What if Someone Objects?

by Jennifer Cram - Brisbane Marriage Celebrant  © (05/01/2019)
Categories:  | Wedding Ceremony | Wedding Legals |
We've all seen it in movie after movie - If anyone knows any reason why these two should not be joined in marriage, speak now ....

So it is no surprise that it is a question that I'm often asked when meeting with couples to talk about their marriage ceremony. Teasers about the 2019 season of Married at First Sight included the question, and showed someone putting their hand up to make an objection, which turned out not to be a legal objection.

It might make interesting television, but there is absolutely no need to worry about this if you're being married by a civil celebrant in Australia. There is no legal requirement to ask any such question. And I definitely don't.

All that is legally required is that the marrying couple makes a declaration that each is free to marry before the marriage can take place. This declaration has the catchy title Declaration of No Legal Impediment to Marriage, and needs to be made in the presence of the officiating celebrant fairly close to the wedding date.

Unlike the very general movie version (a question to the congregation that is included in many religious ceremonies), in Australia the Declaration of No Legal Impediment to Marriage is specific. Each party has to declare that the various circumstances that would make it unlawful for them to marry do not exist:

• neither of them is married to any other person
• they are not closely related, by blood or adoption (which in Australia means ancestor, descendent, or sibling)
  
• they are both at least 18 years old, and
• there is no other circumstance that would be a legal impediment to the marriage (which basically translates to no fraud, they are each entering into the marriage of their own free will, and they both understand what marriage means)

Why do people think the question has to be asked?

The simple answer to that is that it is still asked in church, as it has been since 1215! Obviously, that was the Catholic Church - a decision of the 4th Lateran Council - but the custom passed from the Catholic Church to the Church of England at the Reformation, and from there to civil marriages when registration of marriages were centralised. In Australia, as far as I can ascertain, it has never been a  requirement in civil marriage ceremonies.

What's the history?

It all goes back to two things - concern about marrying close relatives and the notion of consent. While today, in most places it is legal to marry your first cousin, way back in mediaeval times marrying even a 6th cousin was forbidden. As you can imagine, who your 6th, 5th, or even 4th cousin might be may not be common knowledge. At the time, marriage by consent (two people binding themselves to one another in marriage in secret, without witnesses) was recognised as a valid marriage (that is, legal), though it wasn't allowed by the church.

At the time, most people couldn't read or write and there was no central register of marriages or births, so who was related to who was a matter for personal knowledge, not official record. Upcoming marriages were therefore announced from the pulpit for 3 Sundays before the wedding by calling the banns.  This gave anyone who knew a reason why the two people could not be married, to speak up.

The question was also asked of the congregation during the marriage ceremony, and the couple was required to state that they knew of no legal reason why they should not be married. That still happens in Register Office marriages in England and Wales, but not in Australia.

What happens if the question is asked and someone does object?

Only an objection about the legality of the marriage is an issue. If someone objects on any other grounds, such as the couple have only just met, as per Married at First Sight, it would be disruptive, would ruin the romance of the moment, but would not require any action to halt the ceremony.

Worst case scenario, however, is that the grounds on which the objection is made raise questions about whether the marriage would be legal. In such a case the ceremony would have to be stopped and could not go ahead until the facts of the matter were clarified. This might require a legal opinion or a determination by the Family Court. Thankfully, the rigorous processes in place for establishing identity and whether a person is free to marry virtually preclude something like that happening, unless one party has been deliberately dishonest.

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