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Section B - The Marriage Act

SECTION B - MARRIAGE ACT, REGULATIONS AND RELATED MATTERS

Revised Happily Ever After brochure

Recommendation 9

That  the Form 14A be revised and used  as a strategy to increase the compliance of all celebrants in providing
  • information about relationship education and support services,
  • information about Marriage according to Australian Law
  • information about the couple’s rights to complain about services supplied by the marriage celebrant
    and
  • encouragement for marriage celebrants to belong to celebrant associations or networks if they do not already belong to a celebrant related organisation.
(N.B. Some celebrants’ associations do include religious as well as civil celebrants.)

Rationale:

It is envisaged that the current Form 14A Brochure could be
  • renamed “Statement of Government Expectations of Marriage”
  • produced in a new format as a one page A4 Form on carbonised pads  in triplicate
  • used to require both celebrants and each member of the couple to sign  to enable copies to be  kept by all parties 
  • used as a cost recovery measure.
Human rights abuses in relation to spouses and children are often found within the context of domestic living arrangements. More people suffer physical, sexual, emotional, and other abuse from people they know, rather than from strangers.

Marriage is one such arrangement, as are civil unions (whether formalised or not) such as defacto relationships, same sex couples, carer-caree arrangements etc.

Strengthening marriage has implications  for the context in which children are raised and thus for the development of future generations.  

Civil marriage celebrants are responsible for providing information to couples on relationship education services.

Religious celebrants have a perceived (by the couple) right to discuss a couple’s relationship in depth. Civil celebrants do not, not that this submission aims to  bestow that right on civil celebrants..

Rather, this submission aims to empower the celebrant to discuss relationship education in more depth and to provide more information about strategies for promoting successful relationships.

Requiring couples to sign a document, similar to their Notice of Intended Marriage (Form 13) or their Marriage Declaration (Form 14), could serve several purposes. Not only would it alert some less informed or less empowered individuals of their rights, but it would also empower the celebrant to read and to explain the document about to be signed, and provide an opportunity for the celebrant to discuss relationship education services with more authority. Being required to sign this document may also encourage couples to pay more attention to building  quality relationships.

This additional Government tool would provide various benefits. Having better training, via specific units to be incorporated in civil celebrant training, and playing a broader role in community education as well as providing ceremonies would empower and equip civil celebrants with better skills to discuss these relationship issues.

There also would be a role for celebrants, in conjunction with their celebrant associations, to develop a range of information strategies, such as providing information sessions for engaged couples, and writing articles for local newspapers and magazines  to assist in raising public awareness of these issues.

Note: CoCA Recommendation 12 also relates to this community information opportunity.

Giving Notice:

Recommendation 10

That the principles underlying the Length of Notice, Shortening of Time for Notice and the Documentation required to be sighted by all celebrants be reviewed.

Rationale

As a result of the long Notice time, the approach  to marrying couples appears to be based upon “presumption of guilt” about identity fraud, motives for marriage, age, marital status, and other factors as related to freedom to marry. People born overseas, especially Australian Citizens and refugees, are likewise treated as “presumed guilty” first. Thus, not all couples appear to be treated as adults (“of full age”).

Civil Marriage Celebrants encounter the following issues of apparent paternalism, moralizing, and discrimination on a regular basis due to narrow interpretations in the Explanatory Notes and/or the requirements of the Marriage Act and / or Regulations upon couples:

Birth Certificates for Overseas Born people as proof of age and identity when it is obvious in almost all cases that the person sitting across from the celebrant is over the age of 18 years!
  • One month for Notice of Intended Marriage
  • Change of Name certificates
  • The wording of the Marriage Vows
  • The wording of Section 46 of the Marriage Act
  • The use of “full names” in the marriage ceremony
  • Recording the number of children of a previous marriage, yet no recording of children born “out of wedlock” on Form 13 Notice.
These matters cause distress and may increase costs and in many cases, actual hardship for couples and /or their celebrants.

Length of Notice

Australia has one of the longest periods for Giving Notice in the world. Of the 26 countries surveyed, 21 had shorter or no period of time for giving Notice to be married.  See Appendix 5

Being able to marry the person of one’s choice is a basic right of all adults.  Our nearest  , New Zealand requires only  three days Notice. It is also understood that after New Zealand shortened its time for Notice,  there were  no significant adverse consequences.

Australia’s long Notice of Intended Marriage begs the questions:
  • What is the purpose of having such a long period of Notice?
  • Does it achieve those aims?
  • Whose interests does it serve?
  • Is it for a government agenda, the celebrant’s convenience, or for the couple's good?
Laws change over time, and as communities become more educated,  they also become more balanced and civilized and less prejudicial. .

