Re Sambucco

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 21421

IN THE MATTER of the Estate of Marco Sambucco (also known Mark Steven Sambucco, deceased

BETWEEN

MARA SAMBUCCO	Plaintiff
v
ODILLA SAMBUCCO (a person under disability who sues by her litigation guardian Luisa Sambucco) and Others (according to the schedule)	Applicants

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF JUDGMENT:	21 November 2022
CASE MAY BE CITED AS:	Re Sambucco
MEDIUM NEUTRAL CITATION:	[2022] VSC 699

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WILLS AND ESTATES – Revocation of grant of letters of administration – Where deceased participated in religious wedding ceremony without proper notice of intention to marry – Whether religious wedding ceremony sufficient to revoke earlier will – Whether marriage void due to absence of real consent – Marriage Act 1961 (Cth), ss 23, 42, 48, 50 - Wills Act 1997, s 13 – Official Trustee in Bankruptcy v Edwards (1997) 21 Fam LR 829; Simpson Morgan v Burreket [2009] FamCA 138; Omerdic v Angland [2018] VSCA 320.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Greenberger	Collards
For the Applicants	Mr R Boaden	Baraka Law

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The facts............................................................................................................................................... 2

Proceeding to quash marriage certificate...................................................................................... 5

The Applicants’ case in summary................................................................................................... 6

Marriage Act 1961 (Cth)..................................................................................................................... 7

Applicants’ primary contention – there was no marriage........................................................ 10

Applicants’ submissions............................................................................................................ 10
Mara’s submissions..................................................................................................................... 13
Consideration.............................................................................................................................. 21

Applicants’ alternative contention – marriage was void.......................................................... 26

Section 23B(1)(d)(ii)..................................................................................................................... 27

Applicants’ submissions............................................................................................................ 27

Mara’s submissions..................................................................................................................... 30

Consideration.............................................................................................................................. 31

Disposition........................................................................................................................................ 36

HIS HONOUR:

Introduction

In May 2019, Marco Sambucco and Mara Batur[1] decided to marry. They approached the Reverend David Rock of the Baptist Union of Victoria, the Lead Pastor at the Church by the Bay in Portarlington which they attended. The Revd D. Rock is and was an authorised celebrant under the Marriage Act 1961 (Cth) (the Marriage Act).
[1]Mara Batur changed her name to Mara Sambucco on 11 October 2019. In the interests of clarity and without intending any disrespect to the parties, I will refer to them by their first names.

On 8 June 2019, Marco and Mara participated in a ceremony conducted by the Revd D. Rock, which the Revd D. Rock has described as a ‘religious commitment ceremony’ (the ceremony). The central issue in this case is whether, by participating in this ceremony, Marco and Mara were lawfully married.

The issue arises in the following way. Marco, who had had cancer for approximately four years, died on 9 September 2019, three months after the ceremony, leaving a will made in 2015 (the Will). The Will gives the entirety of his estate to a discretionary testamentary trust in which his issue and certain companies are the primary beneficiaries. On his passing, Marco left no issue. The secondary beneficiaries under the testamentary trust are his parents, his siblings as well as their spouses and their issue, and certain companies. In December 2019, Mara estimated the net value of his estate to be about $5,300,000.

On 10 December 2019, Mara obtained from the Registry of Births, Deaths and Marriages a marriage certificate which certified that she and Marco had been married. She then applied for letters of administration to Marco’s estate on the basis that he had died intestate because the Will had been revoked by operation of s 13(1) of the Wills Act. That provision provides that ‘[a] will is revoked by the marriage of the testator’. Letters of administration to Marco’s estate were granted to Mara on 31 January 2020.

On 17 February 2021, Marco’s parents, Pier Sambucco and Odilla Sambucco, [2] and one of his siblings, Luisa Sambucco (the Applicants), filed a summons seeking the revocation of the grant of letters of administration made to Mara in respect of Marco’s estate, on the basis that the Will was not revoked by marriage.
[2]Being a person under disability, Odilla Sambucco sues by her litigation guardian, Luisa Sambucco.

It is in these circumstances that it is necessary to determinate whether or not Marco and Mara were married in the ceremony conducted by the Revd D. Rock on 8 June 2019.

The facts

The parties tendered numerous affidavits into evidence.[3] None of the deponents were required for cross-examination.
[3]The plaintiff tendered affidavits of Mara Sambucco dated 8 April 2021 and 14 February 2022, an affidavit of the Revd D. Rock dated 8 April 2021, an affidavit of Mary Petsinis dated 12 April 2021, an affidavit of Angelo Biviano dated 12 April 2021, an affidavit of Enio Centofanti dated 12 April 2021, an affidavit of Nadia Centofanti dated 12 April 2021, an affidavit of Maxwell Birch dated 13 April 2021, and an affidavit of Steven Birch dated 13 April 2021. The Applicants tendered affidavits of Luisa Sambucco dated 16 February 2021 and 12 May 2021, an affidavit of Mara Sambucco dated 7 September 2020, and an affidavit of the Revd D. Rock dated 8 September 2020.

As I have noted, by May 2019, Marco and Mara, who were in a domestic relationship, decided to marry. On 5 May 2019, they spoke with the Revd D. Rock about their decision and asked him to officiate at their wedding ceremony. The Revd D. Rock told them that they would need to fill in a ‘notice of intention to marry’. Such a notice is dealt with by s 42 of the Marriage Act.[4]
[4]See [34] below.

The Revd D. Rock subsequently provided Marco and Mara with a notice of intention to marry which they completed and signed on 20 May 2019. The notice specified that the date of their marriage would be 13 July 2019, and that he would be the celebrant.

Soon after Marco and Mara signed the notice of intention to marry, they discovered that Marco’s cancer treatment had not been effective. They decided to seek urgent medical treatment overseas, with the consequence that they would not be in Australia on their scheduled wedding date.

Marco and Mara spoke with the Revd D. Rock about their predicament. They told him that they needed to depart Australia on 14 June 2019[5] and asked him whether he would be willing to perform a religious wedding ceremony on 8 June 2019. They told him that it would be a small gathering of their closest relatives and friends, and that they intended to have another wedding ceremony after they returned from overseas when they could involve a much larger circle of friends and relatives in their celebration. They also discussed that they would need to complete a new notice of intention to marry after they returned from overseas. As the Revd D. Rock stated in his evidence, they ‘discussed having a later wedding ceremony with all the necessary documents required by law’.
[5]Their departure was subsequently delayed until 21 June 2019.

In her affidavit evidence, Mara states that, during this discussion with the Revd D. Rock, he agreed to conduct a ‘religious wedding service’. In his affidavit, the Revd D. Rock states that he agreed to conduct a ‘commitment ceremony’.

After this discussion, the Revd D. Rock destroyed the notice of intention to marry which Marco and Mara had previously completed because he thought it was no longer required as it specified 13 July 2019 as the date of marriage. Mara and Marco did not know of the possibility of obtaining permission to sign a notice of intention to marry which provided for less than 30 days’ notice of an intended marriage.[6]
[6]See s 42(5) of the Marriage Act and paragraphs [34] and [37] below.

