A review of marriage celebrants has found many reciting the marriage vow incorrectly. The legalities of the Marriage Act 1961 means that this could technically render those marriages void. Crikey speaks with the president of Australian Marriage Celebrants, Keith Lammond, to find out whether your marriage could be invalid.

Which part of the vow causes the most problems?

Section 45, which states celebrants must say words to the effect of “I call upon the persons here present to witness that I, AB (or CD), take thee, CD (or AB) to be my lawful wedded wife (or husband)”. It causes problems when it is said incorrectly, or asked as a question.

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Why aren’t celebrants allowed to phrase the vow in question form?

The asking is not a legal requirement. Couples like to say “I do”, but this is purely tradition. It is insufficient for partners to say to each other ‘I do’, they have to exchange the actual words of Section 45 in order for it to be a speech act. The legal vows in asking a question are worthless, because they are only answering the question and not making a vow.

What is the monitum and why is it so important?

The monitum is a part of the ceremony in which the celebrant is obliged to state the legal definition of marriage as it occurs in the Marriage Act 1961. It outlines the terms by which one can engage in a marriage, as in section 47; “Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”

Is there a bigger risk for personalised ceremonies being performed incorrectly, as opposed to those held by a Church?

No. At some point in a personalised ceremony, the vows must be exchanged correctly. You can add words around them to make them more personal. In a civil marriage ceremony is the celebrant’s responsibility to ensure that the correct words are being used.

The reason why one may not hear the vows in a religious ceremony is because the marriage is conducted in accordance with that institution. So in mainstream churches and even smaller, non-aligned churches, vows are not necessarily used. This by no means makes the marriage invalid, because it is being conducted under the authority of the religious institution.

Fairfax reported that “almost 80% of the ceremonies the federal Attorney-General’s department examined last year did not comply with requirements”. Why is the percentage so large? Part of a celebrant’s appointment is that they are reviewed every five years by the Attorney-General’s office. The sample of 336 that was quoted in the newspaper are a small percentage of the 10, 400 celebrants that we have in Australia. The majority do the right thing.

Who will be held responsible for potentially void marriages?

Celebrant trainers should considered responsible, celebrants pay to be trained and deserve to be trained properly. All celebrants have to be professionally trained and must at least have a Certificate IV in Celebrancy after which they spend five hours a year doing ongoing professional development. The Attorney-General’s Department has a strong emphasis on training. What is sad about it is that some trainers are left wanting and this impacts on prospective celebrants.

Who has the right to make the marriages void? And will they?

The only institution that can annul a marriage in this case is the Family Court. I do not believe they will deem a marriage invalid, because the only way the marriage can be brought into question is by taking it to court. So if somebody wants to get out of a marriage and are looking for a loophole, they may try to use the excuse that their vows were invalid. It must be acknowledged that this is a loophole, but it is unlikely to be annulled on this basis in a court of law. Ultimately this is not a panic situation.