Guidelines 2018: What’s changed?

In this post I’ll be looking at the Guidelines on the Marriage Act 1961 for Authorised Celebrants 2018: what’s new, what’s changed, and what’s gone.

I’m not going to talk about changes such as the checklist for solemnising marriages moving from page 31 to the appendix, or other page or structure changes.

What I will be talking about is the changes that affect the way Commonwealth-registered marriage celebrants (both Subdivision C marriage celebrants and Subdivision D religious marriage celebrants) do our work, and there are more than you might expect.

Let’s dive in!

Introduction, p15

These guidelines provide essential information for celebrants on the solemnisation of marriages in Australia under the Marriage Act and the Marriage Regulations. The material provides best practice guidance on the solemnisation of marriage in Australia and celebrants are expected to familiarise themselves with the information in this document [emphasis added]. The following material is provided on the understanding that the department is not providing professional legal advice on any particular matter. The department can only provide guidance on the requirements of the legislation.

The 2014 Guidelines stated that the material provided was the best and most accurate information and guidance available. A change to noting the material provides best practice guidance is significant, because it reiterates the notion that these literally are guidelines rather than a set of instructions that must be followed. Further, the instruction from the 2014 Guidelines that “celebrants are expected to update their practices if any of them are not consistent with these Guidelines” has been removed from the 2018 edition. Obviously there are numerous items in the Guidelines that are MUST DOs; they’re the ones required by the Marriage Act 1961 or the Marriage Regulations 2017. Everything else can be considered a SHOULD DO; they’re suggestions of the best practice at the time of publication.

Please note I am not suggesting that celebrants should not follow the Guidelines. If a celebrant were called to testify in court as to their actions in a case testing the validity of a marriage, if they could put their hand on their heart and say, “I followed the Guidelines set out by the Commonwealth Attorney General’s Department,” I believe they would be in a much stronger position than if they said, “I decided my own interpretation of the Marriage Act was sufficient.” However in some cases I believe the Guidelines overstep and make statements that are not supported by legislation or by common practice, and I will be following up with AGD for further clarification on those sections.

Section 4.4.1, p26

This section is about the new guidance on the one month’s notice period, and I don’t think it makes any sense at all. It certainly doesn’t set out an example of when notice is given and a marriage can take place as the related fact sheet does. I’m not going to look at this issue here; I’ve dealt with it in a previous post that’s being updated as things change. If the Guidelines are re-released with this section rewritten, I’ll change this post.

Section 4.4.3, p27

Original NOIM unavailable

Where the original NOIM cannot be obtained, for example because it has been lost by the couple, consideration should be given to whether there is enough time to complete a new NOIM or a shortening of time could be sought.

Solemnising a marriage without the original NOIM should only be a last resort in the most extreme of circumstances. In such circumstances it may be acceptable for the celebrant to rely solely on the copy of the NOIM and solemnise the marriage without receiving the original NOIM before the wedding. In such a situation, the celebrant should ensure the words on the copy of the NOIM are clearly legible. The copy of the NOIM should be treated as the original document.

Celebrants should contact the BDM directly to explain the circumstances in such situations. BDMs are responsible for registering marriages and as such celebrants can enquire whether the BDM would accept a copy of the NOIM (provided that all other obligations had been complied with).

It’s fantastic to have this clarity added to the Guidelines. I have heard of numerous occasions where the couple has lodged the NOIM with a celebrant by email to meet the one-month notice period or because they’re interstate or overseas, and then has either lost the original or forgotten to bring it with them to the place the wedding is being held. Although it has long been common practice for BDMs around the country to advise celebrants they can solemnise the marriage, treating the copy as the original, previous iterations of the Guidelines did not consider such cases.

As the Guidelines instruct, it is important to contact the BDM that will be registering the marriage to confirm they will accept the copy of the NOIM for registration purposes. The BDM in question may request that the celebrant provides a cover letter or other supporting documentation when they send in the marriage paperwork for registration.

Section 4.5.1, p28

Where a party is unable to ascertain all the particulars required in the NOIM after reasonable inquiry, they must write ‘unknown’ in the appropriate space/s.

In order to make the NOIM effective, the parties must also provide the celebrant with a statutory declaration as to their inability to ascertain the particulars not included in the NOIM, and the reasons for that inability…

However, a statutory declaration is not necessary for the information required to be provided under the following items of the NOIM: … the year of a previous marriage ceremony under item 16 [emphasis added].

It used to say parties didn’t need to provide a stat dec if they didn’t know the date of a previous marriage ceremony. Granted, the date of a previous marriage ceremony is not actually a requirement of the NOIM; item 16 asks for the year of each previous marriage ceremony and the date if known. But now we don’t have to force the 80-year-old who got married for the first time 60 years ago to figure out exactly when he married his dead wife. Yay!

Section 4.5.2, p28

Parents’ names

The NOIM requires that the parties to the marriage list their parents. In most cases people will list their parents as per their birth certificates or adoption papers. Not all parents are listed on birth certificates; it is up to the parties to list their parents using the names they know them by. There is no requirement to sight evidence of the parents’ names irrespective of whether a birth certificate is produced. A statutory declaration is not required for this item.

Again, it’s great to see some clarity on this issue that has caused many arguments in celebrant forums over the years. Some celebrants have believed the parents’ names must match whatever is on the party’s birth certificate, as it’s a way of linking the identity records together. Previous iterations of the Guidelines were completely silent on the matter of parents’ names.

As I noted in a previous post on this issue, the most important part here is that “it is up to the parties to list their parents using the names they know them by.” The Guidelines now provide permission to list parents who are not listed on a birth or adoption certificate, they provide permission to list them in whatever name they are known to the party by (whether that’s the one they were born with or the one on the party’s birth certificate or something completely different), and they provide permission not to sight evidence of the parents’ names, even if a birth certificate is produced. I think this is a great outcome for celebrants and parties alike.

