Section 41 of the Marriage Act (Chapter 280) requires a specific statement before the ceremony.
Section 41(1) — the statutory explanation
“I am duly authorized by law to solemnize marriages according to law.
Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
Marriage, according to law, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
or words to that effect.
Who must give the explanation
| Celebrant | Must give the explanation? |
|---|---|
| Minister of religion of a recognised denomination | No — s 41(1) applies only to a celebrant who is not such a minister |
| The Registrar-General or a Deputy | Yes |
| Person authorised under s 34(2) | Yes, unless exempted under s 41(2) |
A religious marriage service will ordinarily contain its own statement of the nature and obligations of marriage. Section 40(1) permits any form recognised as sufficient by the religious body, and section 41(1) does not duplicate it.
Note the precise wording: the exclusion is for a minister of a recognized denomination. A minister of religion whose body has not been declared under section 26 is not within the exclusion — though such a person could not be registered under section 28 in any event.
Section 41(2) — the Minister may exempt
Where the Minister is satisfied that the form of ceremony to be used by a person authorized under section 34(2) sufficiently states the nature and obligations of marriage, he may — either by the instrument by which that person is authorized or by a subsequent instrument — exempt him from compliance with subsection (1).
Where a celebrant uses a settled ceremony that already explains what marriage is, repeating the section 41(1) words adds nothing. The exemption may be given in the original section 34(2) instrument or later.
The test is whether the form of ceremony sufficiently states the nature and obligations of marriage — so the exemption is granted by reference to a particular ceremony, not to the person generally.
“The union of a man and a woman”
The Marriage Act contains no definition of marriage in its interpretation section. The formula in section 41(1) is the closest the statute comes:
“Marriage, according to law, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
Four elements are stated: a man and a woman; to the exclusion of all others; voluntarily entered into; and for life.
Each is reflected elsewhere in the legislation:
- Exclusivity — section 17(1)(a) makes a marriage void where a party is lawfully married to another, and section 57 creates the offence of bigamy;
- Voluntariness — section 17(1)(d) makes a marriage void where consent was obtained by duress or fraud, and section 5 protects women from forced customary marriage;
- For life — an aspiration rather than a rule, since the Matrimonial Causes Act (Chapter 282) provides for dissolution.
Note that section 41(1) applies to Part V marriages. Customary marriage under Part II is governed by the applicable custom, which in some groups permits more than one wife.
If the explanation is not given
A marriage is not invalid by reason of failure to comply with the requirements of section 39 or section 41.
So an omission does not affect the marriage. It is a failure by the celebrant to perform a statutory duty, and one that a repeated pattern could bear on under section 30(1)(d)(i) — contravention of the Act showing a person not to be fit and proper — or on the terms of a section 34(2) authorisation.
Where a party does not understand the language in which the explanation is given, section 70 requires an interpreter, whose certificate is required by section 69.
Sources
- Marriage Act (Chapter 280) — ss 5, 17, 26, 30, 34, 39–43, 57, 69, 70
- Matrimonial Causes Act (Chapter 282)
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.