To effectively inform and educate the Australian public and visitors about marriage in Australia - all marriage and/ or wedding ceremonies need to have the same basic legal components.
Examples of amended Sections 45, 46 and 113 of the Marriage Act.
The sections below are not endorsed by the Coalition of Celebrant Associations (CoCA) Inc., but are provided as examples only of how simple changes could be made to:
- remove confusion for marrying couples and guests and
- ensure every marriage ceremony has the same basic legal elements
whilst still respecting the rights of couples to have their choice of ceremony - religious or civil.
Obviously such changes would require our government to act to amend the Act if they and the Australian public consider this wise.
Bold phrases are additions.
Red are deletions
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 may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the marriage celebrant and is sufficient if, 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) Where a marriage has been solemnized by or in the presence of an authorized celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnized in accordance with this section.
(4) Nothing in subsection (2) (3) makes a certificate conclusive:
(a) where the fact that the marriage ceremony took place is in issue—as to that fact; or
(b) where the identity of a party to the marriage is in issue—as to the identity of that party.
* Note: This 1836 version of the vows needs modernising. These were written in a time before identification documents were common. All celebrants are required to be satisfied as to the identities of the parties to the marriage and the information provided on the notice, by sighting official birth certificates or passports and other documents.
Authorised celebrants make their status clear and explain nature of marriage relationship.
(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 and at some point before Section 45, the words:
“I am duly authorised by law
to solemnise* marriages to witness this marriage 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, entered into voluntarily on the understanding that this relationship is 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.
* This word in no longer in common useage and can be misinterpreted.
Second marriage ceremonies
(1) to (4) as is
(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 statutory declaration,
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,
and where the celebrant
(c) has declared to all present that the couple have signed declarations and provided evidence that they are already married according to civil law.*
(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.
* Civil celebrants are required to declare the couple married in similar cirucmstances, for face penalities under Section 101 of the Act.
Section 101 Solemnisation of marriage by unauthorised person states
"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."