The Revd D. Rock conducted the ceremony for Marco and Mara on 8 June 2019 in the presence of a group of a dozen or so family members and close friends. Mara described this as a ‘religious wedding ceremony’:

Our religious wedding ceremony certainly felt to Marco and me like a marriage, and we felt that we were married in the eyes of God. The wedding service was conducted by our Pastor David Rock, and the vows we made, as well as the remarks and readings made by Reverend Rock left us convinced that we were married. In relation to the vows, Reverend Rock read out each of the vows to Marco and me, and we each responded “I do". We did not exchange rings, as the rings we were having made, were not ready yet. At the conclusion of the service, everyone congratulated us on our marriage, and referred to the fact that we were now married. They threw rice, confetti and popped crackers.
Nevertheless, Marco and I were aware that we had not complied with the requirement for giving the NOIM and signing a wedding certificate, and we fully intended to repeat the wedding ceremony at a later date after giving the NOIM, and we would then sign a wedding certificate.

Mara’s evidence was that, at the conclusion of the ceremony, she and Marco considered that they were married according to their religious beliefs. However, they intended to hold ‘a more formal rerun of our wedding’ at a later date in the presence of a greater number of friends and relatives. She was aware that, when they participated in the ceremony, they were not complying with the ‘documentary requirements of a marriage’, but intended and expected to do so at the later wedding ceremony. Then, ‘[they] would sign all the relevant paperwork, and if there was any defect it would then be rectified’.

In his affidavit, the Revd D. Rock describes the ceremony as a ‘religious commitment ceremony’. In conducting the religious commitment ceremony, he states that he was giving effect to Marco and Mara’s request that they be married before God in accordance with their religious beliefs. The notes which the Revd D. Rock prepared and from which he read during the ceremony include a number of references to ‘marriage’ and the exchange of vows by Marco and Mara.

Importantly, the ceremony conducted by the Revd D. Rock accorded with the form and ceremony recognised as sufficient for the purpose of marriage by The Baptist Union of Australia.

At the conclusion of the ceremony, the Revd D. Rock considered that Marco and Mara were married in the eyes of God. However, he:

… was conscious of the fact that there was no [notice of intention to marry] in place, and so I was careful to avoid making any suggestion that Marco and Mara were being married according to law. Indeed, my understanding was that without a [notice of intention to marry] and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act1961, there could not be a marriage which was valid according to law. However, I intended that the marriage ceremony would satisfy the religious requirements shared by me, Marco and Mara. After the ceremony it was made clear to me by Marco and Mara they also considered themselves to be married before God as a result of the ceremony I performed.

Whilst they were overseas, Marco and Mara advised the Revd D. Rock that they intended to hold the further wedding ceremony on 21 September 2019.

After returning from overseas on 13 August 2019, Marco was admitted to hospital a few days later. Soon after, Marco arranged for a pastor to bless his and Mara’s wedding rings, and on 5 September 2019 they conducted an exchange of rings in the hospital room where Marco was a patient. Marco passed away on 9 September 2019.

After Marco died, Mara’s solicitors requested that the Revd. D Rock provide a certificate as to their religious marriage ceremony so that Mara could obtain a certificate of marriage. The Revd D. Rock prepared a ‘Certificate of Commitment’ which recorded that he had conducted ‘a Christian ceremony of commitment to bless the relationship between Marco Sambucco and Mara Batur’ on 8 June 2019. His evidence was that, in preparing this certificate, although he was confirming a ‘religious marriage’, he did not want to call it a ‘certificate of marriage’ because that was the title of the certificate provided for under the Marriage Act. He called it a ‘Certificate of Commitment’ to differentiate it from a certificate of marriage.

On 25 September 2019, Mara applied to the Registrar of Births, Deaths and Marriages (the Registrar) seeking, on compassionate and/or other grounds, that the Registrar issue her a marriage certificate recording that she and Marco had been married on 8 June 2019.

On 10 December 2019, the Registrar issued a marriage certificate which recorded that Mara and Marco had married on 8 June 2019.

Proceeding to quash marriage certificate

Prior to the filing of the summons for revocation, an application was brought in the Court by the deceased’s brother, Robert Sambucco, seeking an extension of time to bring proceedings to quash the decision of the Registrar to register the marriage and to issue a marriage certificate in respect of Marco and Mara.

Justice Quigley found that exceptional circumstances did not exist to grant an extension of time, by reference to both the insufficiency of the circumstances, and also the merits and utility of the proposed application.

In her analysis of the relevant provisions of the Marriage Act, Quigley J found that the making by the Registrar of an entry in the Register of Marriages and issue of a marriage certificate was not determinative of whether a marriage was validly solemnised. The maintenance of the Register was an administrative obligation of the Registrar, whose role was to be satisfied that there were reasonable grounds to form the belief that a registrable event had taken place. Quigley J declined to require the Registrar to undertake a ‘detailed and forensic enquiry as to whether without any doubt a marriage has taken place’,[7] including a more detailed consideration of the parties’ intentions, the formal requirements of the relevant religion, and evidence from witnesses to the ceremony. Such lines of enquiry were beyond the function of the Registrar, or a court reviewing the decision of the Registrar.[8] Her Honour considered that proceedings to prove the will, or to challenge the plaintiff’s grant of letters of administration, would be more appropriate vehicles for determining the validity of the marriage.[9]

The Applicants’ case in summary

[7]Sambucco v Registrar of Births, Deaths and Marriages Victoria & Ors [2020] VSC 889, [91].

[8]Ibid [60].

[9]Ibid [100].

The primary submission advanced by the Applicants was that the ceremony was not a legally effective marriage ceremony because the formalities prescribed by the Marriage Act were not observed. The central propositions on which this submission was based were that, because Marco and Mara believed that they could not be lawfully married in the ceremony on 8 June 2019, they decided, in conjunction with the Revd D. Rock, to participate in a ‘religious’ ceremony before they departed overseas which would see them ‘married in the eyes of God’. Later, upon their return to Australia, they intended that the Revd D. Rock would marry them in a ‘legal’ wedding ceremony.

In the alternative, the Applicants contended that, even if the prescribed formalities for marriage were observed, the marriage was void under s 23B(1) of the Marriage Act, either because it was not a valid marriage, or because Marco and Mara had not given their ‘real consent’ to the marriage because they were mistaken as to the nature of the ceremony performed.

I will separately address each of these contentions after setting out the statutory framework.

Marriage Act 1961 (Cth)

‘Marriage’ is defined by s 5(1) of the Marriage Act to mean ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’.

Part IV of the Marriage Act is entitled ‘Solemnisation of marriages in Australia’. Division 1 therein deals with ‘Authorised celebrants’; they are either Ministers of Religion,[10] certain State and Territory officers,[11] or Marriage Celebrants.[12]
[10]Marriage Act, sub-div A.
[11]Marriage Act, sub-div B.
[12]Marriage Act, sub-div C.

