This entry is part 5 of 20 in the series Marriage Legalities
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Real consent for marriage

By Published On: May 11, 2021Categories: Marriage Legalities
This entry is part 5 of 20 in the series Marriage Legalities

One of the requirements for getting married in Australia is the parties to the marriage must give real consent (s23B of the Marriage Act 1961). If they do not give real consent, the marriage could be deemed void by a court of law. What does that actually mean?

Consent

In simple terms, consent means saying yes, or voluntarily agreeing to something. Context is important. The definition of the word can be more in depth depending on the context in which it is used. For the context of Australian marriage, “real consent” has a specific meaning under the Marriage Act 1961.

Real consent under the Marriage Act

Section 23B(1)(d) of the Marriage Act outlines that a marriage may be void if the consent of either party is not a “real consent” because:

  • “…it was obtained by duress or fraud;
  • that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
  • that party did not understand the nature and effect of the marriage ceremony…”

Let’s break that down into plain English.

Duress

Duress means that someone has agreed to something because someone else has put pressure on them or threatened them. They might not really want to do it, but they feel they have no choice.

In the case of marriage, one person might not really want to get married. But their partner threatens that if they don’t marry them, they’ll leave them. Alternatively, one person might have changed their mind about getting married in the midst of planning the wedding. They may feel pressure from their partner to go ahead because of all the money they’ve spent on the wedding, or because of all the guests who have booked travel from overseas to attend.

The pressure or threats can be literally anything that causes one party to agree to something they don’t really want to do. Duress may be difficult to prove, but if someone had evidence that they only consented to the marriage because they were being coerced, the marriage could be deemed void by a court.

Fraud

Fraud occurs when someone intentionally deceives someone else to attain an unfair advantage. In the case of marriage, one party might not be honest with the other party about, for example, their identity (e.g. their name or their background), or about the nature and effect of the marriage ceremony (e.g. pretending it is a betrothal ceremony rather than a marriage and having it conducted in a different language). These would be grounds for the marriage to be deemed void.

What does not constitute fraud for the purposes of the Marriage Act is the motivation for entering the marriage, i.e. was one of the parties “tricked into marriage”. The Family Court in Australia has decided that “fraud” only applies to identity and to the nature and effect of marriage. This is despite many cases being presented where one party believes they have been defrauded as to the other party’s intentions and motivations for entering the marriage. For example, one person is entering the marriage for the purposes of getting an Australian visa and does not intend to ever live with their new spouse in a marital relationship. The other person is expecting a lifelong marriage and therefore feels tricked.

Mistaken as to the identity of the other party

This is simply the reverse of the fraud explanation. The consent of one party is not a real consent because they were mistaken as to the identity of the other party. That probably occurred because the other party has defrauded them!

Mistaken as to the nature of the ceremony performed

This one is interesting and comes up quite a lot in court decisions. Generally one person is arguing that their consent is not real because they were misled about the nature of the ceremony. For example, their partner told them they were taking part in a betrothal ceremony, an important ceremony in some cultures. The ceremony was conducted in a language the first party doesn’t speak or understand. Therefore they have been misled, and are mistaken, as to the nature of the ceremony. There are several cases where marriages have been deemed void (nullified) by the Family Court under such circumstances.

Did not understand the nature and effect of the marriage ceremony

It might sound like this one is pretty similar to the last one, but it’s different in one vital element. This one is about a person’s capacity to understand what’s going on, rather than them being mistaken or misled.

Adults are presumed to have capacity to make decisions/give consent unless there is a red flag or trigger. A trigger might be something like the party not communicating, speaking nonsensically, or having noticeable problems with memory. Celebrants have a list of triggers to look out for. If we spot any of them, we are required to investigate further to ensure the person has capacity to give real consent to the marriage. This may involve discussions with the person on their own. It may involve chats with family members or their medical team (with their permission of course).

Disability and capacity

The presence of a visible disability does not mean a person doesn’t have capacity to give consent. Article 23 of the Convention on the Rights of Persons with a Disability recognises the right of disabled people to marry and have a family. The consent requirements of the Marriage Act are not designed to be a barrier to marriage. The Guidelines on the Marriage Act 1961 tell us that a general understanding of the nature and effect of the marriage ceremony is sufficient. We have some questions we can ask to ensure people understand what they’re getting into.

Intoxication and capacity

Capacity to give consent can also be an issue when someone is intoxicated. Most celebrants have a clause in their celebrant service agreement about the parties to the marriage not being drunk or under the influence of drugs at the ceremony. Intoxication reduces a person’s capacity to make decisions and give consent, and we’re not allowed to marry you under such circumstances.

Real life cases

This element of consent has also been a feature in recent court cases. Generally the family of a person is arguing that they did not have capacity to consent to a marriage. In one recent case the bride was actually unconscious during the wedding ceremony. The celebrant decided to marry them anyway because she had been consenting the day before. As celebrants we are required to ensure your consent is real at all times leading up to and during the ceremony. If it changes at any time, it’s our obligation to refuse to continue performing the ceremony.

What happens if consent is not real?

If a person can prove they were not providing real consent during the marriage, a court can nullify the marriage. It would be as though the marriage never took place.

Depending on the circumstances there can be other consequences of such a decision. The celebrant may have committed an offence. S100 of the Marriage Act 1961 forbids us from solemnising a marriage where we have reason to believe there is a legal impediment, such as a lack of real consent. The party creating the duress may have committed an offence under forced marriage provisions of the Criminal Code Act 1995. It’s just not worth it!

More information

Click here for a full overview of the legal requirements of marriage in Australia.

Click on this link to find all the posts in my series about marriage legalities.

If you’re a celebrant wanting help with marriage legalities, come and join us at the Celebrant Institute!

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Series Navigation<< Prohibited relationships in AustraliaThe Notice of Intended Marriage (NOIM) >>