Important information before you get married
Before you can legally get married in Australia, here are is some key information to help you plan for your wedding. It may seem daunting to some, but your Marriage Celebrant will guide you through it all to make sure you have a stress free ceremony plan.
LEGAL REQUIREMENTS BEFORE A CELEBRANT CAN MARRY YOU
Marriages in Australia can only be solemnised where:
1. a Notice of Intended Marriage has been given to the celebrant within the required notice
period. Section 42 of the Marriage Act requires the parties to an intended marriage to give the celebrant at least one month’s written notice prior to the solemnisation of the marriage. This notice is known as the Notice of Intended Marriage (NOIM)
2. each party has produced the following documents to the celebrant, evidence of:
─ date and place of birth
─ identity
─ the termination of any previous marriage, where relevant
3. each party has made a declaration as to their belief that there is no legal impediment to the
marriage, and
4. the celebrant is satisfied that the marriage will be valid, including that each party has given
real consent.
The celebrant must ensure that information about marriage education and counselling is made
available to the parties to the marriage.
More detailed information can be found below.
THE ONE MONTH NOTICE PERIOD
When does the one month period commence?
The one month notice period begins when the couple gives the celebrant the completed and signed
NOIM. It does not commence when the couple book the marriage with the celebrant or pay a
deposit.
The one month notice period can also begin when the celebrant is given a completed NOIM signed by one party to the intended marriage (which must include all the relevant information of both parties giving notice). This situation only arises when the signature of the other party cannot conveniently be obtained at least one month prior to the proposed ceremony, for example, where one party is overseas. The NOIM can be given when signed by only one of the parties to the proposed marriage provided the other party signs the NOIM in the presence of the celebrant before the marriage is solemnised. The celebrant must be satisfied that the party who has not signed the NOIM has a genuine reason for not being able to do so at the time, is fully aware of the marriage and that their documents are in order. Celebrants should exercise caution in these situations as a party to a marriage may attempt to use this exception for a ‘surprise wedding’.
When a celebrant receives a NOIM, they must write the date on which the NOIM was received in the space provided.
EVIDENCE OF DATE AND PLACE OF BIRTH
Each party to a marriage must give their celebrant evidence of their date and place of birth before a marriage is solemnised.
The following documents are the only acceptable evidence of a party’s date and place of birth:
• an official (original) certificate of birth, or an official extract of an entry in an official register showing the date and place of birth of the party,or
• a statutory declaration from the party or the party’s parent stating:
- it is impracticable (this does not mean not practical or convenient; it means practically impossible) to obtain an official birth certificate or extract, and the reasons why, and
- to the best of the declarant’s knowledge and belief and as accurately as the declarant has been able to ascertain, when and where the party was born, or
• a passport issued by the Australian government or a government of an overseas country showing the date and place of birth of the party.
Ideally evidence of date and place of birth is provided with the NOIM, but it may be produced at any time before the marriage is solemnised. For the purposes of complying with the timeframes required for giving the NOIM it is sufficient for a celebrant to see copies of documents, such as those scanned and sent via email or facsimile, as long as the originals are provided and sighted by the celebrant before the marriage is solemnised. It is an offence for a celebrant to solemnise a marriage before this evidence of date and place of birth has been produced by each of the parties to the proposed marriage.
To satisfy the requirement for evidence of date and place of birth, the document must be an original document. This would include whether or not the document is laminated.
A celebrant may also use a passport issued by the Australian government or the government of an overseas country as evidence of a person’s date and place of birth. The Marriage Act allows a party to use an Australian passport as evidence of their date and place of birth. It does not matter whether a party is born in Australia or overseas, this option is open to anyone who has an Australian passport. In order to obtain an Australian passport a party will have already proved their date and place of birth to a satisfactory standard to the Australian Passports Office.
An expired passport is acceptable as evidence of date and place of birth. However, a cancelled passport is not acceptable. This is because a cancelled passport is a passport that has been reported as lost or stolen and is permanently cancelled by border control authorities in Australia or abroad. If an overseas passport does not show the place of birth of the party, then it cannot be used as evidence of the party’s place of birth and celebrants should request the party to produce either a birth certificate or statutory declaration as appropriate.
