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NOIM remote witnessing and other changes to the Marriage Act 1961

Remote witnessing for NOIMs is now law

Remote witnessing is back, baby!

After months of campaigning, emails and letters, the special temporary Covid provision which allowed celebrants to witness NOIMs via videoconference has been made into permanent law as of 12 June 2024.

The changes were made as part of a much larger legislative instrument – the Attorney-General’s Portfolio Miscellaneous Measures Act 2024 – which amended laws in multiple Acts. And while we’ve all been focused on NOIMs, there were other important changes made to the Marriage Act as well.

Some of these changes will have a significant impact on the way celebrants do business (remote witnessing, consent meetings), others have been made for admin and clarity reasons and won’t alter much about the way we operate, but they’re still good to know about. Let’s break them down, starting with the one I know you are all most excited about:

REMOTE WITNESSING OF NOIMS

The one we have all been waiting for! This “new” change is almost exactly the same as how it worked under the temporary Covid changes with one tiny difference (more on that in a bit).

It might seem like this whole new thing, but it’s actually only a substitution of a few words in the Act. If you are new to remote witnessing, I promise it isn’t as complicated as it seems.

What has changed?

In places where the Marriage Act talks about the parties signing the NOIM in front of an authorised witness, the words “in the presence of” now read “under the observation (whether or not by means of a facility that enables audio and visual communication between persons in different places) of one of the following, who must also be in Australia” – or in the case where the parties are physically outside Australia “who must also be outside Australia”.

To put it more plainly, NOIMs can now be witnessed EITHER in person OR via videoconference. That’s it! Nothing else has changed about the NOIM process. Simple, right?

This is only very slightly different from the previous Covid measures in that it specifies the location of the witnesses as well as the parties to the marriage.

Does that mean that we can witness NOIMs for couples who are overseas?

As marriage celebrants, no.

The list of who can witness is still dependent on the location of the parties to the marriage. BUT if a couple is overseas, they can still have their NOIM witnessed remotely by an authorised witness who is also not in Australia.

As a reminder, here is the list of witnesses:

If a couple is in Australia (note, the witness must also be in Australia at the time of signing):

       authorised celebrant

          justice of the peace

          barrister or solicitor

          member of the Australian Federal Police or the police force of a State or Territory

          medical practitioner (this means a person who is registered as a licensed practitioner with the Medical Board of Australia. The category is limited to GPs and specialist doctors but does not include pharmacists, nurses, physiotherapists or dentists)

If a couple is outside Australia (note, the witness must also be outside Australia at the time of signing):

          A notary public

          Australian Diplomatic Officer

          Australian Consular Officer

          An employee of the Commonwealth authorised under paragraph 3(c) of the Consular Fees Act 1955

          an employee of the Australian Trade and Investment Commission authorised under paragraph 3(d) of the Consular Fees Act 1955.

But what if it’s potentially dangerous for a couple to do the NOIM in their own country, e.g. a same-sex couple in a place where homosexuality is illegal?

As celebrants, we still cannot witness NOIMs remotely for couples while they are not physically in Australia no matter the circumstances. BUT they could engage the services of a notary public in any country outside Australia where international notorisation is permitted. For example, a couple in the UAE could have their NOIM witnessed by a Notary Public in the USA via a service such as US Virtual Notary.

Can we witness identity documents virtually, too? Or do couples need to bring them to the wedding?

We’ve been able to do this since 2019, long before remote witnessing was a thing. We do not need to see the physical documents if we sight them using electronic means. There is a bit of nuance on how this works, so it’s best to read this fact sheet which explains it all in detail. (Just ignore the references to witnessing being in person and stat decs being signed in pen as those are no longer relevant).

Can we witness the Declaration of No Legal Impediment to Marriage (DONLIM) via Zoom? 

Nope! This still must be done in person. But it can be done any time before the marriage ceremony up to and including the day of the wedding.

Bonus witnessing – correcting the NOIM

As a fun little extra that wasn’t part of the Covid measures, we can also sight corrections to the NOIM either in person or via videoconference now. While this might not be as impactful as remote witnessing, since we’ve been able to make corrections in person any time before the marriage ceremony (including on the day of the wedding), it will be useful in situations where you are remotely witnessing the NOIM, the couple sign it, then they notice an error. You can quickly amend the error within the same videoconference. Fab!

CONSENT MEETINGS

This change hasn’t been talked about much, but it is a really big one as it’s a requirement that we haven’t had before.

42B 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.”

In the Bill Digest submitted to Parliament, the Attorney-General’s Department stated, “The purpose of the meeting is to ensure that each party is freely and voluntarily consenting to the

marriage – reinforcing that real consent is a cornerstone of the Marriage Act. […] This additional measure is considered warranted in light of the increase in remote witnessing of NOIMs.”

In the past, the guidance has been that we should meet with couples separately if we have any concern about consent, but this new addition to the Marriage Act now makes it compulsory that we meet with each party to the marriage away from the other for every single marriage we solemnise (not just those that have signed the NOIM remotely).

In the email celebrants received from the Marriage Law and Celebrant Section (MLCS), they have clarified that ‘separately’ does not necessarily mean ‘alone’. Other people (excluding the person they are marrying) may be in attendance at the meeting with the party’s permission.

They also said that these meetings can occur any time up to and including the day of the wedding.

But this still leaves me with a lot of questions about what this new requirement looks like in practice:

          What needs to be said and done during these meetings? Is it sufficient for us to say, “are you still consenting to this marriage? Yes! Great, please sign the DONLIM here.”

          Do we even need to say or ask anything at all? Can we just use our judgement for enthusiastic consent, just like we already have to do at every step of the process (except now there must be a separate meeting at some point)?

