Completing Legal Marriage documents
Completing Legal Marriage documents
Subsection 42(8) of the Marriage Act requires celebrants to establish the identities of the parties to a marriage. Accuracy in recording names helps ensure that everyone is satisfied about the identity of persons intending to marry, and that they can prove that they are who they claim to be. The Australian Government has put in place systems to deal with identity fraud. As an example of this, and as a result of amendments to the Passports Act 2005, the Australian Passport Office has developed rules about names on Australian passports. These rules are relevant to marrying couples as anyone wishing to apply for a passport in their married name will need to adhere to these rules. In the past, marriage celebrants have been advised to use acronyms and terms such as ‘k.a.’, ‘a.k.a.’ and ‘nee’ in circumstances when a party has a name which is different from their birth name. These terms must not be used under any circumstances.
NOIM forms and marriage certificates must have one full name for each party to the marriage. This will assist couples, will help alleviate errors that can potentially arise from the confusion of having more than one name for one person on the documents, and will help streamline electronic processing of the documents.
The following list of frequently asked questions should provide couples about the completion of the names section in the NOIM:
Q1 What names must parties write on the NOIM? A1 Most people use the name that is recorded on their birth certificate, so in most cases when completing the NOIM parties will write their name as it appears on their birth certificate. Celebrants must ensure that the parties write their names exactly as they appear on their birth certificates. The spelling must be identical and all given names which appear on the birth certificate must be included on the NOIM. If a person has changed their name from the name on their birth certificate by way of a BDM-issued change of name certificate, or by deed poll (prior to BDMs starting to issue change of name certificates from the late 1990s), they must write this name exactly as it appears on the change of name certificate or deed poll documentation. If a person has changed their name by marriage and retained a previous spouse’s surname, they must record that surname on the NOIM. Celebrants should ensure the party has written their surname exactly as it appears on the previous marriage certificate or court-issued divorce certificate. A person may record the name on their Australian Citizenship Certificate on the NOIM if the person also has official photo identification in that name, such as a driver licence, proof of age card or an Australian or overseas passport. Authorised celebrants should check that the party has provided a sufficient chain of documents to establish their identity and link to the names.
Names on birth certificates
Q2 What if a person believes the spelling on their birth certificate is incorrect? For example, the name on their birth certificate is spelt ‘Vicky’ and they have always used ‘Vicki’. A2 Your name as it appears on their birth certificate and their name as it appears on the NOIM must be the same. If the person believes there is an error in the spelling of their name on their birth certificate they may apply to have the birth certificate corrected at the relevant BDM. If their birth certificate is corrected they may then use the name on the corrected certificate on the NOIM. Any discrepancy between their name as it appears on their birth certificate and their name as it appears on the marriage documents may lead to them encountering problems if they wish to obtain an Australian passport in their married name.
Q3 What if a person does not want all their given names on the NOIM? For example, they have four given names on the birth certificate and they have always only used two of those names or if they only have one name.
A3 They should use all four names, or just the one name, on the NOIM. Their name as it appears on their birth certificate and their name as it appears on the NOIM should be the same. Any discrepancy between their name as it appears on their birth certificate and their name as it appears on the marriage documents may lead them to encountering problems if they wish to obtain an Australian passport in their married name.
Q4 Is there anything a party can do to overcome the problems raised in Questions 2 and 3 of using a different name from that on their birth certificate? A4 Yes. Parties can apply to the BDM in the state or territory where they were born or where they live for a change of name certificate to be issued to them to reflect the spelling of the name that they commonly use, or to reflect the given names they actually use. Note: Change of name certificate procedures vary between the states and territories. Most states will only register a change of name for a person whose birth has been registered in that state or who has been resident there for a certain period of time. Parties can then use the name on the change of name certificate on the NOIM, rather than the birth certificate name.
