Sunday, 5 April 2009

Sham marriage? Blind preacher. No marriage certificate, no marriage?

How do you prove that you're married when you don't have a marriage certificate?

This is the question asked by Jodie and Marcus Hucker, amongst others, who discovered after the event that according to the NSW Government that their marriage was a sham - because they could not produce a marriage certificate.

And why couldn't they? Because a marriage certificate never issued. The minister who wed them was blind- although he says apparently that he sent the paperwork to the Registrar of Births, Deaths and Marriages and it was either presumably lost in the mail or lost by the Registry.

The church's record of marriages had also gone missing.

Their problem came to a head when a passport had to be renewed, and they found themselves sending the wedding video to the Passports Office to try and show that they were married.

It seems that their marriage is now recognised, without the certificate, and they are now seeking compensation for all the grief that has happened because their marriage was not recognised.

Marriage certificates are relied upon as proof that someone has married. The thought goes therefore that - no marriage certificate, no marriage.

Despite reliance on a marriage certificate, a certificate is not required for someone to marry. If the bride and groom have gone through the ceremony with all the formalities required, and the preacher is then struck by lightning before the certificate is signed- it's still a valid marriage. Having a certificate, as seen in the case of Jodie and Marcus Hucker, however makes it easy to prove that someone is married.

The answer is contained in sections 73, 50 and 80 of the Marriage Act (excuse the wording):

Section 73:
A marriage solemnized under this Part, being a marriage which, if it had been solemnized in Australia in accordance with Division 2 of Part IV would have been a valid marriage, is valid throughout Australia and the external Territories.

In other words- do the formal bits and even without a certificate the marriage is at that stage valid.

section 50(2) (with emphasis):

(2) Immediately after the solemnization of the marriage, the authorized celebrant, each of the parties to the marriage and 2 witnesses of the marriage who are, or appear to the authorized celebrant to be, over the age of 18 years shall sign each of the certificates so prepared.

Section 80(2) (with emphasis):
(2) Immediately after the solemnization of the marriage:
(a) the chaplain; and
(b) each of the parties to the marriage; and
(c) 2 witnesses of the marriage who are, or appear to the chaplain to be, over the age of 18 years;
shall sign each of the certificates so prepared.


Sections 50(5)and (6) and 80(5) and (6) allow for what might happen if the celebrant or preacher dies before signing the certificate:

s.50(5)
(5) Where the authorized celebrant dies without having prepared and signed the certificates of the marriage, or where by reason of other special circumstances the Minister thinks it necessary to do so, the Minister [ ie federal politician] may, if satisfied that the marriage was duly solemnized, prepare and sign the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the Minister under subsection (5) has the same force and effect as if it had been prepared and signed, in accordance with this section, by the authorized celebrant.

s.80(5), (6)
(5) Where the chaplain dies without having prepared and signed the certificates of the marriage, or where by reason of other special circumstances the Minister [ ie federal politician] thinks it necessary to do so, the Minister may, if satisfied that the marriage was duly solemnized, prepare and sign the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the Minister under subsection (5) has the same force and effect as if it had been prepared and signed, in accordance with this section, by the chaplain.

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