REAL CONSENT FOR MARRIAGE

When it comes to planning a wedding, it’s likely that there’ll be a lot of conversation around such things as wedding gowns, venues, photographers, hair & makeup, food and alcohol. Not a lot, traditionally, has been discussed, however, around the topic of consent. This may be because it’s assumed that both parties agree to the marriage and are cognisant of its meaning and ramifications. While this is no doubt true in most cases, it’s not something that should be assumed. Talking about consent or considering whether it is, in fact, present is part of every celebrant’s role in relation to each wedding they conduct. It’s important to note that consent to the marriage can be withdrawn at any time up to the point where the couple say their legal vows.

When a celebrant meets with a couple who is considering marriage, there should always be a discussion around the legal elements involved.  After this, the conversation will likely turn to the ceremony itself. For most couples, this is more about the “fun” stage of the planning. Key elements for discussion may include those who will make up the wedding party (the couple, bridesmaids, groomsmen etc.) as well as the couple’s love story so that it can be expressed during the ceremony. Other elements could include the personal vows the couple may choose to write for each other, the exchange of rings, a special reading and the inclusion of a symbolic ritual etc.

Each time a celebrant connects with a couple, it’s important that they listen to what is being said, especially if the message is inferred and likely to be a potential cause for concern. A discussion around consent at one of their meetings is also an important conversation to have.

At all times (even if the wedding ceremony has commenced), they should be satisfied that each party is giving real consent. Since 12th June 2024, Celebrants are now required to meet separately and in person with each party prior to the wedding ceremony to satisfy themselves that each party gives consent voluntarily and freely. Another person (not the other party to the marriage) can be present during this conversation but the Celebrant should have regard to whether their presence appears to be coercive and take this into account in their decision whether or not to solemnise the marriage. This conversation can take place at any time in the lead up to the ceremony itself.  It could take place, for instance, at a convenient time after the Notice of Intended Marriage is lodged with the Celebrant, when signing the Declaration of No Legal Impediment to Marriage or on the day of the wedding (this is particularly relevant for couples arriving from interstate or overseas on the day of their wedding when there was no earlier opportunity to meet with their Celebrant in person.) A person’s consent to a marriage is not real if:

• the consent is obtained by duress or fraud;
• one of the parties is mistaken as to:
  • the identity of the other party, or
  • the nature of the ceremony performed, or
• a party is not capable of understanding the nature and effect of the marriage ceremony.

Examples of scenarios occurring in the lead up to or on the wedding day which require further investigation include where:

• one or both parties are affected by alcohol or drugs;
• it appears that medical issues are impacting a party’s judgement;
• one party is supplying all or most of the answers while the other remains silent;
• someone, possibly much younger, makes contact in relation to marrying an elderly (perhaps affluent) person in a nursing home;
• one party makes contact in relation to marrying another party from an overseas country whose command of the English language is limited or non-existent;
• someone contacts you in relation to marrying a person who is (to a lesser or greater extent) intellectually challenged e.g. someone with down syndrome, autism or an acquired brain injury;
• you suspect one party may be being forced to marry another party.

Celebrants need to be aware of any red flags and ask questions, privately, of the relevant party in order to clarify the situation, or seek further information from another party qualified to answer. If seeking further information from another party such as a family member, carer or someone who is involved in a party’s medical care, they should do so with the consent of the person/s concerned.

If a Celebrant has any concerns about real consent and, consequently, the validity of a marriage, either before or on the day, they should not solemnise the marriage. They may consider offering a non-binding commitment ceremony and later solemnisation, depending on the circumstances.

In simple terms, consent means saying yes, or voluntarily agreeing to something. Context is important. The definition of the word can be more in depth depending on the context in which it is used. For the context of Australian marriage, “real consent” has a specific meaning under the Marriage Act 1961.

Section 23B(1)(d) of the Marriage Act outlines that a marriage may be void if the consent of either party is not a “real consent” because:

• “…it was obtained by duress or fraud;
• that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
• that party did not understand the nature and effect of the marriage ceremony…”

Let’s break that down into plain English.