The only two issues this paragraph doesn’t cover for me is what if a party tells you the person they want to put down as their father is actually their step-father and they have no legal relationship with them, and what if a party tells you they don’t want to list the person who’s on their birth certificate as their father. Last time I saw a version of the new forms (which may or may be released some time this decade) they stipulated “Legal Parent”, which I think is a more helpful title for those items. (The forms also ask for Legal Parent 1 and Legal Parent 2 rather than Father and Mother, another great step toward full equality.)

Section 4.5.5, p29

NOIMs containing false statements

Celebrants should advise parties that it is a criminal offence for a person to give a NOIM to a celebrant if the person giving the notice knows that the NOIM contains a false statement or is defective.13 If a celebrant is in any doubt whether a NOIM is defective, they should contact the relevant BDM as soon as practicable after receipt of the NOIM, and before the solemnisation of the marriage [emphasis added]. If a celebrant believes a NOIM contains false statements, they should not accept the NOIM.

This change isn’t really that important, it’s just one of my little bugbears about the 2018 Guidelines. This same clause in the 2014 Guidelines was close to identical (with a few minor pronoun changes), except that it said that celebrants should contact the department (meaning the Attorney General’s Department) for guidance. The vast majority of references to contacting the department for guidance have been removed in the 2018 Guidelines, and the AGD’s response to that being questioned was that the beginning of the Guidelines includes a section inviting celebrants to contact them if they require guidance (Contact the department, page 14). I’m still going to point out every time it’s been deleted though 🙂

Section 4.5.9, p31

This section is all about when parties can use a different name on the NOIM (and other marriage paperwork) to the one recorded on their birth certificate. There’s an interesting bunch of changes of wording from should to must throughout this section.

First off a reminder about the difference between should and must as far as I’m concerned: any instruction that includes the word must is one that is backed up by a legislative requirement, e.g. celebrants must see an original birth certificate or a passport or receive a statutory declaration to prove a party’s date and place of birth. That is a requirement of the Marriage Act 1961, and therefore deserves a must. Any instruction that includes the word should is one that does not have a legislative basis, and provides best practice guidance for how celebrants should act in certain situations. I talked about the importance of this difference and the change to the Introduction of the Guidelines in Part 1 of this series if you need a reminder.

Now back to name on the NOIM, and the changes from should to must in the new Guidelines. For example:

BDM-issued change of name certificate

If a person has changed their name from the name on their birth certificate by way of a BDM-issued change of name certificate [or amended birth certificate] they must write this name on the NOIM [emphasis added].

The 2014 Guidelines said they should write this name on the NOIM. I’m okay with this change; if you go through a change of name process through BDM, you’re legally changing your name and you no longer have the right to use your birth name. So this one is definitely a must.

Change of name by deed poll

Prior to BDMs granting change of name certificates (commencing in about the late 1990s), a person could change their name by deed poll. A person who changed their name by deed poll must write this name on the NOIM [emphasis added].

The 2014 Guidelines said they may write this name on the NOIM. Again, I’m okay with this change for the same reasons as noted above.

Change of name by marriage

A party who has changed their name by marriage, and retained their previous spouse’s surname, must record that surname on the NOIM.

The 2014 Guidelines said they may record that surname on the NOIM. I am NOT okay with this change. When a person changes their surname by marriage, they do not go through a legal change of name process and relinquish their previous name. Instead, they tell everyone who has their name on file that they want to be called by a different name (their married name) and show their marriage certificate as proof they are entitled to use that new name. They still maintain their birth certificate and still have access to their previous name. Indeed, many people who change their name through marriage only do so for personal purposes, maintaining their birth name for professional purposes.

I cannot find any legislative reason why a person who has changed their name by marriage, and continued to use their previously married surname, cannot use their birth name on their marriage documents, AS LONG AS they can provide a chain of documentary evidence showing the change from their birth name to their married name (i.e. birth certificate in Smith, marriage certificate showing Ms Smith married Mr Jones, divorce certificate in Mrs Jones, and photo identification in Mrs Jones, to show the person in the photo ID is the same person named on the birth certificate, just using a different name).

I did question this change during the consultation process, but I clearly confused someone when I talked about “a person changing their name by usage through marriage”, because the response was that changing a name by usage was different from changing a name by marriage and therefore wasn’t relevant to this issue. I have emailed the Marriage Law and Celebrant Section to follow up again and will update you if/when I get a response.

Edit: I finally got a response! I emailed MLCS about this change of name by marriage issue on 1 August 2018, and after multiple follow-up emails from me I actually got a response on 8 March:

We agree that the guidance is contradictory guidance. Thank you for bring this to our attention.

We agree that a party to a marriage, who has been previously married and changed their name through that marriage, may choose to use that married name when completing the NOIM.

We will amend Part 4.19 of the guidelines to reflect this.

Just by the by, some of you may recall that I said it took me over 9 hours to review the draft Guidelines when they were released in May, because not only did I have to look at the sections that MLCS had highlighted as having changed, but I also had to read the rest of the document word for word. These changes above are an example of that; these sections were not highlighted, and with the exception of the change from should to must, the rest of the paragraphs were identical. So picking up these changes required that I compare every word of the two documents. 🙂

In this section there’s also another of those “don’t call us” changes. The section on the use of names on a Certificate of Australian Citizenship in the 2014 Guidelines included the following statement:

If a party wanting to marry has no evidence of their identity other than a Certificate of Australian Citizenship, the authorised celebrant should contact the department for guidance.

In the 2018 Guidelines, that sentence has simply been deleted. Gone. *sigh*

Section 4.7.1, p33

This is the section on Frequently Asked Questions about the use of names on the NOIM. There’s similar changes to the section above from should or may to must throughout a number of the questions, so it’s worth just checking in with the new answers before giving any advice to your couples.

