Part V of the Marriage Act (Chapter 280) governs statutory marriage, as distinct from customary marriage under Part II.
The three Divisions of Part V
| Division | Sections | Subject |
|---|---|---|
| V.1 | 25–34 | Authorisation of celebrants — ministers of religion and others |
| V.2 | 35–45 | Marriages by authorised celebrants — the ordinary case |
| V.3 | 46–50 | Marriages by foreign diplomatic or consular officers |
Division 2 applies to all marriages solemnized, or intended to be solemnized, in the country, other than marriages to which Division 3 applies.
The steps to a valid statutory marriage
A marriage shall be solemnized by or in the presence of an authorized celebrant who is authorized to solemnize marriages at the place where the marriage takes place.
- An authorised celebrant — a minister of religion registered under section 28, the Registrar-General, or a person authorised by the Minister under section 34(2). Section 1(1) defines the term.
- Authorised at that place — a section 34(2) authorisation may be limited to a part of the country, whereas a registered minister may under section 29 solemnize marriages at any place in the country.
- Notice and declarations — section 37.
- Consents where a party is a minor — sections 8 to 16.
- Time and place — section 38.
- Two witnesses over 16 — section 39.
- The form of ceremony — section 40.
- The explanation of the marriage relationship — section 41.
- Certificates — section 45; and retention of consents — section 44.
Where a marriage is solemnized in the presence of a person in whose presence a marriage may lawfully be solemnized, and he consents to it being solemnized in his presence, he shall be deemed to solemnize the marriage.
That matters where a ceremony is conducted by someone other than the celebrant — for example a visiting pastor — in the presence and with the consent of the authorised celebrant. The legal responsibility, and the statutory duties, rest on the authorised celebrant.
Capacity must also be satisfied
Compliance with Part V is not enough by itself. The parties must also satisfy Parts III and IV:
- Both must be of marriageable age — 18 (male), 16 (female), or the subject of an order under section 7(3);
- Neither may be lawfully married to another person;
- They must not be within the prohibited degrees, unless a Judge has given permission under section 20 or 21;
- Consent must be real — not obtained by duress or fraud, not vitiated by mistake as to identity or the nature of the ceremony, and not defeated by mental incapacity.
A failure on any of these makes the marriage void under section 17, whatever the celebrant did.
What happens if a step is missed
Section 43 governs the invalidity of certain marriages — that is, which failures to comply with Part V affect the validity of the marriage and which do not.
Most procedural defects do not invalidate. The sanction falls on the celebrant instead:
- Section 62 — solemnizing a marriage in contravention of section 37 or 39;
- Section 63 — solemnizing where there is a legal impediment;
- Section 64 — unauthorised solemnizing of a marriage;
- Sections 67 to 69 — defective notices, failure to forward a certificate, and failure by an interpreter to furnish a certificate.
That allocation is deliberate: a couple should not lose their marriage because a celebrant made an error.
If the parties are already married to each other
Section 71(1) prohibits a Part V ceremony between people already legally married to each other, except in accordance with that section. The exceptions are the doubt procedure in section 71(2), the religious ceremony permitted by section 71(5), and section 71(8), which allows parties to a customary marriage to go through a Part V ceremony if neither has another subsisting customary marriage.
Section 75 preserves the right of a minister of religion who is an authorised celebrant to require or receive a fee for solemnizing a marriage; section 76(d) allows regulations prescribing fees for celebrants who are not ministers of religion.
Sources
- Marriage Act (Chapter 280) — ss 1, 7–17, 25–50, 62–69, 71, 75, 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.