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Legal Marriage Requirements


Legal Marriage Requirements

1. What requirements does a person need to meet to apply for registration as a marriage celebrant?

Certificate IV in Marriage Celebrancy

Source - Marriage Act 1961 - Section 39C (37G Marriage Regulations 1963)

2. To be registered as a marriage celebrant, an applicant must meet the criteria of the fit and proper person test. Please explain this in the context of the marriage act?

(a) Whether the person has sufficient knowledge of the law relating to the solemnization of marriages by marriage celebrants; and

(b) Whether the person is committed to advising couples of the availability of relationship support services; and

(c) Whether the person is of good standing in the community; and

(d) Whether the person has been convicted of an offence, punishable by imprisonment for one year or longer, against a law of the Commonwealth, a State or a Territory; and

(e) Whether the person has an actual or potential conflict of interest between his or her practice, or proposed practice, as a marriage celebrant and his or her business interests or other interests; and

(f) Whether the person’s registration as a marriage celebrant would be likely to result in the person gaining a benefit in respect of another business that the person owns, controls or carries out; and

(g) Whether the person will fulfill the obligations under section 39G; and

(h) Any other matter the Registrar considers relevant to whether the person is a fit and proper person to be a marriage celebrant.

Source - Marriage Act 1961 - Section 39C (2)

3. What are the obligations of a Marriage Celebrant?

A marriage celebrant must:

(a) Conduct himself or herself in accordance with the Code of Practice for marriage celebrants prescribed by regulations made for the purposes of this paragraph; and

(b) Undertake all professional development activities required by the Registrar of Marriage Celebrants in accordance with regulations made for the purposes of this paragraph; and

(c) Notify the Registrar, in writing, within 30 days of:

(i) A change that results in the details entered in the register in relation to the person no longer being correct; or

(ii) The occurrence of an event that might have caused the Registrar not to register the person as a marriage celebrant if the event had occurred before the person was registered.

Source - Marriage Act 1961 - Section 39G

4. Under the part IV solemnization of marriage in Australia, Division1. List the 3 categories of persons that may register as celebrants?

Entitlement to be registered as a marriage celebrant:

(1) A person is only entitled to be registered as a marriage celebrant if the person is an individual and the Registrar of Marriage Celebrants is satisfied that the person:

(a) Is aged 18 years or over; and Part IV Solemnization of marriages in Australia

(b) Has all the qualifications, and/or skills, determined in writing to be necessary by the Registrar in accordance with regulations made for the purposes of this paragraph; and

(c) Is a fit and proper person to be a marriage celebrant

Source - Marriage Act 1961 - Section 39C

5. When does the Registrar review celebrants?

The Registrar will review every marriage celebrant’s performance to determine whether it is satisfactory. The maximum period between each performance review is 5 years and the time between reviews could be less.

Source - Marriage Act 1961 - Section 39H

6. What considerations must the registrar address in a person’s application to become a celebrant?

(a) Whether the person has sufficient knowledge of the law relating to the solemnization of marriages by marriage celebrants; and

(b) Whether the person is committed to advising couples of the availability of relationship support services; and

(c) Whether the person is of good standing in the community; and

(d) Whether the person has been convicted of an offence, punishable by imprisonment for one year or longer, against a law of the Commonwealth, a State or a Territory; and

(e) Whether the person has an actual or potential conflict of interest between his or her practice, or proposed practice, as a marriage celebrant and his or her business interests or other interests; and

(f) Whether the person’s registration as a marriage celebrant would be likely to result in the person gaining a benefit in respect of another business that the person owns, controls or carries out; and

(g) Whether the person will fulfill the obligations under section 39G; and

(h) Any other matter the Registrar considers relevant to whether the person is a fit and proper person to be a marriage celebrant.