Section 4.9, p40

In the section about signing and witnessing the NOIM, the following has been added:

An authorised celebrant or other person is not able to ‘witness’ the signing of a NOIM over Skype or other electronic means as the NOIM is to be signed in the ‘presence’ of the authorised celebrant or other person.

This is an instruction that was given in the Compulsory OPD booklet in 2017 and we asked to have it included in the Guidelines. It’s a perfectly reasonable and common sense instruction and I hope you’re all following it! (This instruction is also provided at s4.9.2, which is about a NOIM being signed outside Australia.)

Section 4.9.1, p41

There has always been a lot of confusion over what kind of practitioners are covered by “a legally qualified medical practitioner” as a witness to the signatures on a NOIM. Following information in the Compulsory OPD booklet in 2017 and our request it be included in the Guidelines, the following note has been added:

A legally qualified medical practitioner means a person who is registered as a licensed practitioner with the Medical Board of Australia. The category is limited to GPs and specialist doctors but does not include pharmacists or physiotherapists.

I’ve written about this issue before, but hopefully having this explicit instruction in the Guidelines will assist celebrants explain the concept to their couples.

Section 4.11, p46

This is a fairly minor change in the scheme of things, but it’s definitely making life easier for my brain. Previous guidance was that in the conjugal status box on the NOIM (and therefore on the marriage certificates), the options were “widower, widow, divorced, or never validly married.” I don’t know about you lot, but I could never remember whether a widower was male or female, and same with a widow (for the record, a widower is male and a widow is female).

The new guidance is that the conjugal status options are now simply “widowed, divorced, or never validly married.” Yay! This makes much more sense and is in line with the “divorced” option; we weren’t previously required to write divorcee, so it’s sensible that the options are both past-tense adjectives rather than nouns. And now I don’t have to remember which is which!

Hold on to your hats, because the next few changes are HUGE. The 2014 Guidelines included the following instruction:

A statutory declaration is not acceptable evidence of divorce or death of a former spouse. If an authorised celebrant is faced with circumstances in which evidence of divorce or death of a former spouse is not available, noting such circumstances are exceptional, the celebrant should contact the department for guidance.

This entire paragraph has been removed from the 2018 Guidelines. This is not a case where I’m concerned that the instruction to contact the department for guidance has been removed; removing this entire instruction is a huge change to the evidence requirements for parties who have been previously married. The requirements are covered more fully in the next two sections.

Section 4.11.1, p47

This section provides instructions on the required evidence of death of a former spouse, and it puts the ball firmly in the celebrant’s court to be satisfied with the evidence presented to them. The entire section has been rewritten; I’ve bolded the changes below.

In the case of a party whose last marriage ended with the death of their spouse, couples must be advised the marriage cannot take place until evidence of the death has been provided. It is up to each celebrant to determine whether they are satisfied with the evidence provided to them, and that they are satisfied that the party’s former spouse is deceased and the party is eligible to marry.

We recommend that the celebrant explain to the party that they, as a celebrant, need to be satisfied that the client’s former spouse is, or can legally be presumed, deceased before they can solemnise the marriage, as they may otherwise be committing an offence. The celebrant should encourage the party to take all practical steps to provide the death certificate.

If their spouse died in Australia, the party should be able to obtain the death certificate from the BDM in the state or territory where their spouse died. The celebrant should encourage the party to take all practical steps to provide the death certificate.

Where the death certificate cannot be provided, the celebrant could ask the party to look into whether a court could issue an order or declaration, on whether the party’s former spouse can be legally presumed dead. This would be the preferred option. Alternatively, you could request that the party obtain legal advice that the evidence available would support a conclusion that the spouse had died.

In some cases, a detailed statutory declaration from the person in relation to their marital status may satisfy the celebrant that the former spouse is deceased. While it is open to a celebrant to accept a statutory declaration, this type of evidence may not provide the same level of certainty as the options outlined above.

If a statutory declaration is provided, it should explain why the person believes that their former spouse is deceased. This would include information concerning:

• why there is no documentary evidence, or why the party cannot obtain that evidence
• all of the enquiries the party has made to ascertain confirmation about their former spouse’s death, and
• the length of time since they last had contact and why they would expect if the spouse were alive they would have heard from them.

It should also attach any publicly available information about the presumed circumstances of death, for example if it is believed the person died as a consequence of conflict, information about that conflict. Independent, corroborative evidence from third parties, such as a person who may have knowledge of the death or who, like the spouse, would have expected to hear from them if they were alive, may also be useful.

It almost might have been more useful to bold the bits that weren’t changed.

Let me summarise this:

• The best option is still to see an original death certificate for the deceased spouse.
• The next best option is for the party to seek a court order or declaration that the former spouse can be legally presumed dead.
• The next best option is for the party to obtain legal advice that the evidence available supports the conclusion that the spouse has died.
• The final option, only to be used in exceptional circumstances, is to accept a statutory declaration from the party outlining their belief that their former spouse is dead and the reasons for this belief (and the Guidelines provide an outline of information that should be included in such a statutory declaration).

The onus is on the celebrant to determine whether they are satisfied with the evidence provided to them; the department will not help you in this matter, it’s completely up to you.

Section 4.11.5, p49

The rewrites in this section, about the evidence of divorce from a former spouse that was granted overseas, are not quite as full-on as the previous section (NB: there are no changes to the information about evidence of a divorce granted in Australia; it is always possible to apply for a copy of the divorce certificate.) The first six paragraphs are exactly the same as the 2014 Guidelines. It’s when we come to the seventh paragraph that we see the changes. First, the paragraph stating that statutory declarations are not acceptable evidence has been removed. Second, the instruction to seek guidance from the department has been removed (of course it has). The example of a person who has come to Australia as a refugee being unable to obtain evidence of the end of a previous marriage remains the same. And then we come to the new information:

In some cases, a detailed statutory declaration from the person in relation to their marital status may satisfy the celebrant that they are divorced. While it is open to a celebrant to accept a statutory declaration, this type of evidence may not provide the same level of certainty as the options outlined above in 4.11.1 [i.e. a divorce certificate from an Australian or overseas court].

