Marriage Celebrants E-bulletin September 2002
Marriage Amendment Bill 2002
You will now be aware that the Senate passed the Marriage Amendment Bill 2002 on 23 September 2002, without amendment.
A separate e-bulletin on this important milestone was distributed on 23 September 2002.
We will send a special e-bulletin, followed by a postal mail out, concerning the changes in the near future. In the meantime, your responsibilities and obligations under the Act remain unchanged.
Passports vs Birth Certificates
We have been advised that, despite the contents of the "Important Notice" (01/4602) distributed earlier this year, many celebrants are accepting passports as proof of age or evidence of identity in place of a birth certificate.
Section 42(1)(b) of the Marriage Act provides that a marriage shall not be solemnised unless:
- an official certificate, or an official extract of any entry in an official register, showing the date and place of birth of the party; or
- 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, where and where the party was born?
In the view of the Attorney-General's Department and the State and Territory Registrars of Births, Deaths and Marriages, it is hardly ever "impracticable" for a person born in Australia to obtain their birth certificate (except for some Indigenous people born in remote communities and in other very limited circumstances).
It is not impracticable to obtain a birth certificate simply because it is inconvenient or difficult. The fact that it will cost the party money to obtain the certificate or extract or that the party has left it too late to obtain the document prior to the ceremony is not sufficient reason to make it "impracticable" to obtain it.
Where a party has been born overseas and cannot provide a birth certificate, then a statutory declaration is usually sufficient. However, many overseas countries have centralised registries and it would not therefore be impracticable for the party to obtain a birth certificate. A celebrant might also ask for photographic identification in the case of a party born overseas who cannot provide a copy of their birth certificate. An authorised marriage celebrant shall not perform a marriage unless the celebrant has satisfied themselves that the parties are the parties referred to in the Notice of Intended Marriage.
Some celebrants have put forward the argument to Registries of Births, Deaths and Marriages that they can in fact accept a passport in place of a birth certificate because the back of the Notice of Intended Marriage form refers to a passport having been produced. There is an inconsistency between the Notice of Intended Marriage and the Act which is currently being rectified. The Act, however, overrides the Notice of Intended Marriage and celebrants should observe the Important Notice sent out earlier this year which correctly states the requirements.
A passport may be used in conjunction with and to support a Statutory Declaration as set out in S.42(1)(b)(ii) but not in place of a birth certificate.
Copyright
Following a query from an association, the copyright law area of the Department has developed an information sheet about how copyright can affect marriage celebrants. The document is attached and concerns a range of copyright issues that may affect you, such as:
1. Copying of lyrics in wedding/civil ceremony booklets
2. Copying of poetry or literary extracts in wedding booklets
3. Copying of print music for use by choirs, singers, instrumentalists
4. Copying lyrics onto overhead transparencies
5. Making video recordings or audio recordings of weddings
6. Making backing tapes/recordings to play during the wedding or reception; and
7. Publicly performing music and/or sound recordings
The information sheet also provides important information concerning copyright clearance and in what circumstances you may be required to obtain a licence to use material.
The document also includes useful contact details for seeking clearances and licences.
The Copyright Law Branch sought input from the Australasian Performing Rights Association (APRA) and the Phonographic Performance Company of Australia (PPCA) in developing this fact sheet for marriage celebrants. The Copyright Law Branch advises they consider that the collecting agencies are now more aware of the difficulties celebrants experience in relation to copyright and are better placed to respond to any queries from celebrants.
The enclosures are provided in both Word and Rich Text formats for your ease of access.
"Surprise" Marriages
During August, a Melbourne newspaper reported a story of a "surprise" wedding where the bride had repeatedly said no to a proposal of marriage but then surprised the groom by organising the wedding - about which he reportedly knew nothing until he turned up at his own wedding.
The matter of such a marriage raises some serious issues.
One concern is that a "surprise" marriage places undue pressure on the person to say yes. Even if there is evidence that the person would previously have agreed to a marriage proposal, their consent should not be assumed and they should not be put under any pressure to enter into a marriage.
Of course there is also the fact that the person will not have signed the Notice of Intended Marriage. It is not appropriate for a celebrant to stretch the meaning of section 33(3) of the Act to obtain the signature of the second, or "surprised", person immediately prior to the ceremony because the signature "cannot conveniently be obtained" prior to the minimum notice required.
It is inappropriate for a celebrant to solemnise such a marriage.