Section 11 of the Marriage Act (Chapter 280) is the judicial answer to a refusal, where section 10 is the administrative answer to an absence.
Section 11(1) — the two triggers
(a) a person whose consent is required refuses to consent; or
(b) an application by the minor under section 10 for dispensation is refused,
the minor may apply to a Magistrate for the consent of the Magistrate in place of the consent of that person.
The application is made by the minor, not by the intended spouse or the family. “Magistrate” means a Magistrate of a District Court — section 1(1).
Section 11(2) — two different tests
| Situation | Test |
|---|---|
| (a) A required person refused consent | That the person has refused his consent unreasonably |
| (b) A section 10 dispensation was refused | That, having proper regard for the welfare of the minor, it would be unreasonable for him to refuse his consent |
Test (a) looks backwards at an actual refusal and asks whether it was unreasonable. Test (b) looks forwards: nobody has refused — the person could not be found — so the Magistrate asks whether a refusal would be unreasonable.
Only test (b) mentions “the welfare of the minor” expressly. That does not mean welfare is irrelevant under (a): a refusal grounded in genuine concern for the minor’s welfare is unlikely to be unreasonable.
The Magistrate must hold an inquiry into the relevant facts and circumstances, and the power is discretionary even where the test is met — “he may give his consent”.
Section 13 — procedure at an inquiry
(1) A Judge or Magistrate —
(a) is not bound to observe strict legal procedure or apply technical rules of evidence, but shall admit and consider such relevant evidence as is available (including hearsay); and
(b) shall give to the applicant and, so far as is reasonably practicable, any person whose consent is required, an opportunity of being heard.
(2) An inquiry shall be held in private.
(3) A person given an opportunity of being heard may be represented by a lawyer or agent.
Hearsay is admissible. That matters where a parent is absent and the evidence of their attitude comes from relatives.
The refusing person must be heard, so far as reasonably practicable. A consent given in place of a parent who was never given the chance to explain would be open to challenge.
The hearing is in private — appropriate to a family matter concerning a young person.
Representation is allowed, by a lawyer or agent, so a party need not engage a lawyer.
Section 76(b) allows regulations about the practice and procedure at these inquiries, including summoning witnesses, producing documents and taking evidence on oath.
Section 11(6) — dealing with other consents at the same time
(6) Where a Magistrate gives consent in place of a person who refused, he may also, on application by the minor, give his consent in place of the consent of any other person if satisfied that it is impracticable, or impracticable without unreasonable delay, to ascertain his views.
(7) 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.
Subsection (6) solves the deadlock created by section 10(4) — which prevents a prescribed authority dispensing with one consent while another required person has refused. The Magistrate can deal with both in one proceeding. Subsection (7) mirrors section 10(5): distance alone is not enough.
Sections 11(3) to (5)
- Section 11(3). Where the matter could more properly be dealt with by a Magistrate sitting nearer where the applicant ordinarily resides, the Magistrate may refuse to proceed with the hearing.
- Section 11(4). Such a refusal is not a refusal of the application for the purposes of sections 12 and 14 — so it neither triggers a re-hearing right nor bars a fresh application.
- Section 11(5). Where the Magistrate grants the application, he shall not issue his consent before the time prescribed for a re-hearing request under section 12 has expired — and if a request is made within that time, shall not issue it unless the request is withdrawn.
A Magistrate’s decision to override a parent’s refusal does not take effect immediately. The parent has the prescribed time to request a re-hearing by a Judge, and the consent is held back until that time passes.
Sections 15 and 16 — the effect and duration
Subject to section 16, where a Judge or Magistrate gives consent in place of the consent of another person, his consent operates, for the purposes of this Act, as the consent of that other person.
So the document produced to the celebrant under section 8(1)(c)(ii) stands in the place of the parent’s consent. It ceases to have effect if the marriage does not take place within three months — section 16(1).
Sources
- Marriage Act (Chapter 280) — ss 1, 7–16, 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.