Consent, Ceremonies, and Celebrants

by © Jennifer Cram - Brisbane Marriage Celebrant
Originally published in The Celebrant, Issue 10, December 2021, pp 59-68 
Republished 24/12/2022 with the permission of the Editor.
Categories: | Celebrant | Wedding Legals  |
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"In this excellent article by @jennifercraminclusivecelebrant about Setting Celebrant Fees in a Regulated Environment you can get a good sense of the restrictions and responsibilities that UK celebrants will work under if the desired laws come into being. It is wise for us to go into this with eyes wide open" - Veronika Robinson

A word to non-celebrant readers

The original article (below) was written for an audience of celebrants. If you are planning to marry, it is important that you fully understand what consent means in relation to marriage, to getting married, and to wedding ceremonies.

Two gold wedding
                      rings and alphabet blocks spelling out I DOFor government to recognise that a ceremony has created a binding legal change in the status of both parties, there must be compliance with provisions for notification, celebration and registration of the marriage. Both parties must also freely and willingly give unconditional consent to the marriage.

Consent is important. It is relevant to the legality of the ceremony.  It underpins and shapes the multiple subliminal messages the ceremony conveys. Therefore, celebrants need to be fully cognisant of and sensitive to, three different types of consent, Real Consent, Informed Consent, and Intimate Consent, as these apply to the ceremony, to the process of getting married, and to marriage itself.

This is not a lightweight responsibility. Unfortunately, both discussion about weddings and advertising of wedding services tend to be heavily weighted towards the romantic and the personal aspects of the ceremony, and make little distinction between the romantic, the personal, and the legal effect of those ceremonies and of marriage itself.

Real Consent

What most people understand consent in relation to marriage to be, consent given freely and willingly by someone who has both the legal and the mental capacity to give it, in Australia, we define as Real Consent. The capacity to give Real Consent requires being mentally/intellectually capable. Suffering from dementia, being under the influence of substances, legal or otherwise, including prescribed medication, or lacking the intellectual capacity to understand what marriage is, compromises that capacity.

Australian celebrants are required to refuse to proceed if we suspect that a party lacks the capacity to give real consent to the marriage or is subject to physical force, or emotional or psychologically coercion, or is being tricked into the marriage.

Giving Real Consent is not set-and-forget. Celebrants should, therefore, make sure that couples understand that

  • Neither giving notice nor completing a Notice of Intended Marriage (or, in other countries, applying for a Marriage Licence) constitutes a binding contract to marry
  • A surprise wedding, where one party makes all the arrangements and presents the wedding as a fait accompli, often proposing in front of guests as part of the surprise, raises questions about Real Consent as the circumstances constitute emotional pressure on that party to agree to go ahead
  • Getting dressed up, and walking down the aisle, no longer constitutes consent, as it did in Mediaeval times (the dark side of why the bride was marched down the aisle by her father),
  • Making a declaration that the parties know of no legal impediment, whether made during the ceremony, or made and signed before the ceremony can take place, is not binding consent
  • Saying "I Do" in those legal jurisdictions where the "I Do" or "I Will" questions are traditional but not legally binding, does not constitute consent. If, at that point, a party was to answer "No", then a celebrant should stop the wedding. Which doesn’t mean pause it for a few moments to check with the party, because the circumstance of having everyone there, expecting to witness a marriage, could be deemed to be pressure.
While parties to a marriage are required to explicitly consent, assessing whether consent is real at every part of the process requires the celebrant to be sensitive to subtle indicators that all is not well. It might be that something a party says or does suggests they are unwilling to go through with the marriage. But it might equally be something someone else says or does.

Does Real Consent matter if the ceremony is not a legal one?
I contend that it does. Where a couple is already legally married the celebrant’s legal responsibility may be diminished but moral responsibility remains. As do practical business considerations. It is not good business to be party to aiding and abetting pressure being put on an unwilling participant, regardless of whether the couple is married or not.

Participation in a non-legal ceremony that acknowledged their “couple-hood” could be cited as evidence of the existence of a common-law marriage, irregular marriage, or de facto relationship, with implications in relation to property claims or challenges to a will. In an environment where more and more couples are choosing to co-habit but not marry, the importance of what is said and done in a non-legal wedding cannot be overstated.

Informed Consent

I am continually both amazed and dismayed by how little most couples know about what the change in their status from not married to married means, despite spouses having legal rights and duties that are different from those of unmarried individuals, rights of inheritance changing on marriage, and married couples being treated differently for purposes of social welfare and immigration.

I am also dismayed by how frequently what marrying couples think they know is inaccurate or way out of date. Yet, despite the fact that marrying couples are required to give unconditional consent to marry, the term Informed Consent does not seem to have made it into celebrant vocabulary.

In Australia, celebrants are required to give marrying couples copies of the government pamphlet Happily Ever … Before and After. This publication outlines the process for legal marriage, very briefly touches on selected legal consequences of getting married (health and welfare benefits, name change, citizenship, wills, and taxation). It also vigorously promotes relationship support services, including pre-marriage education.

But it is incomplete and inadequate. It omits any mention of a fundamental difference in Australian law compared with that in other countries, the lack of any requirement for a marriage to be consummated. Many decades before forcing a spouse to have sex became a crime, our legislators decided they wouldn't make consummation a requirement of marriage as there is no way to make sure that the sex is consensual. Yet very few couples appear to be aware of this or of how recently wives were given the legal right to say no in the bedroom. As a result, I feel obligated to explain to marrying couples that
  • they are not legally required to consummate the marriage (cue lots of laughter, and exchanges of meaningful glances)
  • the only way to end the marriage is to apply for a divorce, annulment being reserved for registered marriages that were unlawful.
Informed Consent also applies to the marriage ceremony in one particular sense. Personal Promises. Personal promises constitute a couple’s commitment to how they will treat one another within the marriage. So the widespread practice of celebrants encouraging couples keep their personal promises as a surprise from one another, rather than negotiate those promises as a shared agreement, is problematical.

