A review of marriage celebrants has found many reciting the marriage vow incorrectly. The legalities of the Marriage Act 1961 means that this could technically render those marriages void. Crikey speaks with the president of Australian Marriage Celebrants, Keith Lammond, to find out whether your marriage could be invalid.
Which part of the vow causes the most problems?
Section 45, which states celebrants must say words to the effect of “I call upon the persons here present to witness that I, AB (or CD), take thee, CD (or AB) to be my lawful wedded wife (or husband)”. It causes problems when it is said incorrectly, or asked as a question.
Why aren’t celebrants allowed to phrase the vow in question form?
The asking is not a legal requirement. Couples like to say “I do”, but this is purely tradition. It is insufficient for partners to say to each other ‘I do’, they have to exchange the actual words of Section 45 in order for it to be a speech act. The legal vows in asking a question are worthless, because they are only answering the question and not making a vow.
What is the monitum and why is it so important?
The monitum is a part of the ceremony in which the celebrant is obliged to state the legal definition of marriage as it occurs in the Marriage Act 1961. It outlines the terms by which one can engage in a marriage, as in section 47; “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.”
Is there a bigger risk for personalised ceremonies being performed incorrectly, as opposed to those held by a Church?
No. At some point in a personalised ceremony, the vows must be exchanged correctly. You can add words around them to make them more personal. In a civil marriage ceremony is the celebrant’s responsibility to ensure that the correct words are being used.
The reason why one may not hear the vows in a religious ceremony is because the marriage is conducted in accordance with that institution. So in mainstream churches and even smaller, non-aligned churches, vows are not necessarily used. This by no means makes the marriage invalid, because it is being conducted under the authority of the religious institution.
Fairfax reported that “almost 80% of the ceremonies the federal Attorney-General’s department examined last year did not comply with requirements”. Why is the percentage so large? Part of a celebrant’s appointment is that they are reviewed every five years by the Attorney-General’s office. The sample of 336 that was quoted in the newspaper are a small percentage of the 10, 400 celebrants that we have in Australia. The majority do the right thing.
Who will be held responsible for potentially void marriages?
Celebrant trainers should considered responsible, celebrants pay to be trained and deserve to be trained properly. All celebrants have to be professionally trained and must at least have a Certificate IV in Celebrancy after which they spend five hours a year doing ongoing professional development. The Attorney-General’s Department has a strong emphasis on training. What is sad about it is that some trainers are left wanting and this impacts on prospective celebrants.
Who has the right to make the marriages void? And will they?
The only institution that can annul a marriage in this case is the Family Court. I do not believe they will deem a marriage invalid, because the only way the marriage can be brought into question is by taking it to court. So if somebody wants to get out of a marriage and are looking for a loophole, they may try to use the excuse that their vows were invalid. It must be acknowledged that this is a loophole, but it is unlikely to be annulled on this basis in a court of law. Ultimately this is not a panic situation.
The Marriage Act Section 45 says:
Form of ceremony
(1) Where a marriage is solemnized by or in the presence of an authorized celebrant, being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister.
(2) Where a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion, it is sufficient if each of the parties says to the other, in the presence of the authorized 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.
AND
46 Certain authorised celebrants to explain nature of marriage relationship
(1) Subject to subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion of a recognized denomination, 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.”;
OR WORDS TO THAT EFFECT.
AND :
At the end of Section 48 of the Marriage Act, wherein it states why a marriage may be invalid, it says: “…if either party to the marriage, at the time the marriage was solemnized, believed that that person was lawfully authorized to solemnized 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.”
The important things to understand are that :
1. Since 2003, the Attorney General’s Department has been of the opinion that “words to that effect’ MUST be interpreted narrowly ! In fact, the point of “words that mean the same as”.
If the same level of pedantic-ness was to be applied retrospectively, then logically almost ALL the marriages conducted by civil celebrants between 1973 and 2003 could also come into question!
One would assume that “WORDS TO THAT EFFECT” would normally give a much wider latitude. That is ,could mean that provided the ceremony conveyed messages that the celebrant was there to witness a legal marriage, that marriage was described to convey the meaning of the legal description, and the couple indicate verbally that they were taking each other as husband and wife.
2. Before the ceremony, the couple must give a calendar months notice, provide evidence of identity, age and marital status, signed Commonwealth Statutory Declarations that they are free to marry and that all the information they have given to the celebrant is true in every respect, AND after the ceremony signed 3 documents in the presence of their two adult legal witnesses and the celebrant
3, Section 48 above, as does in Act in general, does not allow a mistake on behalf of the celebrant to bring into question the marriage of a couple who were free to marry, complied with the requirements as they understood them and believed themselves to be married.
4. FINALLY Section 45 (1) DOES NOT require couples married by MAINSTREAM RELIGIOUS celebrants to say the Vows above either as “words that mean the same as” or “words to that effect” or any vows at all if the church did not require them, NOR does this type of religious celebrant have to give a DEFINITION OF MARRIAGE as above, NOR to state they are AUTHORISED to marry.
So how is it that an Act of Parliament as important as Marriage Act be so DISCRIMINATORY against couples married in civil and non-aligned religious ceremonies ?
One could be tempted to hold a conspiracy theory that all the above is intended to make non-main steam religious people to head back to the churches to have “real” marriages !
Rather hypocritical – as in western tradition, marriage was a civil function and not attended by priests until latter.
But then just because “one is paranoid”, does not mean they are not out to get us 🙂