Section 45 Consent
The requirement of the couple under Section 45 to give verbal consent to the marriage in front of witnesses, is not applied to religious couples, if the form of ceremony used by a religious celebrant1 does not include such consent.
This is a requirement for the 70% of couples who choose a civil weddings.
It is known that this component is missing in certain religious ceremonies. However without the ability to review the over 650 religious groups' ceremonies covered by section 45, CoCA is not in the position of being able to identify the extent of this exemption.
Given the concern about Child and Forced Marriages in Australia, all marriage celebrants when conducting a marriage according to law should be required to ensure that this Section of the Act is added to the religious ceremony.
This exemption may have been appropriate mid-last century. However consideration needs to be given this section of the Marriage Act needs updating to met the needs of marrying couples in Australia in the twenty-first century so all couples are treated equally in law as regards the basic components of a legal marriage.
Section 46 Declaration of Authorisation of the Marriage Celebrant
The requirement of the religious marriage celebrant under Section 46 to declare that he/she is an authorised marriage celebrant and thereby making it transparent to the audience that the ceremony is valid under Australian law is not required of the 98% of religious marriage celebrants who come under Subdivision A marriage celebrants.
Given the concern about Child and Forced Marriages in Australia, all marriage celebrants when conducting a marriage according to law should be required to ensure that this Section of the Act is added to the religious ceremony.
Section 113 Declaration of Invalidity of Marriage under Australian law.
Subdivision B and C marriage celebrants and unauthorised celebrants must by virtue of Section 101 and this section can not conduct a second civil ceremony where the couple are already married (even to one another). Such celebrants must ensure that the audience understand that the couple are already recognised as married by Australian law.
Section 113 does allow authorised and unauthorised religious marriage celebrants to conduct second religious marriage ceremony without having to ensure that the audience understand that the couple are already recognised as married by Australian law.
Given the concern about Child and Forced Marriages in Australia, all marriage celebrants when conducting a second marriage ceremony should be required to ensure that the celebrant make it clear that the couple are already recognised as married by Australian law in the religious ceremony.
Reference:
1. Recognised Religions celebrants and Independent religious celebrants exempted under the Marriage Act 1961.
Marriage Act Section 45 Form of ceremony
(1) Where a marriage is solemnized by or in the presence of an authorized celebrant, being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister.
(2) Where a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorized celebrant and the witnesses, the words:
“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.
(3) and (4) see here
46 Certain authorised celebrants to explain nature of marriage relationship
- 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 two people to the exclusion of all others, voluntarily entered into for life.”;
or words to that effect. - See Monitum here
Offences under the Marriage Act
99 Solemnising marriage where notice or declaration not given or made etc.
(6) A person shall not, in contravention of subsection 113(1), purport to solemnise a marriage between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.
Penalty: $500 or imprisonment for 6 months.
101 Solemnisation of marriage by unauthorised person
A person shall not solemnise a marriage, or purport to solemnise a marriage, at a place in Australia or under Part V unless the person is authorised by or under this Act to solemnise marriages at that place or under that Part, as the case may be.
Penalty: $500 or imprisonment for 6 months.
103 Going through ceremony of marriage before person not authorised to solemnise it
A person shall not go through a form or ceremony of marriage with another person knowing that the person solemnising the marriage is not authorised to solemnise it and having reason to believe that the other party to the marriage believes that the person solemnising the marriage is so authorised.
Penalty: $500 or imprisonment for 6 months.
Second marriage ceremonies
Section 113 Second marriage ceremonies
(1) Except in accordance with this section:
(a) persons who are already legally married to each other shall not, in Australia or under Part V, go through a form or ceremony of marriage with each other; and
(b) a person who is authorised by this Act to solemnise marriages shall not purport to solemnise a marriage in Australia or under Part V between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.
(5) Nothing in this Act shall be taken to prevent 2 persons who are already legally married to each other from going through a religious ceremony of marriage with each other in Australia where those persons have:
(a) produced to the person by whom or in whose presence the ceremony is to be performed a certificate of their existing marriage; and
(b) furnished to that person a statement in writing, signed by them and witnessed by that person, that:
(i) they have previously gone through a form or ceremony of marriage with each other;
(ii) they are the parties mentioned in the certificate of marriage produced with the statement; and
(iii) they have no reason to believe that they are not legally married to each other or, if their marriage took place outside Australia, they have no reason to believe that it would not be recognised as valid in Australia.
(6) The provisions of sections 42, 44, 50 and 51 do not apply to or in relation to a religious ceremony of marriage in accordance with subsection (5) and the person by whom, or in whose presence, the ceremony is performed shall not:
(a) prepare or issue in respect of it any certificate of marriage under or referring to this Act; or
(b) issue any other document to the parties in respect of the ceremony unless the parties are described in the document as being already legally married to each other.
(7) A person who is not an authorised celebrant does not commit an offence against section 101 by reason only of his or her having performed a religious ceremony of marriage between parties who have complied with the requirements of subsection (5) of this section.