Duress means that someone has agreed to something because someone else has put pressure on them or threatened them. They might not really want to do it, but they feel they have no choice.

In the case of marriage, one person might not really want to get married. But their partner threatens that if they don’t marry them, they’ll leave them. Alternatively, one person might have changed their mind about getting married in the midst of planning the wedding. They may feel pressure from their partner to go ahead because of all the money they’ve spent on the wedding, or because of all the guests who have booked travel from overseas to attend.

The pressure or threats can be literally anything that causes one party to agree to something they don’t really want to do. Duress may be difficult to prove, but if someone had evidence that they only consented to the marriage because they were being coerced, the marriage could be deemed void by a court.

Fraud occurs when someone intentionally deceives someone else to attain an unfair advantage. In the case of marriage, one party might not be honest with the other party about, for example, their identity (e.g. their name or their background), or about the nature and effect of the marriage ceremony (e.g. pretending it is a betrothal ceremony rather than a marriage and having it conducted in a different language). These would be grounds for the marriage to be deemed void.

What does not constitute fraud for the purposes of the Marriage Act is the motivation for entering the marriage, i.e. was one of the parties “tricked into marriage”. The Family Court in Australia has decided that “fraud” only applies to identity and to the nature and effect of marriage. This is despite many cases being presented where one party believes they have been defrauded as to the other party’s intentions and motivations for entering the marriage. For example, one person is entering the marriage for the purposes of getting an Australian visa and does not intend to ever live with their new spouse in a marital relationship. The other person is expecting a lifelong marriage and therefore feels tricked.

This is simply the reverse of the fraud explanation. The consent of one party is not a real consent because they were mistaken as to the identity of the other party. That probably occurred because the other party has defrauded them!

This one is interesting and comes up quite a lot in court decisions. Generally one person is arguing that their consent is not real because they were misled about the nature of the ceremony. For example, their partner told them they were taking part in a betrothal ceremony, an important ceremony in some cultures. The ceremony was conducted in a language the first party doesn’t speak or understand. Therefore they have been misled, and are mistaken, as to the nature of the ceremony. There are several cases where marriages have been deemed void (nullified) by the Family Court under such circumstances.

It might sound like this one is pretty similar to the last one, but it’s different in one vital element. This one is about a person’s capacity to understand what’s going on, rather than them being mistaken or misled.

Adults are presumed to have capacity to make decisions/give consent unless there is a red flag or trigger. A trigger might be something like the party not communicating, speaking nonsensically, or having noticeable problems with memory. Celebrants have a list of triggers to look out for. If we spot any of them, we are required to investigate further to ensure the person has capacity to give real consent to the marriage. This may involve discussions with the person on their own. It may involve chats with family members or their medical team (with their permission of course).

Where one or both parties are not fluent in English, it is important that the couple arrange the services of an interpreter before the wedding takes place. The interpreter will need to talk to the relevant party prior to the wedding and be present during the conversation when the celebrant confirms the party’s consent to the marriage, as well as during the ceremony itself so that whatever the celebrant says is repeated verbatim by the interpreter in the language that the party is familiar with. They will also need to complete sections of the document Certificate of Faithful Performance By Interpreter, supplied by the celebrant, both before and after the ceremony occurs in order to comply with the Marriage Act 1961. For further information on when to involve an interpreter please ask Melissa for further information.

The celebrant is also required to supply a copy of the Happily Ever Before and After brochure from the Attorney-General’s Dept. to each couple as soon as possible after they make a booking. This document outlines the obligations and consequences of marriage and states the availability of marriage education and counselling. It is currently available here to download in 30 different languages or hard copies can be ordered by celebrants from CanPrint (the supplier of all marriage documents in Australia.)

Disability and capacity

The presence of a visible disability does not mean a person doesn’t have capacity to give consent. Article 23 of the Convention on the Rights of Persons with a Disability recognises the right of disabled people to marry and have a family. The consent requirements of the Marriage Act are not designed to be a barrier to marriage. The Guidelines on the Marriage Act 1961 tell us that a general understanding of the nature and effect of the marriage ceremony is sufficient. We have some questions we can ask to ensure people understand what they’re getting into.