Personal promises usually follow the contractual promises that create the marriage. Surprise promises result in one party (whoever goes first) legally committing to the marriage in ignorance of what the other is prepared to commit to. Ninja vows, an emerging fad, where party writes the other’s promises and they have no idea what they are until they are directed to read them out loud during the ceremony, are even more disturbing. Hardly informed consent.

A Brief History
A quick overview of what marriage used to mean and why I feel celebrants should ensure that couples are aware of basic information about what it means today, may clarify why Informed Consent is important.

In 1066 Two became one was introduced to England as a literal, legal truth. Thanks to a legal fiction, the principle of coverture, by which a wife was subsumed into her husband’s identity Married women lost the rights they had enjoyed in Anglo-Saxon England under Nordic and Germanic law and became pretty well invisible to the law.

While hard-won battles have progressively returned property and other rights to married women, the idea of coverture continues to be reflected in the widespread practice in English-speaking countries of a wife assuming her husband’s surname without a legal name change (change of name by marriage). It is also, I might add, reflected in the vigorous push-back one often sees when the notion of a woman keeping her maiden name on marriage is discussed!

On a broad brush basis, the above applied in countries with legal systems based on English Common Law. In other countries, regardless of the specific legal system, the effect was remarkably similar. In Scotland, for example, both the wife’s moveable property and person was subsumed into the husband’s, while Roman-Dutch law rendered a wife a legal minor under the guardianship of her husband through the marital power doctrine.

How. and when. and to what extent. married women have gained property and other legal rights differs from legal jurisdiction to legal jurisdiction. What is common to all of them, is that it has required the reform of multiple laws, over more than a century, to replace both the supremacy of the husband and legal regulation of married women with legal equality of the spouses. Marriage Acts tend to cover only the process of getting married. For information about the legal effects of marriage itself, we have to look elsewhere.

All of which brings us to Criminal Law, the Bible and sex, discussions of which are relevant because our ceremonies, in common with those conducted by Registrars/Registry Office personnel, are based upon Western Christian norms and many accepted wedding traditions trail older beliefs in their wake.

Until very recently (1991 in England, 1980s in Australia) criminal law took the view that, by marrying him, a wife gave irrevocable consent to her husband having sex with her whenever he wanted it. Something that is regrettably (though hopefully unwittingly) to some extent reinforced in most wedding ceremonies as we know them even today.

I’m sure I’m by no means the only person who has cringed at gender role stereotyping in a wedding ceremony nor the only celebrant to whom a bride has said, “Do I have to promise to obey?” or words to that effect.

Put outdated but persistent beliefs together – that it is the duty of a wife to obey or submit to her husband (ref: Genesis and Paul’s Letter to the Ephesians) and that consent to marry is irrevocable consent to sex, and consider also the role these play in the sense of entitlement and ownership that underpins domestic abuse, and the importance of what is said and done in a wedding ceremony is thrown into high relief. Something that is being acknowledged in some, though not all, mainstream religious circles.

What happens in church circles is not irrelevant to civil ceremonies or to long-held beliefs about what a “proper” ceremony must include.

When Prince Harry and Meghan Markle married in 2018, there was much discussion in the media about the fact that she did not promise to obey. It apparently came as a surprise to many that in the 1928 Church of England revision of the marriage service made the bride promising to obey optional, as did the 1977 revision. The Church of England Archbishops Council, in Responding Well to Domestic Abuse: Policy and Practice Guidance (2006, updated 2017) acknowledges the problematic nature of the promise to obey as an expression of outmoded “theological ideas such as headship and submission”,  noted that “a mutuality expressed through the marriage … offers a better opportunity for both partners to grow and flourish”, and recommends that those who offer marriage and wedding preparation should have attended some training on issues of domestic abuse.”

The Sydney Diocese of the Anglican Church decision in 2012 to change the wording of the optional vow from obey to submit raises an issue that is applicable to every person who is “licensed to marry” in Australia. Both clergy and authorized celebrants are, in a sense, agents of the state in that they carry out the solemnization of state-sanctioned marriage. As such, neither should be party to validation of the submission of one spouse to the other as that is contrary to law.

Which brings me to my particular bugbear.

Intimate Consent

Or lack thereof.

"You may kiss your bride", expresses the giving of permission that effectively denies the right of the bride to withhold consent, in that moment. Marriage no longer makes consent by the bride irrelevant, nor does it include ongoing and irrevocable Intimate Consent, or grant a husband conjugal rights (which basically meant he owned his wife's body and could do with it what he wished, except, apparently put her eye out or kill her or beat her with a stick thicker than his thumb). Imagine the confusion of young children, perhaps attending a wedding for the first time.

For argument’s sake let’s call them Andrew and Amelia. They are both 8.
Amelia is thrilled to be present, Andrew not so much. Amelia is revelling in being dressed up. Andrew is not impressed with his outfit. At both of their schools they have been exposed to discussion about the importance of intimate consent. They’ve done role play. The children’s programming they watch on TV reinforces this. Both sets of parents have reinforced the message in age and gender-appropriate ways. And then, without any by your leave or thank you, the celebrant, a stranger, turns to the groom and gives him permission to kiss his bride. And he does. And everyone cheers and applauds.

What do you imagine is going through Andrew and Amelia’s heads?

Time for a rethink on that one.

Related Information

Thanks for reading!

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                        Jennifer Cram
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