What Constitutes Consent In the Lead Up to a Wedding?
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 It’s important to note that consent to the marriage can be withdrawn at any time up to the point where the couple say their legal vows.
The Celebrant’s Responsibility
When a celebrant meets with a couple who is considering marriage, there should always be a discussion around the legal elements involved. You’ll find further info on wedding legalities here.
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 12.6.24, 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.
Language
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. Further information on when to involve an interpreter in a wedding can be found here.
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.)
Disabilities
Not all disabilities are obvious. The challenges people with a disability may face could result in difficulties organising daily life activities, communication, memory, social interaction, understanding, problem solving, self-care, social, emotional and physical skills, reading and writing and managing finances. While they are considerations, these things may not preclude a party from marrying.
It is important to recognise that a person with an intellectual disability has the same feelings, rights and aspirations as anyone else. In the same way that many hold down jobs and are productive members of society, so too it is possible for them to marry if they so wish. In doing so, they should expect to receive support in making this decision and in managing their day-to-day life afterwards. Sometimes this support can make the difference for those hoping to enjoy a loving relationship as a married couple and this is particularly so for a couple where one or both parties have a disability. At all times it is important that parties be treated with dignity and respect.
Surprise Weddings
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.
Further information on wedding surprises can be found here.
Forced Marriage
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 Marriage
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.
Consent in Other Areas of Life
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.
Further information is available in relation to:
Consent Prior to Marriage
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”
Forced Marriage
from The Attorney-General’s Department
and from My Blue Sky
The My Blue Sky national forced marriage helpline on (02) 9514 8115.
Intellectual Disabilities
from Inclusion Australia
“What is Intellectual Disability?”
“What Causes Intellectual Disability?”
“How is Intellectual Disability Diagnosed?”
“What Support Do People With Intellectual Disability Need?
Relationships and Healthy Sexual Experiences
113 – 30/06/2024