Section 10 of the Marriage Act (Chapter 280) deals with the case where a person whose consent is required cannot be found — not the case where they refuse.
Section 10(1) — the three conditions
(a) is satisfied that it is impracticable, or that it is impracticable without delay that would in all the circumstances be unreasonable, to ascertain his views with respect to the proposed marriage; and
(b) has no reason to believe that he would refuse his consent; and
(c) has no reason to believe that facts may exist by reason of which it could reasonably be considered improper that the consent should be dispensed with.
| Condition | What it addresses |
|---|---|
| (a) Impracticable to ascertain views | The person cannot be found, or finding them would take unreasonably long |
| (b) No reason to believe they would refuse | Dispensation is not a way around an anticipated refusal |
| (c) No reason to think it improper | A residual safeguard — the authority must not shut its eyes to circumstances suggesting the marriage should not proceed |
All three must be satisfied — they are joined by “and”.
Who applies, and how
The application is made by the minor, in writing, and —
(2)(a) shall be supported by a statutory declaration by the applicant setting out the facts and circumstances on which the application is based; and
(2)(b) may be supported by a statutory declaration by some other person.
(3) The applicant shall state in his statutory declaration whether he has made any previous applications that have been refused, and if so the date on which each was refused.
A minor refused by one prescribed authority cannot simply try another without disclosing the earlier refusal. Failing to disclose it, or making a false statement in the declaration, engages section 59 and the general law on false declarations.
The application is made to a prescribed authority — defined in section 1(1), in relation to a marriage proposed to be solemnized in the country, as a person appointed by the Head of State, acting on advice, to be a prescribed authority. It is an administrative decision, not a court proceeding.
Two express limits on the power
This section does not authorize a prescribed authority to dispense with the consent of a person where any other person whose consent is required has refused to give his consent — unless a Judge or Magistrate has given his consent under this Part in place of the consent of the other person.
So where two parents must consent and one has refused, the dispensation route is closed for the other until the refusal has been overcome by a judicial consent under section 11.
The order of operations is therefore: deal with any refusal first, in court; only then may a missing person’s consent be dispensed with administratively.
For the purposes of this section, the fact that a person does not reside in, or is absent from, the country does not of itself make it impracticable to ascertain his views.
This is a significant limitation in a country where a parent may be working overseas or living in another province. Distance alone does not satisfy condition (a). The applicant must show that the person cannot be contacted, or that contacting them would involve delay that is unreasonable in all the circumstances.
Section 8(2)(b) and (c) reinforce the point by providing for consents signed in Australia and in any other place — the Act plainly contemplates that an absent parent will usually be able to sign a consent where they are.
The effect of a dispensation
Where a person’s consent has been dispensed with, what must be produced to the celebrant is the written dispensation signed by the prescribed authority, in place of that person’s consent.
Section 8(4)(d) provides that a person shall not solemnize a marriage if he has reason to believe that a dispensation produced in relation to the marriage has ceased to have effect.
See how long a consent or dispensation lasts — section 16 governs the period of effect.
In practice
- Identify every person whose consent is required under Schedule 1 before doing anything else. The Schedule turns on where the minor lives, custody orders, desertion, death and guardianship.
- Try genuinely to contact an absent person. Section 10(5) means absence abroad is not by itself sufficient, and the statutory declaration must set out what was actually attempted.
- Deal with a refusal in court, not by dispensation. Section 10(4) closes that door until section 11 has been used.
- Disclose earlier refused applications — section 10(3) requires it.
- Watch the timing. A consent must be dated not earlier than three months before solemnisation, and section 16 limits the period of effect of a consent or dispensation.
Sources
- Marriage Act (Chapter 280) — ss 1, 8–11, 15, 16, 59
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.