Celebrants Blog

The issue of consent to a marriage - by Sally Cant 2011

The concept of consent and marriage spans the spectrum of meanings and complexity. Understanding the complexity of this topic is not as clear as one might think. What do couples consent to when entering into marriage? I will look at this topic from two points of view. The first and primary view is that of the Celebrant (whether religious or civil*) and secondly, from a Marriage and Relationship Educator.

While the Marriage Act does not define ‘marriage’, Section 46 of the Act incorporates the substance of the 19th century English case law definition of marriage found in Hyde v. Hyde & Woodmansee heard in 1866. Marriage is the voluntary union for life of one man and one woman, to the exclusion of all others.

So in effect what each person marrying in Australia must consent to is found in the

Marriage Act 1961 - Section 46 (Which is commonly referred to as The Monitum):

“Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter. Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”;

With this clause in mind it would be useful to know when consent might not be considered as ‘real consent’?

• When marriage was obtained by fraud or duress,
• There was a mistake as to the identity of a party, or as to the nature of the ceremony,
• A party did not have the mental capacity to understand the nature and effect of the ceremony (Marriage Act, Section 23 B(d).

After 16 years experience working as a Celebrant I can say that many couples do not have a clear understanding of consent. It is not until the Celebrant explains Section 46 that the couple get a clear idea as to what it is they are consenting. Many couples might have a sense of what it entails but most would not know the precise detail. As educators we know, it is not just about the marriage ceremony – it is about being informed about what marriage really is and what their obligations in marriage are.

Many years ago a young chap sitting in my office completing the Notice of Intended Marriage form, casually mentioned that he’d like to include in his vows “…to love her until her use-by date…” at which point I laughed thinking he was joking. He was not! He was 28 on his third wedding. I then explained Section 46 to him and what he was promising in his vows and his reply - which was quite outrageous to me at the time - something like: “How come I don’t know that? I’ve never been told that before”.

It might be easy to believe that everyone would be familiar with what they are consenting to when they get married but I don’t believe it is that simple. Many ceremonies do not contain the words of Section 46 or anything close to it. For many years it was not mandatory for some Celebrants to say these particular words, I had an exemption from saying Section 46 for over ten years. During those years every couple had Section 46 explained to them but was then given the option of whether we included it in their ceremony.

In recent years that exemption has been removed and it is now law that every Celebrant must include Section 46 into every wedding ceremony. Surprisingly under the current law it is not required of the Clergy, as the Attorney General believes that all religious ceremonies would have this covered adequately. The Marriage Act states – in Section 46(2) that ..where the Minister is satisfied that the Form of Ceremony to be used sufficiently states the nature and obligations of marriage the Minister is exempt from complying with Section 46 (1).

That might be acceptable for the Clergy who had read the Marriage Act but in my opinion that is quite rare. Whilst training Clergy in their Ongoing Professional Development (OPD) over the last eight years, I found that many Clergy had been trained by the Clergy before them. Consequently there is a greater risk that they only pass on what they know, not what they should know and in many instances what they pass on is incorrect. From the many religious ceremonies I have attended over the years, many do not cover it clearly: it’s just more or less implied.

In 2008 I received a call from a large group of Ministers residing in NSW. They asked if I could train them in the law because none of them had received any training in the legal aspects of Marriage. Whilst I was thrilled they were seeking training, I was also shocked that many of these men had been marrying couples for well over ten years and using their own words…most of us lack the necessary skills to understand or enact the requirements under The Act and The Regulations. Regrettably this is not an isolated case.

As a result of working with couples I came to realise that not every person has the same interpretation of marriage. It is entirely up to the Celebrant to interpret the law and ensure couples are appropriately informed. It is even more complex when we have people from overseas coming to Australia to marry. How do we know what their country or culture has to say about marriage? It may not be the same as in Australia. Recently I sat with a couple, an Australian man and his intended Bride, who was from Thailand. I spent half an hour trying to work out if she fully understood what marriage in Australia meant. It was imperative that I, as a Celebrant, put aside this time to establish her understanding. Not to do so would be breaking the law.

Other issues that can compound this area of concern include the ability of each person to understand English, or the possibility that at the time of the wedding they were under the influence of drug and/or alcohol etc. If either of these are included in the mix, coercion or duress could be at play also.

Let’s take another example – a person on heavy medication because they are dying from cancer and only have a short time to live. At what point should a medical practitioner be involved to determine if the person is capable of making this major decision and giving real consent? A Celebrant surely can’t make this decision, nevertheless many do. I’ve had many calls from Celebrants enquiring about the law and where they stand in making these types of decisions.