What is the Month wait for?

People not being free to marry?

The thirty day waiting period comes from the old church banns in a time when people did not have access to fast methods of communication. Time was allowed for the news to travel in case one of the parties was not eligible to marry. Recording of deaths and divorce is now more prevalent and accessible.  Furthermore, as the Notice to Marry is not a public document, this stipulation does not apply anyway.

Preventing poor decision making by people in the heat of lust?

In Australia people do not rush to get married these days. Rather, the situation is reversed.  People in Australia no longer need to be married to have ‘socially acceptable’ sex, so the days of people meeting, possibly mating and going to the registry office the next day, in case of pregnancy or clear conscience, as in the pre-1960s have long gone.

Is the Australian government treating Australian couples as adults? Do we really think that marriages don't last just because people did not wait long enough before deciding to get married?

Living longer in a more complex world is making increasingly difficult demands  of people and their relationships. Evidence would suggest that other factors are much more likely to strain the marriage – economic pressures, children and step-children, changing needs and expectations of the marriage partners of each other and the relationship. So divorce should not necessarily be seen as a failure of the individuals or of the relationship, but of the social support structures for the relationship.

Stability of positive relationships is important, especially for the raising of children. Therefore, rather than making it harder for people to marry, especially those expecting a baby or with children, it may be more in the community’s interest to make marriage easier.

Ensuring that people have thought carefully about the responsibilities of marriage?

Most couples approaching marriage these days are older than they were in the past and many have already lived together.  Even so, having thought carefully about the responsibilities of marriage prior to the marriage ceremony does not guarantee a long lasting marriage.

If the responsibilities of marriage are not well understood, then having to wait four weeks without any extra detailed information is also not likely to be productive.

Almost all couples (over 90%) wishing to take their relationship to a higher legal level (i.e. marriage) have been living together for over a year, according to the experience of most Australian Civil Marriage Celebrants.

A much shorter Notice  time would simplify the whole system of putting people through hoops to get a shortened  time, especially where the BDM and Court staff are not trained and appear to be becoming more and more legalistic and moralistic.

Human behaviour is complex, and human beings rarely operate strictly on logic alone, so at best, governments can try to make decisions based upon the principle of doing less harm than more, wherever possible.

In the current context, marriage celebrants need to be more informed and could be playing a broader role in public information and education, especially before couples live together,  so more appropriate strategies should be considered. Providing marriage information to couples once they  have already decided to get married is too late in the development of the couple’s relationship in the Australian context. Providing Marriage Information sessions as outlined in the CoCA Submission is supported by the TCN Inc.

Do all couples need Month to gather  all the appropriate documentation?

Australia has an excellent system of recording  marriage related information. Most couples could obtain the necessary documents in as little as three days if they did not already have them.

The Celebrant’s Convenience

Many celebrants when surveyed say that they prefer the one-month’s notice as this time is enough time for the couple to obtain their necessary documentation and for the celebrant to prepare a personalized marriage ceremony, tailored to meet the couple’s needs.

However, there are times when the couple’s needs for a prompt marriage ceremony outweigh their needs for a more personalized and complex ceremony and the celebrant’s preference.

Government Agenda

Is the long Notice period for a government agenda? The TCN Inc. assumes that the Commonwealth Government wants to
  • insure that coercion is not a factor, and
  • reinforce a public message that “marriage” is an important legal contract and “a special relationship that should not be entered into lightly”.

Are there other aspects of the process of giving Notice that are discriminatory?

One aspect not raised elsewhere in this submission is the consequences of Questions 15 and 16 of the Notice of Intended Marriage.

The TCN Inc. challenges the need for the collection of the information under Questions 15 and 16, its legitimacy, and purpose.

Certainly, parents consider this aspect of the Notice as discriminatory, because it excludes the recording of their children who do not fit under the definition of a previous marriage. Asking these questions creates difficult situations in the process of the interview between the couple and the celebrant.

Given the context of the legitimacy of children born out of wedlock, the variety of domestic arrangements both within the context of marriage (both pre- and post) and outside of the bounds of marriage, it is hard to identify the practical implications of applying the knowledge gained in this process and thus to justify its collection.

Another aspect is the different interpretations of a “child of a marriage”. It is understood that some state Registry Offices consider a child born to the couple prior to their marriage as a product of that marriage, and thus can be included under Questions 15 and 16.

Therefore, the need for Questions 15 and 16 would be important to address in the “review of principles underlying the Length of Notice, Shortening of Time for Notice and the Documentation required to be sighted by all celebrants”.

