Marriage Celebrants E-bulletin September 2004
Welcome to the September 2004 issue of the e-bulletin, containing important information for marriage celebrants
The following information and guidance is provided to all marriage celebrants in relation to six important matters.
1. Unauthorised persons performing marriage ceremonies
This matter was addressed in detail in an e-bulletin of June 2002 (still available on the Attorney-General’s Department website – see www.ag.gov.au/celebrants, select Latest News, then select June 2002 e-bulletin). It has also been addressed several times since then at conferences and meetings of celebrants.
The Marriage Celebrants Section continues to receive reports that people who are not registered as marriage celebrants are conducting marriage ceremonies and that registered marriage celebrants are merely signing the official documents. There has also been an increasing level of complaint about students who are undertaking marriage celebrancy training approaching registered marriage celebrants with a view to officiating at marriage ceremonies.
There also still appears to be confusion among some registered marriage celebrants about their minimum legal obligations. Hence the following information is provided to all marriage celebrants.
The following list of minimum legal obligations to be performed by a marriage celebrant in a marriage ceremony are drawn from a decision of the Full Family Court in 1998 (W and T [1998] 23 FamLR 175).
As the Court noted the Marriage Act 1961 draws a distinction between a religious marriage ceremony and a civil marriage ceremony – hence there are two lists below.
A Non-religious or civil marriage ceremonies
The minimum legal requirements are
- to consent to be present as the responsible registered marriage celebrant
- to take a public role in the ceremony
- to identify themselves to the assembled parties, witnesses and guests as the celebrant registered 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 registered 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.
B Religious ceremonies where the marriage celebrant is registered by the Commonwealth
The minimum legal requirements are:
- to consent to be the supervising registered 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 registered marriage celebrant known to the congregation
- to say the words in section 46(1)
- 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.
Role of people other than the registered marriage celebrant in a marriage ceremony
The capacity to enable other people to play a significant role in a valid marriage ceremony exists to enable couples to have people important to them play a role in the marriage ceremony.
It is inappropriate for this capacity to be used by people who are not registered as a marriage celebrant to hold themselves out as able to solemnise marriages by using registered marriage celebrants as supports. It is equally inappropriate – and indeed it is misleading – for registered marriage celebrants to facilitate this.
It is also contrary to the Act for a registered marriage celebrant to do no more than sign the papers. A registered marriage celebrant is not a ‘signing’ celebrant.
The minimum requirements set out above do not affect the capacity of a marriage celebrant 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 marriage celebrants to ‘personalise’ ceremonies to suit particular requirements.
It is not acceptable for couples or guests at any wedding to be under any misapprehension or confusion about who the registered marriage celebrant is. This must be clearly announced at the beginning of the ceremony and the other legal minimum requirements set out above adhered to.
It must be clear at all times to the couple and the guests who possesses the legal authority to solemnise the marriage under the law – that is the registered marriage celebrant. It must also be made clear that the registered marriage celebrant has certain obligations under the Marriage Act even if a large percentage of the ceremony is being led by someone else.
It is the registered marriage celebrant who bears the legal responsibility for the conduct of the marriage ceremony.
The above summary is intended to remind you of your legal responsibilities and to assist you in discussing your role and the content of marriage ceremonies with couples. It is intended to serve as a minimum framework around which the needs and preferences of the couple could be met but remember, as a registered marriage celebrant your role cannot be less than that set out above.
2. So-called ‘surprise’ weddings
In an e-bulletin issued in September 2002 marriage celebrants were warned that it was inappropriate for a celebrant to be involved in any ceremony purporting to be a ‘surprise’ wedding.
What is a ‘surprise’ wedding?
Such weddings usually involve one member of a couple wishing to ‘surprise’ the other party by organising the marriage without their knowledge and then presenting them with the complete ceremony as a romantic gesture. Such ceremonies have been reported in local media.
It would appear from information reaching the Marriage Celebrants Section that more marriage celebrants are being approached to be involved in such ceremonies by one member of a couple who believes that they are legally possible.
This is of great concern to the Department and the legal aspects of the practice are addressed in the compulsory ongoing professional development activity for this registration year.
Marriage celebrants must not participate in such ceremonies. The reasons for this are outlined below and in the compulsory ongoing professional development activity. At least one marriage celebrant who participated in such a ceremony has been subject to disciplinary measures.
The legal issues that such ceremonies raise are the following:
- There is undue pressure on the ‘surprised’ person to agree to the arrangement. Even if there is evidence that the person would previously have agreed to a marriage proposal, their consent should not be assumed. No person can be put under pressure to enter into a marriage and the pressures imposed by a ‘surprise’ wedding could place in doubt the validity of the marriage under section 23B of the Act – that is that the person’s consent to the marriage was not a real consent because it was obtained by duress or fraud.