If a statutory declaration is provided, it should explain why the person believes they are divorced. This would include information concerning:

• why there is no documentary evidence, or why the party cannot obtain that evidence, and
• all of the enquiries the party has made to obtain evidence of their divorce.

They should also attach any independent corroborative evidence from third parties, such as a person who may have knowledge of the divorce.

Finally the paragraph about a party to an overseas marriage applying to an Australian court for a divorce in certain circumstances remains the same as the 2014 Guidelines.

So again, for evidence of a divorce granted overseas:

• a divorce certificate is the best option
• legal advice is the next best option
• a statutory declaration is the final option in exceptional circumstances, and again the Guidelines provide instructions on what should be included in such a declaration.

Again, the onus is on the celebrant to be satisfied the party is free to marry.

Section 4.12, p51

This section is about establishing identities of the parties to the marriage, and following our requests has been further clarified to include the information from the Compulsory OPD 2017 topic, and other pertinent information. Again, I’ll copy the whole section here and bold the new stuff.

A celebrant shall not solemnise a marriage unless satisfied that the parties are the parties referred to in the NOIM. This requirement is separate from, and additional to, the requirement that each party to a marriage must give their celebrant evidence of their date and place of birth before a marriage is solemnised.

The Marriage Act does not prescribe the documents required to be sighted as evidence of identity. There may be some overlap between the documents that can be provided as evidence of date and place of birth and those that may be provided as proof of identity. Ultimately it is up to each celebrant to determine whether they are satisfied as to the identity of the people seeking to get married.

Best practice is for a celebrant to require each party to a marriage to provide at least one of the following documents with photo identification as evidence of their identity:

• a driver licence
• a proof of age/photo card
• an Australian or overseas passport, or
• a Certificate of Australian Citizenship along with another form of photographic evidence (such as a student card or other photo identification not listed above).

Each decision on accepting evidence to determine identity should be made on a case by case basis. If a celebrant is not satisfied of a person’s identity because of the age or validity of documents presented to them, they should request that the couple provide alternate evidence.

An expired Australian passport (issued on or after 1 July 2000 with more than two years validity; that has not been expired for over ten years, or reported lost/stolen) can be used to determine the identity of a person.

An expired passport that belonged to a child may not be useful to determine the identity of an adult (even if it has been expired for less than ten years).

If a person is not able to obtain any official photo identification as evidence of their identity, celebrants may consider whether other evidence, such as a document which provides sufficient information to identify the person, such as their name, address and possibly date of birth. Government issued documents are recommended, for example, a letter from the Australian Tax Office, Centrelink or Medicare card and a rates notice.

For the purposes of completing the NOIM, if a driver licence is sighted as evidence of identity, in addition to recording the driver licence number, celebrants may choose to also record the state or territory in which the driver licence was issued. Similarly, if a passport is sighted, in addition to recording the passport number on the NOIM, the country of issue could also be recorded.

This new information supports what I (and others) have been saying for years; the Marriage Act requires that celebrants are satisfied as to the identity of the party. It does not require celebrants to sight photo identification; that is simply a best practice guideline. The new information outlines other documents that we may be able to sight to satisfy ourselves as to a party’s identity (I would probably want to see 100 points worth of other evidence if no photo ID was available).

It also provides direct and succinct guidance as to the number of years expired a passport may be before it is of no use to determine a person’s identity, and instructions that we’ve been hearing from BDMs for a while about recording the state of issue of a driver’s licence and the country of issue of a passport.

In the 2014 Guidelines, the next section talked about establishing whether the parties to a marriage are a man and a woman. Since 9 December 2017 that’s no longer relevant t our work, so that entire (confusing) section has been removed (yay!) and replaced with information on marriage equality. It’s pretty much the same information provided in the Compulsory OPD 2018 topic, covered at length in emails and fact sheets from the department, as well as in discussions on a number of episodes of our podcast, so I’m not going to go over it here. If you have any questions about the changes to the marriage forms or ceremony since marriage equality, or about religious marriage celebrants or the new advertising requirements, please don’t hesitate to yell out.

Section 4.13.2, p54

Primarily this section is about the new advertising requirements, which as I said above I’m not going to discuss here, but there is an interesting and useful subsection that we asked to be included, and that’s about keeping your A number secure.

Keeping ‘A’ numbers secure

Commonwealth-registered marriage celebrants’ ‘A numbers’ are unique to each celebrant and are important for the completion of marriage documents. This number should be kept secure and should not be disclosed to others or used in advertising.

Example: A party to a marriage who is not an Australian citizen or permanent resident asks an authorised celebrant to write a letter or to give a copy of the Notice of Intended Marriage in support of their visa application. The party also asks the celebrant for their A number so they may provide it to their migration agent. The authorised celebrant could write a letter, to whom it may concern, that sets out they are an authorised celebrant, but not disclose their A number, and confirm they have received a NOIM on a certain date for the proposed marriage or that they solemnised the marriage at a certain place and date.

To summarise, don’t give out your A number to anyone, no matter how much they insist they need it (and now you can show them the Guidelines to prove you’re not allowed to), and don’t list it in any of your advertising: don’t put it on your business card, on your website, in your email signature, or on your letter head. Sure, it seems like a good thing to do so that couples and other stakeholders know you’re a legit celebrant, but there’s other ways of them finding out you’re authorised, like checking on the Attorney General’s Department’s Register of Celebrants.