Division 2 of Part IV, entitled ‘Marriages by authorised celebrants’, is central to this proceeding. Subject to certain presently immaterial exceptions, it applies to all marriages solemnised, or intended to be solemnised, in Australia.[13] All of the provisions referred to in the following paragraphs are within Division 2 of Part IV.
[13]Marriage Act, s 40.

Section 41 provides that:

41 Marriages to be solemnised by authorised celebrant
A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorised to solemnise marriages at the place where the marriage takes place.

Section 42 prescribes certain notice requirements. As presently relevant, they include the following:

42 Notice to be given and declaration made
(1) Subject to this section, a marriage shall not be solemnised unless:
(a)notice in writing of the intended marriage has been given in accordance with this section and has been received by the authorised celebrant solemnising the marriage not earlier than 18 months before the date of the marriage and not later than 1 month before the date of the marriage;

...

(2) A notice under subsection (1):
(a) must contain such particulars in relation to the parties as are prescribed; and

(b) must be signed by each of the parties; and
(c) if a party signs the notice in Australia--must be signed in the presence of:
(i) an authorised celebrant; or

...
(5)Despite a notice required by subsection (1) having been received later than 1 month before the date of the marriage, a prescribed authority may authorise an authorised celebrant to solemnise a marriage if the authority is satisfied that one or more of the circumstances prescribed in the regulations have been met.

...
(8) An authorised celebrant shall not solemnise a marriage:
(a)unless the authorised celebrant has satisfied himself or herself that the parties are the parties referred to in the notice given under this section in relation to the marriage; or

… .

Section 44 provides that:

44 Witnesses
A marriage shall not be solemnised unless at least 2 persons who are, or appear to the person solemnising the marriage to be, over the age of 18 years are present as witnesses.

Section 45 deals with the form of ceremony to be observed where: (1) a marriage is solemnised by or in an the presence of an authorised celebrant who is a minister of religion; and (2) where the celebrant is not a minister of religion. As to the first category, it provides as follows:

45 Form of ceremony
(1) Where a marriage is solemnised by or in the presence of an authorised celebrant, being a minister of religion, it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.

…
(3)Where a marriage has been solemnised by or in the presence of an authorised celebrant, a certificate of the marriage prepared and signed in accordance with section 50 is conclusive evidence that the marriage was solemnised in accordance with this section.

(4) Nothing in subsection (3) makes a certificate conclusive:
(a) where the fact that the marriage ceremony took place is in issue - as to that fact; or
(b)where the identity of a party to the marriage is in issue - as to the identity of that party.

Section 48 provides as follows:

48 Certain marriages not solemnised in accordance with this Division to be invalid
(1)Subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage.

(2) A marriage is not invalid by reason of all or any of the following:
(a)failure to give the notice required by section 42, or a false statement, defect or error in such a notice;
(b)failure of the parties, or either of them, to make or subscribe a declaration as required by section 42, or a false statement, defect or error in such a declaration;
(c)failure to produce to the authorised celebrant a certificate or extract of an entry or a statutory declaration as required by section 42, or a false statement, defect or error in such a statutory declaration;
(d)failure to comply with any other requirement of section 42, or any contravention of that section;

(e) failure to comply with the requirements of section 44 or 46;
(f) failure to comply with the requirements of section 13.
(3) A marriage is not invalid by reason that the person solemnising it was not authorised by this Act to do so, if either party to the marriage, at the time the marriage was solemnised, believed that that person was lawfully authorised to solemnise it, and in such a case the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.

Section 50 deals with marriage certificates and relevantly provides as follows:

50 Marriage certificates
(1)Where an authorised celebrant solemnises a marriage, the authorised celebrant shall:
(a)prepare a certificate of the marriage, in accordance with the prescribed form, for the purpose of issue to the parties to the marriage; and

(b) prepare 2 official certificates of the marriage.
...
(2)Immediately after the solemnisation of the marriage, the authorised celebrant, each of the parties to the marriage and 2 witnesses of the marriage who are, or appear to the authorised celebrant to be, over the age of 18 years shall sign each of the certificates so prepared.
(3)One of the official certificates or the official certificate, as the case may be, shall be on the reverse side of the paper bearing the declarations made by the parties under section 42.

…
(5) Where the authorised celebrant dies without having prepared and signed the certificates of the marriage, or where by reason of other special circumstances the Minister thinks it necessary to do so, the Minister may, if satisfied that the marriage was duly solemnised, prepare and sign the certificates with such modifications as are appropriate.
(6) A certificate prepared and signed by the Minister under subsection (5) has the same force and effect as if it had been prepared and signed, in accordance with this section, by the authorised celebrant.

… .

Applicants’ primary contention – there was no marriage
Applicants’ submissions

The Applicants submitted that the formalities prescribed by the Marriage Act were not observed in the ceremony and the events which preceded it.

Section 42(1)(a) of the Marriage Act provides that a marriage ‘shall not be solemnised’ unless notice in writing of the intended marriage has been given in accordance with s 42 to the authorised celebrant, not later than one month before the date of the marriage. Because Marco, Mara and the Revd D. Rock were all aware that a legal marriage could not occur in the absence of a proper notice, they recognized that a legal marriage was not possible and settled for something different – a ceremony of commitment, or a ‘religious’ marriage (in contradistinction to a ‘legal’ marriage).

The written notice of intended marriage that was in fact given, was given to the Revd D. Rock on 20 May 2019. The ceremony was conducted on 8 June 2019, less than one month after the giving of the notice. Although a ‘prescribed authority’[14] could have authorised a celebrant to solemnise a marriage with the giving of less than one month’s notice,[15] no steps were taken to abridge the period of notice required by s 42(1)(a).
[14]Defined by s 5(1) of the Marriage Act to mean an officer or employee of the Commonwealth, a State or a Territory, appointed by the Minister to be a prescribed authority.
[15]Under s 42(5) of the Marriage Act, but only if the authority ‘is satisfied that one or more of the circumstances prescribed in the regulations have been met’.

Section 42(8)(a) of the Marriage Act provides that an authorised celebrant ‘shall not solemnise a marriage’ unless satisfied that the parties are those referred to in the notice of intention to marry. Such a notice is therefore essential and the Revd D. Rock was directed by the legislation not to solemnise a marriage in the absence of such a notice. The Revd D. Rock was aware that, in the circumstances which attended to the ceremony, he was not to solemnise a legal marriage, and he took steps not to create any false impression that he was doing so.

The Applicants also referred to s 50(1) of the Marriage Act and submitted that, where an authorised celebrant solemnises a marriage, he or she is required to prepare two ‘official certificates’ of the marriage, and s 50(2) requires the parties to the marriage and the two witnesses to sign each of those certificates. Because he was anxious to avoid giving the misleading impression that the ceremony was a marriage ceremony, no official certificate of marriage was prepared by the Revd D. Rock. It was submitted that the Revd D. Rock was astute not to even use the word ‘marriage’ in connection with the ceremony. Neither Marco nor Mara, nor any witnesses, signed any official certificate.

