Conservative Attorney-General Sir Garfield Barwick drafted the Act in 1961.
- This brought together the various states and territories marriage legislation and services under the one Commonwealth Act thus creating uniform legislation for Australia.
- Sir Garfield Barwick continued the existing rights of the clergy (Subdivision A Recognised Religions) and the registry offices and state officers (Subdivision B celebrants) to provide marriage services.
- Subsequently Justice Lionel Murphy in 1973 used a provision in the Act for the Attorney-General to appoint “other Fit & Proper persons” (Subdivision C celebrants) to establish Australia’s unique and highly successful CIVIL marriage celebrant program. This provision originally was to be used only by a minimal number of ‘lay clergy’ and thus when initially drafted, was neither detailed nor structured in a consistent form within the Act.
- Since the 1980s, Subdivision C has been used to authorise celebrants for smaller religious groups who were not considered big enough to regulate their own clery, as is required of Subdivision A. By September 2016, there were 568 religious marriage celebrants authorised for 512 different non-mainstream religious organisations.
- In 2003, training in marriage law became a requirement for Subdivision C marriage celebrants, not Subdivision A and B. In 2010, this requirement was expanded under the VET requirements to include cermeonial components as independent civil celebrants provide personalised ceremonies.
- In 2014, changes to the Marriage Act meant that Subdivision C (and now Subdivision D) are charged an annual fee of $240 for their regulation by the Commonwealth Attonery-General's Department. This raises over two million dollars pa from independent marriage celebrants, 95% of whom are civil celebrants. This is inspite of the fact that
1. the rate of invalidity of marriage caused by a marriage celebrant averages less than 1 a year, and
2. the Department deals with an average of only 25 Statutory complaints pa-Statutory complaints pa- (that is about 0.3.% of independent celebrants which represents 0.03 % of all the marriages they conduct.)
- With changes to the Marriage Act in 2017 for Marriage Equality, Subdivision D was created for religious marriage celebrants authorised for different non-mainstream religious organisations, and for civil celebrants, who applied before March 9, 2018 to the Commonwealth Marriage Registrar to transfer into this Subdivision, so that they did not have to marry same gender couples. In making this application, these marriage celebrants are now-termed "religious marriage celebrants".
- All Subdivision C marriage celebrants authorised after 9 March 2018, are required to marry all couples provided they meet the legal requirements for marriage.
Who conducts marriages in Australia?
· Division 1 of the Marriage Act provides for the following groups of celebrants to conduct legal marriages:
Subdivision A – Religious celebrants from recognised religions
Subdivision B – State Registry Office staff and court officers
Subdivision C – Marriage Celebrants (ie independent civil celebrants)
Subdivision D - Commonwealth-registered marriage celebrants who perform religious ceremonies for independent religious organisations and independent religious celebrants.
The latter were previously Subdivision C marriage celebrants who applied for an exemption under the 2017 Marriage Bill not to perform same gender marriages.
· Division 3 of the Marriage Act provides for two groups of celebrants to conduct legal marriages for the Defence Forces: Chaplains and Marriage Officers (who can perform civil ceremonies).
Origins and significant sections of the Marriage Act
- Many aspects of our Marriage Act are based upon the English Marriage Acts of 1753 and 1836.
All marriage celebrants perform the same functions on behalf of the government, whether the ceremony is religious or civil, long or short. These functions are to:
- accept a Notice of Intended Marriage from the couple
- assess whether the parties to the marriage are free to marry one another under Australian law
- be satisfied as to the identities of the parties to the marriage
- complete with the couple the required documentation prior to the ceremony
- conduct a marriage ceremony after which the couple sign the relevant documents
- complete the processing of the marriage documents and register the marriage with the relevant state or territory registry office.
- This section contains the legal vows. They were originally drafted from the 1836 English Act and say “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.
- In 1836 these statements were used as proof of identity of the two parties in the absence of documents such as birth certificates and passports. The wording is almost two centuries old and needs modernising.
- Couples married in civil ceremonies must give consent in the form noted above. This legalistic format has been enforced since 2003.
- Couples being married by Subdivision A Recognised Religious celebrants or independent religious Subdivision D celebrants are not required to say these words, unless this is in their religious marriage ceremony.