NOIM_Page3PreviousMarriage

In what ways could the associated forms used by marriage celebrants assist in improving the quality of their work and / or reduce any associated difficulties or hardships for marrying couples?

Form 15

As discussed at the October CoCA meeting, the two paragraphs on the back of this form need review.

First Paragraph not valid in all circumstances

Given that the Department cannot guarantee that a person who is an authorised celebrant has actually performed the ceremony or been present at the ceremony, this statement is inaccurate and misleading.

There are circumstances in both religious and non-religious settings where a couple has been ‘married’ by a person not authorized to do so, and without the presence of an authorized celebrant.

The TCN Inc. considers

  • the Revised Form 14A and
  • recommendation that Section 46 be revised to require that marriage celebrants to state their legal status in the ceremony
should assist in reducing the likelihood of such circumstances.

However, there are also examples of marriage papers having been stolen, whether they were  securely stored or not. The TCN Inc.’s recommendation is that the Code of Practice apply to all marriage celebrants to assist in increasing the security of the storage of marriage documents. However, there is always the possibility that even if stored as required, more skilled thieves might gain access to them.

Second Paragraph problematic

Whilst people who are involved in identity fraud may be hard to detect, the statement suggests  that a person cannot be sure of his/her own identity. If this is so, then this could bring into question their Marriage Declaration. It is suggested that unless this information is needed for some obscure legal reason, the paragraph be re-worded. If this aspect of the statement were needed, then the provision of its rationale to marriage celebrants would be helpful – particularly in light of their responsibilities to ensure the identity of the parties to the marriage.

Notice of Intended Marriage

There are a number of ways in which this Notice could assist in “increasing the professionalism” of all marriage celebrants and the quality of their performance.

See Appendix 8 for an Example of a Revised Page 4 of the Notice

Notice_4_bottom

The red dots indicate some examples of changes based upon

  • current marriage celebrant practice e.g.  Celebrant Number and Signature when receiving the Notice (covers situations where the Notice is not received in person) and Noting the Document Numbers for death, dissolution or nullity
    and
  • possible future practice if other TCN Recommendations are implemented e.g. ID spaces and Change of Name Verification.

Summary re Notice

The TCN Inc. considers

  • that although there are grounds for recommending that the Period of Notice for Marriage be considerably reduced, such a reduction for length of Notice of Intended Marriage may be difficult to consider in the current social and political climate in Australia.
  • that other aspects of  the Marriage Act and Regulations and its implementation can be changed to alleviate problems for couples seeking a Shorter time for Notice.

Australian passports

Recommendation 11

That a change be made to the EXISTING:

Section 42 Notice to be given and declaration made

(1) Subject to this section, a marriage shall not be solemnized unless: (a) notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorized celebrant solemnizing the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage;

(b) there has been produced to that authorized celebrant, in respect of each of the parties:

(i) an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or

(ii) a statutory declaration made by the party or a parent of the party stating that, for reasons specified in the declaration, it is impracticable to obtain such a certificate or extract and stating, to the best of the declarant’s knowledge and belief and as accurately as the declarant has been able to ascertain, when and where the party was born; or

(iii) a passport issued by a government of an overseas country, showing the date and place of birth of the party; and


BE CHANGED TO:

42 Notice to be given and declaration made

(1) Subject to this section, a marriage shall not be solemnized unless:

(a) as is
(b) as is
(i) as is
(ii) as is
(iii) a passport issued by the Australian Government for an overseas born Australian citizen and verified by an Australian Citizenship Certificate or a passport issued by a government of an overseas country, showing the date and place of birth of the party; and

Rationale:

Use of Australian Passports & Citizenship Papers as valid alternatives to Birth Certificates for Overseas Born people as proof of age

The TCN Inc. appreciates that identity fraud is a matter of concern as may be other factors of which celebrants are not aware. However, the TCN Inc. questions the underlying assumptions and the effectiveness of using the current strategies in the marrying process to address these concerns.

The TCN Inc. also appreciates that Australia has a good recording system for its births, deaths and marriages.

However, on a practical level, it is assumed that the key issue is not one of under-age marriage, very few requests being made on these grounds, but primarily one of identity.

The TCN Inc. considers that applying for Australian Citizenship is the equivalent of the establishment of one’s nationality by birth. As such, overseas born Australian citizens are discriminated against when  not being able to use their Australian passport combined with their Citizenship Certificate to verify both age and identity.