Q5 A party to a marriage has lived for many years with a step-father and, though not formally adopted, has always used the step-father’s surname. Which name should they use on the NOIM? A5 In this case the party should use the name on their birth certificate. If they do not wish to do this, they can apply to the BDM in the state or territory where they live or were born for a Change of Name certificate, to reflect the name as it has been changed by usage. They can then use this name on the NOIM.
Change of name
Q6 If a party would like to use a name other than the name on their birth certificate, can they give the NOIM before obtaining a change of name certificate in order to meet the one month minimum timeframe for giving notice? A6 Yes. They can give the NOIM but must, at this time, use their birth certificate name. The NOIM can then be amended after the change of name certificate is obtained, but prior to the marriage. Parties should ask the relevant BDM how long this process will take. It will vary but should be less than the one month’s minimum notice period. The celebrant may permit the change to be made in the celebrant’s presence by either of the parties at any time before the marriage has been solemnised. The alteration should be initialled by the party correcting the error and by the celebrant. The corrected notice may then be treated as having been given in its corrected form. If the change of name is not obtained prior to the date of the marriage, the original birth certificate name must be used on the marriage certificates.
Q7 A party to a marriage tells a celebrant that they changed their name by usage and have a driver licence and a Medicare card in that new name. Which name should be used? A7 In this case the person must use the name on their birth certificate. If they do not wish to do this they can apply to the BDM in the state or territory where they live or were born for a change of name certificate to be issued to reflect the name changed by usage.
Q8 Does this mean a person cannot change their name by usage? A8 No, a person can change their name by usage. However, a name gained by common usage may be difficult to substantiate and many government agencies require a change of name certificate issued by a BDM as evidence of a person's name.
Q9 A party to a marriage changed their name by deed poll many years ago. Can they use this name on the NOIM? A9 Yes, they may use this name. Generally, a change of name by deed poll that was registered before the commencement of BDMs’ change of name processes is still a valid change of name. If a celebrant has any doubt as to the validity of a person’s deed poll documentation they should contact the relevant BDM for further guidance.
However, please note this party they may encounter difficulties obtaining an Australian passport in their deed poll or married names.
Q10 What is the difference between a change of name by deed poll and a change of name certificate? A10 In the past a person wishing to formally change their name would lodge an instrument with the State Registrar of Deeds or Titles. This was called changing your name by deed poll. That process has now largely been replaced throughout the states and territories by change of name procedures under which a person applies to have a change of name registered with the state or territory BDM. Change of name certificate procedures differ from deed poll procedures, and both procedures vary between the states and territories. Most states will only register a change of name for a person whose birth has been registered in that state or who has been resident there for a certain period of time. You can apply for the change of name certificate from your state's BDM website. In some states, deed poll name changes have been transferred to the Register of Change of Names. People who have changed their name by deed poll should check with the BDM in the state or territory where the change was executed whether they need to obtain a change of name certificate.
Q11 A celebrant has a party who does not wish to obtain a change of name certificate before their marriage and wishes to use the name they have changed by usage alone. What should the celebrant tell this person? A11 Authorised celebrants should check that the party has provided a sufficient chain of documents to establish their identity and link to the names. The celebrant would still need to be satisfied as to the identity of the party, the celebrant should advise this person to think carefully about whether they may ever need identity documents, including a passport, in the future. It may be possible to formally change their name after the marriage but the process may be more complicated for them. The celebrant should advise the party to check with the relevant state or territory BDM.
Q12 A celebrant has a party who does not wish to apply for a change of name certificate under any circumstances. What should the celebrant do in this case? A12 If a person refuses to use the name stated on their birth certificate, and does not fall within one of the scenarios described in Q1 above for when another name may be recorded in the NOIM, the celebrant should outline the possible difficulties the person may face in the future when attempting to obtain an Australian passport, or possibly other identity documents, in the name they wish to use. While this would not be best practice, if the person insists, they may list their preferred name on the NOIM. Authorised celebrants should check that the party has provided a sufficient chain of documents to establish their identity and link to the names. The celebrant should make a written record of their advice, and give a copy of it to the person. It may be prudent for the celebrant to include a copy of the advice with the documents sent to the BDM to register the marriage, as well as keeping the advice as part of their personal records. Some BDMs will scan the letter of advice and retain it as part of the marriage register.
