Registrar of Marriage Celebrants
Marriage Law and Celebrants Section
3-5 National Circuit, Barton ACT 2600
Tel +61 2 6141 4768
Fax +61 2 6141 3246
Please find attached a list of items for consideration by the Department in reviewing the Guidelines.
Given the short time frame, we have not had time to resolve
what may appear as repeated issues or conflicting suggestions.
CoCA looks forward to working with the Department in resolving such matters.
Some associations may also be submitting individual responses either to expand upon some items, or to submit items that were raised after the time limit set for compiling a group response from CoCA.
With the funding of the Department after the 1st July 2014, the Coalition of Celebrant Associations recommends that the review of the Guidelines becomes an ongoing project so there be considerable time available to work through and resolve issues raised for an annual up-date of the Guidelines.
7th May 2014
1. Amending any errors in the current guidelines.
A. ‘MARRIAGES’ (5.2 page 6)
Misspelling needs to be corrected.
B. Including ‘Interstate’ couples
4.1.4 page 32 only refers to couples who are from overseas, this should be expanded to include couples who are from interstate.
C. Recording names on the NoIM
The case study on p 42 of the Guidelines suggests we need to see the previous marriage certificate of a bride to prove her change of name from her birth certificate name. This requirement is not mentioned elsewhere in the Guidelines. On page 40 of the Guidelines, the text suggests that sighting the surname on the divorce certificate is sufficient. There is disagreement amongst celebrants about the correct procedure, and clarification would be appreciated.
Some Celebrants are putting more emphasis on the paragraph on p41 where a celebrant can let the party write any name on the NoIM, so long as the celebrant warns them that they may encounter future difficulties. The remainder of the Guidelines detail strict rules about using names exactly as listed on documents, but this loophole seems to be highlighted by some.
D. Names used in the ceremony.
These vows were written in 1836 in England and they were used for identification in a period with few transportable identification documents. The major emphasis in the Guidelines needs to be for the celebrant to establish a trail of evidence to support the “names” on the Marriage documents rather than on the names used in the ceremony, especially as for Subdivision A celebrants names in ceremonies are not required by the Marriage Act.
Nowhere in the Marriage Act is there a requirement for “full” names eg AXB or CYD. Whilst there is an assumption that AB and CD refer to one personal name and one family name the Act is silent as to their definition. Provided the celebrant has established a trail of evidence for the names on the marriage documents, best practice is one personal name and one family name (whether previously married or maiden name) to be used in the Vows or before the Vows in the ceremony. An exception would be where the celebrant is satisfied in their professional judgement that there is an appropriate explanation for only first names to be used in the ceremony.
E. PDF format
Original birth certificates and death certificates must be sighted. JP certified copies are not sufficient and yet, we are able to accept divorce certificates which have been issued as a PDF document by the court. Apparently, BDM are looking at issuing birth, death, and marriage certificates also as PDF documents. We will need some guidance on how to deal with this change.
F. Emergency weddings
Intended Marriage" at emergency weddings needs to be reviewed. Whilst best practise is for the new celebrant to sight all documentation again, this may not be possible in emergency circumstances eg original celebrant falling ill. Thus, Form 14 and if necessary, a Statutory Declaration from other parties should be sufficient.
2. Clarifying ambiguous or confusing sections in the guidelines
A. The word “solemnise”
Celebrants must use the word “solemnise” in the Monitum. It is not a particularly pleasant word to include in a wedding, and care must be taken to pronounce it carefully. Would there possibly be an alternative approved for this word?
B. The word “should”
Several times throughout the Guidelines, the word “should” is used. This suggests that the method is the preferred method, but is not legally compulsory. Eg a NAATI qualified translator should be used.
5.6 page 58 Subsection 46 (1) Some celebrants say the Monitum in its entirety, ie all three paragraphs in block whilst others separate the first paragraph to the second and third paragraphs or read them 1st, 3rd and 2nd paragraphs, for example. The guidelines state that the wording be used “or words to that effect” but gives no clear direction as to the order, just that the “Safest course of action is to keep them together” and further, that the Monitum must be said prior to the couple exchanging their vows. This is still quite open ended in the Guidelines and further clarification would be appreciated.
D. Purpose of the Guidelines
Clarification that the intent of the Guidelines is to assist Marriage Celebrants in performing their duties in applying the Marriage Act 1961 according to the requirement of the relevant Subdivison the celebrant is authorised under. The Guidelines suggest best practice for most situations. Where there is doubt, the Marriage Act requirements take precedence.
