indicate consent in the marriage service in civil ceremonies conducted by Subdivision B and C celebrants, and in religious ceremonies conducted by independent religious Commonwealth Subdivision C Celebrants.  These words are

“I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband)”;

or words to that effect.

Section 45 (1) of the Marriage Act does not require Subdivision A—Ministers of Religion to have the couple formally indicate consent as in Section 45 (2) because it is assumed that the  “form and ceremony recognized as sufficient for the purpose by the religious body or organization” would contain such consent by the couples. This is not in fact the case, as Greek Orthodox and Quakers ceremonies do not require the couple to say anything.

Also noted is the difference in the wording in Section 45 and 462 that could imply that couples of Subdivision C Independent Religious celebrants are exempted from Section 46 (2) along with Subdivision A—Ministers of Religion.

That is Section 45 state “being a minister of religion.. ….  by the religious body or organization of which he or she is a minister” whereas Section 46 states “authorized celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties …
 
However, the Subdivision C Independent Religious celebrants should have been informed in their training and in their reading of the Marriage Guidelines issued by the Commonwealth Attorney General’s Department that all Subdivision C Independent Religious celebrants should include Section 45 (2) in their ceremonies.

Status of the Marriage Celebrant:

Section 46 (1) of the Marriage Act requires Subdivision B and C civil celebrants and Subdivision C independent religious celebrants to say (or words to this effect):

  •  they are ‘authorised by law’ to marry the couple
  • ensure the couple are aware of the solemn and binding nature’ of marriage
  • give the definition of marriage according to law

Section 46 (1) exempts Subdivision A—Ministers of Religion on the assumption that

  • the ‘form and ceremony recognized as sufficient for the purpose by the religious body or organization’ which has been approved by the government when the specific religion was “Recognised” and listed in  Marriage (Recognised Denominations) Proclamation makes these points clear and
  • the Subdivision A—Minister will be following his or her religion’s marriage ceremony exactly as so ‘recognised’
  • the parties to the marriage, the authorised celebrant and the two adult witnesses to the marriage are present in the same room at the same time as the marriage occurs
  • parties to the marriage, the authorised celebrant and the two adult witnesses to the marriage must sign all three marriage certificates to attest that the marriage was performed  by the celebrant, with the couples agreement and witnessed by two adult witnesses and the authorized celebrant.
  • the Recognised Religion will supervise and monitor its marriage celebrants to ensure all of the above is done.

Note:

If there were any doubt about the processes applied by a specific Recognised Religion, then it would be wise to compare the current religious rite with the above to ensure all points are actually done.

The Civil Celebrations Network (CCN) Inc has advocated that

1. all marriage celebrants should be required to  say (or words to this effect):

  • they are ‘authorised by law’ to marry the couple
  • ensure the couple are aware of the solemn and binding nature’ of marriage
  • give the definition of marriage according to law

2. the Section 45 be modernised into plain English to ensure a simple consent such as ‘I do’ or ‘I X take you Y as my wife/husband/ spouse (or words to this effect), and all marrying couples be required to indicate consent in front of the authorised celebrant and two witnesses.

As mentioned above, Section 113 of the Marriage Act allows religious celebrants to perform a second religious marriage ceremony for a couple who are already married.

If Sections 45 and 46 were so modified, then the religious celebrant could perform the civil legal component first, then perform whatever religious marriage ceremony is required by the religion even if certain components were not according to law, such a second ceremony would not change the marital status of the couple.

Also should the definition of marriage be changed as proposed by marriage equality advocates, giving the legal definition would not prevent the religious celebrant from giving the specific religion’ view of marriage afterwards.

See CCN Inc 2012 recommendations for changes to the Marriage Act.

Religious Marriage Celebrant Rights:

Sections 473 grants religious celebrants with the right to

  • refuse to marry any couple upon any grounds they so choose, and
  • make additional requirements of the couple.

This does not give religious celebrants the right to take away or not perform all the requirements as stated above to ensure the marriage is valid according to civil law. 

In this regard, civil celebrants are not granted the same rights, even if their personal religious views may conflict with the government position.

The Civil Celebrations Network (CCN) Inc advocates that Section 47 (a) should apply to all marriage celebrants as independent professional civil celebrants working in private practice should have the same rights as other professionals in private practice to refer on clients who will receive a service more tailored to their specific needs by another independent professional civil celebrants.

References:

1. Marriage Act Section 45 Form of ceremony

(1) Where a marriage is solemnized by or in the presence of an authorized celebrant, being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister.

(2) Where a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorized celebrant and the witnesses, the words:

“I call upon the persons here present to witness that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife (or husband)”;

or words to that effect.

(3) Where a marriage has been solemnized by or in the presence of an authorized celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnized in accordance with this section.

(4) Nothing in subsection (3) makes a certificate conclusive:

(a) where the fact that the marriage ceremony took place is in issue—as to that fact; or
(b) where the identity of a party to the marriage is in issue—as to the identity of that party.

2. Marriage Act Section 46 

Certain authorised celebrants to explain nature of marriage relationship

(1) Subject to subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties, in the presence of the witnesses, the words:

“I am duly authorized by law to solemnize marriages according to law.

“Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.

“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”;

or words to that effect.


(2) Where, in the case of a person authorized under subsection 39(2) to solemnize marriages, the Minister is satisfied that the form of ceremony to be used by that person sufficiently states the nature and obligations of marriage, the Minister may, either by the instrument by which that person is so authorized or by a subsequent instrument, exempt that person from compliance with subsection (1) of this section.

3. Marriage Act Section 47 

Ministers of religion not bound to solemnize marriage etc.

Nothing in this Part:
(a) imposes an obligation on an authorized celebrant, being a minister of religion, to solemnize any marriage; or
(b) prevents such an authorized celebrant from making it a condition of his or her solemnizing a marriage that:
(i) longer notice of intention to marry than that required by this Act is given; or
(ii) requirements additional to those provided by this Act are observed.

Last modified on Wednesday, 26 February 2014 08:25