Source - Marriage Act 1961 - Section 39C (2)

7. Under what circumstances can the registrar take disciplinary action against a celebrant?

The Registrar of Marriage Celebrants may only take disciplinary measures against a marriage celebrant if the Registrar:

(a) Is satisfied that the marriage celebrant is no longer entitled to be registered as a marriage celebrant; or

(b) Is satisfied that the marriage celebrant has not complied with an obligation under section 39G; or

(c) Has determined in writing under section 39H that the marriage celebrant’s performance in respect of a period was not satisfactory; or

(d) Is satisfied that it is appropriate to take disciplinary measures against the marriage celebrant after considering a complaint in accordance with the complaints resolution procedures established under paragraph 39K(c); or

(e) Is satisfied that the marriage celebrant’s application for registration was known by the marriage celebrant to be false or misleading in a material particular.

Source - Marriage Act 1961- Section 39I (1)

8. What disciplinary action may the registrar take?

The only disciplinary measures that the Registrar may take against a marriage celebrant are to:

(a) Caution the marriage celebrant in writing; or

(b) In accordance with regulations made for the purposes of this paragraph, require the marriage celebrant to undertake professional development activities determined in writing by the Registrar; or

(c) Suspend the marriage celebrant’s registration for a period (the suspension period) of up to 6 months by annotating the register of marriage celebrants to include:

(i) A statement that the registration is suspended; and

(ii) The dates of the start and end of the suspension period; or

(d) Deregister the marriage celebrant by removing his or her details from the register of marriage celebrants.

Source - Marriage Act 1961 - Section 39I (2)

9. What notice in writing must be made before a marriage can proceed. What documentation needs to be viewed and what is the time frame in which this must be done?

Subject to this section, a marriage shall not be solemnized unless:

(a) Notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorized celebrant solemnizing the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage;

(b) There has been produced to that authorized celebrant, in respect of each of the parties:

(i) An official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or

(ii) A statutory declaration made by the party or a parent of the party stating that, for reasons specified in the declaration, it is impracticable to obtain such a certificate or extract and stating, to the best of the declarant’s knowledge and belief and as accurately as the declarant has been able to ascertain, when and where the party was born; or

(iii) A passport issued by a government of an overseas country, showing the date and place of birth of the party; and

(c) Each of the parties has made and subscribed before that authorized celebrant a declaration, in accordance with the prescribed form, as to:

(i) The party’s conjugal status;

(ii) The party’s belief that there is no legal impediment to the marriage; and

(iii) Such other matters as are prescribed

Source - Marriage Act 1961 Section 42 (1)

10. Do both parties need to sign the NOIM initially?

However, if the signature of a party to an intended marriage cannot conveniently be obtained at the time when it is desired to give notice under this section, a notice duly signed by the other party and otherwise complying with the provisions of this section shall, if it is signed by the first-mentioned party in the presence of an Solemnization of marriages in Australia Part IV authorized celebrant before the marriage is solemnized, be deemed to have been a sufficient notice.

Source - Marriage Act 1961 - Section 42 (3)

11. When and where can a marriage be solemnized?

A marriage may be solemnized on any day, at any time and at any place.

Source - Marriage Act 1961 - Section 43

12. Who can sign a Notice of Intended Marriage as the witness?

(a) If a party signs the notice in Australia—must be signed in the presence of:

(i) An authorized celebrant; or

(ii) a Commissioner for Declarations under the Statutory Declarations Act 1959; or

(iii) A justice of the peace; or

(iv) A barrister or solicitor; or

(v) A legally qualified medical practitioner; or

(vi) a member of the Australian Federal Police or the police force of a State or Territory; and

(b) If a party signs the notice outside Australia—must be signed in the presence of:

(i) An Australian Diplomatic Officer; or

(ii) An Australian Consular Officer; or

(iii) A notary public; or

(iv) An employee of the Commonwealth authorized under paragraph 3(c) of the Consular Fees Act 1955; or

(v) An employee of the Australian Trade Commission authorized under

Source - Marriage Act 1961 - Section 42 (2)

13. The form 14 declaration is the prescribed form that states?

Where a party to an intended marriage is unable, after reasonable inquiry, to ascertain all of the particulars in relation to that party required to be contained in a notice under this section, the failure to include in the notice such of those particulars as the party is unable to ascertain does not make the notice ineffective for the purposes of this section if, at any time before the marriage is solemnized, that party furnishes to the authorized celebrant solemnizing the marriage a statutory declaration as to that party’s inability to ascertain the particulars not included in the notice and the reason for that inability.