E. Section 45 - Marriage Vows
The interpretation of the "words to that effect" as “words that mean the same as” may be applying the letter of the law, but not the spirit of the law. This is obvious in the application of the Marriage Act to Subdivision A celebrants where in some religions the couple may not be required to say anything. For example,
“ I call upon the persons here present” = everyone?
“ I call upon the persons here present to witness” = 2 people
When the vows were first legislated for a civil setting in a registry office, the reference to ‘all persons’ was not to audiences of 140 guests and passers by, rather to the two witnesses and any invited guests. Whilst it may be desirable for everyone to hear the Vows, Marriage Act Section 44 of the Act makes it clear that two witnesses to hear the vows is sufficient. Therefore the expression “I ask my family and friends to witness” should be acceptable.
The interpretation of ‘words to that effect’ in the Guidelines is far too rigid especially in view of the fact that religious marriage celebrants do not have any similar requirements but their couples are nonetheless legally married. The spirit of the Act is that couples reflect that they want to be married to this person and they understand the serious and binding nature of their commitment.
F. Marriage Act Section 48 needs reassure celebrants
Section 48, when dealt with in the Guidelines, needs to include a statement that in those rare situations where the celebrant may inadvertently make a mistake, the Marriage Act in principle does uphold the marriage of a couple, provided the parties were free to marry one another at the time of the marriage ceremony.
This does not cover premeditated omissions by the celebrant or the couple and as such, marrying couples or authorised celebrants could be found as committing an offence under the Marriage Act if Sections 40 - 47 are not intentionally complied with.
The reasoning used by the MLCS that Section 45 not being included in Section 48, gives grounds for the Marriage Vows in Section 45 (2) being used as pedantically as the Guidelines recommend, is questionable for three reasons.
Firstly, it is obvious that there would need to be some form of religious or civil ceremony with an authorised celebrant for a couple to make a claim that they had been married.
Secondly, Section 45 (3) states the issue of a certificate is conclusive proof of the couple being married, whatever mistakes may have been made in delivering the form of ceremony approved for the purpose in Section 45 (1) or the delivery of the specific wording in statement Section 45 (2).
Section 45 (4) only qualifies two items on the Marriage Certificate itself, not the invalidity the marriage, stating the issue of a certificate would not be conclusive proof of:
a. Where the ceremony was held (as this may have changed at the last minute due to weather conditions etc.
b. The identities of the parties to the marriage because no marriage celebrant – religious or civil – is able to conclusively prove the identities of the parties to the marriage. Form 14 makes it clear that each party to the marriage is responsible for providing accurate information, including identity information, to their celebrant.
These are the reasons for the exclusion of Section 45 in Section 48. Therefore the MLCS needs to reassure celebrants as to the validity of the marriage in line with Section 45 (3) and not take Section 45 (2) and its wording in isolation.
3. Adding extra sections/information if appropriate including that related to the recently announced cost recovery reforms.
A. OH&S at a wedding
Presently, the celebrant does not clearly have the authority to refuse to conduct a ceremony where the conditions are hazardous - case in point the hottest day since whenever, the first week in January. Until the Code can be updated, it would be helpful if the Guidelines were explicit on this matter. In deciding who is ultimately responsible for making this decision, consideration should be given to the fact the celebrant is in the employ of the bride and groom, and clarity in wording is essential, so that the celebrant is not placed in potential litigious situation, and clause(s) should be referenced to reflect the current Occupational Health and Safety Act.
B. Ongoing Professional Development
3.1.6 page 25 to include applying for an exemption and the consequences of not completing the Ongoing Professional Development.
C. Use of Religious Material in the Ceremony by Celebrants authorised for “Civil Ceremonies”
Best practice needs to highlight that such inclusions in the ceremony are to be at the request of the couple, not by promotion of the celebrant to the couple.
D. Use of a Passport to establish date and place of birth
The introduction of Australian Passports as acceptable as evidence of date and place of birth and photo ID should be added to 4.1.6 and any related clauses for
- A person who has been born in Australia can use his/hers Australian passport, Australian birth certificate or birth extract
- A person who has been born overseas and has subsequently been issued with an Australian Passport can use this passport in place of an overseas birth certificate or overseas passport.
Clarifying that the Marriage Act from 1st July will enable a person who has been born in Australia and has been issued with an overseas passport (ie: Australian citizen with parents born in UK is entitled to be eligible for a UK passport), will be able to use an overseas passport to establish their date and place of birth.
F. Reviews of Commonwealth Marriage Celebrants
3.5.8 ‘The Marriage Act requires that each Commonwealth-registered marriage celebrant’s performance be reviewed at least once every five years. This every 5 year review is no longer relevant. Wording here needs to reflect when a review might be held.
