August 2015
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Combined recommendations from CoCA for Marriage Regulation changes - August 2015 |
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Regulation Number |
Current wording |
Proposed Amendment |
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Part 2 |
Marriage of Minors |
The Regulations would be less confusing if they were in chronological order, commencing with the application process, the consent of parents and then the court processes and the requirements on the celebrant regarding documentation. |
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14 (2) (b) |
“(b) by telegram, signed by the proper officer of the court in which the request is filed, to that clerk” |
Amend to allow for electronic transmission |
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33 (b) |
“by sending it to the person by a_v_i_s_ _d_e_ _r_éc_e_p_t_i_o_n_ _registered post at the address of the person last known to the Registrar of Ministers of Religion giving the notice.” |
Amend into plain English |
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35 (a) |
“(a) shall be in writing under the hand of the person; and” |
Amend into plain English here and wherever possible throughout |
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37 F |
Certificate IV in Celebrancy |
Ensure all references are updated to include the new Certificate IV qualification as amended |
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37 I (1) |
“(1) For subsection 39D(5) of the Act, the following details relating to a person who is registered as a marriage celebrant must be entered in the register of marriage celebrants:” |
Amend to make clear that the register is available e.g. add “for public view” after “register of marriage celebrants:” |
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37 M (2) |
“(2) The list must state which activities (if any, up to a maximum of 2) are compulsory for the year.” |
Delete the words in Red |
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37 M (4) |
“(4) A marriage celebrant must undertake, in each calendar year, at least 2 professional development activities listed for the year.” |
This clause is redundant when read in conjunction with the rest of 37 M |
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37 O (a) |
“(a) a particular professional development activity listed under regulation 37M; or” |
Amend to read: “particular professional development activities listed under regulation 37M; or” |
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37 R (1) |
“(1) A complaint about the solemnization of a marriage by a marriage celebrant may be made:” |
Insert the words “or the professional conduct of a marriage celebrant” after the words “marriage celebrant” |
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37 R (1) |
“(a) by a party to the marriage or the intended marriage; or (b) by a member of the public; or ( c) ….” |
Insert a new subclause (b) that reads “by another marriage celebrant; or professional celebrant association, or” |
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37 S (2) (c) |
“(c) the full details of the complaint, including the date and place of the marriage (or, if known, the date and place of the intended marriage) and the nature of the complaint; and” |
Insert the words “if relevant” after the word “including” |
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37 S (2) |
Add a new clause “( ) any relevant evidence to support the complaint” |
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37 S (2) (d) |
“(d) whether the matter being complained of: (ii) has been, or is being, dealt with by another complaints mechanism; and “ |
Add new clause “(i) has been notified to the marriage celebrant to whom the complaint relates and /or their professional association, with the outcome of that notification” |
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37 T (2) (b) |
“(b) the complaint does not relate to the performance of a marriage celebrant in relation to the solemnization of a marriage or” |
Add the words after “solemnization of a marriage”: “or their professional conduct as a marriage celebrant” |
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37U |
( Numbering of this section is incorrect – there is no clause 3) |
Renumber |
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37 U – 37Y |
(All Clauses dealing with Resolution of complaints) |
Recommend inclusion of a maximum time period of, say 6 months for resolution of complaints or if a complaint cannot be resolved in that time for both parties to be informed of progress after six months and monthly thereafter. |
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38 (2) |
“(2) An authorized celebrant to whom a notice of intended marriage is given must endorse on the notice the date when it was received.” |
Renumber – this should be 38 (1) In order to properly endorse the notice it is recommended that the Notice form is altered to include the celebrant’s signature as well as the date |
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42 (3) |
” If an authorized celebrant under subsection 39(2) of the Act solemnizes a marriage, he or she may destroy the retained official certificate of the marriage at any time after 6 years after the date of solemnization of the marriage.” |