Section 4.14, p54

Another addition we asked for was more clarity around when the Declaration of No Legal Impediment to Marriage (DONLIM) can and should be signed and the reasons why, and yay, the following information was included:

The declarations must be made before the marriage is solemnised. This should occur as close as possible to the ceremony, even if this requires the parties to make a special attendance on the celebrant. This is because the circumstances of a party may change in between providing their NOIM and the marriage taking place. For example, celebrants can be approached by couples where one party is still in the process of obtaining a divorce. While such a party can provide a NOIM to a celebrant, they cannot sign the Declaration until they are free to marry—that is, until their divorce has been finalised. Meeting with the couple a few days before the ceremony to go through final arrangements may be a good time to have them sign the declaration. The Marriage Act does not permit the declarations to be made immediately after the ceremony but they can be made on the same day as the wedding provided it is before the ceremony.

This section not only sets out why the DONLIM should be signed as close as possible to the wedding (because the circumstances of a party may change between signing the NOIM and the DONLIM), it also states it’s perfectly fine for the DONLIM to be signed on the same day as the wedding provided it is before the ceremony. I know there are a number of RTOs that teach that the DONLIM cannot be signed on the same day as the wedding, which is completely untrue, so I’m glad the new Guidelines specifically state this.

Section 4.15, p55

At the bottom of page 4 of the NOIM there are two boxes to tick to indicate that you have given the Happily Ever Before and After brochure to the parties, one box for each party. The new Guidelines specifically state that:

One copy of the brochure must be given to each party.

This is a new instruction. I understand this instruction when the celebrant only meets with one party to lodge the NOIM, or when the signatures on the NOIM are witnessed by someone other than the celebrant and the celebrant doesn’t meet the couple at all at the NOIM stage. It’s important then to send the absent party a copy (I send it by email) or send both parties a copy (again I send it by email). However when a couple comes to see you together, signs the NOIM with you as their witness, and they live together, giving them two copies of the same document seems to me to be redundant and a waste of trees. I know we get it for free from Canprint, so at least it doesn’t cost us anything additional to give them each one, and I know we can send it to each of them electronically even if we meet them in person, but I like the process of handing it over and ticking the boxes. Anyway, it’s an annoying instruction but one that should be followed given it’s a must (although there’s nothing in the Marriage Act that specifically says each party needs to receive a copy). *sigh*

Section 4.17, p57

This is a brand new section, and you’ve probably got Josh to thank for this one:

Electronic signatures on marriage documents

Available technology enables documentation to be completed electronically, including using electronic signatures. The Electronic Transactions Act 1999 applies to the Marriage Act. As such, it is acceptable for couples, celebrants and witnesses to complete marriage documentation electronically, for example, using an iPad, provided that the recipient of the electronic document/s, such as the registry of births, deaths and marriages, consents to receiving the documents electronically.

This does not include the Form 15 certificate of marriage, which must be in hardcopy because the Marriage Act requires that it is handed to the couple by the celebrant.

We’ve talked about this matter before on the podcast, and I can tell you that Josh has written permission from BDMs in New South Wales and Queensland to submit marriage paperwork that has been signed using an Apple Pencil on an iPad. However I can also tell you that Victorian BDM is saying they will not accept paperwork that has been signed in this manner. They’re claiming it’s not possible due to the Victorian laws; I’m calling bullshit on that but I’m too engrossed in the Guidelines right now to look up the Victorian Electronic Transactions Act. Maybe tomorrow.

If you’re in a state other than NSW or QLD and want to submit marriage documentation signed on an iPad, I strongly suggest you contact your local BDM and get their permission in writing 🙂

Section 5.2.1, p61

This is about what happens when a celebrant needs to be replaced, and has been shifted from Part 12, Other Matters, right up here into Part 5, which is all about the marriage ceremony. There’s also a few new nuggets of info; I’ve bolded the new bits.

Availability of celebrant

Although in most cases a marriage will be solemnised by the celebrant to whom the NOIM was originally given, the marriage may be solemnised by any marriage celebrant who has possession of the NOIM in circumstances in which the original proposed celebrant has died, is absent from the place of the intended marriage, is ill, or it is impracticable (practically impossible) for that person to solemnise the marriage.

It is the responsibility of the first celebrant to ensure that the notice is transferred, safely, by hand or registered post, to the second celebrant. The requirement for the transfer to be ‘safe’ reflects the desirability of ensuring that the NOIM is given to the correct celebrant, and that the marrying couple’s personal information is not compromised. It is the responsibility of the couple to pay any fees charged by the first celebrant for services up to and including the cost of transferring the notice to the second celebrant.

A celebrant who performs a marriage in place of another celebrant to whom the NOIM was given originally, must comply personally with all the requirements of section 42 of the Marriage Act, save that a new NOIM need not be given by the parties. That is, the celebrant who solemnises the marriage is required under the Marriage Act to check the parties’ evidence of date and place of birth and evidence of identity and evidence of dissolution of previous marriage (if applicable). The Declaration of No Legal Impediment must be remade before the replacement celebrant and this celebrant is also responsible for ensuring all other legal requirements are met. If there is not enough time to prepare and sight all the necessary legal paperwork, a commitment ceremony should be offered.

Where a celebrant who has solemnised a marriage dies without having signed the certificates of the marriage, the matter should be reported to the appropriate state or territory registering authority.

So there’s two new bits: an explanation of why it’s important to safely transfer the NOIM to the new celebrant (which I would have thought was self-explanatory, but anyway), and a reminder that a new DONLIM needs to be signed in front of the new celebrant. There is also a reminder that if all the legalities cannot be completed before the wedding, a commitment ceremony should be offered instead (despite what some trainers will teach about being pragmatic with regards to sighting original documentation in a last minute situation).

Section 5.2.2, p61

This section is completely new to the Guidelines; it was included in the Autumn/Winter 2017 issue of Marriage Celebrant Matters and we asked for it to be included in the Guidelines as well.

Transferring the NOIM in exceptional situations

From time-to-time, celebrants may find themselves in situations where they are unable to solemnise a marriage and are required to transfer a NOIM in exceptional circumstances, such as a natural disaster event. Ensuring the safe transfer of the original NOIM may be challenging.