Source - Marriage Act 1961 - Section 42 (4)

14. What is the minimum wording that a celebrant must say to legally perform a marriage under the marriage act 1961 to make a marriage valid?

A marriage that is to be solemnized by or in the presence of an authorized celebrant who is not a minister of religion of a recognized denomination (this refers to all celebrants authorized by the Commonwealth), the authorized celebrant shall say to the parties, in the presence of the witnesses, the
Words:

“I am duly authorized by law to solemnize marriages 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, voluntarily entered into for life”

Source - Marriage Act 1961 - Section 46 (1)

15. What is the minimum wording that a couple must say under the marriage act 1961 to make a marriage valid?

Sets out the minimum words, which must be used by the parties for a non-religious ceremony to be a marriage ceremony. Each party must say to the other, in the presence of the 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.

Source - Marriage Act 1961 - Section 45 (2)

16. Can a marriage be solemnized with just the couple, the celebrant and the couple’s two five-year-old children present?

No, They need 2 witnesses over 18 years of age

Source - Marriage Act 1961 - Section 44

17. What is the definition of Marriage under Australian Law?

Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life

Source - Marriage Act 1961 - Section 5 (1)

18. Can a couple get married without wedding rings or a best man?

Yes, the couple can be married without wedding rings, since the giving of rings is simply a symbolic ritual

Yes, a couple can get married without a Best Man, however they require 2 witnesses over 18 years of age

Source - Marriage Act 1961 - Section 44

19. If a couple who are both non-Australian citizens ask you to marry them and birth certificates or statutory declarations are not available, what must you ask for?

(a) There has been produced to that authorized celebrant, in respect of each of the parties:

(i) An official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party; or

(ii) A statutory declaration made by the party or a parent of the party stating that, for reasons specified in the declaration, it is impracticable to obtain such a certificate or extract and stating, to the best of the declarant’s knowledge and belief and as accurately as the declarant has been able to ascertain, when an where the party was born; or

(iii) A passport issued by a government of an overseas country, showing the date and place of birth of the party; and

(b) Each of the parties has made and subscribed before that authorized celebrant a declaration, in accordance with the prescribed form, as to:

(i) The party’s conjugal status;

(ii) The party’s belief that there is no legal impediment to the marriage; and

(iii) Such other matters as are prescribed

Source - Marriage Act 1961 - Section 42 (1)

20. Supposing the couple believes you are ‘really a celebrant’ and you are not; if you still proceed, is the couple married?

A marriage is not invalid by reason that the person solemnizing it was not authorized by this Act to do so, if either party to the marriage, at the time the marriage was solemnized, believed that that person was lawfully authorized to solemnize it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.

Source - Marriage Act 1961 - Section 48 (3)

21. What needs to be sent to the State Registrar after the wedding? When does it have to be sent? Do you have to do anything different if you solemnize a marriage in another state? (Please provide form numbers)

The authorized celebrant shall hand the certificate referred to in paragraph (1)(a) to one of the parties to the marriage on behalf of the parties, and:

(a) Where 2 official certificates have been prepared:

(i) Within 14 days after the solemnization of the marriage, forward the official certificate to which subsection (3) applies, together with the notice under section 42, the order (if any) under section 12 and any statutory declarations, consents and dispensations with consents relating to the marriage that are in his or her possession, to the appropriate registering authority of a State or Territory ascertained in accordance with the regulations;

[Forms 13, 14, and 16]

Source - Marriage Act 1961 - Section 50 (4)

22. Can gay couples marry in Australia, why/why not?

Defines marriage as ‘...the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ Accordingly, it is not possible for same-sex couples to marry under Australian law and same-sex marriages entered into under the laws of another country are also not recognized in Australia.
It is not illegal to conduct a commitment ceremony for same-sex couples, though, provided that the ceremony does not purport to be a legal marriage.

