Breaking marriage law news – for the second time since 1961: Celebrants can witness NOIMs over the internet. You can start witnessing notices of intended marriage from the beach tomorrow.

In short

From 22 December 2021 you can witness the parties sign the Notice of Intended Marriage over an audio/video call, e.g. Zoom or FaceTime. Simples. You can send a couple their NOIM as a PDF, hopefully pre-filled with their correct information, call them on FaceTime or your video call app of choice, and watch them sign the form. Then they will scan the NOIM (using a scanner or a phone scanning app like Notes or Dropbox on your iPhone) and send it back to you, and you can then sign it with an ink or digital pen, and consider the NOIM received. The one month notice period begins on the day you receive their signed electronic Notice, and none of you had to leave the house and stick your tongues in each other’s ears or however it is you catch the spicy cough.

In depth

The Attorney-General, Michaelia Cash, and the former Attorney-General had received recommendations for legislative changes in response to the Coronavirus pandemic – which only started more than 650 days ago – and the main one relevant to celebrants was the witnessing of signatures on Notices of Intended Marriage over a video call, like a FaceTime, Skype, Zoom, or WhatsApp call.

Until today the Marriage Act required Notices to be signed “in the presence of” a witness like a celebrant, JP, police officer, and others. The legal understanding of “in the presence of” meant physical presence, not digitally present.

From “the day after this instrument is registered” (registration: 21 December 2021, effective: 22 December 2021) until “the day on which item 1 of Schedule 5 to the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 is repealed” the signatures on Notices can be witnessed over a video call.

You can look up the legislation yourself: Coronavirus Economic Response Package (Modifications—Statutory Declarations and Notices of Intention to Marry) Determination 2021.

The extract of the legislation on this topic reads: Paragraphs 42(2)(c) and (d) of the Marriage Act 1961 are varied in relation to notices signed in the relevant period by omitting “in the presence of” and substituting “under the observation (whether or not by means of a facility that enables audio and visual communication between persons in different places) of”.

The law does not specify which application or device to use, as long as you can see and hear them. So feel free to use FaceTime, Zoom, Skype, WhatsApp, Facebook Messenger, Instagram, or whatever Google has these days.

 

The Attorney-General’s Department will be releasing further guidance on this matter in the next 24 hours.

So feel free to start witnessing notices of intended marriage from the pool-side this Christmas, you’ve earned it.

 

The official word from Canberra

We write to advise that the Marriage Act 1961 has been temporarily modified due to COVID-19, to enable an authorised witness to remotely witness the signing of the Notice of Intended Marriage (NOIM). This is a temporary response to assist parties to the marriage meet the notification requirements given the continuing impact of the COVID pandemic.

The Coronavirus Economic Response Package (Modifications—Statutory Declarations and Notices of Intention to Marry) Determination 2021 (the Determination) which modifies theMarriage Act 1961 (the Marriage Act) commenced operation on 21 December 2021, and is the date from when authorised celebrants can begin witnessing signatures remotely. This arrangement will be in place until 31 December 2022, when the relevant legislative instrument will be repealed.

Under the Determination, an authorised witness may sign in the ‘Signature of witness box’ on page 4 of the NOIM, if they have observed the party signing the NOIM, whether or not by means of a facility that enables audio and visual communication between persons in different places. For example, this could include where the authorised witness has observed the signature of the party through videoconferencing facilities such as Skype or Zoom. Such NOIMs signed and witnessed remotely during the specified period should be accepted despite the note on page 2 of the NOIM stating that the ‘Notice must be signed in the physical presence of an authorised witness’. A NOIM must still be given to the authorised celebrant at least one month before the marriage is solemnised.

Please note that the locality requirements of witnesses have not been altered. As such authorised celebrants are only able to remotely witness the signature of parties signing the notice in Australia – see sections 42(2)(c) and (d) of the Marriage Act.

There are no changes to the requirement for the physical presence of all parties to the marriage, including the celebrant and two official witnesses, on the day of the marriage (see sections 41 and 44 of the Marriage Act).

Section 41 – A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorised to solemnise marriages at the place where the marriage takes place.

Section 44 – A marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 years are present as witnesses.

There is also no change to the requirement that the declaration of no legal impediment be ‘made and subscribed’ before the authorised celebrant prior to the ceremony (see section 42(1)(c) of the Marriage Act).

The department will provide further information regarding the ending of the temporary facility to witness NOIMs remotely closer to the date of repeal of the relevant legislation.

Please contact us at [email protected] if you have any questions about the above.