Yesterday, 15 November 2023, an omnibus bill was presented to Parliament that included a number of proposed amendments to the Marriage Act 1961.
Important: this bill has not yet been passed by either house, so the amendments are not yet law. They are still proposals at this point, although they’re pretty non-controversial and should go through. We just don’t know when!
Also important: at this stage, remote witnessing of NOIMs still ends on 31 December 2023. Depending on when the bill is passed (currently expected to be Feb-Mar next year), there will likely be a small gap when we can’t witness NOIMs remotely. We’ll keep you posted 🙂
Okay so now that I’ve got the disclaimers out of the way, let’s have a look at the amendments proposed by this bill. Some of this info comes from the explanatory memorandum to the bill, and some of it comes from a confidential meeting MLCS held with the celebrant associations and networks in October to let us know this was coming (which was very much appreciated!).
Remote witnessing to be made permanent
Remote witnessing of NOIMs (i.e. witnessing signatures on NOIMs over Zoom etc) to be made permanent. This one is pretty self-explanatory, we’ve been doing it for two years, we’ve been campaigning to have it made permanent for two years, thank goodness it’s finally (hopefully) happening! Thanks to all celebrants who wrote to their local MPs about this matter; we like to think everyone’s efforts helped get this over the line.
NB: the location of the couple and the witness has not changed. So there is still a list of witnesses for NOIMs signed in Australia, and a separate list for NOIMs signed overseas. All couples can take advantage of remote witnessing, but they still have to abide by the appropriate location-specific witness list. In plain terms, celebrants in Australia CANNOT witness signatures on NOIMs for couples who are overseas at the time of signing.
Required to physically meet before the marriage ceremony
Celebrants will be required to physically meet separately with each party to the marriage before the marriage is solemnised. This is to ensure there are no issues with consent or duress. The meeting can occur any time up to and including on the day of the marriage. Yes, this is a new obligation that we’ll have to figure out how to fit into our processes, and we’ll need to await further advice from MLCS on whether there are any specific requirements for the conduct of those meetings, but honestly if it means there are less issues with people saying they didn’t understand or felt coerced into getting married, it seems like a good thing to me.
NOIMs will officially be able to be transferred to another celebrant by request of the marrying couple. Currently the Act restricts the reasons for transfer to death, absence, or illness of the celebrant, or where “for any other reason it is otherwise impracticable for that person to solemnise the marriage.”
Now this one is pretty interesting. In the compulsory OPD topic in 2017, it said that “AGD considers that ‘other reasons’ could … cover situations where the couple have changed their mind and wish to use a different celebrant, as it would be impracticable for the first celebrant to solemnise the marriage if the couple did not want them to.” I brought this up in the meeting last month and asked if the AGD no longer viewed “any other reason” as including change of mind by the couple, and MLCS said no, but they wanted to clarify that change of mind by the couple was an appropriate reason for transfer. Nothing wrong with having these things clarified, this is excellent!
“Presence” clarified to “physical presence”
Marriages must be solemnised “in the physical presence” of the authorised celebrant and two official witnesses. The Act currently says that marriages must be solemnised “in the presence of” the authorised celebrant and two official witnesses. There’s been a LOT of argy-bargy since COVID about what “in the presence of” actually means; Mum tells me there’s lots of case law supporting the interpretation that it means in the physical presence of, but this bill will amend the Act to clarify that: the Act will now say that marriages must be solemnised “in the physical presence of” the authorised celebrant and two official witnesses. Again, great to have the clarity so there’s no arguments from couples.
One subdivision at a time
Celebrants will only be able to be registered under one subdivision at a time, i.e. they’ll only be able to be Ministers of Religion of Recognised Denominations (Subdivision A), State and Territory Officers (Subdivision B), or Commonwealth-Registered Civil or Religious Marriage Celebrants (Subdivisions C and D). I’ve always been of the impression that’s how it’s supposed to work anyway, but there is a handful of people who are currently registered under more than one subdivision, so that won’t be able to happen anymore. Any current celebrants who are registered under more than one subdivision won’t be affected, it’s only going forward.
Evidence of date and place of birth
The requirements for evidence of date and place of birth will be clarified. At the moment, the way s42(1)(b) is written essentially says parties have to produce a birth certificate, if they can’t produce a birth certificate they can produce a statutory declaration, or they can produce a passport. It really says that statutory declarations are only relevant where a party is unable to produce a birth certificate; passports are sort of left out on their own. So this subsection will be reordered to clarify that stat decs are for when a party does not have a passport and it is impracticable (i.e. practically impossible) for them to obtain a birth certificate.
I’m pretty sure we can take credit for this one; I’ve been bringing it up with MLCS since Alison Pickel brought it up with me after she saw a question about it in a Facebook group :). We do still need them to clarify whether only a birth certificate is sufficient; currently s42(1)(b)(i) says we can accept “an official certificate, or an official extract of an entry in an official register, showing the date and place of birth of the party”. A change of name certificate from BDM actually meets that definition, so I’ve asked they look into tidying it up to simply ask for a birth certificate (again this was an issue brought to me Alison after seeing it in a Facebook group). I don’t suggest you start accepting name change certificates as evidence of date and place of birth; I’m pretty sure BDMs around the country would lose their shit if we started doing that!
The Registrar of Marriage Celebrants will be able to appoint Deputy Registrars to take on some of the statutory powers of the Registrar, freeing up the Registrar for the meaty stuff like dealing with complaints. At the moment just one person is responsible for a LOT of stuff under the Act, and this would enable more decisions to be made. There is a list of powers that would NOT be able to be delegated to a Deputy Registrar, to ensure an appropriate level of oversight of the program.
The timeframe for considering applications to become a celebrant will be extended
Currently when an application is made to become a Commonwealth-Registered Marriage Celebrant, MLCS is required by the Act and the Regulations to make a decision within three months, otherwise the application is automatically rejected. This timeframe will be extended to six months, not because they think they’ll need it in the majority of cases or because they want to take longer to review applications, but because sometimes applications need further information and the people or organisations providing that information take their sweet time. The application then ticks over the three-month line and is rejected, often through no fault of the applicant. They then have to start their applcation again, including paying a new registration fee. This extended timeframe will allow those few cases the time they need to be fully reviewed without penalising the applicant.
Refunding application fee
Finally, MLCS will be able to refund an application fee where someone has applied to become a celebrant but does not hold the appropriate qualification (either a Cert IV in Celebrancy or Indigenous celebrancy skills). Apparently this only happens about half a dozen times a year, but it is usually a person who really can’t afford to not have the $400 or whatever the current registration fee is, and MLCS always feels bad that they can’t refund the money. After this bill passes, they’ll be able to, only in this very specific circumstance.
So that’s it! That’s an overview of the proposed amendments to the Marriage Act 1961 that are now before Parliament for consideration. Again, a reminder that this has not happened yet; we still have to wait for the bill to be passed by both houses of Parliament (hopefully in Feb-Mar next year).
Let me know any questions in the comments.