Australian same sex marriage implications

With the commencement of the legislation adopting same-sex marriage for Australia today, 9 December, it seems worthwhile to note some more implications, following my initial comments on the change. The two I would like to address here are the changes to the “monitum”, the summary of Australian marriage law required to be recited by some celebrants; and the possible issues surrounding what I will call “rogue priests”, clergy in one of the mainstream Christian denominations who may wish to solemnise same-sex marriages when their denomination adheres to the historic Christian position that marriage is only between a man and a woman.

The “monitum”

This is a curious word which will not be familiar to most people who are not marriage celebrants! In fact even the definition given in the standard Oxford English Dictionary refers to its original usage in the Roman Catholic Church to refer to a “warning” given by ecclesiastical authorities, but does not note the use of the word in the marriage celebration context.

In this area, however, the word has been used to refer to the “warning” (or “explanation”) of the nature of marriage that has to be given to the couple prior to the wedding by some celebrants. Prior to 9 December 2017 the statement in s 46(1) of the Marriage Act 1961 was this:

“I am duly authorised by law to solemnise marriages according to law.
“Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
“Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

It’s best to clear up some misconceptions about this statement, and when it had to be used, straight away. 

First, it was not introduced by the 2004 amendments to the Marriage Act 1961 which clarified that Australian law at the time would not recognise same-sex marriage. In my previous comments on the myths surrounding the 2004 legislation, I noted that the 2004 Act did not amend what civil celebrants have to say. That had been there in the legislation in s 46 since 1961. The substance of the law stated there went back well before Federation.

Second, these words did not have to be used by celebrants who were ministers of religion from “recognised denominations”. These are large groups of religious believers who are “proclaimed” to be recognised under s 26 of the Marriage Act. Once recognised, the denominations then manage the appointment and removal of celebrants, who simply have to solemnise marriage according the forms recognised by their denomination. To again quote my previous comment:

The reason for this seems to be that it was assumed that a “recognized denomination” approved by the Governor-General under s 26 of the Act, to allow its ministers to celebrate marriages, would have its own way of stating the nature of marriage (which would have been checked administratively before the authorization was given.) Hence this extra requirement would mainly apply to civil registry officers, when the Act was first passed. Later the Act was seen to authorize a wide range of other “civil celebrants”, but again s 46 would apply to those celebrants, to ensure that Australians were given a clear picture of the “solemn and binding” nature of the relationship they were entering.

With the new amendments recognising same-sex marriage, of course, it is appropriate that the statement of the law of Australia on the topic of the gender of the parties be changed. (A revised version of the Act, containing all the relevant amendments that have now commenced, can be downloaded here for those interested.) The phrase now to be said under s 46(1) by celebrants who not ministers of recognised denominations is otherwise identical to that set out above, but with the following description of the law of Australia now substituted:

“Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

(The similar phrase in s 43 of the Family Law Act 1975 has also now been changed.)

This does, however, create some possible difficulties for a minister of religion who is a celebrant required to include the phrase in a ceremony. For the first time, now, the essential nature of marriage under the law of Australia will be different in this key aspect from the nature of marriage as understood by most of those who share the Christian faith (and by other major religions.)

However, the Attorney-General’s Department has offered what seems some sensible advice here. On their guidance website (consulted on 9 December) they say:

Ministers of religion who do not belong to a recognised denomination will be required to state the new legal definition of marriage as part of a marriage ceremony. If they wish, ministers can also explain, during the ceremony, the meaning of marriage according to their religious organisation’s doctrines or beliefs.

To repeat, this will not be an issue for ministers of recognised denominations, as they are not required to comply with s 46. However, to move to the next topic, they are required to comply with the requirements of the denomination to which they belong.

The possible issue of “rogue priests”

This somewhat alarmist heading is simply meant to refer to the possibility that a member of the clergy who is authorised to solemnise marriages as part of a recognised denomination which does not recognise same-sex marriage, might wish to solemnise such a marriage. What would the legal status of this marriage be, and what would the legal consequence be for the cleric?

