Jac asks:

I have a couple coming up. They got married a year ago (pretty much for their families to have a religious ceremony). None of their friends know this though. Before getting married officially for their parents, they said they would only do it their parents’ way if they could have a big bash with their friends the way they want this year. The time has come! It’s within a month.

I met with them yesterday and they were so stressed about their friends finding out etc that they were already married. I explained that we wouldn’t have to focus on that and include in the scripting that “this is the day that Jack and Jill are choosing to celebrate their marriage in front of you special people blah blah blah”. Instead of doing official paperwork, I offered a commemorative certificate instead (as this doesn’t have any legal bearing anyway). Are there any issues with what can/cannot be written on this? Would ‘wedding certificate’ be safe?

I really don’t want to say ‘THIS CEREMONY IS IN NO WAY LEGAL/BINDING’ so I was just going to gloss over it a little how you explained in your previous podcast. Obviously no Monitum will be said and there will be no legal vows but the couple will still write their own. Obviously I won’t be doing DONLIMs or submitting anything formal to BDM, but I thought the ‘pretty’ certificate or a commemorative certificate would be okay. Anything else I should look out for?

The Guidelines are pretty clear on this, but let me give you my interpretation of what they say.

Let’s start by looking at what s99(6) of the Marriage Act 1961 says:

A person shall not, in contravention of subsection 113(1), purport to solemnise a marriage between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.

Further, s113(1) of the Marriage Act 1961 says:

Except in accordance with this section, persons who are already legally married to each other shall not, in Australia or under Part V, go through a form of ceremony of marriage with each other, and a person who is authorised by this Act to solemnise marriages shall not purport to solemnise a marriage in Australia or under Part V between persons who inform the first-mentioned person that they are already legally married to each other or whom the first-mentioned person knows or has reason to believe to be already legally married to each other.

These sections make it an offence for a Commonwealth-Registered Marriage Celebrant to purport (falsely appear, pretend) to perform a marriage ceremony when they know or have reason to believe the parties are already married to each other.

Section 11.6, starting on page 105, of the Guidelines on the Marriage Act 1961 for Authorised Celebrants further explain these clauses:

Celebrants may conduct commitment ceremonies for a couple. These are not marriages and the commitment ceremony must not purport to be a marriage.

 

As a commitment ceremony is not considered a legal marriage, the celebrant must not prepare or submit any paperwork (such as the NOIM and declarations as to conjugal status). Witnesses are not required for a commitment ceremony. A certificate of marriage, or any other certificate referring to the Marriage Act, must not be prepared for a commitment ceremony. In order to avoid doubt, celebrants must avoid using the words ‘wedding’ or ‘marriage’ to describe the ceremony.

 

A commitment ceremony could incorporate important rituals and provide photographic records; however, it has to be publicly made clear to everyone present that the ceremony is not a marriage.

 

Celebrants should deliver an appropriate introduction at the beginning of the ceremony making it clear to the guests that the ceremony is not a marriage ceremony and that if applicable the marriage has already occurred or is due to occur at a later date.

Given all of this information, what can and can’t we, as authorised celebrants, do? First the cans:

  • We CAN conduct commitment ceremonies or vow renewals for couples.
  • We CAN provide a commemorative certificate for the couple to sign during the ceremony, as long as it isn’t called a Certificate of Marriage and doesn’t mention the Marriage Act (i.e. don’t copy the wording from the Form 15 presentation certificate; it’s not accurate for the ceremony being performed). Celebration of Marriage, Renewal of Vows, Certificate of Commitment are all acceptable alternatives.
  • We CAN (particularly if the couple is already married) use the words husband and wife, pronounce them married, present them as Mr and Mrs, have them exchange vows and rings, include readings or rituals or music or anything else that goes into a marriage ceremony.
  • We CAN make a statement at the beginning of the ceremony that although this isn’t a legally binding ceremony, it’s the day the couple view as their wedding day, as it’s the one they’re sharing with their favourite people. The section quoted from the Guidelines states celebrants must avoid using the words ‘wedding’ or ‘marriage’ to describe the ceremony, but I can’t find a legislative basis for them to use the word ‘must’, and therefore take it as a strong recommendation rather than a legal requirement.

And now for the can’ts:

  • We CAN’T recite the words in s46(1) of the Marriage Act 1961, also known as the Monitum, nor can we ask the parties to recite the words required by s45(2) of the Marriage Act 1961, also known as the legal vows.
  • We CAN”T ask the parties to sign any of the legally required marriage paperwork, such as the Notice of Intended Marriage, the Declaration of No Legal Impediment, the Official Certificates of Marriage, or the Form 15 presentation certificate.
  • We CAN’T produce a document for the couple to sign during the ceremony that is called a Certificate of Marriage or that mentions the Marriage Act in any way.
  • We CAN’T gloss over the fact that the ceremony is not legally binding. We must make a statement to that effect, otherwise we are committing an offence under s99(6) of the Marriage Act 1961.

Unfortunately in Jac’s situation it is likely that at least some of the people attending the ceremony will pick up on the fact that they’re already married. Hopefully they won’t be so gauche as to mention it to the happy couple on the day, but the couple should definitely prepare to explain at a later date if the topic comes up! Every couple I know who has married legally at a different time from the celebration with their family and friends has had a perfectly reasonable explanation for doing so, as this couple does, and hopefully they can come to be comfortable enough in their decision to own it and not worry about what everyone else thinks!