- So unless the approved wording of the particular church's marriage rite has verbal consent either in the form of a Vow (such as “I take you”) or a response to an asking (such as “Do you...” “I do”), then no consent is required in the ceremony.
- There are some religious marriage ceremonies ,where the couple are not required to say anything (such as give verbal consent) - for example Greek Orthodox. Their attendance at the ceremony and completion of the paperwork is considered sufficient for consent.
Section 46 of the Marriage Act relates to a Subdivision B and Subdivision C independent marriage celebrants (religious and civil) being required to:
· state they are authorised by the Commonwealth to solemnize marriages in Australia,
· give a definition of marriage and
· admonish the couple as to the serious and binding nature of marriage.
- Subdivision A ministers of religion of a recognized denomination are not required to comply with this section of the Act. Thus they are free to give a definition or explanation of the nature of marriage according to their religion.
- For example the Roman Catholic Church refuses to marriage previously married persons, unless their marriages are not recognised by church law or have been annulled by the church.
- The Coalition of Celebrant Associations Survey (August 2015) – response 22% of independent civil marriage celebrants - showed 3% considered they would have to resign if marriage equality became law. (80% – happily marry same sex couples; 6.5 % – accept same sex clients if legally required to do so, 10.5 % – consider discreetly refusing - be 'unavailable'). Survey Reference
- To ensure the future integrity of the function of independent civil celebrants, TCN Inc position was that Section 47 should be retained in its previous form. If any compromise is to be considered, this should be only on the basis that existing marriage celebrants apply for an exemption within a specified period, but that the current form of Section 47 continue to apply all new independent civil celebrant and state/territory officers authorisations. This was the outcome of the Marriage Equality Legislation passed in December 2017.
Section 99 (6) makes it an offence to purport to marry a couple that are already legally married to one another.
- This is not the case in some other countries.
- This applies to all civil celebrants, who must make it transparent that a second marriage ceremony is not valid and that the couple are already married. (Second marriage ceremonies are requested in a range of circumstances such as having a “family wedding” after a private elopement or overseas wedding)
- This does not apply to authorised or un-authorised religious celebrants.
- However Section 113 (7) exempts unauthorised celebrants from committing an offence under Section 101 if they conduct a religious ceremony for a couple who are already married.
- Unlike civil celebrants, religious celebrants are not required to make it transparent that the second marriage ceremony is not valid and that the couple are already married.
Section 113 (5) of the Marriage Act allows unauthorised religious celebrants to conduct second religious ceremonies for couples who are already legally married.
- To do so, Section 113 (5) requires the couple to furnish proof that they are legally married and to sign declarations that the information being provided is true, and that they believe themselves to be legally married.
- However it is known that, certain religious celebrants do not always observe this requirement, and conduct the religious marriage ceremony first. In which case the celebrant is conducting an offence under the Act.
This raises the need for Subdivision A Recognised Religious Celebrants to have some training in marriage law.
Removing confusion for marrying couples and the Australian public – refers to 45,46 and 113
Marriage Celebrant Regulation:
Differences in administrative requirements for the different groups of celebrants.
- Subdivision A—Ministers of religion - requires Ministers of recognised Religions to be regulated by the State or Territory Registrar of Marriages
- Subdivision B—State and Territory officers etc. - requires State and Territory officers to be regulated by the State or Territory Registrar of Marriages
- Subdivision C—Marriage celebrants - requires Commonwealth independent marriage celebrants to be regulated by the Commonwealth Registrar of Marriages
- Subdivision D—Marriage celebrants - requires Commonwealth religious marriage celebrants to be regulated by the Commonwealth Registrar of Marriages
Section 39 requires independent civil and religious celebrants (Subdivision C and subdivision D) to:
· have training in marriage law before registration as a celebrant,
· complete 5 hours of mandatory continuing education each year
· and pay an annual fee for their ongoing authorisation as a marriage celebrant.
Failure to pay results in automatic de-registration.
- Subdivision A Ministers of Recognised Religions and Subdivision B State Officers are regulated by the State or Territory Registrar of the Office of Births, Deaths & Marriages and are not required by the Act to meet the above requirements.
- For this reason, The Coalition of Celebrant Associations argued that 2014 Marriage Amendment Bills created further unfair differences between the three sub-divisions in their celebrants' authorisation, registration, administrative and regulation with the burden falling on those marriage celebrants that serviced the 75% of the public using independent civil celebrants.