I received a call one day from a Celebrant to say she had attended a private home to conduct a wedding, hastily arranged due to the deterioration of the man’s health and found the groom in an unconscious state lying in a hospital bed in the middle of the lounge room. The Celebrant had not met the groom prior to this day as she had only received the call to officiate the wedding that same week. The Celebrant asked me if she should just ‘wait a bit and see if he woke’ so that she could marry them. I spent 15 minutes on the phone trying to convince the Celebrant that they should get another opinion from someone with the necessary qualification to make that call. The groom was clearly unwell, heavily medicated and was not able to show the Celebrant that he was giving real consent. Thankfully that Celebrant walked away from that situation after the family refused to allow her access to the groom’s Doctor.

The Attorney General’s website [http://ag.gov.au] makes no mention of what couples are consenting to when marrying – other than sifting through the hundreds of pages of the Marriage Act – which I am certain no couple intending to marry would do. After completing some research for this article I reviewed every state Registry of Birth, Deaths and Marriages website to find that not one covered consent – other than in the case of minors wanting to marry. I find this totally unacceptable that these Government Departments are informing couples about how to marry, but none of them makes any reference to what couples must consent to.

To understand consent and the responsibility of the Celebrant, it helps to consider what can make a marriage invalid. As a Celebrant, we have a huge responsibility in ensuring whenever and wherever possible that every marriage we conduct is valid. Section 23B of the Marriage Act 1961 stipulates what can make a marriage invalid. This section includes what most of us would know - either of the parties is, at the time of the marriage, lawfully married to some other person; the parties are within a prohibited relationship; either of the parties is not of marriageable age; or the consent of either of the parties is not a real consent.

Providing that both parties to the marriage are honest with the Celebrant when working with them pre-marriage, establishing most of Section 23 B is easy. The difficulty is centered around 23(d) – where the consent of either of the parties is not a real consent.

Under part of section 23B(d) of the Act-

A marriage will be a void marriage where:

(d) the consent of either of the parties is not a real consent because:

(i) it was obtained by duress or fraud;

(ii) that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii) that party is mentally incapable of understanding the nature and effect of the marriage ceremony;

The Celebrant ability in identifying and establishing any element of 23 (d) relies heavily on a number of elements.

            The Celebrant’s ability to completely understand and interpret the Act

• The Celebrant’s real aversion to ‘getting involved’ in ‘a complicated, complex and problematic situation’
• The Celebrant’s ability to know or see when consent may not be given

Duress

The legislation does not define duress in the context of a marriage. What is considers as duress is a matter of degree and it must be sufficient to vitiate the reality of the consent and overbear the will of the party. Duress does not necessarily require violence. Duress is the use of force or the threatened use of force. If threats are made by one party and the other party agrees to marry because of these threats, then a real consent does not exist. Threats, or even controlling parental coercion can be enough, but a party's fear must be reasonably based.

Fraud

A typical example of fraud is where a party pretends to be someone else; but misrepresenting one's financial position is not fraudulent. A woman claiming to be pregnant to the groom, or being pregnant to someone else also has been held to not be fraudulent. Another example of fraud is where a party is misled as to the nature of the ceremony. Often this is when the party has been told it is a betrothal ‘engagement’ ceremony, and such a marriage is void.

Most Celebrants are not lawyers nor do they have the legal knowledge or understanding to determine the finer detail of the Act. I know this to be true from the thousands of current Celebrants that I have trained in their OPD. The initial training most of the Celebrants received was less than adequate and prior to 2003 Celebrants were given no training at all. The OPD in most situations is of a very low standard – the celebrants turn up on the day – very disinterested in most of what is on offer – generally speaking they turn up purely to gain their attendance certificate to comply with the requirements of the Act to keep their celebrancy licence. To make matters worse the trainers are not subject to examination, so many trainers are leaving Celebrants confused due to their lack of legal knowledge. And sadly, there is no testing of any Celebrant or Clergy to determine their ability to understand the Act.

In 2007-2008, the one hour legal component for OPD, which was provided to the trainers by the Attorney General’s Department (Marriage Celebrants Section) was introduced to discuss elements of Section 23B. In that session we were asked to examine the scenario of an elderly couple from a nursing home wanting to marry. In the lead up to the wedding the elderly lady is very vague in front of the Celebrant and has clear signs of dementia. On their wedding day the celebrant puts the bride’s vagueness down to ..….”another of her bit vague days”…… The Celebrant decides to go ahead with the wedding regardless of the signs. It is quite clear that this elderly lady was not able to give real consent due to her inability to ‘understand the nature and effect of the wedding ceremony’. It was just easier and less complicated for the celebrant to ignore the signs. What a tragedy!

