I’ve written previously about listing parents’ names on the NOIM, and I’ve had some follow up questions (from a celebrant who had totally read the first post, yay!):
1) Recently received a NOIM by email (interstate couple) where the Father is listed as ‘Unknown’ – should I be clarifying if this is actually the case (even though I don’t have to see evidence), as opposed to the party just preferring not to list? OR am I able to simply rely on their statement?
2) In the case where a person does not wish to include one of their parent’s names (eg: a party who has renounced a parent and would prefer to write ‘unknown’ or write a step-parents name) should I be advising that they must include their biological parent’s name (even though I’m not required to see evidence)?
To be honest, this area is quite contentious at the moment (for reasons I’ll outline below) so I’m going to answer these questions in two ways: what the Guidelines 2018 tell us, and what I think should be best practice. I will be following up these issues with the AGD and will let you know if/when I get some clarification.
Both questions are related, pertaining to recording essentially inaccurate information on the NOIM. The big difference between the questions is the celebrant’s knowledge of the inaccuracy.
Recording Unknown when there is a name on the party’s birth certificate
The Guidelines 2018 (at p28) tell us celebrants do not need to see evidence of the parents’ names, and that not all parents are listed on birth certificates. So my interpretation of the Guidelines is that no, a celebrant does not need to clarify whether the party does not actually know who their father is, and that yes, a celebrant can rely on the party’s statement.
Having said that, I’ve heard of one case in Queensland recently where a party who was born in Queensland, but presented their celebrant with a passport as proof of date and place of birth, recorded their father as Unknown on the NOIM. Because BDM had access to that party’s birth record (because their birth was registered in Queensland), they could see that there was in fact a father’s name listed on the birth certificate, and they refused to register the marriage until the documentation was corrected.
I’ve also heard of a case in Western Australia where again passports were produced to the celebrant, but the party spelt their parents’ names differently from the way they were spelt on the birth certificate (the Guidelines 2018 say parties should record their parents’ names the way they know them). Again, the BDM accessed the birth record and refused to register the marriage until the marriage documentation was corrected so the spelling of the parents’ names was in line with the birth certificate.
As far as I’m concerned, the BDMs overstepped by refusing to register the marriages with the documentation provided, but that’s not really for me to make a decision on. The problem is that the Guidelines give us guidance that is in accordance with the Marriage Act (and with the Commonwealth Attorney General’s Department’s interpretation of the marriage legislation), without consulting with the State BDMs around the country, and is therefore out of step with some BDMs’ processes. The AGD may argue that there was a month-long consultation process for these Guidelines, but this paragraph about parents’ names was added in response to (my) feedback received during the consultation, and as far as I’m aware BDMs were not asked to review the new version before it was published.
Given this conflict, it may be prudent for celebrants to ask further questions of a party who records Unknown on the NOIM.
The celebrant’s knowledge of an inaccuracy on the NOIM
The other issue raised by these questions is the celebrant’s knowledge of inaccuracies on the NOIM.
Imagine this: a party comes to a celebrant and says they don’t know who their father is, they produce a passport for proof of date and place of birth, the celebrant asks if their father is listed on the birth certificate and the party says absolutely not. The celebrant has done the right thing by asking questions of the party, but given celebrants are no longer required to see birth certificates as proof of date and place of birth (and the Guidelines 2018 say celebrants don’t have to see proof of the parents’ names irrespective of whether a birth certificate is produced), all the celebrant can do is accept the party’s statement. In this case, the party is committing an offence under s104 of the Marriage Act 1961 by giving defective notice.
Now imagine this: a party comes to a celebrant and says they don’t know who their father is, and produces a passport for proof of date and place of birth. This time, however, when the celebrant asks if their father is listed on their birth certificate, the party says yes, but I’ve never met him and I don’t want him listed on my marriage documentation. Unfortunately, you can’t un-know what you know. If the celebrant now accepts a NOIM with Unknown written in the father’s name field, the celebrant will also be committing an offence under s104 of the Marriage Act 1961 by receiving a notice they know to be defective. If the party refuses to give the celebrant the father’s name, insisting that they want Unknown written there, the celebrant must not accept the NOIM and must not agree to marry the parties. The penalty for such an offence is 6 months jail or 5 penalty units.
Now this is tricky, because the first celebrant is going to lose the booking, and the party has now learnt to tell the next celebrant that no, their father is not listed on their birth certificate. There may be an issue when the documentation reaches BDM, and the party could be charged with an offence, but the second celebrant won’t have committed the offence.
It’s the same situation with a party who wants to list their step-father. If they come clean with the celebrant and say, “this is my step-father’s name, he never adopted me, but he raised me and I want to list him,” the celebrant must insist that the biological father is listed instead, otherwise they are committing an offence by accepting a NOIM they know is defective. If the party simply says, “that’s my father’s name,” all the celebrant can do is accept the party’s statement. Again there may be an issue when the documentation reaches BDM, but the celebrant won’t have committed an offence.
(Of course if the step-father has adopted the party, they become the legal father and therefore can be listed on the NOIM with no problems.)
I personally would always recommend that a party lists their parents’ names in accordance with what is written on the party’s birth certificate. I am yet to come across a situation where a party admits to me that they know someone is listed on their birth certificate but they refuse to provide that name to be recorded on the NOIM. I hope that if I do come across such a case, I will be strong enough to refuse to accept the NOIM!
I also don’t know if this heavy-handedness from the BDMs is nationwide or if it is restricted to Queensland and Western Australia. Queensland has stated they will be putting out some guidance to all Queensland celebrants about how parents’ names are to be recorded, which will be difficult because it is likely to conflict with the guidance in the Guidelines 2018, and quite frankly, we don’t answer to BDM, we answer to the Commonwealth AGD. Watch this space, and I’ll update you if any further information comes out.