Consistent with the guidance provided at Part 4.4.2 of these guidelines for providing the NOIM to an authorised celebrant when the parties to the marriage are overseas or interstate, it may be acceptable for the first celebrant to transfer a NOIM by electronic means (for example by email or a photograph attached to a text message) to the second celebrant, and provide the original hardcopy NOIM to the second celebrant before the wedding takes place.

It is up to celebrants to exercise their judgement and common-sense about whether, and how, the original NOIM can be obtained prior to the wedding. Every effort should be made to obtain the original document before the marriage is solemnised. Where the original NOIM cannot be obtained, the second celebrant could consider whether there is enough time to complete a new NOIM or a shortening of time could be sought.

Solemnising a marriage without the original NOIM should only be a last resort in the most extreme of circumstances. In these very exceptional circumstances, such as a natural disaster, it may be acceptable for the second celebrant to rely solely on an electronic NOIM and solemnise the marriage without receiving the original NOIM before the wedding. In such a situation, the second celebrant should:

• ensure the words of the electronic document are clearly legible
• print the electronic document and annotate/sign it
• ensure the relevant state and territory registry of births, deaths and marriages (BDM) has consented to the NOIM being transferred in this manner, and
• obtain the original document as soon as practicable after the exceptional circumstances cease, and provide it to the BDM, with a covering letter explaining the circumstances in which the NOIM was transferred (in this way the original can be compared to the annotated version). Depending on the circumstances, the original NOIM could be provided to the BDM at the same time as the other marriage documents, or later.

Celebrants should contact the BDM directly to explain the circumstances in such situations. BDMs are responsible for processing marriage documents including the NOIM and as such celebrants can enquire whether the BDM would accept a copy of the NOIM that has been electronically transferred to them (provided that all other obligations had been complied with).

On the face of it this is great advice, but it does hinge on getting approval from the BDM in question, and given most weddings occur on a Saturday when BDMs are closed, such approval could be difficult to obtain. I have previously asked the AFCC to contact all BDMs seeking such approval, but that never eventuated.

In December 2017 Victoria was preparing for some heavy rain and major flooding, and I thought this was an excellent opportunity to test out this process. So I rang BDM in Victoria asking for permission as per the Guidelines (I didn’t have any weddings that weekend but I thought the least I could do was check out the situation for my celebuddies). Their response? Oh yeah of course, we do that all the time (even when it’s not in exceptional circumstances), just as long as there’s a cover letter explaining the situation and what steps were taken. Of course they refused to put it in writing for me; the lady I spoke to at the call centre said it was standard practice and they didn’t feel the need to provide any written confirmation.

I suspect the same would be the case at other BDMs around the country, but I do suggest you contact your local BDM to ask the question if dreadful weather is forecast 🙂

Section 5.9.1, p73

The RTO I worked for in 2017 was informed of this next new addition by email, so we asked for it to be added to the Guidelines:

Witnesses to the marriage to also act as interpreter

The roles of the two witnesses are to observe that the marriage is duly solemnised and to sign the marriage certificates. The Marriage Act does not prohibit an interpreter and a witness being one and the same person, however, it is recommended that the professionalism of the interpreter is not compromised by a celebrant agreeing that the interpreter is also a witness to the marriage. Ultimately it is the celebrant who must determine whether an interpreter is desirable in order to ensure the marriage is validly solemnised.

Again this is a best practice recommendation rather than a must; I have had multiple occasions where the interpreter has also acted as a witness when the person doing the interpreting is a friend or family member. If the interpreter was a professional, accredited interpreter, the situation may be different. It’s completely up to the celebrant (in consultation with the interpreter, I would suggest) to decide whether or not this is appropriate.

Section 6.3.2, p76

The Marriage Regulations 2017 made a change to the way the celebrant’s copy of the Official Certificate of Marriage (sometimes in the Register, or red book) should be treated after the celebrant dies or becomes permanently incapacitated, and these instructions have been included in the Guidelines (they are also mentioned at s6.5.3).

Celebrants who are not ministers of religion must retain the second official certificate of marriage for six years starting on the day, after the day the marriage was solemnised. The Marriage Regulations ‘turn off’ the requirements to keep the Official Certificate of Marriage if the marriage celebrant dies or becomes permanently incapacitated. This provides certainty that, if such a scenario arises, a celebrant’s family or other persons can choose how to deal with these documents. If the family or other persons decide to destroy the documents they should do so safely, for example by shredding the documents. If they decide to keep the documents they should be kept securely.

This section also removes the advice from the 2014 Guidelines about not using the Register. The 2014 Guidelines said:

Authorised celebrants solemnising civil marriage ceremonies, or ministers of religion without a church-issued register, are required to purchase and maintain a marriage register which contains the second celebrant copy of the official certificate of marriage (formerly the Form 16).

Some authorised celebrants use loose copies of the official marriage certificate as the second official certificate. This practice is not recommended as it is easy for certificates to be misplaced. If a marriage register is not used authorised celebrants must ensure they keep the certificates bound in some way. It is the authorised celebrant’s responsibility to ensure these records are not mislaid or damaged.

Personally I think it’s great that this section has been removed; quite frankly, I’m an adult and I can be responsible for how I maintain my marriage certificates. I use loose copies and keep them in plastic pockets in a ring binder, along with a copy of the ceremony script and any thank you cards or orders of service from the ceremony (yes, I’m well aware that I’m sentimental). It works for me, as I’m sure it does for multiple other celebrants all around the country.

Section 6.11, p82

We asked for this specific instruction to be included under the heading Lost Certificates; it was already mentioned in s6.4, which talks about what the Form 15 certificate of marriage actually is, but it seems that it got a bit lost in amongst everything else. So now we have in s6.11 the specific instruction that:

If the Form 15 certificate of marriage is lost or destroyed, it cannot be replaced under any circumstances.