If the Celebrant is concerned about the ability of a person to understand the nature and effect of the ceremony, or if they suspect that duress or coercion might be present, then the Celebrant should question the party about whom s/he has concerns separately and with that party’s permission may ask questions of third parties including family, carers or medical personnel. We sometimes need to involve other practitioners when we do not have the ability to assess a person’s mental capacity. Involving others in this situation then allows us to make an informed decision on whether to go through with the ceremony.

It’s interesting that the Attorney General’s Department direction to Celebrants around the capacity to understand is quite simple. “In cases of mental capacity to understand the nature and effect of the marriage ceremony, a very simple or general understanding will be sufficient. A high level of understanding is not required.” This is so subjective and provides no guidance for the Celebrant. So, at what point should we be concerned? I’ve always taught Celebrants that at anytime you are not convinced that the person has, or is capable of, giving real Consent then further investigation is required.

My very real concern is that many Celebrants do not have enough face-to-face contact with the couple prior to the ceremony to determine many of these elements. Some Celebrants do not even discuss Section 46 with the couple prior to the ceremony. This is another reason why I am an advocate for pre-marriage education. In my experience, Clergy spend considerable time with the couple to discuss many things about their relationship. It also gives the Clergy time to assess a relationship and the opportunity to determine if consent may not be real consent. Under the current law a Celebrant is not allowed to offer pre-marriage education to a couple even if they have the appropriate qualification.

The Marriage and Relationship Educator should, I believe, also discuss with couples what it is that they are effectively consenting to, or at the very least discuss what ‘Marriage’ is, as most of us believe it to be ‘the voluntary commitment of a man to a woman made in the deepest sense to the exclusion of all others, entered into with the desire, the hope and firm intention it will last for life’.

Undoubtedly most pre-marriage education programs cover elements of Consent but most would approach it holistically. This still leads me to wonder if Relationship Educators would cover consent to the level that might be more appropriate for a better understanding by couples. If the Educator and the Celebrant discuss this element fully then we have a very good chance that couples will listen, reflect on what it means and make an educated decision about marriage.

It’s imperative that Celebrants spend time with each party to the marriage to, amongst other things, determine if there are any signs of either party’s ability to give real consent. The Celebrant industry is currently so over serviced that many Celebrants have dropped their prices and reduced their level of service and as a result have reduced their face-to-face time with couples. My concern then is if, like some Celebrants, you only meet the couple once, or even worse you do not meet the couple until the wedding day – how can you possibly know if they understand what they are consenting to, or if any of section 23b(d) might be in play. Consent as you might appreciate is a very complex matter.

So as a general rule this is what each Celebrant should be mindful of:

Real Consent includes, but is not limited to:

• Both the bride and groom having a comprehensive understanding of what they are consenting to – found in Section46 of the Marriage Act
• Both the bride and groom giving accurate information on the forms – eg Notice of Intended Marriage and The Declaration of Marriage.

• Both the bride and the groom understanding the implications of a marriage solemnised in Australia
• Both the bride and the groom understand what is going on in the ceremony and giving real consent to marrying each other. They must both be able to understand the ceremony itself and the nature and effect of that ceremony.
• Both the bride and the groom must understand the explanations about the documents they are signing, including the declarations before the ceremony and the certificates afterwards.
• Therefore:
  • They must not be affected by drugs or alcohol to the point that they cannot give real consent. If the Celebrant believes that they are affected by either it is against the law for a Celebrant to continue with the wedding.
  • They must be able to understand what is being said or shown to them. If the Celebrant is not confident that they understand English sufficiently to be able to understand what is being said and the documents they have to sign the Celebrant must request an interpreter for the ceremony and a translator to be present when paperwork is discussed and signed.
  • If they say or do anything that suggests that their consent is not real it is against the law for the Celebrant to continue with the wedding without further investigation.

I believe, as Celebrants and Marriage and Relationship Educators we have a responsibility to ensure each party leading up to a wedding is clearly informed about what they are consenting to and have the capacity to understand real consent.

*Note: In this article, the term ‘celebrant’ refers to both religious and civil celebrants.

Sally Cant is the Director of The Celebrants Training College and the author of The Heart and Soul of Celebrancy. Sally is a highly respected trainer and presents regularly at National and International forums. She a member of FIMAC – the Funeral Industry Ministerial Advisory Council, is an Editorial Board member of Threshold Magazine and is a National Committee Member of MAREAA.
www.sallycant.com.au and www.celebrantstraining.com.au