A question came to us:

I am marrying a couple of brides this week and when I talked about the ID I’ll need to witness beforehand, one piped up that her name on her Birth Cert is different to all other ID but she’s never officially changed it. So her photo ID is going to be different surname to her Birth ID. She doesn’t have a passport. I thought I’d need to use her original name on all marriage docs (for avoiding future issues with passports etc) but am I correct or can I use her preferred surname even though the paper-trail lacks an official name change?

I rang the celebrant about this one because she needed an answer urgently, and it turned out it was even more complicated than first thought!

The celebrant had accepted the NOIM electronically so hadn’t met with the couple to sight their ID at the time of lodgement. She had plans to do that and then the couple brought their wedding forward by several months (with only a week’s notice), so suddenly sighting those documents became urgent. After telling the celebrant about the name discrepancy, the bride also admitted that she’d lost her purse along with all of her photo identification except for a student card. So there were a lot of issues to unpack!

Name discrepancy between birth certificate and photo ID

In normal circumstances, if the party’s birth certificate had a different name on it from their photo identification, you would need to ask to see a chain of documents to support the change of name. This bride didn’t have such a chain of documents, so the next step would be to advise the party to apply to the BDM in the state in which they were born for an official change of name.

Some people don’t want to go through a legal change of name process; they are quite happy with having changed their name by usage. As long as they have some evidence that they are using the new name (such as a driver’s licence, a Medicare card, etc) the Guidelines 2018 reluctantly allow them to use the new name on the marriage documentation. In this case you should provide them with written advice about the problems they may have applying for identity documents, including passports, in the future if all of their documents don’t match up. It would be prudent for you to keep a copy of that advice on file, and to submit a copy to BDM along with the marriage paperwork, along with a covering letter explaining the discrepancy.

In this particular case, if the bride had been able to supply a birth certificate in one name along with a driver’s licence in another name, the celebrant would have been able to put her new name on the marriage documentation as long as she provided the party with written advice of the trouble she may have in the future.

Requirements to prove date and place of birth, and satisfy the celebrant of a party’s identity

It wasn’t that simple though, was it?!? With no government-issued photo identification available, the celebrant needed a new plan.

A quick recap. Celebrants are required to see documentation that supports two things: proof of date and place of birth, and identify. We see a passport or a birth certificate to prove date and place of birth. We are also required to satisfy ourselves as to the identity of the party; if a party to a marriage gives us a birth certificate to prove date and place of birth, how do we know that birth certificate belongs to the person sitting in front of us? The easiest way to determine this (and thereby satisfy ourselves as to the party’s identity) is to see a form of (preferably government-issued) photo identification that has same name on it as the birth certificate, and shows a photo of the person sitting in front of us. Passports of course are the best, because they contain both the date and place of birth, and a photo of the person sitting in front of us (they just don’t have parents’ names on them, and you’d be amazed how many parties I come across who do not know how to spell their parents’ names).

Where we are sighting photo identification, the Guidelines 2018 suggest sighting at least one of the following documents:

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

Sighting photo identification, however, is a best practice recommendation; it is not required by the Marriage Act. The Guidelines 2018 set out more information on this, which I’ve covered in my analysis of what’s new in the Guidelines, but the salient point is this:

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.

Simply put, even if a person doesn’t have any photo ID, if they have a bunch of other documents that have the same name and other identifying information on them, you can probably be pretty satisfied that that’s their name and thus satisfied as to their identity. Personally I would want to see 100 points’ worth of documentation in such a case.

So in this case, the only photo ID available is a student card (which isn’t enough on its own). First I would suggest she try and obtain a proof of age card (from Australia Post) or a replacement driver’s licence, but if there wasn’t time for either of those, I would be wanting to see 100 points of other documents with the bride’s name on them. It wasn’t even a case of just using the name on the birth certificate here, because this bride didn’t have any other identification documents in her birth name; they were all in her new name.

Taken together…

Taking these two separate but connected issues together, along with the timing issue, my recommendations to this celebrant were that:

  1. the bride should attempt to legally change her name through BDM; some BDMs provide a priority service and there may have been time for that to occur AND the bride should attempt to obtain a proof of age card or a replacement driver’s licence
  2. if there was no time to get any appropriate photo ID, the party would need to supply sufficient other documentary evidence of her using her new name to satisfy the celebrant of her identity
  3. if there wasn’t time for a name change, or the party didn’t want to go through that process, but she still wanted to use her new name on the marriage documentation, the celebrant would need to provide the party with written advice about the problems she may face in the future obtaining identity documents.

Phew! A lot of issues in that one question, but hopefully I’ve covered them in a way that makes sense.

Legal stuff

The requirement for celebrants to sight proof of date and place of birth is outlined at s42(1)(b) of the Marriage Act 1961, and is further discussed at pp43-46 of the Guidelines on the Marriage Act 1961 for Authorised Celebrants 2018.

The requirement for celebrants to be satisfied as to the identity of the parties to the marriage is outlined at s75 of the Marriage Act 1961, and is further discussed at pp51-52 of the Guidelines on the Marriage Act 1961 for Authorised Celebrants 2018.

Information on names to be recorded on the NOIM (and other marriage documentation) can be found from p30 of the Guidelines on the Marriage Act 1961 for Authorised Celebrants 2018; the relevant parts for this question are s4.5.10 on p32, s4.6 on p32, FAQ6 on p35, and FAQs7 and 8 on p36.