This concern about not being able to use Australian passports is expressed by both overseas and Australian born couples, particularly as passports have been costly to obtain both in time and money. Requiring extra time and expense, in applying for additional documentation in the form of Birth Certificates is considered “not fair”, especially when the process does not in fact identify people who are perpetuating “identity fraud”.

The TCN Inc. considers that applying for Citizenship is the equivalent of the establishment of one’s nationality by birth.

Therefore, the combination of an Australian passport and a Citizenship Certificate should be clearly stated as an acceptable option for overseas born Australian citizens.

Establish improved procedures for verifying identity
.
Recommendation 12

That improved procedures be established for all marriage celebrants to verify the identity of the parties applying to be married.

Rationale

In the last decade, since America’s September 11, 2001 Twin Towers tragedy and the ‘War on Terror’, there appears to have developed an increasingly paternalistic, disrespectful and discriminatory approach to commonwealth marriage celebrants and the marrying public by the Attorney General’s Department to the policy development and implementation of the Marriage Act and its implementation, and by personnel in some of the State Registry Offices of Births, Deaths and Marriages.
 
Given the Attorney General’s other responsibilities in National Security etc., it is understandable that such factors could influence attitudes to other programs run by the AGD and the states.

This situation also has been compounded by a number of factors, including the previous government’s decision to base Commonwealth Marriage Celebrants appointments upon a “business only” model and on “only One Unit” of a national Vocational and Education Training (VET) course as an educational qualification (nowhere near a “professional” qualification entry level) and on numerous problems in the quality of course delivery under the VET system.

A review of the requirements of the state registry office identity requirements would establish the types of documentation and their minimum number as clearer guidelines for marriage celebrants to establish the identity and the age of the parties applying for marriage.

Such documentation should include Deed Polls or Change of Name Instruments, which were acceptable methods of changing name at the time issued. The Australian Passport Office now accepts name changes by Deed Polls from all states except SA, instead of a Change of Name Form as currently required. This may include Statutory Declarations by other people as is required by the Passport Office.

It is envisaged that space for such documents and their verifying numbers would be built into Revised Notice of Intended Marriage and/ or Declaration of Marriage Forms.

It is also envisaged that the Marriage Law and Celebrant Section would, in consultation with CoCA and the BDMs and other relevant bodies, issue FACT Sheets to better inform marriage celebrants of their verifying identity requirements.

Marriage celebrants encounter on a regular basis the difficulties faced by people who have changed their names for a variety of non-fraudulent reasons. For example:

  • Names by Common Usage (not illegal in Australia)
  • Deed Poll at a Lands Titles Office
  • Anglo-sizing a non-English name
  • Not liking a name given by parents, but feeling that this dislike is sufficient grounds  to formally change name
  • Previous marriage, but for various reasons  not reverting to a birth surname

The MLCS, BDM staff, Prescribed Authorities and celebrants need to

  • appreciate that there are many valid reasons why a person may have changed his/her name or had his/her name changed by a parent, and that a person’s name is directly linked to his/her sense of identity
  • be sensitive to these underlying issues when discussing the names to be recorded on the Notice.

The system therefore needs to find more respectful and effective ways of strengthening these procedures. This approach should mean

  • higher compliance of people to resolve issues affecting a proper paper trail for the name
  • that there is less or no need to use the ceremony itself to embarrass people with previous names and/or birth names not in common usage under some illusion that doing so will identify people who are perpetuating identity fraud.

“Generally the name for the bride that should be recorded on the NOIM is the name recorded on her birth certificate”.

As many women change their names through a previous marriage, this recommendation in Explanatory Material leads to complications and problems predominantly for women. Please note that some of these matters discussed may apply to males also.

If the bride has continued to use her previous married name, for the sake of her children or any other reason, and records this name on the Notice, then the previous married name will be used in the ceremony. This is because the MLCS currently strongly advises the celebrant to use the party’s name on the Notice as the name in section 46 of the Marriage Act.

It  can create distress for the bride to use her previous husband’s name at the same time as making a commitment to her next husband as currently required under Section 45. This distress occurs whether the previous marriage ended due to divorce, nullity, or the death of the previous husband.  There are many cases of the ending of a marriage due to a traumatic death whether by accident or suicide.

If, to avoid using the previous married name when making her vows to her groom, the bride wishes to revert to her maiden name, she should be able to do so.

However, the bride may find that the Registered Marriage Certificate will not provide a practical link between

  • her previous married name recorded with certain organizations and agencies
    and
  • the name on her Birth Certificate if she has been married more than once, or previously changed her name by common usage, or if overseas born, modified her name in some way that creates difficulties.

These difficulties also raise privacy issues for women as well as practical issues in providing a paper trail each time with all the relevant bodies with which she needs to notify a change of name.

