Earlier this year, there were some significant changes made to the Marriage Act 1961 (which you can read all about in this blog post). And while celebrants everywhere were busy rejoicing about remote witnessing for NOIMs becoming a permanent fixture, there was another important amendment that impacts celebrants directly: the introduction of consent meetings.
But what exactly does this mean for the way we do business? Let’s break it down…
What are the changes in the Marriage Act regarding consent?
Technically, the changes made in the Marriage Act have not changed anything about our obligations as celebrants to ensure real consent. It has always been essential that we ensure real consent between marrying couples at all steps of the process up until they say their legal vows.
What has changed is a requirement to meet each marrying party separately before the ceremony.
“s42B Authorised celebrant must physically meet each party to intended marriage separately
An authorised celebrant must not solemnise a marriage unless the authorised celebrant has met separately with each party before the intended marriage. The authorised celebrant and the party must be physically present at the meeting.”
The Marriage Act doesn’t specify the purpose of this meeting, how long it needs to be or what needs to be discussed. However, the Attorney-General’s Department (AGD) did release clarification about this amendment to celebrants in an email sent on 18th June 2024 (you can read the full email here).
In the email, the AGD clarified that the intention of these meetings is “to maintain safeguards for establishing real consent.”
But it’s important to remember that these separate meetings don’t actually change the obligations that celebrants have always had regarding ensuring real consent. In fact, the Guidelines have always recommended that we have separate meetings with the marrying parties whenever there were any concerns around consent. The only difference is that now these meetings are compulsory whether there are concerns or not.
Also, just because you have this meeting, it does not mean that you have completed ALL requirements for ensuring consent. It’s not a tick-a-box-and-then-you’re-done kind of thing. Even if you’ve had separate meetings, if you have inkling / signs / general vibe that one or both marrying parties may wish to withdraw consent or don’t understand what is happening, right up until the moment the marriage has been solemnised (even if it’s mid-ceremony), you MUST NOT proceed with the marriage ceremony until you are certain that real consent in being freely given.
Got it! Consent is key. But what about these compulsory meetings? How do they work?
The amendment in the Marriage Act regarding the requirement of compulsory meetings is pretty light on the details, but luckily the email sent by the AGD gives some guidance. If you haven’t read the email yet, I strongly suggest you do so as it is quite comprehensive, but I have summarised some of the most important points below:
- The meetings must be done with each party separately and in person. They cannot be done over videoconference or by phone.
- The meetings must be done by the celebrant who is solemnising the marriage. That means that if a wedding has been transferred to you, you must meet with the parties separately, even if the original celebrant had already had the meeting.
- While the meetings must take place in the absence of other party to the marriage, this does not mean you need to be alone. Other people can be in attendance (if appropriate)
- The meeting can take place at any time before the marriage ceremony, even on the same day.
- There is no minimum or maximum length of time to the meeting.
- There are no set questions you need to ask in this meeting. Open-ended questions often allow the party to express how they feel about their upcoming wedding.
So what does that look like in practice? Here is an example of how I usually handle it for a typical wedding:
During my planning meeting with Alex and Jordan, I explain that on the day of the wedding, I will need to meet with them separately to sign the Declaration of No Legal Impediment to Marriage (DONLIM). I don’t tell them that the meeting is specifically to assess their consent, as in situations where one person is feeling pressured, they may not feel comfortable expressing their concerns if their partner knows I’m going to be asking them about consent.
On the day of the wedding, I go and meet Alex while they are getting ready with their wedding party.
I ask Alex how they are feeling, are they excited etc. I show Alex the DONLIM and explain that by signing, they are confirming they are over 18, not currently married to anyone else, not in a prohibited relationship with Jordan, and they are freely consenting to the marriage, and that as far as they are aware, there is no reason they cannot marry today. The whole time I am looking for signs of enthusiastic consent – not just with words, but with their demeanour. Even if they are a bit nervous (which is normal), I feel confident that they are excited, understand what is happening, not intoxicated and ready to get hitched. I then repeat the process with Jordan.
In cases where the couple are not getting ready separately before the ceremony, I simply take them far enough away from each other that they are out of earshot while I go through the DONLIM.
This isn’t the only way to manage these separate meetings, but for me, it’s a simple process to follow that meets the requirements as laid out in the Marriage Act.
What does ‘real consent’ even mean when getting married?
The monitum isn’t just some legal jargon that we have to say at every wedding – it also contains some pretty important info, in particular, the legal definition of marriage in Australia: “The union of 2 people to the exclusion of all others, voluntarily entered into for life.”
It’s that key word “voluntarily” that we need to think about when talking about consent. If real consent isn’t given by both parties when the marriage is solemnised, then the marriage may be void. But giving real consent isn’t just about saying the legal vows – so what does it mean?
In the context of marriage, s23B(1)(d) of the Act defines three main things which may mean that consent by the parties is not ‘real consent’:
- Consent was obtained by duress or fraud
- A party is mistaken as to the identity of the other party or as to the nature of the ceremony performed
- A party did not understand the nature and effect of the marriage ceremony
If a marriage is found to be invalid due to real consent not being given, the celebrant (and others involved) could face criminal charges. Which is why it is vital that celebrants have a strong understanding of this topic.