G. False/ Misleading Advertising
3.1.3 Commonwealth Registered Marriage Celebrants include those who ‘may also solemnise religious ceremonies for a religious body or organisation that has not been proclaimed as a recognised denomination.’ The guidelines should specify that they should not advertise themselves as ‘civil marriage celebrants’. They have been appointed to represent their church. If they practise under the banner of the church they represent and have certain religious requirements to meet then their clients must be aware of this. A celebrant in Gippsland is known to advertises as a marriage celebrant and has upset clients by inserting religious words into ceremonies without them being aware that this would happen. Non-religious couples are understandably annoyed that this celebrant is marrying couples under false pretences.
H. Establishing Gender
4.1.11 page 38 With the new laws in NSW enabling persons to have ‘non specific gender’ issued on their birth certificates, specific guidelines needs to be established for celebrants to be able to continue to be within the law and solemnise marriages between ‘a man and a woman’.
I. Gender Issues and Form 14 Marriage Declarations
Given that not every adult is literate in English, best practice is for marriage celebrants to read out the Declarations being signed to ensure that each of the parties understands what they are signing. At this point the marriage celebrant can reinforce that the conditions for marriage are present eg. gender, age, not in a prohibited relationships, not being coerced etc.
In particular, it is recommended that Form 14 point 1 which states:
“I am ___________________________________________________________________
[state details of conjugal status – for example, ‘person who has never been validly married’, ’ widower’, ‘ widow’ or ‘divorced person’]”
be changed to read
“I am ___________________________________________________________________
[state details of gender and conjugal status – for example, ‘woman who has never been validly married’, ’ widower’, ‘ widow’ or ‘divorced man’]
J. Children prior to marriage born of the marrying couple on the Notice.
15. Number of children of the previous marriage or marriages born alive (whether now living or deceased)
16. Year of birth of each of those children
This section of the Notice causes concerns for marrying couples that their children prior to marriage are not acknowledged. The practice of recording only those children born to a couple in wedlock should be changed to recognise all children born to a couple regardless of their marital status. This would better reflect the current social situation where a large number of children are born to couples before they marry and it would not discriminate against those born out of wedlock as if they do not exist. This creates unnecessary difficulties for celebrants collecting this information to justify its need in the face of the strong emotional reactions of parents. This Section of the Notice needs to be reviewed as to its purpose and practical use since the original design of this Form. Then either updated or transferred to another authority such as ABS if there is a need for this type of data collection.
K. Examples of Completed Forms
An example of all form completed as to best practice would be appreciated as Appendices, as many people are more graphically visual learners than text learners.
L. New Section on all aspects of the New Annual Fee
Details of the new annual fee and consequences of not paying this fee or applying for an exemption needs inclusion. As part of this section it is recommended that the consequences of not paying the Fee to include references to AAT, contact details for the AAT and the need to lodge an appeal within 28 days of having one's authorisation revoked.
M. Useful Contacts
Add a paragraph on the Coalitions of Celebrant Associations (CoCA) Inc as the peak representative body and individual celebrant associations and networks, and add AGD website URL of the Celebrant Associations and Networks
Marriage celebrant associations and networks
You may find joining an association or network is beneficial in your role as a celebrant. The list of celebrant associations, networks and their contact details, as well as more detailed contact information for the peak celebrant representative body CoCA Inc, can be found in the Marriage Section of the Attorney-General’s website (< link: http://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/CoalitionofCelebrantAssociations.aspx )
Coalition of Celebrant Associations (CoCA) Inc
CoCA is the peak representative body for Commonwealth-registered marriage celebrants. Its aim is to engage with the Attorney-General and this department on Marriage Celebrant Program issues. It seeks to represent the views of celebrants who are members of celebrant associations and the wider marriage celebrant community. CoCA’s website is www.coca.org.au
4. Considering whether layout or language could be improved
A. Sub-headings Numbered
All sub-headings in all sections need to be numbered so that a specific paragraph of the Guidelines can be identified in a numbered section. For example, paragraph 2 in section 8.8.2 states:
Application to the judge or magistrate must be made by the person seeking the order, and must be made on the Form 7 Notice of application for order authorising marriage under marriageable age in Schedule 1 to the Marriage Regulations 1963 (Cth).
