As you all know, the Marriage Act 1961 requires that the Notice of Intended Marriage is signed in the presence of one of the authorised witnesses. In the presence of means physical presence: the person signing and the witness need to be physically in the same room.
While there have been some attempts to have this requirement changed since the COVID-19 pandemic took hold, they have been unsuccessful to date. NOIMs must still be signed in the presence of an authorised witness.
Remember: the Marriage Act 1961 is Commonwealth legislation, and any documents associated with the Act are Commonwealth documents.
During 2020, in response to the COVID-19 pandemic, both Victoria and New South Wales made changes to their legislation to allow signatures on certain documents to be witnessed via audio-visual links such as Zoom or FaceTime.
In Victoria, temporary legislation was enacted in July 2020 and made permanent in April 2021, allowing for documents that fall under the following Victorian legislation to be witnessed remotely by audio visual link:
- Electronic Transactions (Victoria) Act 2000: contracts or other types of agreements or arrangements; statements, declarations, demands, notices or requests related to forming or performing a contract; non-commercial transactions; deeds
- Oaths and Affirmations Act 2018: affidavits; Victorian statutory declarations
- Wills Act 1997: wills; codicils; other testamentary instruments
- Powers of Attorney Act 2014: powers of attorney and related documents.
In NSW, regulations were amended in April 2020 and legislation was enacted in September 2020, allowing for the following documents to be witnessed remotely by audio visual link (at least until the end of 2021):
- powers of attorney
- deed or agreements
- enduring guardianship appointment
- New South Wales statutory declarations.
As you can see, the Notice of Intended Marriage and the Marriage Act 1961 do not appear on either of those lists.
This wouldn’t be an issue except that I’ve heard multiple reports (and experienced it myself) of celebrants receiving NOIMs on which the signatures have been witnessed via audio visual link by a Justice of the Peace in Victoria or New South Wales. A NOIM that has been witnessed in this way cannot be accepted, because the new and updated legislation in these States does not apply to the Marriage Act 1961 or the Notice of Intended Marriage.
So please, if you receive a NOIM that has been witnessed via audio visual link (and you’ll know because it will be endorsed with a statment such as “This document was electronically signed in accordance with the COVID-19 Omnibus (Emergency Measures) (Electronic Signing and Witnesses) Regulations 2020”), you must reject it and ask the couple to sign their NOIM in the presence of an authorised witness.
I’m writing to the Marriage Law and Celebrants Section to see if they can contact the people who appoint JPs in both states to provide some professional development for them on this matter,.