The embedded systemic injustice in the Australian Marriage Act

The Marriage Act 1961 was introduced to bring together all the states and territories laws in place at the time under ONE law. This included the groups performing marriages at that time - the mainstream (Recognised Religious) groups and the Registries of Birth, Deaths and Marriages.

In 1973, using a provision under the Commonwealth a new group of independent civil celebrants (later added to by various special needs groups) was created on a needs basis with the fee for services set by the government.

The Australia Marriage Act 1961 is a simple common sense piece of legislation, that protects the couples from any mistakes the celebrant may make, provided the couple are free to marry.
  • Various Changes to the Program have been made to the Commonwealth Civil Marriage Celebrant Program since its inception over four decades ago in 1973.
  • Some of those changes are summarized on the CoCA webpage titled For the Media.
When the Marriage Amendment Bills were passed, the Marriage Act removed the parity that Commonwealth celebrants had with State/Territory celebrants, and provided grounds for dismissal of Commonwealth Civil Celebrants on the basis on the non-payment of one fee, even if they have been providing valid marriages.
  • This is because the Exempted Marriage Celebrants (Recognised Religious and the Registry Office celebrants - Subdivisions A and B) are NOT required, as Commonwealth Celebrants are, to have pay an Annual Registration Fee.
The TCN Inc argued in its 2012 submission on Cost Recovery and Increased Professionalism that the Marriage Act itself is discriminatory against both civil couples and independent Commonwealth celebrants, and like CoCA, TCN Inc argues that the Act itself needs a major review.

So, leaving to one side the issue of same sex couples, in what ways is the Marriage Act 1961 discriminatory?

For couples:

1.  Religious marriage celebrants may
  • require couples to give longer notice of intention to marry  than that required by this Act is given [Section 47 (b) (i)] and/ or
  • make additional requirements of couples than those provided by this Act. [Section 47 (b) (ii)]
  • discriminate against divorced couples on the basis of marital status or other couples on any other grounds [Section 47 (a)]
  • marry couples who are already married to each other in a second Marriage Ceremony, without the requirement to declare to the guests that the couple are already legally married. [Section 113]
2. Civil marriage celebrants
  • are required to have their couples take their vows - in a form not required of couples being married in a religous ceremony  [Section 45]
  • are required to say they are authorised by law to marry and give a definition of marriage according to Australian law - not required of Subdivision A and B celebrants [Section 46] though is required of Commonwealth appointed independent religious celebrants.
  • are required to provide couples with information on relationship education and counselling services - assumed but not required of Subdivision A [Section 39C(2) (b)]
For Celebrants:

The Marriage Act grants Religious celebrants the right to refuse to marry a couple for any reason, but not so civil celebrants. [Section 47]

Independent Marriage Celebrants, the majority of whom are civil celebrants, must
  • have prior training in marriage law [Section 39C (2)]
  • must complete 5 hours of mandatory ongoing professional development each year [Section 39G (b)]
  • must abide by a Code of Practice  [Section 39G (a)]
  • must be reviewed every 5 years [Section 39H (1) & (2)]
  • must pay an annual fee of $240, the non-pyayment of which results in automatic de-registration.
These requirements are not made of Subdivision A and B celebrants.

In addition, the Explanatory Memorandum specifically advises Subdivision C independent Religious Celebrants two ways in which they can avoid paying the fee (Section 113 and applying to be a Recognised Religion), thus leaving Commonwealth Civil Marriage Celebrants as the only group required to pay this fee.

This table prepared for a Senate Inquiry summaries the various sections of the Marriage Act as they differ across their various Subdivisions of marriage celebrants.

Working Conditions

It must also be recognised that the working conditions in which independent civil marriage celebrants now operate are not equitable, considering that all sub-divisions of marriage celebrants, irrespective of the style of ceremony,  provide the same legal service under the Actie valid marriage.
  • Independent marriage celebrants must provide all their own set-up, maintenance and running costs unlike Subdivision A and B celebrants who have income and other support as part of their employment arrangements.
The context in which independent celebrants work is not determined by themselves, but by the Marriage Act.

This is determined by the law makers applying different underlying principles and assumptions of the different groups of celebrants and their marrying couples.

The most obvious difference came into sharp focus when the Marriage Amendment Bills were passed. Why? Because
  • Sub-division A Religious marriage celebrants can be de-registered if they are found to be conducting marriages as a business ie Marriage Act Section 33  (1) (d) (ii) if a celebrant "has been making a business of solemnising marriages for the purpose of profit or gain;"

  • Yet Sub-division C Civil marriage celebrants will be de-registered if they are NOT conducting marriages as a business!!
That is why the Marriage Act requires a major review, not just more amendments, that further embedded discrimination against independent civil celebrants and their couples.

Rona Goold

TCN Inc Delegate to the Coalition of Celebrant Associations.
Last modified on Tuesday, 07 November 2017 20:02