Therefore, if the bride (or groom) can provide the marriage celebrant with the required evidence of a paper trail underpinning a change of name, and the marriage celebrant can facilitate the completion with the person of the appropriate Application Form and Attachments then

  • the Change of Name can be appropriately registered with the relevant BDM
    and
  • the likelihood of subsequent difficulties for the person and for government agencies can be reduced.

This process is not at all unlike the current arrangements Marriage Celebrants have in being able to assist couples to gain access to a Registered Copy of their Marriage Certificate.

Some states allow marriage celebrants to forward the application on behalf of the couple

  • without the supporting documentation, on the assumption that the marriage celebrant has checked both identity and birth documents etc. or
  • only if the supporting documentation is included.

The TCN Inc. considers that a consistent national approach involving marriage celebrants with checks and balances as required would increase compliance with people registering previous Change of Name, and reduce difficulties both for the couple and their celebrant.

Additional Categories for Shortening of Time

Recommendation 13

Change the EXISTING

Schedule 1B
Circumstances for authorising marriage despite late notice (regulation 39) from

There are the five categories of circumstances set out in the regulations.  These are:

  • Employment related or other travel commitments,
  • Wedding or celebration arrangements, or religious considerations,
  • Medical reasons,
  • Legal proceedings,
  • Error in giving notice.

To:

Schedule 1B Circumstances for authorising marriage despite late notice (regulation 39)

There are the seven categories of circumstances set out in the regulations.  These are:

  • Employment related or other travel commitments,
  • Wedding or celebration arrangements, or religious considerations,
  • Medical reasons,
  • Legal proceedings,
  • Error in giving notice
  • Established relationship of 3 months
  • Pregnancy

The definition of an established relationship of 3 months would be that the parties to the marriage have known one another, been engaged or lived with one another for at least 3 months.

Revision of the Role of Prescribed Authorities

Recommendation 14

Review the role of the Prescribed Authorities to address the primary concerns of the Federal Government as they relate to couples marrying in a shorter time than Australia allows, given Australia could just as easily determine, like many other countries, a much shorter time.

Rationale:

As above.

It is presumed that criteria of primary concern would be that

  • the parties to the marriage are competent to marry
  • the parties have been given the definition of marriage and its responsibilities (As outlined in the Revised Form 14A)
  • there is no coercion (parties interviewed separately as well as together)
  • the parties meet the criteria of one of the categories as above, with supporting documentation
  • all other documentation has been produced to verify identity and freedom to marry.

Additional Classes of Prescribed Authorities

Recommendation 15

Create a new class of Prescribed Authorities from Community Based Marriage Celebrants (both religious and civil) such that there would be a minimum of 4 Community-based Marriage Celebrant Prescribed Authorities per electorate available after-hours and weekends to process requests for Shortening of Time.

Education and Information for Prescribed Authorities and Their Staff

Recommendation 16

Review the processes for the appointment of Prescribed Authorities (PA) and ensure that all PAs

  • be provided with a handbook on their responsibilities, including the need to inform themselves and any front line personnel of their roles, and of the dangers of moralizing and discriminating against couples simply on the basis of their making a request for Shortening of Time.
  • have access to the Celebrant Only Section of the MLCS of the AGD’s website.

    Note: It is also expected that this information would be available to all marriage celebrants via the Marriage Celebrants Only On-line Portal section of the MLSC website.

Rationale

Need for extra categories for Shortening of  Time, Revision of the Role of and Additional Classes of Prescribed Authorities and Education and Information for Prescribed Authorities and Their Staff

Spontaneous events:
Many examples of couples wanting to marry more spontaneously are ones where they had planned to marriage at some time, but some fortuitous circumstance occurs that brings their decision forward. A relative’s birthday, family visit, a meaningful date, a pregnancy etc. can create the opportunity for an unplanned special occasion and thus to be married.

Pregnancy:
Whilst children are no longer considered illegitimate under law, social attitudes take a long time to change. Many couples do plan to marry when they start a family. Unplanned pregnancies do occur even with the best contraceptive measures. There are also studies to suggest that marriage does afford children with a greater chance of a stable environment with both parents.

The length of Notice should not be used to punish the couple or their child - "you should have been married before you had sex" by an outmoded attitudes to children born out of wedlock.

Illness or Death:
Likewise many of couples wanting to marry more spontaneously are ones where a serious illness and/ or impending death of their partner or important relative or friend, can occur that brings their decision forward, or deepens their understanding of the importance of their relationship.