Party born overseas
Q13 A party to a marriage was born overseas and does not have an overseas birth certificate. What name should they put on the NOIM? A13 If the person does not have a birth certificate a celebrant will need to see a passport issued by the Australian government or a government of an overseas country as evidence of the person’s date and place of birth. If that is impracticable (practically impossible), the celebrant must require a statutory declaration executed under the Statutory Declarations Act 1959 from the person to meet the requirements of section 42 of the Act relating to evidence of date and place of birth. The Commonwealth statutory declaration form is available on the Attorney-General’s Department’s website.
If the party is not an Australian citizen the party may use the name on their overseas passport on the NOIM. If their name or date and place of birth are written in another language the celebrant should advise the party to provide the celebrant with a formal translation of the document so that the celebrant knows how the name should be written in English. If the person is an Australian citizen, then the name as shown on their citizenship certificate may be used on the NOIM only if the person also has official photo identification in the same name as the name on their citizenship certificate: such as a driver licence, proof of age/photo card, or an Australian or overseas passport. Please note that in this case the celebrant would only be using the certificate of Australian citizenship to confirm the person’s name/identity, and not for the purpose of checking the person’s date and place of birth. See Part 4.10 of these guidelines for the evidence of date and place of birth that the parties to the marriage must provide to their authorised celebrant to satisfy section 42 of the Act.
Error on Certificate of Australian Citizenship
Q14 What if a person tells a celebrant there is an error in the name on their Certificate of Australian Citizenship? A14 The celebrant should advise the person to approach the Department of Home Affairs about having the error corrected. If this is not possible they will need to apply to the BDM in the state or territory where they live for a change of name certificate to be issued to reflect the correct spelling of their name.
Party previously married
Q15 A party has been married before (either in Australia or overseas) and they are divorced or their spouse has died. What surname should they put on the NOIM? A15 A person in this situation has a choice depending on the circumstances of the name they used. If they continued using their birth name during the previous marriage they must record this name on the NOIM. If they reverted to the name on their birth certificate after divorce or death of their spouse they must record that name on the NOIM. If they changed their name as a result of the previous marriage and have kept using that name, then they must use this name on the NOIM. The celebrant must see evidence of the death of, or divorce from, the first spouse.
Names on the marriage certificates
Q16 What names should be written (or printed) on the marriage certificates? A16 The names on the marriage certificates should be exactly the same as the names on the NOIM. A celebrant should always cross-check the NOIM with the original documents from which those names were derived, that is the birth certificates, marriage certificates or change of name certificates and not just rely on copying from the NOIM. If the celebrant copies from the NOIM they may repeat an error from the NOIM. If the celebrant finds there is a mistake on the NOIM they should correct it. The celebrant may permit the change to be made in their presence by either of the parties at any time before the marriage has been solemnised. The alteration should be initialed by the party correcting the error and by the celebrant. The corrected notice may then be treated as having been given in its corrected form.
Q17 Do the names on all three marriage certificates need to be the same?
A17 Yes. All three marriage certificates which the couple signs are evidence that the marriage took place and must be accurate. The celebrant must use the same name on all three marriage certificates, that is Form 15 certificate of marriage; the retained certificate; and the official certificate of marriage (the certificate forwarded to BDM for registration of the marriage).
Signatures on marriage documents
Q18 How should the NOIM be signed? A18 The NOIM should be signed using the person’s usual signature. See the section entitled ‘Signing and witnessing the NOIM’ at Part 4.9 of these guidelines for more information on signing NOIMs.
Q19 How should the marriage certificates be signed? A19 The marriage certificates should all be signed using the parties’ usual signatures. The signatures should be the same as the signatures on the NOIM and on the declarations of no legal impediment. The certificates should be signed in the pre-marriage names.