The Applicants acknowledged that s 48(2) of the Marriage Act ‘rescues’ many marriages from invalidity where the prescribed formalities have not been observed.[16] However, s 48(3) did not ‘rescue’ the ceremony because it was not, and was not intended to be, a marriage ceremony.
[16]It operates to rescue a marriage where: the necessary notice of intention to marry was not given; the parties failed to make the necessary declaration in the notice; the parties failed to produce the necessary declaration to the celebrant; the parties failed to comply with any other requirement of s 42; the parties failed to comply with the requirements of s 44 (requirement for witnesses) or s 46 (celebrant is required to explain the nature of the marriage relationship); and where the parties failed to comply with the requirements of s 13 (marriage of minor requires parental consent).

If the failure to give the necessary notice of intention to marry had been the only defect in the ceremony, this would not have invalidated the marriage. But the significance of the absence of the necessary notice was not that this, ipso facto, rendered the marriage invalid: its significance was that Marco, Mara, and the Revd D. Rock all believed that, in the absence of a notice, it was not possible for the Revd D. Rock to marry Marco and Mara on the day the ceremony was conducted.

Similarly, if the parties to a marriage believed that the celebrant was lawfully authorised to solemnise the marriages, s 48(3) would operate to rescue the marriage from invalidity if the person solemnising it was not authorised by the Marriage Act to do so. However, none of the Revd D. Rock, Marco or Mara had any belief that the Revd D. Rock was authorised to solemnise their marriage on 8 June 2019; that was why they asked him to conduct a religious ceremony of commitment. Therefore, what took place on 8 June 2019 was, and was intended to be, a religious ceremony, being deliberately different and distinct from a legal marriage ceremony. It was a ‘marriage before God’, not a marriage before two witnesses as required by s 44.

The Applicants submitted that the fact that the Revd D. Rock did not intend to legally marry Marco and Mara (as opposed to marrying them in a religious sense) was evident, not only from the evidence of their intentions as set out in the affidavits, but also from their objective actions. In particular, the Applicants noted that:

(a) Although they saw themselves as ‘married before God’, and as being ‘committed’ to one another, Marco and Mara planned to legally marry on 21 September 2019. That was to be the occasion on which, and the ceremony by which, they would become married in the eyes of the law.

(b) In accordance with the legal requirements, Marco and Mara and the Revd D. Rock all intended that the required notice of intention to marry would be given prior to the marriage in September 2019.

(c) The Revd D. Rock carefully refrained from describing the ceremony as a marriage, even though he followed the Rites of the Baptist Church in tailoring his religious ceremony of commitment.

(d) The Revd D. Rock did not prepare, and no-one signed, the two marriage certificates which are required by s 50 to be prepared by the celebrant, and signed by both parties to the marriage.

For the above reasons, there was no ‘marriage’ in the legal sense between Marco and Mara. The only ‘marriage’ effected by the ceremony was their religious commitment before God.

Mara’s submissions

It was submitted on behalf of Mara that the vows she and Marco made in the ceremony were real vows. The script followed by the Revd D. Rock made numerous explicit references to marriage and made it clear that he was performing a marriage ceremony. The religious marriage ceremony that the Revd D. Rock, Marco and Mara participated in was transformative: it transformed Marco and Mara from unmarried individuals, into a married couple who were committed to each other exclusively, for life, to the exclusion of all others. The Revd D. Rock conducted a genuine marriage ceremony, in conformity with the Rites of the Baptist Union of Australia. During the ceremony, the Revd D. Rock did not say that the ceremony was not a marriage ceremony, and it included numerous references to the sacred nature of marriage. He declared them to be husband and wife. Marco and Mara believed they were married.

Marco and Mara were mature adults who wanted to be married in the ceremony so that they would be married when they departed overseas a few days later for Marco’s medical treatment. They were not acting thoughtlessly or impulsively. There was no reason to doubt that they understood the solemnity and seriousness of the ceremony. This was not a sham marriage. Marco and Mara were not pretending or rehearsing.

The circumstances which led to the ceremony being held on 8 June 2019, and the circumstances in which Marco and Mara found themselves at that time, of which the Revd D. Rock was fully aware, were said to conclusively establish that Marco and Mara intended to become married to each other by way of the ceremony held that day. In particular, when Marco and Mara found out that they would be travelling overseas for Marco’s medical treatment, and would not be able to proceed with the original wedding date of 13 July 2019, they did not take the simple step of postponing their wedding to a later date. Instead, they arranged with the Revd D. Rock to bring forward their wedding, as they wished to be married before they travelled overseas. They asked him to go to the trouble of conducting a marriage ceremony and they invited their nearest friends and relatives to attend. It was submitted that they would not have done this if their intention was not to become married on that occasion, but only to become married at a later ceremony.

Two of the key contentions advanced on behalf of Mara were that the provisions of the Marriage Act operate so as to:

(a) give legal recognition to a religious wedding ceremony conducted by a registered marriage celebrant who is a minister of religion; and

(b) give such legal recognition notwithstanding the failure by the celebrant and the parties to comply with the requirements to provide various documents specified in the Marriage Act.

In particular, it was submitted that a marriage ceremony performed in conformity with s 45(1) of the Marriage Act can justifiably be variously described as a ‘religious marriage’, a ‘religious marriage ceremony’, a ‘religious commitment ceremony’, or as a ‘marriage before God’. None of those descriptions negates the legal validity of a marriage ceremony performed in conformity with s 45(1). By virtue of s 45(1), such a religious marriage ceremony is automatically a legal marriage; it is by definition a legal marriage.

Importantly, the religious marriage ceremony prescribed by s 45(1) of the Marriage Act (or alternatively, the civil ceremony prescribed by s 45(2) of the MarriageAct in the case of a civil marriage), is the only indispensable statutory requirement necessary to solemnise or constitute a marriage between two people who are entitled to marry each other. Nothing more is required and nothing else will suffice. Absolute legal significance is given to the marriage ceremony, whether religious or civil.

As to the provision made by the Marriage Act in relation to documents, Mara submitted that the combined effect of ss 42(1)(a), (b) and (c), and 48(1) and (2), was as follows:

(a) Section 42(1)(a) says a marriage shall not be solemnised unless a notice of intended marriage has been given to the celebrant, but s 48(2)(a) provides that a marriage is not invalid by reason of the failure to do so.

(b) Section 42(1)(b) says a marriage shall not be solemnised unless each of the parties provides to the celebrant an official document or extract of an entry in a register as to their date of birth, or a statutory declaration as to impracticability of obtaining such a document or extract, but s 48(2)(c) provides that a marriage is not invalid by reason of the failure to do so.

(c) Section 42(1)(c) says a marriage shall not be solemnised unless each of the parties provides to the celebrant a declaration as to conjugal status, absence of legal impediment, and such other matters prescribed, but s 48(2)(b) provides that a marriage is not invalid by reason of the failure to do so.

(d) Section 48(2)(d) provides that a marriage is not invalid by reason of a failure to comply with any other requirement of s 42, or any contravention of that section.