When dealing with medical reasons in a partner, family member or close friend, demonstrating an existing relationship is easier and less stressful for the couple to provide documentation by having to approach medical staff and others to obtain the necessary paperwork for the prescribed authority.

Treatment of Couples by some BDM Staff and Prescribed Authorities:

Whilst it may be common knowledge to celebrants, BDM staff and Prescribed Authorities that the Australia has a long Notice of Intended Marriage time, this is not common knowledge.

Feedback by couples to celebrants gives the impression that Prescribed Authorities are either ill-informed about their role and/ or have failed to adequately inform or educate their front line staff about how to deal with Requests for Shortening of Time. It is not the role of front-line staff to be gate-keepers, and thus be barriers to couples making this simple request.

Couples can be treated in such a way as to imply that they are

  • automatically “in the wrong” just for requesting a Shortening of Time, especially where illness and death is not the reason for the request, or
  • trying to “fudge” or “trick” the system into getting away with something that they should not be requesting.

The TCN Inc considers that the process for shortening needs to be revised to address the key reasons why it would be important to hasten of bring forward a marriage, and to allow a Shortening where-ever possible.

Celebrant rights re service provision

Recommendation 17 

PLEASE NOTE - THIS RECOMMENDATION UPON FURTHER RESEARCH HAS BEEN WITHDRAWN AS BY THE TCN Inc NATIONAL COMMITTEE 2015


Change the EXISTING Marriage Act Section 47 from:

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.

To:

47 Celebrants rights re Service Provision etc.

47 Authorised Marriage Celebrants not bound to solemnize marriage etc.

Nothing in this Part:

(a) imposes an obligation on an authorized celebrant, to solemnize any marriage;
(b) prevents an authorized celebrant, being a religious 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.

Rationale:

For a celebrant to “celebrate” a particular occasion in a professional manner, the celebrant needs to have integrity of purpose and meaningful rapport with the couple. There are many factors that can affect the celebrant-couple relationship – cultural and social background, education, class, gender, age, values, life experiences etc. This was one of the successes of the original program – that couples could be married by their “peers”, not by someone from a religious or administrative hierarchy, nor someone so highly academically trained that the couple has difficulty establishing rapport.

So there are circumstances where the celebrant is approached or has agreed to conduct the ceremony and witness the marriage, when it becomes obvious that the couple’s wishes for a form or style of the ceremony do not meet with the standards or approach of the celebrant. If this is so, the celebrant needs to be able to terminate the arrangements with the couple without fear of legal or other reprisal, and refer the couple onto another celebrant.

Thus all marriage celebrants, whether religious or civil celebrants, should be granted equal flexibility under the Section 47 to choose with whom they engage for their service provision.

Freedom of choice will also be an important factor should the definition of marriage change to include marriage between couples of the same sex. Religious views are not the only grounds upon which a celebrant may wish to refuse to marry same sex couples.
 
Statement of Authorisation and Definition of Marriage

Recommendation 18

Change the EXISTING Marriage Act Section 46 from

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.


TO:

46 Authorised celebrants make their status clear and 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 and at some point before Section 45, the words:

“I am authorized by law to witness and register this marriage 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, binding and special 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, entered into voluntarily on the understanding that this relationship is for life.”

(2) delete

NOTE: Whilst The TCN Inc assumes it is not the scope of this review, the TCN Inc recommends and supports the change of the definition of marriage to:

“Marriage, according to law in Australia, is the union of two adults to the exclusion of all others, entered into voluntarily on the understanding that this relationship is for life.”

Rationale for Changes to Section 46: Statement of Authorisation and Definition of Marriage:

Purpose

  • To ensure all couples are treated equally with respect to the basic criteria for the validation of a marriage
  • To ensure wording of the key components of the marriage ceremony is in simple plain English
  • To ensure Compliance as regards Sections 45 and 46 do not question the validity of a marriage on the basis of the specific wording of the declaration of consent
  • To ensure all marriage celebrants are dealt with fairly and equitably as regards Compliance measures.

Rationale

It is discriminatory to require specific wording to be said by marriage celebrants to couples choosing to marry in a civil context, but not in a religious context.

All parties to a marriage whether religious or not, should be clear that marriage in Australia is voluntary and that under certain circumstances the marriage can be terminated.

Australia has authorized celebrants from religions, where in other countries that religion can support/ enforce arranged marriage as the norm and divorce without the husband’s consent as not possible. Such attitudes can lead to abuse and in some cases, domestic violence.

For Australian marriages, the issue of consent is seen as a basic human right that needs to be upheld, and thus the ceremony wording needs to ensure parties to the marriage are clear about these aspects.