Source - Marriage Act 1961 - Subsection 5 (1)

23. The groom is 21 and the bride is 17 however the bride has permission from her parents to marry. Can the couple marry?

Where an Act, a State Act or an Ordinance of any Territory of the Commonwealth provides that a person specified in the Act, State Act or Ordinance is to be the guardian of a minor, or requires that a specified person is to be deemed to be the guardian of a minor, to the exclusion of any parent or other guardian of the minor, that person is the person whose consent is required by this Act to the marriage of the minor.

Source - Marriage Act 1961 - Section 14 (3)

24. The groom is 18 and the bride is 16, however the bride has an order authorizing the marriage despite the age. Can the couple marry?

A person who has attained the age of 16 years but has not attained the age of 18 years may apply to a Judge or magistrate in a State or Territory for an order authorizing him or her to marry a particular person of marriageable age despite the fact that the applicant has not attained the age of 18 years.

Source - Marriage Act 1961 - Section 12 (1)

25. How would you assist a couple to marry if both bride and groom were under 18?

The Act does not permit, under any circumstances, a marriage where both parties are under marriageable age.

26. Who can witness a marriage? How many people are required?

A marriage shall not be solemnized unless at least 2 persons who are, or appear to the person solemnizing the marriage to be, over the age of 18 years are present as witnesses

Source - Marriage Act 1961 - Section 44

27. What does a couple need to comply with if they are unable to make their Notice of Intended Marriage before the one month date?

Despite a notice required by subsection (1) having been received later than 1 month before the date of the marriage, a prescribed authority may authorize an authorized celebrant to solemnize a marriage if the authority is satisfied that one or more of the circumstances prescribed in the regulations have been met.

Source - Marriage Act 1961 - Section 42 (5)

28. State 2 circumstances that a couple can request a shortening of time?

  1. Employment related or other travel commitments
  2. Medical reasons

Source - Marriage Regulations 1963 - Schedule 1B (Regulation 39)

29. Can half sisters or half brothers marry?

Marriages of parties within a prohibited relationship are marriages:

(a) Between a person and an ancestor or descendant of the person; or

(b) Between a brother

Source - Marriage Act 1961 - Section 23 (2)

30. Who may marry in Australia?

A person may marry their aunt or uncle, niece or nephew or ‘first’ cousin

Source - Marriage Act 1961 - Section 23 (2)

31. Explain the importance of the “document referred to in section 42 5a of the marriage act given to parties”?

Form 14A - This document is to be given to the wedding couple after receiving the NOIM, and it outlines the obligations of marriage, whilst stating the availability of marriage education and counseling.

Source - Marriage Act 1961 - Section 42 (5a)

32. If an adopted child wishes to marry their adoptive parent, two years after being under the care of new adoptive parents, can this take place? What circumstances and requirements are there regarding adoptive parents?

Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child, shall be deemed to be or to have been the natural relationship of child and parent.

[Restrictions apply to adoptive relationships even if these have been annulled, cancelled, discharged or cease to be effective for any reason]

Source - Marriage Act 1961 - Section 23 (3)

33. If the bride or groom has been previously married what do they need to provide the celebrant with?

(a) Each of the parties has made and subscribed before that authorized celebrant a declaration, in accordance with the prescribed form, as to:

(i) The party’s conjugal status;

(ii) The party’s belief that there is no legal impediment to the marriage; and

(iii) Such other matters as are prescribed

Source - Marriage Act 1961 - Section 42 (1)

34. What needs to be signed at the time of marriage?

(1) Where an authorized celebrant solemnizes a marriage, the authorized celebrant shall:

(a) Prepare a certificate of the marriage, in accordance with the prescribed form, for the purpose of issue to the parties to the marriage; and

(b) Prepare 2 official certificates of the marriage in accordance with the prescribed form

[Marriage Certificate (Form 15), Marriage Certificate (Form 16) 2 Identical Copies]

Source - Marriage Act 1961 - Section 50

35. When should it be signed, and who is it signed by?

Immediately after the solemnization of the marriage, the authorized celebrant, each of the parties to the marriage and 2 witnesses of the marriage who are, or appear to the authorized celebrant to be, over the age of 18 years shall sign each of the certificates so prepared.

