Marriage Celebrants E-bulletin June 2002

Welcome to the June issue of the e-bulletin for marriage celebrants.

The contents of e-bulletins apply equally to civil and non-aligned religious marriage celebrants authorised by the Attorney-General under section 39(2) of the Marriage Act.

We encourage you to distribute this e-bulletin to your members and/or to other parties likely to have an interest. Permission to re-print any part of this e-bulletin is provided subject to your agreement that its contents are not edited or changed.

This e-bulletin is made available on the internet within 24 hours (unless there are exceptional circumstances) and can be accessed at the following address: www.ag.gov.au/celebrants.

While we will continue to distribute the regular e-bulletin via email in the immediate future, over time, interested parties should access the internet version direct where regular updates will be posted without the necessity for duplication through email messages.

Marriage Amendment Bill 2002

In March the Marriage Amendment Bill 2002 passed through the House of Representatives with bipartisan support and is currently before the Senate. The Senate will consider the legislation on a date to be determined. Progress of the Bill will be advised accordingly.

Update on Training Development

The marriage celebrants industry reference group (IRG) held a teleconference on Wednesday, 22 May 2002. The IRG unanimously agreed to sign-off on the final draft training framework for marriage celebrants. That framework will form one part of the Community Services Training Package (CSTP) which is the responsibility of Community Services and Health Training Australia Ltd (CSHTA).

The development of the draft training framework is a major step towards the introduction of training for new marriage celebrants and the valuable and important contributions made by members of the IRG is appreciated. The Attorney-General took the opportunity to view the draft framework and advised his satisfaction with its content.

Despite the tight timeframes, the hard work of the IRG has ensured that the draft unit is comprehensive and covers all of the crucial aspects of planning, conducting and reviewing marriage ceremonies. We would like to take this opportunity to thank the members of the IRG.

Doctor Himanshu Pota and Senior Pastor Peter Greene for their contribution in respect of their experience as religious marriage celebrants.
Mr Tony Gelme;
Mr Ashley Bergh and his substitute Jack Patten;
Mr Claude Rankin;
Mrs Meg Boswell and her substitute Bill Peacock;
Mr Robert Smith;
Mr John Smith; and
Mr Roger Thomson for their contributions in respect of their collective experience as civil marriage celebrants.
Mr Dally Messenger and his substitutes Professor Michael Parer and Dr Chris Watson in respect of their experience with the Australian and International College of Celebrancy.
Ms Judith Watt in respect of her experience with Monash University.

While a draft training framework for marriage celebrants has been developed, there are a number of processes still to be undertaken at the State/Territory and national levels. This will involve the state and territory departments responsible for training and education, the Australian National Training Authority and the National Training Quality Council before the unit is given final approval. Only after those processes have been completed will the unit be made available to registered training organisations for delivery.

It is not yet known what particular bodies/organisations will deliver the training or in what particular localities the training will be delivered. That is a matter for individual State and Territory registered training organisations to determine once the unit has been through all of the necessary approval processes.

The only people/organisations that will be able to deliver training are registered training organisations and for further information in this regard, queries should be directed to local registered training organisations or the State/Territory departments responsible for training and education.

We anticipate that training will be available for delivery at the beginning of the 2003 academic year.

The Attorney-General's Department does not have responsibility for accrediting trainers, tutors or for the delivery of training.

We will keep you informed as additional information about future processes becomes available to us.

"Do-it-yourself" weddings

In the May e-bulletin we sought your views concerning the prevalence of 'do-it-yourself' weddings.

We appreciate your input and the time you have taken in canvassing views among your members. A range of comments have been received in response to our request for information. All Associations and individuals who responded indicated their concern at what they saw as the increasing prevalence of the practice of unauthorised people conducting wedding ceremonies in the presence of authorised celebrants who played a minimal role sometimes confined to no more than signing the required documents. All Associations that provided comments indicated that they thought such practices were increasing.

In the meantime the Department has been considering the legal issues arising from such practices. The Marriage Act 1961 does not provide explicit instruction on the minimum role that must be played by a celebrant in a marriage ceremony but it does draw a distinction between religious marriage celebrants and civil marriage celebrants and imposes additional requirements on civil celebrants.

The Department has reviewed the decision of the Full Court of the Family Court of Australia in W and T [1998] 23FamLR 175. In this decision the Family Court provided guidance on the minimum role that should be played by an authorised religious celebrant in order that there be no confusion and no question as to the validity of the resulting marriage.