Take, for example, the situation of the Anglican Church of Australia. I understand that Anglican ministers are required to conduct a marriage “according to the rites of the Anglican Church of Australia”. In doing so they usually use one of the Prayer Books that has been authorised for use in Anglican churches. All of the services that are used refer to the nature of marriage as between a man and a woman. For example:

We have come together here in the sight of God, and in the presence of this congregation, to join together this man and this woman in holy matrimony; which is an honourable state of life, instituted from the beginning by God himself, signifying to us the spiritual union that is between Christ and his Church. (AAPB First Order)

or

We have come together in the sight of God for the joining in marriage of this man N and this woman N. Our Lord Jesus Christ said of marriage that ‘From the beginning of creation God made them male and female. “For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one.” So they are no longer two but one. What therefore God has joined together, let not man put asunder’. (AAPB Second Order)

It is also fairly clear that the Anglican Church of Australia (unlike one or two other branches of the Anglican Communion worldwide) still regards marriage as being the union of a man and woman. At its most recent General Synod, on 7 September 2017, the following resolutionwas accepted:

The General Synod –
(i) recognises that the doctrine of our church, in line with traditional Christian teaching, is that marriage is an exclusive and lifelong union of a man and a woman.

So could an Anglican cleric conduct a same sex wedding? Under s 45(1) of the Marriage Act, we read this:

(1) Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.

The clear assumption of the legislation, then, is that a minister of religion will be using a “form and ceremony” recognised as sufficient by the body which has provided their authority to solemnise marriages. While this “form and ceremony” requirement might not be breached by minor grammatical changes to a prescribed form, the inclusion of a reference to marriage being between a “man and a woman” seems to be an essential part of the current Anglican forms. The resolution of General Synod demonstrates that this is not a minor matter of indifference to the church as a whole, but is an issue on which it has taken a formal position.

Section 48(1) of the Act provides that “a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage”. Section 45 is contained within Division 2 of Part IV, as is s 48. Under s 23B(1)(c) of the Act a marriage which is invalid under s 48 is void.

This matter is the subject of comment in a Fact Sheet issued by the Attorney-General’s Department, which says this:

Ministers of religion continue to be required to use the form or ceremony of marriage recognised or provided by the minister’s religion (see subsection 45(1) of the Marriage Act).
If a minister’s religious body or organisation does not recognise or provide a form or ceremony for a type of marriage (for example, same-sex marriage), the minister should consider whether they can solemnise the marriage. Failure to solemnise a marriage in compliance with section 45 of the Marriage Act may result in a void marriage. It is an offence under section 100 of the Marriage Act for a person to solemnise a marriage if they have reason to believe the marriage would be void.

Section 100 of the Act provides as follows:

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

A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has 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.

Penalty: Imprisonment for 6 months or 5 penalty units.

Now it has to be said that it would be very rare for a marriage to be declared to be void on account of a contravention of s 45. An important reason for this is that, under s 45(3), where an authorised celebrant was involved in a ceremony, and where subsequently a marriage certificate has been prepared and signed, the certificate is said to be “conclusive evidence that the marriage was solemnised in accordance [section 45]”. So despite any failings of the ceremonial forms, the parties will still be married.

But there are serious questions as to whether the conclusive effect of s 45(3) for the parties, would also protect the celebrant from being prosecuted under s 100. If there was clear evidence of a deliberate failure to use the form of the celebrant’s authorising denomination, then arguably the celebrant should have known that there was a “legal impediment” to the marriage taking place in that form. There is at least a question as to whether the conclusiveness of the certificate would protect a celebrant in those circumstances.

(By the way, it is perhaps worth noting in light of the previous discussion of the correct “monitum” under s 46, that s 48(2)(e) explicitly provides that a failure to comply with s 46 does not of itself make the marriage “invalid”. So even if a celebrant accidentally used the wrong “monitum”, that would not invalidate the marriage; see this news item containing comments to this effect from a representative of a civil celebrant’s organisation. But s 45 is not exempted in this way from the operation of s 48.)

To conclude, it seems clear (and the examples used here would usually apply to other recognised denominations that did not accept same sex marriage) that a minister of religion authorised to solemnise marriages by a specific denomination, ought not to take it on themselves to solemnise a same sex marriage contrary to the forms and ceremonies of their denomination. If they do so they would be acting contrary to the intent of the Act, and exposing themselves to a possible criminal prosecution.