The Marriage Act (Chapter 280) provides a documentary system for statutory marriages and nothing at all for customary marriages. Proof differs accordingly.
Proving a statutory marriage
(1) All courts, Judges and persons acting judicially shall take judicial notice of — (a) the signature of a person who is, or has been, an authorized celebrant appearing on a document under this Act; and (b) the fact that at the time the document was signed he was an authorized celebrant.
(2) The same applies to the signature of a person who has performed the functions of a Judge or Magistrate under Part III or IV, or of a prescribed authority, and to the fact that they were duly authorised at the time.
Without section 73, a party tendering a marriage certificate would have to prove that the signature was genuine and that the signatory was in fact an authorised celebrant on that date — usually by calling the celebrant.
Section 73 makes both matters ones the court simply accepts. The certificate can be tendered and relied on.
(1) A certificate under the hand of the Registrar-General that a specified person was registered under section 28 at a specified date is evidence of that fact.
(2) A certificate that a person was not registered at a specified date is evidence of that fact.
(3) In a prosecution for an offence against this Act, an averment by the prosecutor that the defendant is identical with the person specified in such a certificate is evidence of that fact.
Subsection (2) is the provision used to prove that a person who purported to solemnise a marriage was not registered — the foundation of a prosecution under section 64 for unauthorised solemnisation.
Proving a customary marriage
Nothing in the Act requires a customary marriage to be registered or recorded. Section 3(2) makes it valid and effectual for all purposes, but supplies no means of proving it.
The question is one of fact, decided on evidence, applying the custom of the relevant tribe or group under the Customs (Recognition) Act (Chapter 19) and Schedule 2 of the Constitution.
| Evidence | What it establishes |
|---|---|
| The applicable custom | What that group requires for a valid marriage — from community leaders and persons knowledgeable in the custom |
| Bride price | Who paid, who received, what was given, when, and before whom |
| The ceremony or feast | That the marriage was publicly made, and who witnessed it |
| Family agreement | That both families consented and participated |
| Cohabitation and repute | That the parties lived together as husband and wife and were treated as married |
| Documents describing the parties as married | Employment records, superannuation nominations, hospital and school records, bank forms |
| Children | Birth records naming both parents, and the way the children were held out |
When the question arises
- On death. A surviving spouse’s claim to an estate, to superannuation, or to a workers’ compensation benefit.
- On separation. Whether the Matrimonial Causes Act applies at all — see what a matrimonial cause is.
- On remarriage. Whether an earlier marriage subsists, which determines whether a later marriage is void and whether bigamy has been committed.
- In an adultery action. The plaintiff must be a spouse.
- For immigration, citizenship and travel, where a foreign authority requires documentary proof.
In matrimonial proceedings, section 84 of the Matrimonial Causes Act (Chapter 282) deals with proof of marriage. It should be read together with the Marriage Act provisions above. See evidence in a divorce.
Removing the doubt in advance
Section 71(2)(b)(iii) allows a second ceremony where there is a doubt whether the marriage could be proved in legal proceedings — even though nobody doubts that the marriage happened.
The parties furnish a statutory declaration setting out the date, place and circumstances of the earlier ceremony, with a lawyer’s certificate endorsed on it that a doubt exists. They then go through a Part V ceremony and receive a certificate.
Alternatively, parties to a customary marriage may use section 71(8) directly, provided neither has another subsisting customary marriage.
Either route converts an evidentiary problem into a document. For couples with property, children, or overseas connections, it is worth doing before the question becomes urgent.
Sources
- Marriage Act (Chapter 280) — ss 3, 28, 45, 64, 71, 73, 74
- Matrimonial Causes Act (Chapter 282) — s 84; Constitution — Schedule 2
- Customs (Recognition) Act (Chapter 19)
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.