(e) Sections 42(2)(e) and (f) protect a marriage from invalidity by reason of non-compliance with certain other matters which do not arise in the present case.

It was submitted that the explanation for the apparent paradox whereby s 42(1) prescribes certain requirements for which non-compliance is then excused by s 48(2) is that none of the documents referred to above is an element or ingredient of a marriage per se. The notice of intended marriage is precautionary and facilitative. It is a precaution against an impulsive decision to get married (and can be abridged in urgent circumstances), and a precaution against the risk that the parties are related to each other, within a prohibited relationship, or that one or more of the parties are not of marriageable age.[17] It facilitates the marriage by providing the celebrant with background information as to the identity of the parties. The declaration as to conjugal status, absence of legal impediment, and such other matters prescribed is a precaution against the risk of a bigamous marriage,[18] or marriage by people within a prohibited relationship.[19] The requirement to provide a birth certificate[20] to the authorised celebrant is a precaution against a person below the marriageable age getting married[21] or doing so without parental consent,[22] and confirms the identity of the person.
[17]Marriage Act, s 23B(1)(e).
[18]Marriage Act, ss 23B(1)(a) and 94(1).
[19]Marriage Act, s 23B(1)(b).
[20]Or equivalent documentation evidencing each party’s date of birth.
[21]Marriage Act, s 11.
[22]Marriage Act, s 13.

It follows that the absence of any one or more of the above documents does not of itself detract from the validity of a marriage ceremony, if the ceremony conforms with s 45(1) of the Marriage Act (and assuming the parties are not prohibited from marrying because they are already married, or in a prohibited relationship with each other).

As to the fact that, contrary to the requirements imposed by s 50 of the Marriage Act, no marriage certificate was prepared or signed by Marco and Mara, it was submitted that the Act does not provide that such a failure affects the validity of a marriage. This was because a marriage certificate is not an element or ingredient of a marriage, and only comes into existence after the marriage ceremony has taken place. Its purpose is evidentiary; it is intended to create a documentary record of the marriage and to prove the marriage for the purpose of registration of the marriage under the Births, Deaths and Marriages Registration Act 1996 (the BDMR Act). In any event, the failure to comply with s 50 was submitted to be irrelevant because, pursuant to ss 32 and 33 of the BDMR Act, the lodging of a certificate of marriage under the Marriage Act is not a requirement for the registration of the marriage under the BDMR Act.[23]
[23]Part 5 of the BDMR Act, entitled ‘Registration of marriages’, relevantly includes the following provisions:
Part 5—Registration of marriages
31        Cases in which registration of marriage is required
If a marriage is solemnised in the State, the marriage must be registered under this Act.
32        How to have marriage registered
A person may have a marriage registered by lodging with the Registrar a certificate of the marriage under the Marriage Act 1961 of the Commonwealth … .
33        Registration of marriage
A marriage may be registered by-
…
(b)including particulars of the marriage in the Register.

It was submitted on behalf of Mara that the overall effect of the provisions of the Marriage Act was clear. Two adult, unmarried, people who intend to marry by way of a religious ceremony, and who are not prohibited from getting married to each other, are required to do no more than take part in a ceremony for that purpose whereby that union is solemnised by or in the presence of an authorised celebrant, including a minister of religion, according to any form and ceremony recognised as sufficient for that purpose by the religious body or organisation of which the celebrant is a minister. The effect of doing so is that the marriage is automatically a marriage according to law.

It was submitted that the Applicants’ submissions proceeded from a false dichotomy between ‘a legal marriage’, in contrast to a ‘religious marriage’, or a ‘religious commitment ceremony’, or a ‘marriage before God’. Rather, the correct analysis is that a ceremony which conforms with s 45(1) of the Marriage Act qualifies as a ‘legal marriage’ and as a ‘religious marriage’, or a ‘religious commitment ceremony’, or ‘a marriage before God’, these descriptions being entirely interchangeable and without difference. None of those descriptions appear in the text of s 45(1) of the Marriage Act, including the descriptor ‘legal marriage’. The section merely defines the form of ceremony which is required for a ‘marriage’.

It was submitted that it would be contrary to public policy to construe s 45(1) in the way contended by the Applicants, specifically a construction resulting in two people being bound in marriage for life, to the exclusion of all others, according to their religious beliefs but which is not recognised by the law, even though the ceremony conformed with the requirements of that sub-section. It would mean that, for religious reasons, the parties would be unable to marry another person without a divorce, yet divorce would not be available under the Family Law Act 1975 (Cth) as the parties would not be ‘legally married’. Moreover, it was submitted that parties to a marriage, which was effective on religious grounds, might later seek to have it annulled, but could not necessarily be able to have it annulled.

Mara submitted that there could be undesirable consequences if a ceremony of marriage which complied with s 45(1) might nevertheless be treated as though it were not a legal marriage on the basis that the parties intended it be a ‘religious marriage’ only, but not a legal marriage. An example given was in relation to the law prohibiting bigamy dealt with by ss 94(1) and (4) of the Marriage Act which establish the following offences:

94Bigamy
(1)A person who is married shall not go through a form or ceremony of marriage with any person.

…
(4)A person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married.
… .

The clear purpose of these provisions is to criminalize bigamy by prohibiting a married person from going through ‘a form or ceremony of marriage’, which must be understood as a reference to either a religious marriage ceremony pursuant to s 45(1), or a civil marriage ceremony pursuant to s 45(2). That purpose could be subverted if the Court were to accept the false dichotomy between a religious marriage where the parties do intend to be married according to law, and a religious marriage where the parties do not intend to be married according to law. If the person solemnising a bigamous marriage intended it to operate as a ‘religious marriage’ only, and not a marriage according to law, that person could also circumvent the prohibition in s 100 of the Marriage Act that:

100Solemnising marriage where reason to believe there is a legal impediment
A person shall not solemnise a marriage, or purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.

It was submitted that the fact that, in conducting the ceremony, the Revd D. Rock avoided making any suggestion that Marco and Mara were being married according to law was of no moment. There was no requirement for the Revd D. Rock to say that Marco and Mara were being married ‘according to law’. Moreover, he did not say that Marco and Mara were not being married according to law. These matters did not alter the nature of the ceremony.

It was submitted that the Revd D. Rock’s evidence that the ceremony was a marriage ceremony which conformed with the Rites of the Baptist Union of Australia was absolutely clear. Further, the discussions he had with Marco and Mara regarding the ceremony to be held on 8 June 2019 described a ceremony which was a marriage ceremony. It was submitted that the Revd D. Rock’s preference to describe the ceremony as a ‘religious commitment ceremony’ was a reflection of his desire to avoid making any suggestion that all the legal requirements relating to documents required prior to the ceremony were complied with. That did not, however, have the effect that the ceremony itself was not legally effective as a marriage.

