Marriage Celebrants E-bulletin May 2003
Welcome to the May 2003 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.
New Regulations for the Shortening of notice time
New regulations came into effect on 9 April 2003 relating to the shortening of time for giving notice of an intended marriage. As you will know, a Notice of Intended Marriage (NOIM) must be given in relation to every marriage which takes place in Australia, so these changes are of importance to all celebrants.
Section 42 of the Act provides that, prior to a marriage taking place a Notice of Intended Marriage (NOIM) must be given by the couple and received by the authorised celebrant solemnizing the marriage. That notice must be given not earlier than 18 months before the date of the marriage and not later than one month before the date of the marriage. In other words, the authorised celebrant must receive a NOIM at least one month, and no more than 18 months, before the wedding date.
Situations arise from time to time when a couple will approach a celebrant seeking to be married with less than a month available to give the required notice. In many cases there will be a legitimate reason for this and so it is provided for in the Act.
Section 42(5) of the Act previously allowed for the shortening of time for notice of an intended marriage if the prescribed authority was satisfied that the circumstances of the particular case justified it. There were no regulations setting out the circumstances in which it was appropriate to grant the shortening of time. This meant the prescribed authority had a very wide discretion and could grant the shortening of time if he or she thought it was justified.
Section 42(5) has been amended and now provides that, where a NOIM has been received later than one month before the date of the marriage, a prescribed authority may authorise an authorized celebrant to solemnize a marriage if the authority is satisfied that one or more of the circumstances prescribed in regulations have been met.
Prescribed Circumstances
There are five categories of circumstances set out in the regulations. These are:
- Employment related or other travel commitments,
- Wedding or celebrant arrangements, or religious considerations,
- Medical reasons
- Legal proceedings
- Error in giving notice
In future decisions will be made in accordance with these circumstances as set out in the regulations. The regulations will assist both celebrants and couples. They will have a good idea when they make an application whether it is likely to be granted. The new regulated circumstances should provide more predictability in decision making for celebrants and couples.
The reason for seeking a shortening of time for notice must fall within one of the categories before an application can be considered. There is no capacity to grant shortening of time outside these circumstances. Celebrants and couples need to understand that shortening of time is not automatic. When making a decision the Registry of Births, Deaths and Marriages (BDM) or prescribed authority will weigh up the information provided in support of the application.
Please note that the NOIM can be now be printed from our website. If you are printing the NOIM form from the internet it is vital that you print all four pages. The important information containing the privacy notice is on page 2 and it is crucial that couples are given the information and are able to read it. The first two pages also contain the instructions for completing the form. Once again it is vital that couples read the instructions prior to the form being completed.
Surprise Weddings
It has come to the attention of the Department that some celebrants may be involved in so-called "surprise" weddings.
A major concern is that under the Marriage Act 1961 (the Act) there is a basic requirement that both parties to an intended marriage give notice of their intention to marry one month before the wedding takes place. This notice must be given to an authorised marriage celebrant. It would not be possible for that notice to be given if the wedding were a surprise for one of the parties.
An important reason for requiring this notice of intention to marry is that marriage should not be entered into lightly and the month's notice provides the parties with time to reflect on their decision to marry. The institution of marriage should not be trivialised by implying that it is acceptable to enter into a marriage where one party has been tricked or coerced into the marriage.
The Act also requires both parties to freely consent to marrying. Receiving a proposal of marriage before a large audience or in front of family and friends would certainly put a great deal of pressure on the surprised party to accept. It is possible that the element of surprise could be a ground on which the validity of the marriage could later be challenged under s23B(1)(d)(i) of the Act.
Another major concern with a surprise wedding is the issue of the behaviour of the celebrant who purported to perform the marriage. All celebrants should be aware of their obligations under the Act and certainly should not be pretending to marry the parties, in a situation where they know the marriage is not real.
Deborah Nance
Principal Legal Officer
Marriage Celebrants Section
Family Law & Legal Assistance Division