Other ways to solve the Marriage Celebrant Compliance problems

Note: The second half of this article suggests changes to the Marriage Act Sections 46 and 46.

The essence of the argument of the RIS is that the Marriage Law and Celebrant Section (MLCS)  needs more staff to deal with its Compliance requirements.

However most celebrants who have been around the last decade or more see these issues more clearly.

There is the old story of a high cliff with no fence overlooking a magnificent valley.
Lots of people go too close and fall over the cliff.
More and more ambulance and staff are needed to pick up the injured people to take them to hospital.
Now the ambulance service wants more funding for more ambulances and staff to deal with the problem.

Is not the sensible and more cost effective thing to do - to build a fence to stop so many people falling over the cliff?

• Improving the standards of people entering the field would reduce incoming numbers and staffing as better trained celebrants will require less work
  CoCA has recommended pre-appointment knowledge and skills assessments paid for by the applicant.

• Encouraging existing celebrants to leave based on competence, not their personal wealth or other income
  For example, assessments for Compulsory OPD would allow the MCLS to give celebrants feedback and encourage them to up-skill or resign.

• Allow more flexibility with OPD so more celebrants are encouraged to attend.

• Requiring celebrants to have appropriate insurances and copyright licence cover.

• Reducing the problems with Sections 45 and 46 by updating this in plain English, and relying more on prior wedding identification and other methods for marriage validation prior to the wedding.
• The CCN inc identifying its members' suggestions for improvements

• Other strategies. Can you suggest any?

NOTE: A lot of time and energy has been expended in thousands of queries to the Marriage Law and Celebrant Section (MLCS) and in OPD on Sections 45 and 46 of the Act.

The MLCS has required a narrow interpretation ("words that mean the same as") rather than as the Act says ("words ti that effect') and even though marriage celebrants have been officially told that the MLCS can not provide legal advice.

Sections 45 and 46 in plain English.

This is one huge issue which creates

• extra unnecessary work for the MLCS
• confusion for celebrants
• heartache for their couples
• extra work by the MLCS responding to celebrant's requests for advice re Section 45 and 46

For thirty years, marriages conducted by independent civil and minority religious celebrants were not questioned or made invalid on the based of the narrow interpretation of sections 45 and 46!

In fact, for a long period of time, civil celebrants were exempted by the Attorney General from having to adhere to Sections 45 and 46 altogether.

Were those marriages declared invalid? No.

So did the law change in 2003 in regard to this?

No. Neither the Act or the Regulations changed in regard to these Sections

So what happened?

A Registrar was appointed and a mechanism for the review and removal of appointments from independent civil and religious celebrants was introduced.

A narrow interpretation of Sections 45 and 46 was issued by one of the Attorney General's senior legal staff, and the MLCS then introduced this untested interpretation to base their advice to celebrants, and a criteria to threatened civil and minority religious celebrants with removing their appointments.

The low standard of training for appointment as a marriage celebrants, which was set by the government against the advice of celebrant associations, contributed greatly to the MLCS concerns as they were increasing swamped with questions, normally fielded by celebrant associations.

A policy of requiring all celebrants to contact them directly and individually also increased demands for advice on the MLCS, thus increasing their work load,

Losing one's appointment on the grounds of Sections 45 and 46 only affects the commonwealth civil and minority religious celebrants (approx. 10,000), not the 25,000 recognised religious celebrants.

Professionals are  seen to be people with a level of competence that allows them the flexibility to exercise their own judgement in matters what require a sensitive and individualised approach the their clients.

What other group of professionals would be treated with a threat of de-registration on such tenuous grounds?

The rationale for this approach to Sections 45 and 46 is that marriages conducted without such a narrow interpretation might be declared invalid by the Family Court.

However the Marriage Act protects couples from any mistakes that a celebrant could make, provided they are free to marry. Read more?

All of which begs the question. Do Sections 45 and 46 need to be so complex?

Sections 45 and 46 were written in the middle of the last century. Our forms of language have changed. Plain English is recommended by government for all manner of documents and communication with the public.

Society has changed. Consider that 5 people standing in a room, the celebrant without a clergy collar, the bride and groom in ordinary day-dress, likewise their witnessed - how could it be made clear that a legal wedding was happening?

Sections 45 and 46 make sense in that context.

However 50+ years later, with 60+ % of weddings by civil celebrants, with invitations issued and virtually all the trappings of a religious wedding, sometimes even with religious readings and prayers, how could there be any doubt about the fact that a wedding is underway?

How could there be any doubt on the part of either the bride or the groom that they are getting married?

The parties to the marriage have

• had to complete a Notice of Intended Marriage a calendar month before

• had to supply evidence of age and marital status if married before

• been given a 'Happily Ever After" brochure and referred for Relationship Education

• had to make a Commonwealth Statutory Declaration as to the validity of their freedom to marry

(1) Subject to subsection (2), before a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion of a recognized denomination, the authorized celebrant shall say to the parties, in the presence of the witnesses and at some point before Section 46, the words:

“I am authorized by law to witness and register this marriage according to law.

“Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn, binding and special 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, entered into voluntarily on the understanding that this relationship is meant to last for life.”

(2) Where, in the case of a person authorized under subsection 39(2) to solemnize marriages, the Minister is satisfied that the form of ceremony to be used by that person sufficiently states the nature and obligations of marriage, the Minister may, either by the instrument by which that person is so authorized or by a subsequent instrument, exempt that person from compliance with subsection (1) of this section.

Would not this simple step be building a fence to prevent loss of appointment on the criteria of non-compliance with the narrow interpretation of Section 46?

• Something for you to consider recommending in your submissions to the Consultations and to the Government.

• has received a Notice from the couple

• has checked identity and suitability to marry

• ensured the couple has done the Marriage Declaration
  
  and

• complied with Section 46 so the gathering  are clear a legal marriage ceremony is underway

(1) Where a marriage is solemnized by or in the presence of an authorized celebrant, being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he or she is a minister.

(2) Where a marriage is solemnized by or in the presence of an authorized celebrant, not being a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the marriage celebrant  and is sufficient if, in the presence of the authorized celebrant and the witnesses, each of the parties to the marriage says in words or indicates in some other form to the other:

I, A.  take you, B, to be my wife (or husband or marriage partner or partner in marriage or spouse)

or words to that effect.

• the heartache for couples

• the tensions on the celebrant, and

• the work pressure on the MLCS