Australian Marriage Ceremony offences

Did you know that some offences can result in up to 9 years imprisonment? Marriage in Australia is a legal event and needs to be taken very seriously. Some offences include:

OFFENCES RELEVANT TO CELEBRANTS

Marriage celebrants hold an important public office which carries significant legal obligations and responsibilities.1 Consequently, the Marriage Act contains a number of offences which may be relevant where a celebrant has failed to comply with their legal obligations.

It is important that celebrants are aware of, and take care not to contravene, the offence provisions in the Marriage Act. A conviction under the Marriage Act can result in imprisonment or significant fines.

There are three key offence provisions in the Marriage Act that are of particular relevance to marriage celebrants:

• section 99 which makes it an offence to solemnise a marriage in contravention of prescribed sections of the Marriage Act,

• section 100 which makes it an offence to solemnise a marriage where there is

reason to believe there is a legal impediment to the marriage, and

• section 101 which makes it an offence for an unauthorised person to solemnise a marriage.

Each of these offences carry a penalty of imprisonment for 6 months or 5 penalty units.

Solemnising a marriage where there is reason to believe there is a legal impediment to the marriage

Section 100 of the Marriage Act provides that it is an offence for a person to solemnise a marriage, or purport to solemnise a marriage, if they have reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void. Consequently, it is very important that before solemnising a marriage, a celebrant satisfies themselves that there are no legal impediments to the marriage, and that the marriage is not void by reason of any of the grounds set out in section 23B(1) of the Marriage Act.

It would be an offence under section 100 of the Marriage Act for a celebrant to solemnise a marriage if they had reason to believe that:

• either of the parties was already lawfully married to some other person,

• the parties are within a prohibited relationship,

• either of the parties was not of marriageable age at the time of the marriage (and judicial orders and

required consents had not been given), or

• if the consent of either of the parties to the marriage was not a real consent because:

– it was obtained by duress or fraud,

– a party was mistaken as to the identity of the other party or as to the nature of the ceremony

performed, or

– the party did not understand the nature and effect of the marriage ceremony.

The penalty for contravening section 100 is five penalty units or imprisonment for six months.

Solemnisation of a marriage by an unauthorised person

Section 101 of the Marriage Act

Section 101 of the Marriage Act prohibits a person from solemnising a marriage, or purporting to solemnise a marriage in Australia or under Part V of the Marriage Act, unless the person is authorised by or under the Marriage Act to solemnise marriages.

Celebrants who have been deregistered (for example, for not paying the celebrant registration charge or for not completing their ongoing professional development) may be subject to criminal conviction under this provision if they continue to solemnise marriages.

The penalty for contravening section 101 is five penalty units or imprisonment for six months.

Section 48 of the Marriage Act

Sections 48(2) and (3) of the Marriage Act provide that a marriage is not invalid by reason of certain failures to comply with the requirements of the Marriage Act. In some circumstances, sections 48(2) and (3) of the Marriage Act may protect the validity of a marriage from some of a celebrant’s failings, including:

• a celebrant’s failure to explain the nature of the marriage relationship in accordance with section 46,

• a failure to comply with any of the requirements in section 42 which relate to the NOIM,

• where a marriage was solemnised by a person not authorised under the Marriage Act to solemnise a marriage, if either of the parties to the marriage believed at the time of the marriage that the person was lawfully authorised to solemnise it.

However, even though section 48(2) may save the validity of a marriage in some circumstances, a celebrant may find themselves facing an investigation for potentially breaching the offence provisions in the Marriage Act because the celebrant has not fulfilled their responsibilities and duties under the Marriage Act properly. This reflects the policy approach underlying the Marriage Act which places the responsibility on the celebrant to ensure that only valid marriages are solemnised under the Marriage Act and that all the requirements of the Marriage Act are followed.

OFFENCES RELEVANT TO COUPLES

• It is an offence for a person to go through a form or ceremony of marriage while still married to some other person. This is often referred to as the offence of ‘bigamy’.