Section 8.5.1, p82

There’s some interesting new info in this section on consent and why it’s important (again, we asked for it and they included it!). I’ve bolded the new bits.

A forced marriage is not the same as an arranged marriage. In a forced marriage, the victim does not consent to the marriage. An arranged marriage is a marriage in which the spouses have the right to accept or refuse the marriage arrangement that their respective families have made. The Marriage Act does not prevent a person from consenting to marry another person that they do not know or have not met prior to the marriage ceremony.

Marriages that appear to be contrived or a ‘sham’ entered into solely for the purposes of a visa are not prohibited by the Marriage Act. As long as both parties are consenting to the marriage, it is not your role, as the marriage celebrant, to determine the genuineness of the relationship. If you have concerns about the authenticity of a marriage you are asked to solemnise, you may wish to report your concerns (you can do this anonymously) to the Department of Home Affairs on telephone 131 881 or website at www.homeaffairs.gov.au. There is no obligation on an authorised celebrant to do so. The existence of a marriage does not automatically entitle a person to a visa.

Both of these inclusions are important and useful.

There’s nothing anywhere in the Act that says parties have to meet before the marriage, or sign the documents at the same time, so as long as they’re both consenting, arranged marriages are fine.

I know there are many celebrants who refuse to marry couples they think are getting married for the “wrong reasons” or “just to get a visa” or who are “not enough in love”. Guess what? A couple’s reasons for getting married are none of our business, and that is borne out by this inclusion in the Guidelines. The Marriage Act says nothing about love, about cohabitation, about bearing children, or about any other reason for getting married. As long as they both consent and meet all the other requirements for a valid marriage, the Marriage Act does not stop us marrying them.

Section 8.5.2, p88

Another don’t call us moment here; the 2014 Guidelines said if a celebrant had any doubts about whether a party is consenting to a marriage, they could contact the department for guidance. That sentence has been removed. *sigh*

Section 8.6.2, p90

Again the direction to contact the department for guidance has been removed from this section about speaking to third parties to confirm a party’s consent or ability to give consent, but something else has been inserted (which we asked for). I’ve bolded the new bit:

In addition to speaking to the party concerned a celebrant can speak to third parties (e.g. in cases of incapacity a celebrant might be assisted by speaking with medical experts who know the party or other people such as family members, carers or staff at the nursing home where a person is living if they are elderly or have a disability) to assess if consent is real. When speaking to third parties, it is important to respect the privacy of the person involved. You should seek permission from the person to approach certain people, tell them who you would like to speak to and why, and let them know what you are going to say. 

The 2014 Guidelines just said go ahead and speak to other people, but that’s not really okay. The person getting married should be sufficiently coherent that they can provide you with permission to speak to other people about their capacity to give consent, and their privacy must be respected.

Section 8.6.4, p90

There’s always been information in the Guidelines that says that consent may not be able to be given during a marriage ceremony if a party is drunk, intoxicated, or under the influence of drugs, but the Guidelines previously didn’t give any examples or advice about how to deal with it. This issue was covered in more depth in the Compulsory OPD topic in 2016, and we asked for the further information to be included in the Guidelines:

For example, if alcohol or drugs are involved, the party should be displaying a reasonable level of comprehension or understanding of the nature and effect of marriage. A person who has had an alcoholic drink prior to the ceremony but is not inebriated is most likely to be able to be in a position to consent to the marriage. However, a person who is intoxicated is unlikely to be in a position to form the necessary understanding of the nature and effect of marriage. It is an authorised celebrant’s responsibility to refuse to proceed with the solemnisation of the marriage if the parties are so affected by drugs and/or alcohol that the marriage would be void due to a lack of consent. Ultimately, this is something that can only be determined on the day and requires the individual judgment of the celebrant. The celebrant may wish to offer to conduct a commitment ceremony, with the legal marriage being performed at a later date. The celebrant should take the best efforts to extract themselves from the situation as safely as possible. It may be a good idea to explain issues of consent, and your responsibilities, with the couple prior to the day of the ceremony, especially if you think it might become an issue.

This is a tough one to deal with; we’re not medical experts or police, we have no training in how to assess whether someone is intoxicated. I use the 0.05 blood alcohol content as a rule of thumb; I say to couples if you think you’re too drunk to drive, you’re probably too drunk to get married. I also tell them I don’t want to hear them slurring their words or see them tripping over their feet any more than is normal (the last bit is important because some people’s sober speech patterns or physical ability may not necessarily look sober or unimpaired). It really is at the celebrant’s discretion, but I’m pretty sure that if you ever come across a situation where someone is too drunk to get married, you’ll know about it.

Section 8.6.5, p91

This entire section is new to the Guidelines. Again it came out of the Compulsory OPD topic from 2016 and we asked for it to be included.

Capacity to understand the nature and effect of marriage

Capacity is the concept that refers to a person’s ability to make independent decisions. Every adult is presumed to have capacity to make decisions. This means that unless there is a valid trigger to justify a further assessment of a person’s capacity, authorised celebrants should generally treat everyone as if they are capable of understanding the nature and effect of the marriage ceremony. It is especially important to value and respect the importance of presuming capacity of a person with a disability to make a decision in relation to marriage. Article 23 of the Convention on the Rights of Persons with a Disability recognises the right of people with disabilities to marry and have a family. Although the Marriage Act recognises the need to protect a person with disability from exploitation, by voiding a marriage where they did not understand the nature and effect of marriage, it is not intended to result in a barrier for people with a disability to marry.

Authorised celebrants should not assume a person lacks capacity based on appearances eg, advanced age, a disability, physical impairment or where the person has difficulty communicating. Many people may have difficulty communicating and expressing themselves however, with assistance, their capacity for making their own decisions is clear. There are many support tools that can be used to assist in communication, such as Auslan, a word or picture board or other Alternative and Augmentative Communication system (such as picture boards or computer programs) that might be used by the person.