Amend to ensure that the private records of couples are securely and regularly destroyed or removed from private homes and/or offices eg. ” If an authorized celebrant under subsection 39(2) of the Act solemnizes a marriage, he or she must securely destroy the retained official certificate of the marriage within 3 months of the date that is 6 years after the date of solemnization of the marriage. Where the certificates are bound in a register the register should be securely destroyed, within 3 months of the date 6 years after the date of the solemnization of the last marriage in the register Where a celebrant dies or retires any official certificates or bound registers should be sent to the BDM or AGD for storage or destruction together with the advice that the celebrant has died or retired.” |
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Part V |
(Throughout this Part) |
Recommended that gender neutral terminology is used throughout – currently only “he/his/him” are used which is outdated in this day & age. |
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Part VA |
Recognition of overseas marriages |
It is recommended that this section be updated as is necessary |
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Schedule 1 |
Forms The Marriage Certificate |
The current system of numbering the Form 15 certificates and record-keeping by Marriage Celebrants is an inefficient, ineffective system of providing evidence of a marriage. Decorative memento certificates signed as part of the Marriage Ceremony are highly valued by the parties to the marriage, yet the current plain ones are of little value as personal mementos or as proof of marriage for practical purposes. It is recommended that the Commonwealth Attorney-General’s Department 1. grant celebrant associations and state/territory registries of Birth, Deaths and Marriages permission to create and produce decorative Form 15 Marriage Certificates in accordance with the wording in the Regulations for use in marriage ceremonies, and 2. consult with state/territory registries of Birth, Deaths and Marriages on the practicality of providing at the request of the couple and for a fee, a Registration Stamp for the Reverse Side of the Form 15 to certify that the Marriage was registered with the appropriate body and its Registration Number. |
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Schedule 1A |
Code of Practice See attachment A |
Recommended changes shown on attachment A |
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Schedule 1B |
(Currently provides five provisions for shortening of time) Given the lack of general knowledge about the long Notice period required by Australia compared with other countries, and media programs such as Married at First Sight there needs to be an allowance for couples in established relationships to be able to apply for a shortening of time. |
Recommend an additional two provisions be added · Pregnancy · An established cohabiting relationship of at least 12 months With similar clauses to the existing provisions to demonstrate why shortening of time is required |
Other Recommendations:
Overseas Divorces
It is also recommended that the Department investigate the inclusion of a section to cover marriages in Australia for people previously married overseas where their dissolution of marriage requires a period of notice to their previous spouse during which the previous spouse can refuse permission for re-marriage of their former spouse.
Recommend that the regulations address recognition of marriages and divorces which take place in countries where multiple marriages are allowed for one person, outlining procedures for acceptance of documentary evidence.
Child and Forced Marriage
It is recommended that the MLCS liaise with appropriate authorities to consider any possible changes to the Regulations that could assist in addressing concerns about child, forced, servile and sham marriages.
Also any specific ways marriage celebrants could assist e.g. procedures for marriage celebrants to report concerns about Child and Forced Marriage and concomitant protection under the law in cases where such reporting may put the celebrant at risk.
Second Marriage Ceremonies
It is recommended that the MLCS consider an additional section in the Regulations to reinforce the provisions of Section 113 of the Marriage Act 1961.
The regulations should provide information on the correct procedure for an authorised celebrant to follow if they are asked by a couple to perform a legally valid marriage ceremony because the couple advise the celebrant that although they have previously been through a religious marriage ceremony in Australia, they have been advised by the religious celebrant that the ceremony did not create a valid marriage for them.
While the Marriage Act is clear that an unauthorised religious celebrant is able to perform a second religious ceremony AFTER a legal marriage, it is less clear that it is not permissible for the unauthorised religiouscelebrant to perform a religious marriage ceremony BEFORE a legal marriage.
For example a correct procedure may be that the authorised celebrant should
1. Take a statutory declaration giving the details of the previous wedding ceremony, the name and address of the celebrant(s) and confirmation of the couple’s understanding that the religious wedding ceremony in Australia did not create a valid marriage.
2. Send a copy of the statutory declaration with the marriage forms and certificates to the BDM
3. Send a copy of the statutory declaration and the marriage forms to the MLCS of the AGD for further investigation and if appropriate action under Section 101 of the Marriage Act 1961.
Formatting of an Index within the Marriage Regulations
Produce or include a cross-referenced index within the marriage regulations document.