Source - Marriage Act 1961 - Section 50 (2)

36. When the bride signs her name on the wedding certificate, does she need to use her maiden name or married name?

Unless a bride changes her name legally prior to the wedding, she should sign using here maiden name.

37. List the key features of the new form 15 certificate as per the Marriage Act Section 40?

New security features include:

  • Coat of arms
  • Pattern on front
  • A unique number on the back

Certificate numbers are recorded by Attorney General & Celebrant, so that documents are easily traceable. This also provides protection against alteration and reproduction.

38. What is the significance of accepting a statutory declaration?

Where a party to an intended marriage is unable, after reasonable inquiry, to ascertain all of the particulars in relation to that party required to be contained in a notice under this section, the failure to include in the notice such of those particulars as the party is unable to ascertain does not make the notice ineffective for the purposes of this section if, at any time before the marriage is solemnized, that party furnishes to the authorized celebrant solemnizing the marriage a statutory declaration as to that party’s inability to ascertain the particulars not included in the notice and the reason for that inability.

Source - Marriage Act 1961 - Section 42 (4)

39. What must a celebrant do with any statutory declarations, consents or dispensations?

An authorized celebrant to whom consent, dispensation with consent or statutory declaration is produced under this Act shall retain it in his or her possession until he or she deals with it in accordance with section 50.

[Immediately following solemnization, the Celebrant must forward the consents and dispensations to the Registry, together with all relevant legal documentation including Forms 13, 14, 16 (and any statutory declarations).]

Source - Marriage Act 1961 - Section 49

40. What makes a marriage void?

A marriage will be a void marriage where:

(a) Either of the parties is, at the time of the marriage, lawfully married to some other person;

(b) The parties are within a prohibited relationship;

(c) By reason of section 48 the marriage is not a valid marriage;

(d) The consent of either of the parties is not a real consent because:

(i) It was obtained by duress or fraud;

(ii) That party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii) That party is mentally incapable of understanding the nature and effect of the marriage ceremony; or

(e) Either of the parties is not of marriageable age

Source - Marriage Act 1961 - Section 23 (B)

41. What are the key features of the Marriage Act? What is the age a person is entitled to be registered as a Marriage Celebrant?

The Marriage Act Outlines the requirements to be legally married in Australia

Key features include:

Legislation regarding legitimate and voided marriages, primarily the processes regarding consents, court orders and statutory declarations to enable both a contiguous thread of legal records, and the ability for exceptional circumstances to prevail.

Other key features include the ceremonial marriage process itself, specifically the registration, jurisdiction and conduct of celebrants, the appropriation of legal marriage stationary, and the wording required to bind a marriage under Australian law.

Finally, the marriage act defines the differing statutory requirements of ministers of religion as compared to secular celebrants.

Source - Marriage Act 1961 - Section 39C (1a)

A Marriage Celebrant needs to be 18 years of age.

42. What are the requirements regarding the use of an interpreter in a marriage ceremony, what should be provided?

(1) Subject to this section, where the person by whom or in whose presence a marriage is to be solemnized considers that it is desirable to do so, the person may use the services of an interpreter, not being a party to the marriage, in or in connexion with the ceremony.

(2) A person shall not solemnize a marriage in or in connexion with the ceremony of which the services of an interpreter are used unless the person has received a statutory declaration by the interpreter stating that the interpreter understands, and is able to converse in, the languages in respect of which he or she is to act as interpreter.

(3) A person who has acted, as interpreter in or in connexion with a ceremony of marriage shall, forthwith after the ceremony has taken place, furnish to the person solemnizing the marriage a certificate signed by the first-mentioned person, in the prescribed form, of the faithful performance of the first-mentioned person’s services as interpreter.

[A Form 24 should be used]

Source - Marriage Act 1961 - Section 112

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