A statutory declaration
If a party does not have a birth certificate (for example, if a party was born in a refugee camp and did not receive a birth certificate) or passport, the party, or a parent of the party, may make and give to the celebrant a statutory declaration setting out the reasons why it is ‘impracticable’ (practically impossible) to obtain such a certificate or extract. The declaration must also state, to the best of the declarant’s knowledge and belief, and as accurately as the declarant has been able to ascertain, when and where the party was born.
ESTABLISHING THE CONJUGAL STATUS OF THE PARTIES TO THE MARRIAGE
This is a funny sounding one, but put more simply it is what is your marital status? It is the responsibility of each party to a marriage to satisfy the celebrant that they are free to marry.
Item 7 of the NOIM requires each party to state their conjugal status. The options that may be listed in item 7 of the NOIM to describe the conjugal status of the parties are:
• widowed
• divorced, or
• never validly married.
Parties to a marriage should record the conjugal status that reflects their status on the day they give the NOIM to an authorised celebrant. In circumstances in which a party has never been married, or has had their marriage declared invalid or void by a court (by a decree of nullity, or an annulment), their conjugal status is ‘never validly married’. Some countries (such as the Philippines) do not recognise divorce and the order ending the marriage is an annulment. In such a case the person’s conjugal status is ‘never validly married’. The terms ‘bachelor’ and ‘spinster’ are not to be used.
If a party has previously been married, Item 19 of the NOIM requires the party to state how their last marriage was terminated. The options that may be listed in item 19 of the NOIM are:
• death
• divorce, or
• nullity.
If a party has indicated on the NOIM that they were previously married, and this marriage was terminated through death, divorce or nullity, they must produce evidence of the termination of their previous marriage to the celebrant. This evidence must be produced to the celebrant prior to the marriage being solemnised.
Evidence of death of former spouse
In the case of a party whose last marriage ended with the death of their spouse, couples must be advised the marriage cannot take place until evidence of the death has been provided. It is up to each celebrant to determine whether they are satisfied with the evidence provided to them, and that they are satisfied that the party's former spouse is deceased and the party is eligible to marry.
The celebrant needs to be satisfied that the client's former spouse is, or can legally be presumed, deceased before they can solemnise the marriage, as they may otherwise be committing an offence. The celebrant should encourage the party to take all practical steps to provide the death certificate.
If their spouse died in Australia, the party should be able to obtain the death certificate from the BDM in the state or territory where their spouse died. The celebrant should encourage the party to take all practical steps to provide the death certificate.
Where the death certificate cannot be provided, the celebrant could ask the party to look into whether a court could issue an order or declaration, on whether the party’s former spouse can be legally presumed dead. This would be the preferred option. Alternatively, the celebrant could request that the party obtain legal advice that the evidence available would support a conclusion that the spouse had died. In some cases, a detailed statutory declaration from the person in relation to their marital status may satisfy the celebrant that the former spouse is deceased. While it is open to a celebrant to accept a statutory declaration, this type of evidence may not provide the same level of certainty as the options outlined above.
If a statutory declaration is provided, it should explain why the person believes that their former spouse is deceased. This would include information concerning:
• why there is no documentary evidence, or why the party cannot obtain that evidence
• all of the enquiries the party has made to ascertain confirmation about their former spouse’s
death, and
• the length of time since they last had contact and why they would expect if the spouse were alive they would have heard from them.
It should also attach any publicly available information about the presumed circumstances of death, for example if it is believed the person died as a consequence of conflict, information about that conflict. Independent, corroborative evidence from third parties, such as a person who may have knowledge of the death or who, like the spouse, would have expected to hear from them if they were alive, may also be useful.
Evidence of divorce
A party whose previous marriage ended in divorce must produce evidence of this divorce to the celebrant. This evidence should take the form of the actual certificate of divorce, decree absolute or overseas issued equivalent. These options are explained below.
Couples must be clearly advised that the marriage cannot take place until the evidence of this divorce has been sighted.
If a party has been married several times before, only the divorce order for the most recent marriage needs to be sighted by the celebrant.