I’ve been challenged on the issue of a person with a disability being able to give consent to marriage during OPD. One of the celebrants in attendance works in disability care and she said the number of hoops they have to jump through to test consent about anything is massive. So she was concerned that celebrants have neither the training nor the expertise to be able to make this call for a marrying party.

I always go back to the sentence in s8.6.1 of the Guidelines that says:

In cases where there is doubt about whether a party is incapable of understanding the nature and effect of the marriage ceremony, a simple or general understanding will be sufficient. A high level of understanding is not required. The celebrant should ask questions of the person about whom they have concerns in order to gauge the level of their understanding of the marriage ceremony and what it involves. For example, why they want to marry the other person, what marriage is or where they will be living after the marriage.

So as an example, I had a groom who was clearly mildly cognitively impaired. Yet when I asked him about why he wanted to get married, he was able to tell me that his bride to be looked after him, that they were going to live together, that they went to church together every week, and that he loved her for cooking dinner for him every night. To me, that was sufficient to meet this test without impinging upon his right to marry.

That’s not to say that you should feel any pressure to marry someone whose ability to consent you don’t feel able to measure. If you have any concerns at all, follow the instructions in section 8.6 of the Guidelines. You are well within your rights to refuse to marry someone if you don’t believe they are able to give full consent.

Section 8.8, p92

There’s some new additional information in this section about the requirements for marriage of a minor, but given this is so incredibly rare, I’m not going to go into them here.

Section 11.1.2, p103

There is a new and surprising inclusion in the section on surprise marriages. We know the previous Guidelines outline that celebrants must not participate in a surprise wedding (when one party organises the marriage without their knowledge and then surprises them with it on the day or shortly before the ceremony) because there could be issues around putting undue pressure on the ‘surprised’ person to agree to the arrangement. However, the new Guidelines make the following exception:

It is not however, considered a surprise wedding where both of the parties have signed the NOIM and only the date of the wedding or event is the surprise component (provided that the minimum one month notice has been given to the celebrant). In this situation, it is a matter for the celebrant to ensure that both parties consent to the marriage, particularly where there has been some delay since signing the NOIM. It may be necessary to meet separately with the parties to ensure that one, or both, of the parties to the marriage have not changed their mind.

So this situation is only for a couple who have both been to see you, both signed the NOIM, and both agreed that one will surprise the other with the exact date of the wedding. They both know they will be getting married at some point between one month and 18 months in the future. The celebrant must still ensure both parties are consenting at all times up to and during the ceremony.

This section also includes another “don’t call us” moment; the advice to advise the Attorney General’s Department of any requests for a surprise wedding has been removed.

Section 11.2, p104

This new section outlines the department’s views on pop up weddings.

‘Pop-up weddings’ are a growing trend in the wedding industry. A pop-up wedding generally involves a marriage celebrant working with other wedding industry suppliers (for example, photographers, decorators and florists) to provide wedding ceremonies. There is no restriction in the Marriage Act or the Marriage Regulations on authorised celebrants participating in pop-up weddings. However, your involvement in a pop-up wedding must not interfere with your ability to comply with your duties and obligations as a marriage celebrant.

Now that the conflict of interest and benefit to business guidelines have been loosened, there’s unlikely to be any fuss about pop up weddings anymore, but I think it’s good that the information has been included in the Guidelines regardless.

Section 11.3, p104

This section outlines the rules for ceremonies as prizes, and has again removed the guidance to contact the department if approached to participate in this type of ceremony. *sigh*

Section 13.2.2, p117

Those of you who’ve been paying attention will know that the new Marriage Regulations 2017 made significant changes to the Code of Practice for Marriage Celebrants, removing many of the clauses around providing a high level of service. For example, the requirement to ensure the ceremony is audible to all in attendance was removed.

However the new Guidelines include this paragraph:

This list is not intended to limit what conduct and practice is captured by item 2. For example, the Registrar of Marriage Celebrants would also expect a marriage celebrant providing a high standard of service to: confirm details about a marriage with the parties to the marriage; take steps to ensure that the marriage ceremony is audible, and ensure that an appropriately high standard of service is provided to all marriages the celebrant solemnises, including where the marriage celebrant is solemnising multiple marriages on the same day.

So, you know, we’re not going to set out in the Regulations what the expectations are; instead we’re going to move them to the Guidelines, where they become guidance rather than a legal requirement. *sigh*

Section 13.3, p120

This section is all about the disciplinary measures the Registrar of Marriages can take against a Commonwealth-registered marriage celebrant, and the possible reasons outlined in the Marriage Act for such measures being taken. There’s a very interesting addition to the list of circumstances under which the Registrar can take disciplinary action:

The marriage celebrant’s notice requesting to be identified as a religious marriage celebrant was known by the marriage celebrant to be false or misleading in a material particular.

Now I’ve dug into the explanatory statements on the amendment bill from when the law was changed to grant marriage equality in 2017, but I can’t find a specific reason for this addition. I *suspect* it’s for anyone who requested to be identified as a religious marriage celebrant when their objection to same-sex marriage was a conscientious one rather than a religious one. Celebrants who wanted to become religious marriage celebrants so that they didn’t have to solemnise same-sex marriages had to email the department to state “I wish to be identified as a religious marriage celebrant under the Marriage Act 1961. I confirm that this choice is based on my religious beliefs [emphasis added.”

This is important because the Dean Smith bill, the one that eventually made it into law, did NOT allow for conscientious objections to marriage equality, only for religious ones. If a celebrant made a statement to the department that their reason for becoming a religious marriage celebrant was due to their religious beliefs when it wasn’t, it seems from this new addition to the Act that the Registrar could take disciplinary action against them. Very interesting.

And that, my friends, is it. I hope this series has been helpful to you in identifying the changes to the Guidelines. Please let me know any comments or questions at all 🙂