Section 34 of the Marriage Act (Chapter 280) is the route for civil celebrants and for anyone who is not a registered minister of religion.
Section 34
(1) The Registrar-General may solemnize marriages in any part of the country.
(2) The Minister may, by instrument, authorize suitable persons to solemnize marriages.
(3) An authorization under subsection (2) —
(a) may authorize a person to solemnize marriages at any place in the country, or in a part of the country specified in the instrument; and
(b) is subject to such conditions (if any) as are specified in the instrument.
Section 34(1) requires no instrument. The Registrar-General is an authorised celebrant by virtue of section 1(1)(b), and may act in any part of the country.
Section 1(1) also provides that “the Registrar-General” includes a Deputy Registrar-General, so a Deputy has the same authority.
Section 34(2) — “suitable persons”
Section 34(2) contains no equivalent of the section 27 qualifications — no age requirement, no residence requirement, no nomination by any body, and no list of matters the Minister must consider.
The only stated criterion is that the person be “suitable”, and the only stated form is that the authorisation be by instrument.
Nor does the Act provide a cancellation procedure for a section 34(2) authorisation. Section 30 deals with the cancellation of registration under Division 1 — that is, of ministers of religion. Section 31 likewise provides review of a refusal to register or a cancellation of registration, not of a section 34(2) decision.
As a matter of general principle, a power to authorise by instrument ordinarily carries a power to revoke by instrument, and any exercise of the section 34(2) power is a decision of a public authority reviewable in the National Court.
The two limits in section 34(3)
| Registered minister — s 28 | Authorised person — s 34(2) | |
|---|---|---|
| How authorised | Registration by the Registrar-General, on denominational nomination | Instrument of the Minister |
| Qualifications | Four, in section 27 | “Suitable” — nothing further stated |
| Territorial reach | Any place in the country — s 29 | Any place, or a specified part — s 34(3)(a) |
| Conditions | None provided for | Such conditions as are specified — s 34(3)(b) |
| Cancellation | Section 30, with show cause procedure | Not provided for in the Act |
| Fees | Section 75 preserves the right to a fee | Section 76(d) — fees may be prescribed by regulation |
Section 36 requires a marriage to be solemnized by or in the presence of an authorised celebrant “who is authorized to solemnize marriages at the place where the marriage takes place”.
Where an instrument confines the authority to a specified part of the country, a marriage solemnized outside that area is not solemnized by a celebrant authorised at that place.
The same applies to conditions. An authorisation subject to conditions confers authority only within them.
Whether such a marriage is valid is governed by section 43; the celebrant meanwhile risks section 64. Couples marrying away from the celebrant’s usual district should confirm the terms of the instrument.
The same duties apply
A section 34(2) celebrant carries all the obligations of Division 2:
- Section 37 — notices and declarations before solemnizing;
- Section 8 — requiring production of consents where a party is a minor, and refusing to proceed in the four situations in section 8(4);
- Section 38 — time and place;
- Section 39 — two witnesses;
- Section 40 — the form of ceremony;
- Section 41 — explaining the marriage relationship;
- Sections 44 and 45 — retaining consents and preparing certificates;
- Section 70 — interpreters.
The offences in sections 62 to 69 apply equally. And section 73 requires courts to take judicial notice of the signature of a person who is, or has been, an authorised celebrant, and of the fact that they were one when the document was signed — which covers section 34(2) celebrants as well as registered ministers.
Sources
- Marriage Act (Chapter 280) — ss 1, 8, 27–45, 62–70, 73–76
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.