  Penalty: Imprisonment for 5 years

• It is an offence to go through a form or ceremony of marriage with a person who is married, knowing or having reasonable grounds to believe that the latter person is married.
  Penalty: Imprisonment for 5 years

• It is an offence to go through a form or ceremony of marriage with a person who is not of marriageable age i.e. 18 years of age (unless all requirements concerning consent and judicial orders are met).
  Penalty: Imprisonment for 5 years

• It is an offence to go through a form or ceremony of marriage with a person who is a minor unless the minor has been previously married or the necessary consents have been given or dispensed with.
  Penalty: Imprisonment for 6 months

• It is an offence for a person to go through a form or ceremony of marriage with another person knowing that the person solemnising the marriage is not authorised to do so, and having reason to believe that the other party to the marriage believes the person solemnising the marriage is authorised to solemnise marriages.
  Penalty: Imprisonment for 6 months

• It is an offence for a person to give a NOIM to an authorised celebrant under section 42 or to sign such notices after they have been given if, to the knowledge of that person, the notice contains a false statement or error or is defective.
  Penalty: Imprisonment for 6 months

OFFENCES RELATING TO FORCED MARRIAGE

On 27 February 2013 the Australian Parliament enacted the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) which amended the Criminal Code to strengthen the capacity of investigators and prosecutors to combat all forms of human trafficking, slavery and slavery-like practices, including by introducing new offences of forced marriage.

What is a forced marriage?

Key Messages

There are three types of forced marriages under the Criminal Code. A marriage is a forced marriage if:

• a person (the victim) entered into the marriage without freely and fully consenting because of the use of coercion, threat or deception, or

• the victim entered into the marriage without freely and fully consenting because the victim was incapable of understanding the nature and effect of the marriage ceremony, or

• at the time of the marriage, either party to the marriage was under 16 years of age.

Coercion, threat or deception

A marriage is a forced marriage if a party to the marriage entered into the marriage without freely and fully consenting because of the use of coercion, threat or deception. ‘Coercion, threat or deception’ includes a broad range of physical and non-physical conduct that may be used by a person against the victim, or another person, to cause the victim to enter into a marriage.

‘Coercion’ means coercing another person to do something by use of force, duress, detention, psychological oppression, abuse of power, and taking advantage of a person’s vulnerability.3

‘Deception’ is misleading a person as to fact or as to law, by words or other conduct.

A ‘threat’ means a threat of coercion (e.g. a threat that force will be used against the victim unless they enter the marriage), a threat to cause a person’s deportation or removal from Australia, or a threat of any other detrimental action (unless there are reasonable grounds for the threat in connection with the provision of labour or services).

The victim was incapable of understanding the nature and effect of the marriage ceremony

A marriage is a forced marriage if a party to the marriage entered into the marriage without freely and fully consenting because the victim was incapable of understanding the nature and effect of the marriage ceremony. For instance, this may be due to mental incapacity.

Either party to the marriage was under 16 years of age

A marriage is a forced marriage if at the time of the marriage, either party to the marriage was under 16 years of age. The marriage of persons under 16 years of age is never permitted by the Marriage Act.

What are the offence provisions relating to forced marriage?

Section 270.7B of the Criminal Code includes two offences relating to forced marriage:

• engaging in conduct that causes another person to enter into a forced marriage, and

• being a party to a forced marriage (this offence does not apply to the victim of a forced marriage).

Both offences have penalties of seven years imprisonment, or nine years imprisonment in the case of an aggravated offence. An aggravated offence occurs where:

• the victim is less than 18 years old, or

• the offender subjects the victim to cruel, inhuman or degrading treatment, or

• the offender engages in conduct that gives rise to the danger of death or serious harm to the victim or another person and is reckless as to the danger.

In certain circumstances, the forced marriage offences under the Criminal Code may overlap with offences under the Marriage Act. For example, a celebrant who has committed an offence under section 100 of the Marriage Act by solemnising the marriage of a minor, may also have committed the offence of causing a person to enter a forced marriage under section 270.7B(1) of the Criminal Code.

It’s important for celebrants to keep in mind that the forced marriage offences do not criminalise arranged marriages. In a forced marriage, the victim does not or cannot consent to the marriage. An arranged marriage is a marriage where the spouses are introduced through involvement of a family member or other third party and have the right to accept or refuse the marriage arrangement.

OFFENCES RELATING TO STATUTORY DECLARATIONS

It is also important to note that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959 and is liable to four years imprisonment.