Also the Marriage Act was written half a century ago. The language is overly legalistic, moralistic and various parts are offensive to many couples.

In principle, a government department when reviewing laws, policies, procedures and communication to the public need to ensure the wording is in plain English, wherever possible.

1. RE changes to: “I am duly authorized by law to solemnize marriages according to law".

Many couples do not know what "solemnize" means.
Some couples think the celebrant is saying "sodomise" and are offended

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

Marriage no longer confers on the parties all the benefits (and burdens) it once did. Marriage is evolving. De facto couples have property rights, can gain custody rights and marriage alone no longer determines inheritance rights.

Today marriage’s primary power is the public promise of two people before their community of family and friends, that is reinforced (supported) by

  • the legal nature of the contract
  • the trauma of divorce
  • the impact on children and one's life style returning to a single status and income after divorce.

The primary intent of Legislation needs to be to serve the people and thus to reinforce the common good.

The primary work of marriage celebrants is to assist couples in strengthening their relationship by their public commitment to one another.  

Like other professionals, the law does impact on parts of their work, but does not define it.
For example, mandatory reporting requirements are legal responsibilities schoolteachers have. But the lawmakers do not try to define them as "child protection workers". Like any professional, they need to comply with the legal requirements of their work.

If the government wants to strengthen marriages, then it needs to reinforce its “special” nature not just its legal aspects.

3. RE changes to: “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.”  

For a public promise to have power, it must have integrity at every level.

It is not true to say that marriage is for life in Australia as the Family Law Act allows for couples to divorce.

Whilst divorce was possible in Australia at the time these words were written in 1961, its requirements were onerous and punitive. And the divorce’s consequences far more damaging that obvious today under  'no-fault' Divorce laws.

Of course "no-fault' divorce does not mean there are no faults or mistakes made by either or both parties to the marriage. Rather it means that when a marriage has broken down, a 'fault-based" approach creates further problems and trauma for all concerned.

So what may appear to be a 'softening' of this phrase, is in fact the reverse.

Having the freedom to choose to stay married:

  • supports love rather than the reverse
  • empowers a person to negotiate aspects of their relationship, which were there no divorce, may not be so negotiable.
  • empowers a couple, because in full knowledge that the law cannot make them stay together, they still commit themselves to a life long relationship.

It can also empower women and men in a abusive relationships to protect themselves and children better by not making a promise they has consider actually binds them for life. This can be the case for religious people.

Form of ceremony - Parties public consent to marry

Recommendation 19

Change the EXISTING Marriage Act Section 45 from:

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.


TO:

Marriage Act Section 45 Form of ceremony

(1) Where a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the marriage celebrant and is sufficient if, in the presence of the authorized celebrant and the witnesses, each of the parties indicate consent to the marriage by saying in words or indicating in some other form to the other:

I, A. take you, B, to be my wife (or husband or marriage partner or partner in marriage or spouse)

Or words to that effect.

(2)(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.

(3)(4) Nothing in subsection (2)(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.

Rationale:

The principle purpose of this section of the Act is a public indication of consent to the marriage before two witnesses and the authorized celebrant.

The TCN Inc considers:

  • specific wording is obviously not necessary, otherwise religious ceremonies would not be allowed different versions of the consent wording,  even as minimal in some cases as “I do”.
  • it is discriminatory to require specific wording of vows to be said by couples choosing to marry in a civil context, but not in a religious context.
  • just because there may be some evidence for religious marriages lasting longer than civil ones, this does not mean that those relationships are better. In countries where religious marriages are enforced, it is often at the expense of women and children’s health & safety.

Prior to 2003, rigid adherence to the words in Section 46 was not required. In fact, for a long period, civil celebrants were exempted from having to use Section 46 at all.

Thus for 30 years, the specific wording of Section 45 for a civil marriage could not be used as grounds for invalidation of a marriage, nor should it be. Marriage celebrants are human, and simple mistakes can be made by the best of them on occasions. The Marriage Act should rightly protect the couple from variations of the wording for consent to be used in a Marriage Ceremony by the celebrants and by themselves.

Certainly this should not be able to be used some time later as grounds for annulment, when it would have been clear to both parties, the celebrant and the witnesses that they had consented to the marriage during the wedding ceremony.

Paternalistic, disrespectful and ineffective?

In Australia, the aim of consent during a marriage ceremony in this century is primarily a personal, psychological (spiritual) and social, rather than legal one.

With high literacy and good registration systems, the freedom to marry and recording the fact that the marriage has taken place can be document and recorded. Verbal consent as was originally required centuries ago, is not longer as relevant.

