Section 39 of the Marriage Act (Chapter 280) is a single sentence.
Section 39
A marriage shall not be solemnized unless at least two persons who are, or appear to the person solemnizing the marriage to be, over the age of 16 years are present as witnesses.
| Required | Not required |
|---|---|
| At least two witnesses | Any maximum number |
| Over 16, or apparently so | Adulthood, or being over 18 or 21 |
| Present at the solemnisation | Any particular relationship to the parties |
| — | Any requirement as to sex, one from each side, or citizenship |
| — | Literacy — though see section 45(2) on signing the certificates |
“Or appear to the person solemnizing the marriage to be”
The celebrant is not required to verify a witness’s age. It is enough that the witness appears to the celebrant to be over 16.
That is a sensible rule in a setting where birth records are often unavailable, and it means a marriage is not put in doubt years later because a witness turns out to have been 15.
Note the age: 16, not 18. The same figure appears in section 45(2), which requires the certificates to be signed by two witnesses of the marriage who are, or appear to the authorized celebrant to be, over the age of 16 years.
It also matches the marriageable age for a female under section 7(1)(b) — so a person old enough to marry is old enough to witness a marriage.
“Present as witnesses”
They must actually be there, at the solemnisation — not merely available to sign afterwards. Section 45(2) requires signature immediately after the solemnization, which assumes presence during it.
They must be there as witnesses. People who happen to be present are not necessarily witnesses; the two must be identifiable as such, because they sign the certificates.
Where the marriage is solemnized in the presence of an authorised celebrant under section 1(2) rather than by them, the celebrant is deemed to solemnize it — and the apparent-age judgment under section 39 is theirs.
Their role in the ceremony
Under section 40(2), where the celebrant is not a minister of religion, each party says to the other, in the presence of the authorized celebrant and the witnesses:
“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).”
And under section 41(1), the celebrant gives the explanation of the marriage relationship in the presence of the witnesses.
So the witnesses are not a formality. The statutory words call on them expressly, and they later sign each of the three certificates prepared under section 45.
If section 39 is not complied with
| Question | Answer |
|---|---|
| Is the marriage invalid? | No — s 43(2)(e): a marriage is not invalid by reason of failure to comply with the requirements of section 39 or 41 |
| Does the celebrant commit an offence? | Yes — s 62: solemnizing a marriage in contravention of section 37 or 39 |
| Can the certificates be signed? | Section 45(2) requires two witnesses to sign each certificate |
The couple keep their marriage; the celebrant carries the offence. That is the same pattern as with the section 37 notice and the section 41 explanation, and it reflects the reality that the parties depend on the celebrant to know the requirements.
Choosing witnesses
- Pick two people who will be findable later. They sign the certificates and may one day be asked to confirm the marriage took place.
- Make sure they can sign. Section 45(2) requires each of the three certificates to be signed by the celebrant, both parties and two witnesses.
- Confirm they are over 16. Although the test is apparent age, a witness plainly under 16 should not be used.
- Have them present throughout, so they hear the words spoken under section 40 and the explanation under section 41.
Where a party does not understand the language of the ceremony, an interpreter is required under section 70 — a separate role from that of a witness.
Sources
- Marriage Act (Chapter 280) — ss 1, 7, 39–45, 62, 70
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.