Thankfully, the AGD focussed on consent in the ongoing professional development (OPD) for 2022 and 2024. I’ve briefly summarised some of the key points in this blog post, but for an in-depth look, I suggest downloading the below workbooks.
2022 OPD Real Consent Refresher – click to download
Covers:
- Real consent
- Consent obtained by duress, fraud, coercion, threat and/or deception
- Capacity to understand the nature and effect of marriage
- When a marriage is void
- Case studies
2024 OPD Read Consent (Including Capacity) – click to download
Covers:
- Real consent
- Marriage of minors in Australia
- Guardianship and powers of attorney
- Forced marriage or marriage under duress
- Capacity to understand nature and effect of marriage
- Example scenarios
2025 OPD Read Consent Refresher – click to download
Covers:
- Real consent
- Marriage of minors in Australia
- Guardianship and powers of attorney
- Surprise marriages
- Forced marriage
- Example scenarios
Duress and fraud
Examples of consent obtained through duress or fraud include:
- Forced marriages where a party only agrees to the marriage because they have been coerced, threatened or deceived. This can include not just physical threats, but also emotional and psychological. Pressure to marry might not just be from their partner, but could be coming the parties’ family or other members of their community.
- Surprise weddings, where one party is surprised either at or shortly before the ceremony, and feels pressured to consent in the moment. Note that it’s not considered a surprise wedding if both parties have signed the NOIM and the couple have agreed that only the date of the wedding will be a surprise for one of them. Though even when they have agreed to be surprised by the date, it’s advisable that before starting the ceremony, you take the person aside privately to check that they are happy to go ahead (even if you’ve already had the legally required separate meeting).
Understanding the nature and effect of marriage
Circumstances where people may not be able to understand the nature and effect of marriage include:
- People who are intoxicated or under the influence of medication which inhibits their ability to give real informed consent
- People who do not speak and understand the language that the ceremony is performed in (and do not have the assistance of an interpreter)
- People with an illness, mental health issue or disability which may affect their capacity to give consent or make independent decisions
Every adult is presumed to have capacity to make independent decisions, including the choice to marry. So, unless there’s a good reason to think otherwise, celebrants should treat everyone as if they fully understand what the marriage ceremony means and its effects.
Someone’s age, disability or difficulty in communicating should not lead celebrants to think that the person doesn’t have capacity to make decisions for themselves or understand the nature and effect of marriage. However, you may need to use support tools or speak with a third party (with consent from the marrying party) to help ensure effective communication.
It’s also important to remember that consent must be given at the time the marriage is solemnised (a point that can’t be repeated enough). Even if you spoke to the party immediately before the ceremony and were assured they were consenting, if they start having a panic attack mid-ceremony, for example, their ability to give real consent is diminished, and you should not go forward with the legalities until they are able to make calm, informed decisions again.
What to do if you suspect a party is not giving real consent
Depending on the circumstances, there are various steps you may wish to take if you are concerned about a party giving consent.
- Speak to the party privately – it’s important to do this in a safe and culturally appropriate environment, so this may not mean being alone with the party, but you should try to speak with them away from the other party to the marriage and anyone you might be concerned may be pressuring them into the marriage
- Gather more information – ask open-ended questions to gauge a person’s understanding e.g. why do you want to get married? What will change in your life after you get married?
- Speak with third parties – with the permission of the party, you may wish to speak with their doctor or psychologist for an assessment on their capacity to understand the nature and effect of marriage
- Non-legal ceremony – in cases where you can not be sure of real consent on the day of the ceremony (e.g. effected by drugs or alcohol, experiencing a mental health issue, they seem under duress in the moment, or any other reason they may not be consenting), you may wish to offer the option of a commitment ceremony instead with the legals to be completed at a later date if they wish. This may help take some of the pressure off the situation for some couples.
- Keep detailed notes – thoroughly document any conversations you have about assessing a person’s consent to marry or capacity to understand the nature and effect of marriage. If the validity of the marriage is ever questioned, you may be required to provide evidence in court.
- Be safe – you should always be aware of the safety of the parties as well as your own. This is especially important in situations of forced marriages and duress. If you feel there is immediate danger, you should dial Triple Zero (000). If there is no immediate concern for safety, you may wish to contact the AFP or an appropriate community organisation instead (see resources below)
Consent Resources
This blog post is only the very pointy tip of the iceberg. There are so many various factors to consider when it comes to consent in marriage, so here are some resources for further reading, as well as contacts that may help you.
- Attorney-General’s Department’s email, subject: Changes to the Marriage Act – Separate Meetings
- 2022 OPD Workbook: Real Consent Refresher
- 2024 OPD Workbook: Real Consent (Including Capacity)
- 2025 OPD Workbook: Real Consent Refresher
- Forced Marriage Community Pack
- My Blue Sky – a non-Government website dedicated to preventing forced marriage in Australia
- The New South Wales Department of Justice Capacity Toolkit
- The Translating and Interpreting Service