- The minimum notice period is not satisfied – the notice period requires that both parties give notice of the intended marriage, not one.
The capacity for a registered marriage celebrant to accept a Notice of Intended Marriage with the signature of only one party (section 42(3)) relates to the signing of the Notice of Intended Marriage not the giving of the notice itself. Both parties must give at least one month’s notice of their intention to marry.
Section 42(3) enables a marriage celebrant to accept a Notice of Intended Marriage with the signature of one party only where the signature of the other party cannot ‘conveniently be obtained’ at the time it is desired to give notice. The intention of this provision is to enable a couple to give notice of their intended marriage but for one party to sign the notice if the other is overseas or interstate. There is no impediment to the signatures of both parties being obtained in the context of a so-called ‘surprise’ wedding.
If a person approaches you with the request that you conduct a ‘surprise’ wedding, you should do the following:
- advise the person of the minimum requirements for a marriage and advise them you cannot accede to their request
- advise the Marriage Celebrants Section of the approach, and
- advise the Registry of Births, Deaths and Marriages in your State or Territory in case marriage documents are submitted.
The Marriage Celebrants Section would view very seriously the participation by any registered marriage celebrant in such a ceremony.
Marriage ceremonies as prizes
It has come to my attention that there have been a number of wedding ceremonies given away as ‘prizes’. Should you be approached to participate in such an event you would again need to advise the proposer that there are minimum requirements for a valid marriage ceremony. Among the most important of these is a minimum of one month’s notice. A marriage in such circumstances is unlikely to fall within the legislative requirements for granting a shortening of time.
If you are approached to participate in a ceremony in such circumstances you should do the following:
- advise the person of the minimum requirements for a marriage and ensure that the proposal meets the legal requirements
- advise the Marriage Celebrants Section of the approach, and
- advise the Registry of Births, Deaths and Marriages in your State or Territory as they may be approached for a shortening of time.
3. Students wanting mentors
Several celebrants have contacted the Marriage Celebrants Section with concerns about students approaching them for mentoring and other assistance. We have advised these celebrants that they are under no obligation to provide any such assistance - they may do so if they wish, but they are under no obligation.
If celebrants are feeling pressured by the number or type of these requests from students, we would like to encourage them to try to find out which Registered Training Organisation (RTO) the students are studying with, and contact the Marriage Celebrants Section with the details. The Marriage Celebrants Section can take the issue up with the RTOs concerned, and with RTOs generally, to let them know that this practice is not appropriate and should not continue.
4. Exclusive Arrangements and Conflict of Interest
In the March e-bulletin we discussed the issue of exclusive arrangements. We continue to receive information that suggests that some celebrants may have entered into exclusive arrangements with businesses such as wedding planners or wedding venue providers. Celebrants should be aware that such arrangements put at risk their capacity to perform their obligations appropriately, particularly those elements relating to providing couples with a choice of ceremony and advising couples about the range of relationship services available to them. These obligations are contained in the Code of Practice.
If a celebrant has an exclusive arrangement where they are directing clients to a particular wedding-related business, they also risk a potential conflict of interest arising.
We also continue to hear of other situations which may give rise to a conflict of interest between a celebrant’s responsibilities as a marriage celebrant and any other business or other interests that celebrant might have. Such other interests might include hobbies or employment. In particular we are being told by celebrants about web-sites and advertisements by others which are perceived to give rise to a conflict of interest.
The following are examples of situations that may give rise to a possible conflict of interest:
- Marriage celebrants offering ancillary products related to marriage to be purchased from the marriage celebrant;
- Marriage celebrants offering premises for receptions or offers to perform the ceremony in privately owned premises (or boats, launches, gardens etc). This could conflict with the marriage celebrant’s duty to allow couples to choose the nature of their wedding ceremony;
- Marriage celebrant offering his or her services as a ‘wedding planner’ to organise and perform the ceremony as part of a package; or
- Marriage celebrants offering counselling or relationship education as part of their service.
Any of these situations could also result in you gaining a benefit to another business that you own, control or carry out.
Section 39G(c)(ii) of the Marriage Act 1961 requires you to notify the Registrar, in writing, within 30 days of the occurrence of an event that might have caused the Registrar not to register you as a marriage celebrant if the event had occurred before you were registered.
If you have entered into an “exclusive arrangement”, or are concerned about a possible conflict of interest arising from your business practices you must notify the Registrar in writing and provide the Registrar with information concerning your business or other interest(s), how it is carried out and how you manage it in relation to your duties as a marriage celebrant.
The Registrar will review the material you provide concerning the nature of your business or other interests and how it is carried out.
Providing this information to the Registrar, as required, will not necessarily result in your continued registration as a marriage celebrant being at risk. Each situation must be considered on its merits. No fixed rules can be applied since every situation is different.