The TCN Inc considers

  • the statement by the celebrant to the wedding gathering that they are authorised by law to marriage people, along with all the other checks and balances of the Forms 13 and 14 and identify and suitability checks, should verify the identify of the parties to the marriage and the process ensure sufficient time for consent to be obvious
  • the parties to the marriage should have the freedom to express their commitment to each other in plain English and without the complications of previous names or common law usage of names being involved.

There are numbers examples of stress and disappointment caused for couples, by celebrants trying to force couples to use this antiquated wording and/ or to use forms of their names in what is expected to be the most beautiful expression of their love and commitment to one another.

  • Previously married women are the most discriminated against because of the MLCS insistence on rigid adherence to the specific wording, especially as regards ‘AB and CD’.

Women have changed their surname to the previous husband’s surname and not formally chosen to return to their maiden name, for a variety of reasons, such as ensuring children still have the emotional security of the same surname as their mother or widowhood, should not be forced to

  • use the previous married name in the ceremony in which they are committing themselves to another man (a reminder of heartache, distress, in some cases trauma and /or failure)
  • nor go to the expense of changing all their identity papers back their maiden name for a few months to then go through the expense of changing those identity papers to the new married name, if that is their plan.
  • besides professional women are allowed the choice of using both their maiden name and their married name in different contexts, without those people being seen as acting fraudulently.

It must be pointed out that in religious ceremonies where the surnames may not be used at all, such as consent to the marriage being with a simple “I do”, it is the person who makes the commitment, not the name label they have been given by parents or social traditions or by choice.

The bride-to-be’s name should be obvious to the celebrant from the paper trial and thus her choice as to whether a surname is be used and if so, which one (maiden or previously married name).

There is no evidence to support the assumption that somehow forcing every couple to use full names will uncover a fraudulent name during a wedding ceremony!

Issues to do with ensuring a paper trial to prevent future difficulties for the parties to the marriage, or for the government to ensure its citizens are properly recorded, can be dealt with through the paper-work to the BDM's and future change of name processes etc.

It appears that 99% of marrying couples are being put through an unnecessarily harsh process that could be dealt with differently.

Besides those people intent on identity fraud, are most likely to be those that this process would not identify.

This section should also ensure that both parties to the marriage are in the same room at the time of the legalization of the marriage, even if under religious law the couple are married by giving their consent individually to the authorized celebrant, whilst not present together.

Processes to Minimise Identity Fraud

Recommendation 20

Build a funding component into Cost Recovery to allow people getting married use a  “Verification Change of Name” Form via their celebrant, along with a statutory declaration, for a small or no fee to address this problem, if the federal government has other reasons for wanting to secure a paper trial for the identity of citizens

Rationale:

People who have changed their names by common usage or by previously recognized processes such as deed polls, should not be forced to the added expense and difficulty of having to formally apply a Change of Name to the State BDM prior to their wedding.

The Australian Passport will accept deed polls from all states now, except South Australia, so requiring celebrants to be untruthful about this aspect of their work is not acceptable.

It is not only an affront to their sense of identity, worth and integrity, it is also the extra expense and inconvenience to the couple of being forced to deal with the state BDMs, that for most people are not geographically convenient to access.

One reason why the NZ model of the BDMs processing the Notice is not practical in Australia. The public should not be denied the convenience of the Notice being available from their celebrant based upon difficulties with the 2003-2010 appointment system. Strategies to strengthen the profession as proposed by this and CoCA’s submission should allay most of the concerns of government.

Certainly such requirements affect people from poorer socio-economic and educational backgrounds, disability and age related difficulties. Thus it would be more effective to

  • enable all marriage celebrants (state and commonwealth appointed) to assist in the process of documenting existing Name Changes, or shortly to be confirmed in marriage, and
  • ensure the process is streamlined and economically accessible to all.

Groom wishing to change name after marriage including taking the bride’s name

Not all states offer the groom the same rights as the bride to use the Registered Marriage Certificate as evidence of change of name.

This creates extra hassles and expense, especially where the process is less expensive for the groom to change name prior to the marriage. However, doing so, de-powers the traditional symbolism during the ceremony of the change of name of one spouse to the family name of the other. Whilst this is usually the bride to groom family name, if the groom has already changed family name to the bride’s, then the celebrant and the couple can not announce a name change with integrity, especially as currently advised under Section 45 for AB and CD for couples married by Commonwealth marriage celebrants.  

This situation is discriminatory and could be resolved by implementing better and consistent processes Australia-wide.

Last modified on Sunday, 22 January 2017 09:55