Franca Musolino
Registrar of Marriage Celebrants
Marriage Law and Celebrants Section
Attorney-General's Department
3-5 National Circuit, Barton ACT 2600
Tel +61 2 6141 4768
Fax +61 2 6141 3246

Dear Registrar

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 1^st 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.

Yours sincerely

Rona Goold
Secretary

For
Robyn Caine

Chairperson

7^th 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.

C. Monitum

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 1^st, 3^rd and 2^nd 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

1. A person who has been born in Australia can use his/hers Australian passport, Australian birth certificate or birth extract
2. 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.
   

• 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
  

• 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.