          What does ‘separately’ mean? Is it enough to ask that partners stand 20 meters apart and out of earshot? Or do they need to be in different rooms? Buildings?

          Are we expected to keep a record of this meeting somewhere? Will it be a tick box on the marriage documentation, just like how we have to record giving the Happily Ever Before or After Brochure?

The MLCS has promised that additional guidance material will be provided on this soon, so hopefully we will have answers to these questions.

USEFUL CLARIFICATIONS

With the update come some great clarifications. All of these ‘changes’ are things that we have already been doing as celebrants, but I’m excited that it is now clearly enshrined in the Act.

 

PHYSICAL PRESENCE

With technology now blurring the lines of what ‘in the presence of’ could mean, any reference in the Marriage Act to ‘in the presence of’ now clarifies ‘in the physical presence of’.

This doesn’t change what we have already been doing. It’s just making it clear beyond a doubt that unlike in Utah, Australian weddings must be conducted in person – not online.

IDENTITY REQUIREMENTS

Kinda proud to say that this change comes directly as a result of something I noticed in the Marriage Act, which the lovely Sarah Aird then brought to the MLCS’s attention.

Previously, the Marriage Act had ordered the requirements for proof of date and place of birth in such a way that a statutory declaration would be acceptable where a birth certificate was impractical to obtain even if that person had a passport.

The requirements have now been reordered and the new subsection now clarifies that if the party has a passport, that MUST be used in place of a stat dec.

In practice, that’s what celebrants have been doing anyway, but it’s good to have it in black and white.

TRANSFERRING THE NOIM

Previously, the Marriage Act said:

“s42(6) Where, by reason of the death, absence or illness of an authorised celebrant to whom a notice of intention to marry has been given, or for any other reason, it is impracticable for that person to solemnise the marriage, the marriage may be solemnised by any authorised celebrant who has possession of the notice.”

Under the advice of the MLCS, we have always been able to transfer the NOIM where the couple have decided to go with another celebrant (as it would be impractical to force our services on them). This newest update now specifically includes this as a reason:

“S42 (6) If:

(a) a notice of intention to marry has been given to an authorised

celebrant under this section; and

(b) either:

(i) because of the death, absence or illness of the authorised celebrant, or for any other reason, it is impracticable for that person to solemnise the marriage; or

(ii) the parties to the intended marriage have requested the authorised celebrant to give the notice to another authorised celebrant;

the marriage may be solemnised by another authorised celebrant who has possession of the notice.”

BUREAUCRACY AND ADMIN

Many of the below changes will make a big difference to how the Marriage Law and Celebrant Section is run, but it won’t matter much to already registered celebrants. Still, it’s useful to know.

APPOINTMENT OF DEPUTY REGISTRAR 

Being the Registrar of Marriage Celebrants is a big job, so a new role has been created to share the workload. The Registrar will have the power to delegate many of the day-to-day tasks of running the MLCS to the Deputy, so that they have more time for more serious issues (e.g. complaints, disciplinary measures etc).

 

EXTENDED TIME FRAME FOR NEW CELEBRANT APPLICATIONS

The MLCS has extended their maximum time to review celebrant applications from three months to six months. The reason for this is that they needed more time for things like police checks, reviewing references and requesting additional information when required.

It doesn’t necessarily mean that it will take a full six months to approve (or decline) an application, but it is a possibility.

This might not seem like a big deal for those of us who are already registered, BUT it does mean that if you do get deregistered for not paying your annual registration fee, you could have a long wait before you can solemnise marriages again. So don’t forget to pay those fees! #NoCelebrantLeftBehind

REFUND OF REGISTRATION APPLICATION FEE

Again, if you are already registered, this one won’t affect you, but the MLCS eliminated their “non-refundable booking fee” stance on applications.

The MLCS occasionally receives celebrant applications from people that they reject immediately because do not meet the minimum requirements (e.g. they don’t have a Cert IV in Celebrancy), so in these cases, the law now allows the registration fee to be refunded.

 

SINGLE REGISTRATION OF AN AUTHORISED CELEBRANT

Due to a quirk in the law, there have been some people who are authorised to perform marriages under multiple registrations e.g. the are both a civil celebrant and/or a minister of religion or a BDM officer who can perform marriages.

This new amendment means that a person can only wear one “authorised to marry people hat at a time”. This will only affect a very small number of people, as the intention has always been that these roles should be wholly separate.

Unlike every other amendment above (which came into force on 12 June 2024), this one won’t be in affect until 9 July 2024. Because of this, we probably won’t see a ‘clean’ version of the Marriage Act until after this date, so if you want to see all these changes for yourself, you can download the Attorney-General’s Portfolio Miscellaneous Measures Act 2024 here.

On Monday, 17th June at 8pm (AEST) we hosted a Zoom session to explain all the changes in the Marriage Act. You can watch the recorded session below.

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Author Bio

Alison Pickel

Alison is a big nerd and she’s not afraid to admit it. When she’s not getting overly excited by s45(2) of the Marriage Act (how cool is it that it’s the couple’s words that actually make them married?!), she can be found puzzling in escape rooms or smashing the movie round for her pub trivia team.

Hailing from Marrickville in Sydney’s Inner West, Alison has a background in print and digital media. In 2018, she swapped deadlines for ‘I do’s, and has been hitching loved-up legends ever since. She is also a celebrant trainer, ceremony ghostwriter and the NSW Local Leader for The Celebrant Society.

Away from the arbour, Alison likes to eat dumplings, re-watch Schitt’s Creek (again), and take way too many photos of her rescue cats, Pancake and Barney.

NOIM remote witnessing and other changes to the Marriage Act 1961