Recommendation 9:

Term of Reference 

(c) 
potential amendments to improve the effect of the bill and the likelihood of achieving the support of the Senate
 
Recommendation 9:

That Sections 46 and 113 (7) be modernised to ensure all celebrants authorised under the Act (whether offering religious or civil ceremonies) give a definition of marriage according to civil law, state whether they are authorised under the Act to conduct valid marriage, and if an un-authorised religious celebrant, that the couple is already legally married according to civil law.
 
Why is this a concern?

Child and forced marriage is a growing concern in Australia.
 
Religious celebrants under the Marriage Act, are able to conduct second religious marriage ceremonies without making it clear to the guests /congregation that the couple are already married. This implies religious law takes precedence over civil law in Australia.

Without the transparency required by this Section of the Act, one or both parties to the marriage and those present may not be aware that a valid marriage is being solemnized or may believe they are being validly married by an unauthorised religious celebrant purporting to marry the couple. The latter would mean the unauthorised religious celebrant would be guilty of an offence under Section 101 (12) of the Act, and if either of the parties to the marriage knew the religious celebrant was unauthorised would be committing an offence under Section 103 (13) of the Act
 
Rationale:

  1. As a federal act governing our nation, most Australians would expect that 

    1. the same criteria to apply to all those seeking to be married, and
    2. the same criteria to be covered in the marriage ceremony

      for all couples to be able to be legally married under the Act.

  2. The Marriage Act, whilst consistent in the grounds upon which a couple may be married, is inconsistent in the basic requirement of the marriage ceremony on the basis of religion between the requirements of Subdivision A, B and C celebrants and within Subdivision C.

  3. It is an offence under Section 101 of the Marriage Act for any person (authorised celebrant or not) to purport to marry a couple, and Section 113 prohibits second marriages of couples already legally married to have a second marriage ceremony, unless this is a religious ceremony.  

    Therefore authorised civil marriage celebrants would be committing an offence under this Section for not making it clear to all present that the couple have been legally married. 

    Note: This service is often requested by couples married overseas, who then for family reasons wish to marry back in Australia.

  4. However, there is no requirement in the Marriage Act that Subdivision A celebrants of a Recognised Religion include a definition of marriage according to Australian law, nor to make it  clear to the guests or congregation present that the couple are:

    1. being validly married under Australia law, where the religious celebrant is authorised as a Subdivision A celebrant, or
    2. already married under Australia law, where the religious celebrant is not authorised
    3. nor is there a requirement that a definition according to civil law is give. This may be qualified by their religious faith. 

      Not all religious groups or organisations oppose same sex marriage. 

  5. Whilst if would be an offence for an authorised celebrant conducting civil marriage or a private person to conduct a second marriage ceremony without making it clear that the ceremony was not valid under law,  it is not an offence under the Marriage Act- Section 113 (14) for an unauthorised religious celebrant to conduct a second religious ceremony provided the couple are previously validly married and produced evidence of their marriage to that celebrant.

  6. In France, the whole population understands that in France the only legal marriages are conducted by their state registry offices or local courts.

    Because Australia has a complex system allowing both religious and civil celebrants of four different types to solemnize marriage, our population is not clear as to Australia’s marriage requirements, nor if they are present at a legal marriage at a religious wedding ceremony.

    Therefore the Australian Marriage Act needs to be also consistent as to its basic requirements of the marriage ceremony to ensure the parties to the marriage, their witnesses and their guests, and the Australian community as a whole, are clear as to the nature of the marriage ceremony being conducted in relation to civil law.

  7. The Coalition of Celebrant Associations (CoCA) Inc. recommends that all marriage celebrants (whether offering religious or civil ceremonies) and all marriage ceremonies contain the same basic elements of civil law in its 10 years goals. 

    section 46 orig

section 113 orig