Mara submitted that, by taking part in a ceremony which conformed with s 45(1) of the Marriage Act conducted by the Revd D. Rock on 8 June 2019, and by what she and Marco said and did in the course of that ceremony, they manifested an intention to become married then and there. The mere fact that they were aware that they had not complied with the requirement to give a notice of intention to marry, that they did not sign a wedding certificate, and that they intended to repeat the wedding ceremony at a later date after the required notice giving, cannot negate the effect of the ceremony which conformed with s 45(1).

Mara’s counsel took issue with the Applicants’ submission that the Revd D. Rock believed he could not marry the couple and submitted that the evidence did not support that claim (or the claim that Marco and Mara believed that they could not be married by the Revd D. Rock). On the contrary, the Revd D. Rock agreed to their request for him to marry them before they went overseas and he proceeded to conduct a marriage ceremony in conformity with the Rites of the Baptist Union of Australia. His preference to describe it as a religious commitment ceremony did not alter these facts.

Mara’s counsel also challenged the Applicants’ submission that the intention of Mara, Marco and the Revd D. Rock was that, later, the Revd D. Rock would marry them in a ‘legal wedding ceremony’. The Revd D. Rock’s precise evidence was that they ‘discussed having a later legal wedding ceremony with all the necessary documents required by law, after Marco and Mara returned from overseas’. The Revd D. Rock did not say that he would ‘marry them’ in the later ceremony. Merely repeating the ceremony later, if that were to occur, would not negate the original ceremony if it was valid as a marriage. The reference to ‘a later legal wedding ceremony’, simply meant that the future ceremony might be used as an occasion for completing any documentary requirements, if legally required at that stage. The fact that the intention of all three persons was to hold a religious ceremony, and that they discussed having a later legal wedding ceremony so that Marco and Mara could share the celebration with a greater number of their relatives and friends, and so that they could complete the paperwork which they incorrectly assumed was necessary, cannot negate the effect of the ceremony which conformed with s 45(1) of the Marriage Act. The ceremony simultaneously fulfilled their religious and legal requirements.

Mara submitted that there is no basis in the Marriage Act for requiring the parties to a ceremony to have a specific or separate intention to be married ‘according to law’, as contended by the Applicants. Section 45(1) is silent in relation to intention. The intentions of Marco and Mara to become married were manifest from their actions in participating in a ceremony which conformed with s 45(1) of the Marriage Act and by what they said in the course of that ceremony. It was sufficient that Marco and Mara understood that they were being married by virtue of their participation in the ceremony.

Consideration

The starting point in ascertaining the legal validity of Marco and Mara’s marriage is the terms of s 48(1) of the Marriage Act which states that, ‘subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage’.[24] As submitted on behalf of Mara, and as counsel for the Applicants properly acknowledged, s 48(2) saves a marriage from invalidity by reason of non-compliance with the various formal requirements prescribed by the preceding provisions in Division 2 of Part IV of the Marriage Act. The Applicants’ case, insofar as it fixed upon non-compliance by Marco and Mara with the ‘formalities’ prescribed by the Marriage Act, must therefore fail.
[24]Emphasis added.

It is notable that ss 41 and 45 do not appear in the catalogue of provisions listed in s 48(2) for which non-compliance is excused. Given the terms of s 48(1) referred to above, and the absence of any other requirements imposed by ss 41-47 for which non-compliance is not excused, ss 41 and 45 comprise that which is essential to the validity of a marriage.

Section 41 stipulates that, ‘A marriage shall be solemnised by or in the presence of an authorised celebrant who is authorised to solemnise marriages…’ and s 45 prescribes the form of ceremony by which this is to occur. In the case of a marriage to be solemnised by a minister of religion, s 45(1) provides that ‘… it may be solemnised according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister.’

I accordingly accept the submission advanced on behalf of Mara that a religious marriage ceremony of the type prescribed by s 45(1) of the Marriage Act (or alternatively, the civil ceremony prescribed in s 45(2) of the Marriage Act in the case of a civil marriage), is the only indispensable requirement expressly identified by the Marriage Act which is necessary to solemnise a marriage between two people who are entitled to marry each other.

That requirement was fulfilled in the circumstances of this case. In early May 2019, Marco and Mara told the Revd D. Rock about their decision to marry and asked him to officiate at their wedding ceremony. There is no suggestion that their intention to marry was anything but genuine. The Revd D. Rock conducted the ceremony on 8 June 2019, a date earlier than Marco and Mara had planned because of the decision to seek urgent medical treatment for Marco overseas. The Revd D. Rock was properly authorised to solemnise marriages. Because the ceremony he conducted conformed with the form and ceremonial requirements for marriage prescribed by The Baptist Union of Australia, the ceremony solemnised Marco and Mara’s marriage consistent with the requirements imposed by ss 41 and 45(1), thereby giving it validity at law by operation of Division 2 of Part IV of the Marriage Act.

This analysis is unaffected by the Revd D. Rock’s erroneous understanding about what was required for the legal validity of a marriage under the Marriage Act. The fact that he mistakenly believed that, without a notice of intention to marry and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act, there could not be a valid marriage according to law, cannot alter the operation of the statutory provisions to the facts. Put another way, the misunderstanding under which the Revd D. Rock laboured cannot negate the effect of the ceremony he performed under the provisions of the Marriage Act, which was, and was intended to be, a ceremony of marriage according to the Rites of the Baptist Union of Australia, and thus a valid marriage ceremony according to law.

It is apparent from the Revd D. Rock’s evidence in [18] above that his description of the ceremony as a ‘religious commitment ceremony’ reflected his misunderstanding about the requirements under the Marriage Act. It was for the same reason that he prepared a ‘certificate of commitment’, rather than a ‘certificate of marriage’. The taking of these actions by the Revd D. Rock to avoid suggesting that all the requirements of the Marriage Act had been complied does not alter the fact that the ceremony itself was legally effective as a marriage by operation of ss 41, 45(1) and 48, as explained above.

The same applies to the fact that, when the ceremony was conducted, Mara, Marco and the Revd D. Rock had the mutual understanding that the Revd D. Rock would officiate at a later ‘legal’ wedding ceremony for Marco and Mara after their return from overseas. Again, this intention speaks of the misconception upon which all three proceeded in terms of the documentary requirements they believed were imposed by the Marriage Act and cannot negate the effect of the ceremony which conformed with s 45(1) of the Marriage Act.

The Applicants seek to resist this analysis by grafting onto the text of the Marriage Act an additional necessary element of intention: that a couple must intend to participate in a ‘legal’ marriage ceremony under the Marriage Act, as distinct from intending to participate in a religious ceremony in the nature of a ‘marriage before God’.

This submission finds no support in, and is inconsistent with, the text of the Marriage Act. The framework established by the Marriage Act does not distinguish between marriages of the type provided for by its terms and other types of unions or ceremonies. To the contrary, in relation to a marriage solemnised by a minister of religion, s 45(1) provides that it may be solemnised according to ‘any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister’. In this way, rather than distinguishing between ‘legal’ and ‘religious’ marriages, the Marriage Act gives legal recognition to marriages which accord with recognised religious rites. A religious ceremony which conforms with s 45(1) qualifies as a marriage under the Marriage Act. I agree with the submissions made on behalf of Mara that the Applicants’ submissions proceed from a false dichotomy between ‘legal’ and ‘religious’ marriages which is not reflected in the provisions of the Marriage Act.