Capacity to give consent can also be an issue when someone is intoxicated. Most celebrants have a clause in their celebrant service agreement about the parties to the marriage not being drunk or under the influence of drugs at the ceremony. Intoxication reduces a person’s capacity to make decisions and give consent, and we’re not allowed to marry you under such circumstances.

Celebrants must not participate in surprise wedding ceremonies. This is because there is no guarantee that the marriage will be valid as it potentially places undue pressure on the ‘surprised’ person to agree to the arrangement.

It is not however, considered a surprise wedding where both of the parties have signed the NOIM and only the date of the wedding or event is the surprise component (provided that the minimum one month notice has been given to the celebrant). In this situation, it is a matter for the celebrant to ensure that both parties consent to the marriage before the ceremony commences.

The crime of forced marriage not only applies to legally recognised marriages but to cultural or religious ceremonies and registered relationships. The following represent red flags in terms of one party being forced to marry another party:

• Have a family history of elder siblings leaving education early, marrying early or indicating concerns of an early marriage.
• Exhibit signs of depression, self-harm, attempted suicide, panic attacks, social isolation or substance abuse.
• Have high level of control and restrictions exercised by family/community members over all aspects of life in and outside of the home e.g. surveillance, always accompanied, limited or no control of finances, limited or no control over life decisions, education and career choices.
• Have communications monitored or restricted.
• Show evidence of family or domestic violence within the family unit.
• Show evidence of running away from home or isolation from the community.
• Express concern regarding an upcoming family holiday or overseas travel.
• Make a sudden announcement they are engaged.
• Express feelings of shame or dishonour on the family if family/community expectations are not met.
• Show evidence of economic or dowry abuse including:
  • Family members or others seeking to gain financially from a proposed marriage or engagement
  • Ongoing demands for cash or material goods
  • Threats made when financial obligations or arrangements are not met
  • Demonstrate feelings of conflict or concern for the ramifications if they do not go ahead with an agreed marriage/engagement
  • Have intergenerational and cultural conflict within the home
  • Express concern of physical or psychological violence for not fulfilling family / community expectations.

Arranged marriages are different from forced marriages. While an arranged marriage involves the spouse being introduced by a third party or family member, it requires the consent of both parties, who can agree or refuse to marry. The Marriage Act does not prevent a person from consenting to marry another person that they have not met prior to the marriage ceremony.

Of course, consent applies to many other areas of life too. Informed consent means that each party is empowered to act according to their wishes without any undue duress.

This element of consent has also been a feature in recent court cases. Generally the family of a person is arguing that they did not have capacity to consent to a marriage. In one recent case the bride was actually unconscious during the wedding ceremony. The celebrant decided to marry them anyway because she had been consenting the day before. As celebrants we are required to ensure your consent is real at all times leading up to and during the ceremony. If it changes at any time, it’s our obligation to refuse to continue performing the ceremony.

If a person can prove they were not providing real consent during the marriage, a court can nullify the marriage. It would be as though the marriage never took place.

Depending on the circumstances there can be other consequences of such a decision. The celebrant may have committed an offence. S100 of the Marriage Act 1961 forbids us from solemnising a marriage where we have reason to believe there is a legal impediment, such as a lack of real consent. The party creating the duress may have committed an offence under forced marriage provisions of the Criminal Code Act 1995. It’s just not worth it!

from the Guidelines on the Marriage Act

S8.5 “The Consent of the Parties is Not Real Consent”; and

S8.6 “How Can a Celebrant Assess Whether a Person’s Consent is Real?”

S11.1.2 “Surprise Weddings”

from The Attorney-General’s Department

and from My Blue Sky

The My Blue Sky national forced marriage helpline on (02) 9514 8115.

from Inclusion Australia

“What is Intellectual Disability?”

“What Causes Intellectual Disability?”

“How is Intellectual Disability Diagnosed?”

“What Support Do People With Intellectual Disability Need?

https://www.consent.gov.au/