A divorce granted by a church is not the same as a divorce order made by a court, and does not demonstrate that a person is free to marry. A party claiming that a previous marriage has been annulled must provide the celebrant with a court document to that effect.
Receiving the NOIM if a divorce is pending
A NOIM can be received by a celebrant even though a party is, or both parties are, still married to another person at the date of receipt of the NOIM. In such cases it is sufficient that the married party or parties note when filling in the NOIM that they are still married, that a divorce order is being sought/or pending and the date upon which the divorce is expected to be finalised. However, the marriage cannot be solemnised unless evidence of the divorce is given to the celebrant prior to the solemnisation of the marriage.
Evidence of divorces granted in Australia For divorces granted in Australia the required evidence of divorce will depend on when the divorce was granted.
Evidence of divorces granted overseas
If a person was divorced overseas they should provide the celebrant with divorce documentation from the country in which the divorce was granted.
Annulment
The term ‘never validly married’ may be used on item 7 of the NOIM in which a court issued decree of nullity, or an annulment, exists in relation to a party’s previous marriage. A decree of nullity is an order from the court stating that there is no legal marriage between the parties, even though a marriage ceremony may have taken place.
An annulment granted by a church is not the same as a court issued annulment, and does not demonstrate that a person is free to marry.
ESTABLISHING IDENTITIES OF THE PARTIES TO THE MARRIAGE
A celebrant shall not solemnise a marriage unless satisfied that the parties are the parties referred to in the NOIM. This requirement is separate from, and additional to, the requirement that each party to a marriage must give their celebrant evidence of their date and place of birth before a marriage is solemnised.
The Marriage Act does not prescribe the documents required to be sighted as evidence of identity. There may be some overlap between the documents that can be provided as evidence of date and place of birth and those that may be provided as proof of identity. Ultimately it is up to each celebrant to determine whether they are satisfied as to the identity of the people seeking to get married.
Best practice is for a celebrant to require each party to a marriage to provide at least one of the following documents with photo identification as evidence of their identity:
• a driver licence
• a proof of age/photo card
• an Australian or overseas passport, or
• a Certificate of Australian Citizenship along with another form of photographic evidence
(such as a student card or other photo identification not listed above).
DECLARATION OF NO LEGAL IMPEDIMENT
Each party to an intended marriage must make a declaration before the celebrant as to their conjugal status and belief that there is no legal impediment to the marriage. The declaration must be in accordance with the approved form, which is provided by your Marriage Celebrant as part of their service. Both parties to the marriage must sign the declaration which must be on the reverse side of the official certificate of marriage (ie printed on the back of the registration certificate of marriage).
The declarations must be made before the marriage is solemnised. This should occur as close as possible to the ceremony, even if this requires the parties to make a special attendance on the celebrant. This is because the circumstances of a party may change in between providing their NOIM and the marriage taking place. For example, celebrants can be approached by couples where one party is still in the process of obtaining a divorce. While such a party can provide a NOIM to a celebrant, they cannot sign the Declaration until they are free to marry—that is, until their divorce has been finalised. Meeting with the couple a few days before the ceremony to go through final arrangements may be a good time to have them sign the declaration. The Marriage Act does not permit the declarations to be made immediately after the ceremony but they can be made on the same day as the wedding provided it is before the ceremony.
It is an offence for a celebrant to solemnise a marriage unless both parties have made their declarations of no legal impediment. It is also an offence for a party to knowingly give a false declaration. The conjugal status a party gives in the declaration should be the same as that given in item five of the NOIM unless the party was waiting for their dissolution of marriage to be finalised at the time of signing the NOIM. In that case the conjugal status on the NOIM will be ‘married’ with some reference to the steps that have been or are being taken to dissolve that marriage, and the conjugal status given in the declaration will be divorced’. Paragraph 3 of the declaration deals with establishing that the party is of marriageable age and the party should be careful to cross out whichever statement is inapplicable. The celebrant should initial the deletion in the margin. Where a party is a minor, their date of birth must be given. The celebrant should at this stage, if this has not already been done, check that a section 12 order has been obtained from a court and, if given, check that the consent or consents required under sections 13 or 14 of the Marriage Act are adequate and in order.