The Applicants’ submission also proceeds from the false premise that, in determining the validity of a marriage under the Marriage Act, it is necessary to assess the particular nature of the intention which two people have to marry.

Other than s 42, which deals with the giving of a notice of intention to marry,[25] the only reference to ‘intention’ in Part IV of the Marriage Act is in s 48(3), which provides that a marriage is not invalid by reason that the person solemnising it was not authorised to do so, if either party to the marriage believed that that person was lawfully authorised to solemnise it. In that event, the sub section states that the:

… the form and ceremony of the marriage shall be deemed to have been sufficient if they were such as to show an intention on the part of each of the parties to become thereby the lawfully wedded spouse of the other.

[25]Non-compliance with which is excused by s 48(2)(a) of the Marriage Act.

There words confirm the unsurprising proposition that an intention to marry is essential to the validity of a marriage under the Marriage Act. However, they also confirm that that intention is not to be ascertained by an inquiry about the parties’ subjective wishes and purposes. Rather, the question of intention is to be considered by reference to only what is ‘show[n]’ by the ‘form and ceremony’ of the marriage. As has already been discussed, s 45(1) makes clear that, in the case of a marriage before a celebrant who is a minister of religion, a marriage may be solemnised ‘according to any form and ceremony recognised as sufficient’ by the religious body.

Marriage, as the union of two people to the exclusion of all others, voluntarily entered into for life, must be understood to reflect the genuinely held intentions and wishes of two people. In addition to s 48(3), to which I have referred, s 23B(1)(d), considered in detail below, which renders void those marriages where the consent of either of the parties is not ‘a real consent’, also confirms that that understanding underpins the provisions of the Marriage Act. In the case of a marriage solemnised by a minister of religion, the Act proceeds on the basis that the genuine intentions of the participants are made manifest by their willing participation in a ceremony recognised as sufficient for the purpose of solemnising a marriage by the relevant religious body.

As the Applicants submitted, it cannot be correct that actors in a film or play who participate in a marriage ceremony performed by another actor who happens to be an authorised celebrant (but not a minister of religion) which follows the prescribed formalities, might emerge as a married couple in circumstances where they neither intended to marry and where their intentions were purely theatrical. The avoidance of such an absurd result does not, however, require the reading into the terms of the Marriage Act an additional requirement that a couple intend to participate in a ‘legal’ marriage ceremony under the Act, as distinct from a religious ceremony in the nature of a ‘marriage before God’. The only essential requirement of the Marriage Act is that two people participate in a ceremony, before a celebrant, which is recognised as sufficient for marriage by the religious body or organisation of which the celebrant is a minister. That such a ceremony must be bona fide and reflective of the genuine intentions of the participants, thereby excluding a theatrical performance of a marriage, is supported by the terms of ss 23B(1)(d) and 48(3) to which I have referred. It is also apparent from the requirement for marriages to be ‘solemnised’, that is, to be made solemn, or rendered serious or grave,[26] as indicated by the terms of ss 41 and 45.
[26]One of the ordinary meanings of the word ‘solemnised’ in the Shorter Oxford English Dictionary is to ‘make solemn; render serious or grave’.

The analysis in the preceding paragraphs is consistent with the observations of the Court of Appeal in Omerdic v Angland.[27]The case concerned an imam who was charged under s 100(1) of the Marriage Act with solemnising a marriage where there was reason to believe there was a legal impediment to marriage, namely, that the female person who was purportedly married was not of marriageable age. Although those circumstances are far removed from the present case, the Court made the following observations relevant to the operation of the Marriage Act:[28]

Non-compliance with the formal requirements of the Marriage Act does not affect the solemnisation of a marriage under Part IV. A celebrant can intend to solemnise a marriage while having no intention whatsoever of complying with the Marriage Act notice or certification requirements. … Based on what [the imam] told the informant, it is plain that the applicant intended to perform a ceremony using the text used for the solemnisation of marriages under Islamic law. In other words, he intended to conduct a ceremony that qualified as the solemnisation of a marriage under s 45(1) of the Marriage Act.

[27][2018] VSCA 320.

[28]Ibid [54].

The above observations are also fatal to the Applicants’ challenge based on the fact that the Revd D. Rock did not prepare, and Marco and Mara did not sign, a marriage certificate in accordance with s 50 of the Marriage Act. As the Court of Appeal stated earlier in its reasons when dealing with the absence of a marriage certificate in that case, ‘the provision invalidating marriages solemnised otherwise than in accordance with Part IV applies only to non-compliance with provisions preceding s 48’.[29]
[29]Ibid [30].

For the forgoing reasons, by their participation in the ceremony conducted by the Revd D. Rock on 8 June 2019, Marco and Mara were lawfully married in accordance with the Marriage Act.

Applicants’ alternative contention – marriage was void

The Applicants’ alternative contention was that, even if the ceremony was a legally effective marriage ceremony, it was rendered void by s 23B(1) of the Marriage Act.

Section 23B(1) of the Marriage Act provides as follows:

23B Grounds on which marriages are void
(1)A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:
(a)either of the parties is, at the time of the marriage, lawfully married to some other person;

(b)       the parties are within a prohibited relationship;
(c)       by reason of section 48 the marriage is not a valid marriage;
(d)      the consent of either of the parties is not a real consent because:
(i)        it was obtained by duress or fraud;
(ii)that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii)that party did not understand the nature and effect of the marriage ceremony; or

(e) either of the parties is not of marriageable age;

and not otherwise.[30]

[30]Emphasis added.

The Applicants relied on paragraphs (c) and (d)(ii) of s 23B(1) underlined above.

The case based on s 23B(1)(c) can be dealt with briefly.

The Applicants submitted that, reading s 23B(1)(c) with s 48(1) to which it refers, the effect of the section is to render a marriage void if it is ‘not a valid marriage’ due to it having been solemnised other than in accordance with ss 42–47, and if it is not saved by ss 48(2)(a)–(f), or by s 48(3). Applied to the circumstances of this case, the ceremony was ‘not a valid marriage’ because it was not intended to be a marriage and it was not a solemnisation ceremony conducted in accordance with ss 42–47. It is not saved by ss 48(2)(a)–(f), or s 48(3), because none of those matters is the reason that this ceremony was not a marriage in the first place.

Section 23B(1)(c) appears to be tautological; it says that a marriage is void where it is not a valid marriage. In any event, for the reasons I have given, I have rejected the submission that Marco and Mara’s marriage was not valid. For the same reasons, I reject the submission that the marriage is void by operation of s 23B(1)(c).

Section 23B(1)(d)(ii)
Applicants’ submissions

The Applicants submitted that, even if there was a ‘marriage’ which, despite non-compliance with s 48, was valid, it was nonetheless void by operation of s 23B(1)(d)(ii) as Marco and Mara had not given their ‘real consent’ to the marriage because they were mistaken ‘as to the nature of the ceremony performed’.

