Two provisions of the Marriage Act (Chapter 280) control what happens after a decision on consent: section 12 provides a re-hearing, and section 14 restricts repeat applications.
Section 12 — re-hearing by a Judge
Where —
(a) an application under section 11(1) or (6) is refused; or
(b) an application under section 11(1) is granted,
the applicant or the person in relation to whose consent the application was made may, in the prescribed manner and within the prescribed time, request that the application be re-heard by a Judge — and a Judge may re-hear the application.
| Magistrate’s decision | Who may request a re-hearing |
|---|---|
| Application under s 11(1) refused | The minor, or the person whose consent was in question |
| Application under s 11(1) granted | The minor, or the person whose consent was in question — in practice, the parent who was overridden |
| Application under s 11(6) refused | The minor, or the person whose consent was in question |
| Application under s 11(6) granted | Not listed in section 12(1) |
Paragraph (b) is the important one. Where a Magistrate overrides a parent’s refusal, that parent may ask a Judge to re-hear the matter.
That right is given practical effect by section 11(5): the Magistrate shall not issue his consent before the prescribed time for a re-hearing request has expired, and shall not issue it if a request is made within that time unless the request is withdrawn.
So the marriage cannot proceed while a re-hearing request is on foot.
Section 11(2), (6) and (7) apply, as far as they are applicable, in relation to the re-hearing — and references to the Magistrate are read as references to the Judge re-hearing the application.
The Judge applies the same tests the Magistrate applied — whether the refusal was unreasonable, or whether it would be unreasonable to refuse having proper regard for the welfare of the minor — and exercises the same discretion.
Section 11(6) and (7) also apply, so the Judge may deal at the same time with the consent of another person whose views cannot be ascertained, subject to the rule that absence from the country is not of itself enough.
Section 13 continues to govern the procedure: relevant evidence including hearsay is admitted, the applicant and (so far as reasonably practicable) any person whose consent is required must be heard, the inquiry is in private, and a party may be represented by a lawyer or agent.
Section 14 — the six-month restriction
Where, in relation to a proposed marriage of a minor to a particular person —
(a) an application under section 7(2) or section 11 has been refused by a Judge or Magistrate; or
(b) an application under section 10 has been refused by a prescribed authority,
a further application under the same provision (or, for a refused section 7(2) application, under section 12) by the same person in relation to the proposed marriage shall not be considered within six months after the refusal — unless the applicant satisfies the prescribed authority, Judge or Magistrate that there has been a substantial change in the relevant facts or circumstances since the refusal.
It is marriage-specific. The words are “to a particular person”. A refusal in relation to one proposed marriage does not bar an application about a different one.
It is provision-specific. The bar applies to a further application under the same provision. A refusal under section 10 does not prevent an application under section 11 — indeed section 11(1)(b) expressly contemplates that sequence.
It is person-specific. A further application by the same person.
It has an escape. A substantial change in the relevant facts or circumstances reopens the door immediately. Examples would include the applicant reaching a higher age, the birth of a child, a change in where the minor lives, or the death of the person who refused.
The fact that an application is heard or dealt with in contravention of subsection (1) does not affect the validity of an order made, or the effectiveness of a consent given, or make ineffective a dispensation granted.
So a marriage is not put at risk because the six-month rule was overlooked. The rule regulates the decision-maker’s process, not the status of the marriage.
A transfer is not a refusal
Both section 7(5) and section 11(3) allow a Judge or Magistrate to decline to proceed where the matter could more properly be dealt with nearer where the applicant ordinarily resides.
Sections 7(6) and 11(4) then provide that such a refusal to proceed is not a refusal of the application for the purposes of sections 12 and 14. So the applicant may go to the nearer court at once, without waiting six months and without a re-hearing.
Once a consent is given, section 16 limits how long it lasts.
Sources
- Marriage Act (Chapter 280) — ss 7, 10–16, 76
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.