A cross-check or cross-reference on key words and produce an index, ie:
Qualifications for Marriage Celebrants, section W, page X
Complaints against a Marriage Celebrant, section Y, Page Z
Attachment A
Appendix 1 - Code of Practice for marriage celebrants
(regulation 37L)
1. Application of this Code of Practice
This Code of Practice applies to marriage celebrants (being persons registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961).
Note: Under paragraph 39I(1)(b) of the Marriage Act 1961, if the Registrar of Marriage Celebrants is satisfied that a marriage celebrant has not complied with an obligation under section 39G of that Act, including this Code of Practice, the Registrar may take disciplinary measures against the marriage celebrant.
2. Recognition of significance of marriage
As marriage is a fundamental institution of Australian society, a marriage celebrant must recognize and uphold the social, cultural and legal significance of marriage. A marriage celebrant must acknowledge the special significance of the marriage ceremony in the Australian community, and the importance of strong and respectful family relationships.
3. High standard of service
A marriage celebrant must maintain a high standard of service in every aspect of his or her professional conduct and practice.
4. Compliance with the Marriage Act and other laws
A marriage celebrant must:
(a) Prepare and manage documents and solemnize marriages according to the legal requirements of the Marriage Act 1961 (Cth); and
(b) observe the laws of the Commonwealth and of the State or Territory where the marriage is to be solemnized; and
(c) prevent and avoid unlawful discrimination in the provision of marriage celebrancy services.
5. General requirements for marriage ceremonies
A marriage celebrant must respect the importance of the marriage ceremony to the parties and the other persons organising the ceremony. To that end, the marriage celebrant must do the following:
(a) give the parties information and guidance to enable them to choose or compose a marriage ceremony that will meet their needs and expectations;
(b) respect the privacy and confidentiality of the parties;
(c) maintain appropriate facilities to interview parties and provide office facilities, including facilities for the secure storage of records;
(d) within a reasonable time before the marriage ceremony:
(i) confirm all details with the parties; and
(ii) ensure the return of all personal documents belonging to the parties (unless it is necessary to keep the documents for the ceremony); and
(iii) sign any necessary declarations;
(e) if requested by the parties, conduct a marriage ceremony rehearsal;
(f) ensure that his or her personal presentation is of an appropriate standard for the marriage ceremony, and respect the expectations of the parties in relation to the ceremony;
(g) make efforts to ensure that the marriage ceremony is audible to all those present (using audio equipment, if required);
(h) ensure accuracy in the preparation of documents, and in the conduct of the marriage ceremony;
(i) arrive at the venue for the marriage ceremony no later than the time agreed with the parties. The celebrant may leave the venue if one or both of the parties fails to attend at the agreed time, provided that the celebrant has previously informed the parties of the time at which they will depart.
(j) address the health and safety implications of proceeding with agreed arrangements. If the marriage celebrant considers it unsafe to proceed with the ceremony arrangements or use of equipment as previously agreed, the celebrant should discuss alternative options with the parties to the marriage prior to declining to proceed.
(k) if the marriage celebrant has agreed to perform more than one marriage ceremony on the same day:
(i) ensure that the parties to each marriage receive a level of service that meets their separate and special requirements; and
(ii) be available at the venue for each marriage ceremony at least 20 minutes before the agreed commencement of each ceremony (unless, in the case of consecutive ceremonies, the ceremonies are to be held at the same venue);
(l) ensure that all relevant documents are completed and sent to the appropriate registering authority within 14 days after the marriage ceremony, as required by section 50 of the Marriage Act 1961;
(m) in relation to the provision of marriage services, accept evaluative comment from the parties, and use any comments to improve performance;
(n) give the parties information about how to notify the Commonwealth Attorney-General's Department of any concerns or complaints they may have regarding the marriage services provided by the marriage celebrant.
(o) disclose any potential or actual conflict of interest to the Commonwealth Registrar of Marriage Celebrants and ensure any business or for-profit activities owned or operated by the celebrant are kept and advertised separately to the celebrant’s celebrancy services.
6. Knowledge and understanding of family relationships services
A marriage celebrant must:
(a) maintain an up-to-date knowledge about appropriate family relationships services in the community; and
(b) inform parties about the range of information and services available to them to enhance, and sustain them throughout, their relationship.