- where the sub sections are numbered as:
8.8 THE REQUIREMENTS FOR MARRIAGE OF A MINOR – THAT IS, WHEN ONE PARTY IS AGED 16‑18 YEARS
8.8.1 THE MINIMUM REQUIREMENTS
8.8.2 FIRST REQUIREMENT – COURT ORDER
8.8.3 WHAT WILL THE JUDGE OR MAGISTRATE CONSIDER WHEN MAKING THE DECISION?
8.8.4 SECOND REQUIREMENT – CONSENT
8.8.5 WHAT HAPPENS IF A PARENT OR GUARDIAN CANNOT BE CONTACTED TO GIVE CONSENT?
8.8.6 WHAT SHOULD AN AUTHORISED CELEBRANT DO IF ASKED TO MARRY A COUPLE ONE OF WHOM IS UNDERAGE?
8.8.7 HOW CAN AN AUTHORISED CELEBRANT ENSURE THEY ARE NOT MARRYING A COUPLE WHEN ONE PARTY IS NOT OF MARRIAGEABLE AGE?
8.8.8 WHAT MUST AN AUTHORISED CELEBRANT FORWARD TO THE BDM AFTER A MARRIAGE IN WHICH ONE OF THE PARTIES IS UNDER MARRIAGEABLE AGE?
5. Other Issues raised – for consideration at a later date
A. Using the Guidelines
Providing a hard copy of the updated Guidelines (even though it is sometimes updated) would be most useful in the compulsory OPD topic for 2015. It seems that many celebrants don’t use the Guidelines, finding it easier to ask a friend, email a trainer, phone BDM or question their internet forum, if they have a query. Once the AGD hotline is set up, a large percentage of the queries would be able to be answered by the Guidelines, which will hinder the answering of the smaller percentage of calls on unusual matters, which need the AGD’s adjudication. Celebrants need to be encouraged to search the Guidelines for answers to their queries first. If they were more familiar with the Guidelines, they may do so.
B. More Specific Guidelines around the issue of consent
8.6 page 79 only relates to an example of a party who is under “duress or a party to the marriage who is drunk’ and doesn’t include the possibility of being under the influence of drugs, for example. How is the celebrant to judge and how does the celebrant know they’re not going to be sued for not proceeding to solemnise the marriage?
C. Evidence of dissolution or nullity, Court Location.
Only court location is required, many celebrants are taught that the court issued Divorce Number is also mandatory and must be included on the NOIM, but there is no provision for same.
As the Notice is being reviewed, it is recommended that instead of “Court Location” that “Court Location or File Number” on Page 4 and appropriate adjustments be made Page 3 to note where the party obtained their divorce as well as date.
D. Conflict of Interest & Enticements
There has been a lot of talk on the celebrant forums about conflict of interest for celebrants. With a surplus of celebrants, many are looking for ways to set themselves apart from others. The Conflict of Interest Guidelines specifically mention that being a migration agent or marriage counsellor is considered a conflict of interest for celebrants (unless permission is obtained). Some additional examples of specific conflict of interest would be appreciated, particularly in regard to:
- celebrants owning a chapel / wedding garden
- celebrants providing a photography /decoration / planner package either in their package or as an additional option
- celebrants collaborating with a venue/photographer to offer a bundle package
- celebrants being on a limited list of preferred professionals for a venue
(minimum choice of celebrants should be three, for example)
- celebrants paying commission to venues
If this form is to be updated, some improvements could be:
- updating the word “bridegroom” to “groom”
- adding a box to tick for sighting of proof of identity
- adding space to the boxes to list the details of cessation of previous marriage. There needs to be a separate box for the bride and groom, as well as more room to write specific details.
- The section for listing children of the previous marriage (and not listing children born out of marriage) is outdated and offensive.
- 4.1.10 As photo ID must be seen by the celebrant there should be a section on the NOIM for the celebrant to tick that it has been sighted and a space to record the type of photo ID sighted e.g. drivers licence.
See recommendation in 3 H above that
[state details of conjugal status – for example, ‘person who has never been validly married’, ’ widower’, ‘ widow’ or ‘divorced person’]
be changed to:
[state details of gender and conjugal status – for example, ‘woman who has never been validly married’, ’ widower’, ‘ widow’ or ‘divorced man’]
G. Happily Ever After brochure
Please provide the option of an electronic copy as well as the addition of being available in different languages.
H. Relationship Videos - save the cost of hard copies and provide a link to the videos on the web.
I. Availability of all the Forms in PDF format for download
The “Happily ever Before and After” in other Languages - especially Thai, Fillipino and Vietnamese would be high priority.
J. Code of Practice
Include some reference to celebrants having the right to defer or move a ceremony when people’s safety is compromised by some external circumstance such as bushfire or flood. Celebrants performing ceremonies in fire or flood prone areas should advise couples in advance of this possibility and suggest they plan an alternative venue for such an eventuality.
Include in point 5G that the celebrant is under no obligation to allow venue operators or videographers to plug their equipment into the celebrant’s sound system.