Recommendation 10:

Term of Reference 

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

Recommendation 10:

That Sections 45 be modernised to ensure all marrying couples give consent to their marriage in their marriage ceremony (whether religious or civil) in the presence of their two witnesses and the marriage celebrant.   

Why is this a concern?

There are forms of religious marriage and marriage ceremonies that are recognised as sufficient for the purpose by the religious body or organisation, that do not require consent of the couple in the marriage ceremony.

Attendance at a marriage ceremony, of itself, may not constitute consent to the marriage. Therefore invalid marriage may be the result. Celebrants providing civil ceremonies are required to ensure that both parties to the marriage give consent in the ceremony.

Rationale:

  1. In Western cultural traditions, marriage commenced and continues to be a civil, not religious, function. The Australian Marriage Act was based upon the British Marriage Act of 1836 that recognised civil marriages as a legal alternative to church marriages In England and Wales. 

  2. Those religions “Recognised” under the Marriage Act in 1961 were predominantly Christian. 

  3. Since 1961 the number smaller religious bodies (See Attachment 2) represented under Subdivision C by independent religious celebrants has grown to 512 and the number of Recognised Religions has grown to approximately 130 (See Attachment 3). 

  4. To ICCA’s knowledge, there has been no audit in the last decade of the “form and ceremony recognised as sufficient for the purpose by the religious body or organisation”, especially for Subdivision A authorised celebrants to ensure that all ceremonies require the consent of both parties to the marriage, or to ensure both parties being present in the same room with their witnesses, as is required of both parties to the marriage civil ceremonies.

    “Section 45 (a) Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister”.

  5. Without interfering in the religious form or religious marriage rite, it would be a simple step for the Marriage Act to require all religious ceremonies to precede their marriage service with minimal components required by Sections 45 and 46.

  6. 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 Year Goals. An example of a modified Section 45 (where blue phrases are additions, red are deletions) could be: 

Proposed Change to the Marriage Act:

section 45 orig

# Note: This 1836 version of the vows needs modernising. These vows were written in a time before identification documents were common. All celebrants are required to be satisfied as to the identities of the parties to the marriage and the information provided on the notice, by sighting official birth certificates or passports and other documents, thus there is no need for full names in the ceremony