The case concerned a challenge to the validity of a marriage on the basis that it was conducted by a person who was not an authorised celebrant. There were two pastors involved from a recognised denomination. The pastor conducting the ceremony was not authorised and the pastor who was authorised sat at the back of the church and then signed the papers. This scenario bears some similarity to several of the examples being brought to our attention by Associations in the context of civil ceremonies. The Court upheld the validity of the marriage but said that the way in which the wedding was conducted had been unwise and gave rise to uncertainty. The Court went on to provide some guidelines for wedding ceremonies conducted by religious celebrants. The Court was at pains to emphasise the distinction between a religious and a civil celebrant and said that the requirements of the Act (in particular section 46) require a greater degree of involvement in the ceremony on the part of an authorised civil celebrant.

As a result of the Department's examination of this case we set out the following minimum requirements for non-aligned religious celebrants appointed under section 39(2) and civil celebrants.

The minimum requirements for a religious celebrant are:

To consent to be the supervising authorised celebrant and to be at the ceremony in that capacity;
To be part of the ceremonial group or in close proximity to it;
To be responsible for ensuring that the marriage ceremony is carried out according to law;
To make their presence as the authorised celebrant known to the congregation;
To be available to intervene in a meaningful way if events demonstrate the need for it elsewhere in the ceremony; and
To sign the papers required by the Act.

The minimum requirements for a civil marriage celebrant are:

To consent to be present as the responsible authorised marriage celebrant;
To take a public role in the ceremony;
To identify themselves to the assembled parties, witnesses and guests as the celebrant authorised to solemnise the marriage;
To be responsible for ensuring the validity of the marriage according to law;
To say the words required by section 46 in the presence of the parties, the formal witnesses and the guests before the marriage is solemnised;
To be in close proximity (ie nearby) when the vows required by section 45(2) are exchanged because it is the exchange of vows that constitutes the marriage and the authorised celebrant should ensure that they see and hear the vows exchanged;
To be available to intervene (and exercise the responsibility to intervene) if events demonstrate the need for it elsewhere in the ceremony;
To be part of the ceremonial group or in close proximity to it; and
To sign the papers required by the Act.

These requirements do not affect the capacity of celebrants to design a ceremony that includes the participation of people particularly requested by the couple and should not diminish the flexibility available to couples and civil celebrants to 'personalise' ceremonies to suit particular requirements. It is not acceptable for couples or guests to be under any misapprehension as to the authority of a person to solemnise a marriage under the Marriage Act. In other words it must be made clear at all times to couples and guests who the authorised celebrant is and that that person has certain obligations under the Marriage Act even if the majority of a wedding ceremony is being led by someone else.

The Department also wishes to make it absolutely clear that it is unacceptable for anyone other than the authorised celebrant themselves to use the celebrant's authorisation number.

The above summary is intended to clarify and remind you of your legal responsibilities and to assist you in discussing your role and the content of wedding ceremonies with couples. We hope it will serve as a minimum framework around which the needs and preferences of the couple could be met.

A notice incorporating these matters will be sent to all celebrants in the next large mail out.

Code of Practice

Attached to this e-bulletin is the final draft Code of Practice to be incorporated into Marriage Regulations in due course (enclosure is presented in Word and RTF formats for ease of access). The comments submitted over the past months have been incorporated into the Code of Practice where practicable.

You will note that under item 5(a) the words "as appropriate" have been included regarding choice of ceremony. This is to address the restrictions placed on some non-aligned religious denominations with regard to offering a choice of ceremony.

As the consultation process with respect of the Code of Practice has now come to an end, no further comments regarding its contents can be considered from this point.

The Code of Practice will be provided to the legislative drafting area of the Attorney-General's Department in readiness for its incorporation into regulations.

Return of Marriages Performed Statistics

All marriage celebrants, both civil and non-aligned religious, should have returned their statistics for marriages performed for the period 1 July 2001 to 31 December 2001. Nationally, there are a large number of outstanding returns.

In the event that a celebrant did not perform any marriages during the period, the form must still be completed to advise that "nil" marriages were performed. There are NO penalties for submitting a nil return. In fact, a nil return advises us that you are still active but did not happen to perform a marriage during a particular period.

All outstanding forms must be completed and returned to the Marriage Celebrants Section as soon as possible.

In the past, individual celebrants received a reminder by letter that their statistical returns were overdue. That practice will no longer continue.

Reminder for 1 January 2002 - 30 June 2002 statistics

An early reminder that statistics for marriages performed for the current period of 1 January to 30 June 2002 are required to reach the Marriage Celebrants Section by 31 July 2002.

As discussed in the previous section, where no marriages were performed for the period, a statistical return must be completed to reflect "nil" marriages and submitted to the Section.

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Marriage Celebrants E-bulletin June 2002