That there be a review of, and amendments to, the Marriage Act to ensure the same basic requirements for all marriage ceremonies, whether conducted by civil or religious marriage celebrants.
That amendments be made to section 45 of the Marriage Act to ensure that all couples give their consent during the ceremony in the presence of the celebrant and the witnesses.
That amendments to Section 46(1) be made to ensure that all authorized celebrants use the same wording to explain the nature of marriage and their authorisation status to conduct a valid marriage under Australian law.
That there be amendments to Section 113 of the Act to enable all celebrants to conduct second marriage ceremonies for couples provided thatthe marriage celebrant conducting the second marriage ceremony, makes it clear to the gathering that the couple are already married under Australian civil law.
1.1. Ethical Inconsistencies in the Marriage Act
Whilst there are the same basic minimal conditions for couples to marry in Australia, there are a number of anomalies in the Marriage Act, intensified since 2002, that require different standards of civil celebrants to religious celebrants as well as different minimal ceremonial requirements of civil and religious couples and their celebrants.
These concerns relate to Sections 31, 33, 39, 45, 46 and 113 of the Marriage Act. See Appendix 1
1.1. “The Child and Forced Marriage” and “Public Health, Safety & Morality”
When the Marriage Act was first drafted in 1961, Australia was not as a diverse a multicultural society as it is today. Religions were ‘grandfathered” in for couples wanting a religious ceremony and State and Territory registry office services for those wanting non-religious ceremonies.
As a predominantly Christian country at that time, Section 45 and 46 allowed the specific religion to use its religious ceremony for legal marriage, assuming that during the ceremony
i. definition of marriage would be given that would match civil law (Section 46)
ii. the couple would give verbal consent (Section 45)
ii. the parties to the marriage and witnesses would be present in the same room
iii. the couple, witnesses and any guests would be aware that a legal marriage ceremony
was being conducted. (Section 46)
Over half a century later, this is not the case for all of the 142 Recognised Religions8 and may not be the case for all of the 462 religious organisations9 under the Marriage Act. Those exceptions are both Christian and non-Christian. Recently the Attorney-General’s Department stated that when approving a “recognised religious organisation’ they do require consent to be evident in the religious ceremony. CoCA is unaware of how long this internal practice has been in place.
For example, there are religions or conservative sections of religions:
a. that would allow polygamy were they not in Australia
b. where the role of the wife and children are considered subservient to the husband
c. where the couple are not required to say anything during the marriage ceremony
d. where parties to the marriage are not in the same room during the marriage ceremony
e. where, during the marriage ceremony, the parties to the marriage and the guests are not
necessarily clear as to the legal status of the ceremony or the authorisation status of the
1.2.1 In relation to the Marriage Act, confusion as to the legal status of the ceremony has three contributing factors
i. Authorised Ministers of Recognised Religions (Subdivision A Celebrants) are not required
to state to the congregation that they are “authorised by Australian law” (as civil
celebrants are required to do under Section 46), when they are an authorised marriage
celebrant when marrying a couple for the first time.
ii. Unauthorised and all authorised Religious marriage celebrants (Subdivision A and D
marriage celebrants) are not required to state to the congregation that a couple, having a
second marriage ceremony as a religious ceremony, are already married under Australian
civil law (Under Section 113).
Unauthorised and all authorised civil marriage celebrants (Subdivision B and C celebrants)
would be committing the Offence 101 under the Marriage Act if they were to do likewise.
iii. the parties to the marriage in a civil ceremony are required to give consent in the
presence of witnesses (Section 45) and those family and friends present, but not required
by the Marriage Act for Subdivision A Ministers of Recognised Religions unless that
religion’s form of ceremony contains consent in the actual ceremony.
1.2.2 Public education, especially for younger generations and people born overseas, about the minimum requirements for marriage in multicultural Australia is extremely difficult.
Three main factors affecting this are:
i. Australia’s education system is not an exclusively public system. This means students from a
young age can be presented with that religion’s view of marriage that would not meet human
and civil rights standards, including a view that an under-age marriage (by Australia standards)
is acceptable and/or that the parents and family determine whom a young person shall marry.
ii. Australia has one of the longest notice times for marriage in the world.10 Exposure to mass
media and related forms of communication means people can assume that Australia’s
marriage laws are the same as those overseas.
iii. The Marriage Act does not prevent mass media producing and airing programs such
as “Married at First Sight”, which is not valid under Australian law due to the notice required,
giving a false sense of marriage requirements.
1.2.3.Therefore minimum requirements for all Australian marriage ceremonies is an important public education strategy.
Approximately one hundred and eighteen thousand marriages (118,401 11) a year would have minimum of 5 people present totalling five hundred and ninety thousand (590,000) people. Civil celebrants report12 75% of wedding ceremonies have over 60 guests.
Using a lower estimate of 40 guests as an average per ceremony, then 4.7 million people each year are present at wedding ceremonies in Australia. Over a decade that represents 47 million people – obviously many of these are the same people.
Therefore the figures demonstrate that the public ceremony (not the minimal requirements that mostly only marrying couples are made aware of) are extremely important counter-measure to other sources of information. This is particularly so for religious ceremonies, since many present at those ceremonies are religious people raised and educated in a religious environment.