The most important factor the Registrar will be considering is the effect of your business or other interests on your capacity to fulfil your duties and functions as a marriage celebrant.
We will be seeking information from all celebrants about their web-sites, and advertising, at the time of their first performance review. We will also be seeking information to determine whether celebrants have entered into exclusive arrangements or have possible conflicts of interest which may affect their ability to fulfil all their obligations.
If you have any doubts or questions about whether your own activities or proposed activities might result in a conflict of interest or benefit to a business you should contact the Marriage Celebrants Section so we can clarify the situation for you.
5. Relocation of Marriage Registration Office in NSW
As of 5 July 2004 the NSW Registry of Births, Deaths and Marriages has changed its address to:
The Registry of Births, Deaths and Marriages
35 Regent St
CHIPPENDALE NSW 2008
GP O Box 30
SYDNEY NSW 2001
Telephone: FREECALL 1800 629 736 (within NSW)
1300 655 236
Fax: (02) 9699 8906
Email: Celebrants_clerk@agd.nsw.gov.au
If you were appointed in 1997 or before, please read the remainder of this e-bulletin.
If you were appointed after 1997, the following information will not concern you – you may go straight to ATTACHMENT G.
6. Exemptions from saying the words set out in section 46(1) of the Marriage Act 1961 – also known as the ‘monitum’
Section 46 of the Marriage Act 1961 (the Act) provides as follows:
(1) Subject to subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties, in the presence of the witnesses, the words:
“I am duly authorized by law to solemnize marriages according to law.
“Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”;
or words to that effect.
(2) Where, in the case of a person authorized under subsection 39(2) to solemnize marriages, the Minister is satisfied that the form of ceremony to be used by that person sufficiently states the nature and obligations of marriage, the Minister may, either by the instrument by which that person is so authorized or by a subsequent instrument, exempt that person from compliance with subsection (1) of this section.
The words in subsection 46(1) are required to be said by the marriage celebrant – and ONLY the marriage celebrant.
The requirements of this section apply to all marriage celebrants authorised or registered by the Commonwealth.
Prior to 1997 many marriage celebrants authorised by the Commonwealth received instruments of authorisation that contained a statement that they were exempt from the requirements of section 46(1) of the Act.
The Marriage Celebrants Section has received several reports suggesting that some marriage celebrants who were authorised prior to 1997, and whose instrument of authorisation contains words referring to an exemption from section 46(1), consider that they do not need to say the words set out in section 46(1) of the Act or words to the same effect. There also appear to be some marriage celebrants who consider that the ‘exemption’ refers to other legal aspects of the marriage ceremony.
All marriage celebrants authorised at the time the exemption was being granted were required to submit – as part of their application for authorisation – a copy of the marriage ceremony they proposed to use.
The only reason any exemption was granted – and the only reason any exemption could have been granted – was because the delegate of the Attorney-General was satisfied that the ceremony to be used by that celebrant so stated the nature and obligations of marriage as to be equivalent to, or to the same effect as, the words set out in the Act. Section 46(2) of the Act required the Attorney-General (or his or her delegate) to be satisfied of this before it was possible to consider and grant the exemption.
In other words the marriage celebrant was already committed to saying words to the same effect as section 46(1).
No exemptions have been granted since 1997.
Hence no marriage celebrant appointed by the Commonwealth is exempt from stating what marriage is under the law of Australia or its nature as a solemn and binding relationship. Those appointed prior to 1997 with such an exemption are required to say words to the same effect as the words in section 46(1).
Marriage celebrants are further strongly advised to use the exact words in section 46(1) of the Act as it is very difficult to devise ‘words to the same effect’.
You cannot dilute the words or substitute any words that alter the meaning of the words in section 46(1). The Marriage Celebrants Section has seen examples of attempts to adapt or add to the wording in section 46(1) that have had the effect of watering down the meaning. You are not able to do this.
This statement of your authority to solemnise any marriage and what marriage is under the law of Australia is absolutely central to your obligations under the Act and one of the few central legal requirements of any marriage ceremony you conduct. You must ensure that this requirement is fulfilled.
Summary
- All marriage celebrants registered by the Commonwealth are required to fulfil the requirements of section 46
- all marriage celebrants registered by the Commonwealth whose instrument of appointment contains no reference to an exemption must use the exact words in section 46(1) or words to the same effect
- all marriage celebrants registered by the Commonwealth whose instrument of appointment refers to an exemption from section 46(1) are required to state what marriage is under the law of Australia and its nature as a solemn and binding relationship – that is words to the same effect as those in section 46(1), and
- all marriage celebrants registered by the Commonwealth are strongly advised to use the exact words stated in section 46(1) – you cannot dilute or alter the meaning of the words.
Susan de Carle
Acting Registrar of Marriage Celebrants