Section 40 of the Marriage Act (Chapter 280) takes two different approaches depending on the celebrant.
Section 40(1) — a minister of religion
Where a marriage is solemnized by or in the presence of an authorized celebrant who is a minister of religion, it may be solemnized according to any form and ceremony recognized as sufficient for the purpose by the religious body or organization of which he is a minister.
No form of words is prescribed. Whatever the religious body recognises as sufficient to constitute a marriage is sufficient for the Act.
That respects the diversity of the recognised denominations declared under section 26, whose rites differ. It also means the question in a doubtful case is not what the Act requires but what the denomination recognises.
Note that this is separate from section 4, which permits religious rites in connexion with a customary marriage — that is not a Part V marriage at all.
Section 40(2) — a celebrant who is not a minister of religion
It is sufficient if each of the parties says to the other, in the presence of the authorized celebrant and the witnesses, the words —
“I call on the persons present here to witness that I, A.B., take you, C.D., to be my lawful wedded wife (or husband).”
or words to that effect.
“Each of the parties says to the other”. Both must speak. It is not enough for one to say the words and the other to assent.
“In the presence of the authorized celebrant and the witnesses”. The two witnesses required by section 39 must be there when the words are spoken.
“I call on the persons present here to witness”. The parties address the witnesses directly. The public character of the act is built into the formula.
“Or words to that effect”. Exact recitation is not required. What matters is that each party expresses, in the presence of the celebrant and witnesses, that they take the other as their spouse.
Section 43(4) confirms the underlying principle in a related context: a form and ceremony are sufficient if they show an intention on the part of each of the parties to become by the marriage the lawfully wedded spouse of the other.
Sections 40(3) and (4) — the certificate as conclusive evidence
Subject to subsection (4), where a marriage has been solemnized by or in the presence of an authorized celebrant, a certificate of the marriage prepared and signed in accordance with section 45 is conclusive evidence that the marriage was solemnized in accordance with this section.
Subsection (3) does not make a certificate conclusive —
(a) where the fact that the marriage ceremony took place is in issue — as to that fact; or
(b) where the identity of a party to the marriage is in issue — as to the identity of the party.
Conclusive: that the form of ceremony complied with section 40. Nobody can go behind the certificate to argue that the wrong words were used, or that the religious form was not one the denomination recognises.
Not conclusive: that a ceremony happened at all, or that the people named are the people who married. Those remain open to proof.
The distinction is sensible. A certificate cannot be allowed to prove a ceremony that never occurred, or to establish identity against contrary evidence — otherwise it would be a tool for fraud. But given that a ceremony took place between these people, the certificate settles that it was properly conducted.
The rule works with section 73, under which courts take judicial notice of an authorised celebrant’s signature and of their authority at the time of signing.
Section 41 — and what must be said before the words
Before the ceremony, an authorised celebrant who is not a minister of religion of a recognised denomination must give the explanation of the marriage relationship required by section 41(1) — unless exempted by the Minister under section 41(2).
Section 43(2)(e) provides that a marriage is not invalid by reason of a failure to comply with the requirements of section 39 or 41.
Section 40 is not in that list. Section 43(1) provides that, subject to the Act, a marriage solemnized otherwise than in accordance with the preceding provisions of this Division is not a valid marriage — so the form of ceremony matters in a way the witnesses and the explanation do not.
Two things soften that: the words “or words to that effect” in section 40(2), and the conclusive evidence rule in section 40(3), which forecloses the argument once a certificate exists.
Where a party does not understand the language used, an interpreter is required under section 70.
Sources
- Marriage Act (Chapter 280) — ss 4, 26, 39–45, 70, 73
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.