It was submitted that Marco and Mara’s mistake concerned the nature of the ceremony that they participated in, not its effect. If the marriage was valid at law, then both Marco and Mara laboured under the fundamentally mistaken belief that it was a legal marriage. Both intended nothing more than to engage in a ceremony of commitment, which might have been of very personal value to both of them, and which might, in a religious sense, have justified their behaving as though they were married. If the marriage ceremony was validly conducted, then it was submitted to be inescapably void due to neither party having any intention to consent to becoming legally married by the conduct of the ceremony.

The Applicants submitted that it is not surprising that legislation should provide that a marriage to which one party consented is void, not merely voidable, if either party was mistaken as to the nature of the ceremony performed. Entering into a (legal) marriage is a life changing event which carries with it fundamentally important legal consequences. It revokes all existing wills.[31] It brings into existence and imposes new mutual obligations on the parties, to support one another, personally and financially, during their shared lives together. The possibility of being ordered to pay maintenance becomes real, during and after the marriage. The possibility of family property being apportioned affects the property that either party may bring to the marriage, or acquire during it. Marriage imposes obligations to make appropriate testamentary provision for the survivor.
[31]Other than those prepared in contemplation of marriage: see s 13(3) of the Wills Act 1997.

The Applicants submitted that the importance of people who are getting married having a proper understanding of what they are doing, and understanding the significant nature of a marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’ is apparent from s 46(1) of the Marriage Act. That section dictates that, in the case of a civil marriage not solemnised by a minister of religion of a recognised denomination, the marriage celebrant must say to the parties, in the presence of the witnesses, the words:

I am duly authorised by law to solemnise marriages according to law.
Before you are joined in marriage in my presence and in the presence of these witnesses, I am to remind you of the solemn and binding nature of the relationship into which you are now about to enter.
Marriage, according to law in Australia, is the union of 2 people to the exclusion of all others, voluntarily entered into for life.

The Applicants also emphasised that, under the Marriage Act, until the moment of the exchange of vows, in the context of prescribed formalities being observed, either party is at liberty to decide not to proceed. An analogy was drawn to the making of wills. The law prescribes a degree of ceremony and formality, part of the purpose of which is to emphasise to the person making the will the seriousness of the exercise being undertaken and the solemnity of the transaction. And just as with wills, it is with marriages: people may go ahead with making all of the arrangements, only to withdraw at the very last moment.

The Applicants submitted that the task is not to speculate about whether Marco might or might not have changed his mind and withdrawn his decision to marry Mara before 21 September 2019. The point is that he might have done so, however surprising that may have been. Instead, the critical question is whether, when he participated in the ceremony, he understood that he was irrevocably entering into a legal marriage, with all of the varied duties, obligations and consequences that that would have involved, including the rescission of the will that he had made in 2015.

The Applicants’ primary case was that Marco did not have that understanding. His understanding that the ceremony was a commitment of marriage ‘before God’, was a commitment devoid of the legal consequences of a formal marriage. However, if they were wrong in that contention and the events which occurred satisfied the requirements of the Marriage Act, then the belief of both Marco and Mara that this was not a valid marriage, and that they would still have to be married in the following September, was submitted to betray a fundamental mistake (by Marco and Mara and the Revd D. Rock) about the nature of the ceremony in which they participated.

Mara’s submissions

For the purposes of responding to the Applicants’ submissions that Marco and Mara’s marriage was void by operation of s 23B(1)(d)(ii), Mara’s submissions proceeded from the assumption, contrary to her primary argument, that she and Marco only intended to have a religious marriage, and were ‘mistaken’ in failing to understand that their marriage was actually effective according to law. It was her submission that such a mistake would not result in their marriage being void.

Mara submitted that the purpose of s 23B(1)(d) is to enable a party to be relieved from being bound by a marriage on the basis that one or more of the circumstances set out in sub-subsections (i), (ii) or (iii) vitiated the party’s purported consent. This would enable a party to that marriage to seek a declaration of nullity from the Family Court of Australia.

It was submitted that, in order to obtain a declaration as to nullity under s 23B(1)(d), the party applying would have to satisfy the Court that she or he would not have consented to the marriage ceremony but for duress or fraud (para (i)), a mistake as to the identity of the other party, a mistake as to the nature of the ceremony performed (para (ii)), or a failure to understand the nature and effect of the marriage ceremony (para (iii)).

Mara submitted that, in order for the Applicants to succeed in their argument based on s 23B(1)(d)(ii) that Marco and Mara were mistaken in that they believed that the ceremony was no more than a religious ceremony and not such as to result in them being married according to law, it was necessary for them to prove that Marco and/or Mara would not have consented to taking part in the ceremony had they known that it would result in them being married according to law. Section 23B(1)(d) should be construed as though the words ‘… and would not otherwise have consented to the ceremony’ were added at the end of that subparagraph.

On that approach, Mara’s case was that there was no evidence that she and/or Marco would not have consented to the ceremony if they understood that it would be effective according to law. To the contrary, it was submitted that the evidence demonstrated that, from when they told the Revd D. Rock that they wanted to get married until their marriage ceremony on 8 June 2019, they always intended ultimately to get married, without any qualification or restriction. The evidence demonstrated that at all times, including when the ceremony was conducted, they wished to be married in the fullest sense. There was accordingly no basis for the Court to find that, had they understood that the ceremony would result in them becoming married according to law, not just married according to their religious requirements, that they would not have agreed to the ceremony.

Only a mistake which induced one or both parties to consent to a marriage ceremony that he or she would not otherwise have consented to, can vitiate such consent. In this case, it cannot be said that the consent of either Marco or Mara was not a real consent.

Mara contended that it was wrong as a matter of law for the Applicants to submit that, if the ceremony was validly conducted, then it was inescapably void because neither party had any intention to consent to becoming legally married by the conduct of the ceremony. It was submitted that, whether or not Marco and Mara believed that the ceremony was effective according to law, and whether or not their belief as to that matter was correct or not, such beliefs were not relevant as they are matters which only go to their state of mind as to the effect of their marriage ceremony. They do not go to their state of mind as to the nature of the ceremony, which was that it was a marriage ceremony.

For the above reasons, Mara submitted that the Court should reject the Applicants’ case based on s 23B(1)(d) of the Marriage Act, on the basis that the alleged mistake was not a mistake as to the nature of the ceremony or, alternatively, if it was a mistake as to the nature of the ceremony, Marco and Mara would, nevertheless, have consented to the ceremony, such that there was no absence of ‘real consent’.

Consideration

Both parties made submissions about various authorities which were said to cast light on the operation and interpretation of s 23B(1)(d)(ii) of the Marriage Act. Most of those authorities were, however, of limited assistance in resolving the present controversy, either because they concerned facts well removed from the present case, or because they contained little elucidation of the relevant legal principles. Two authorities were, however, important in identifying the correct principles to be applied in considering the operation of s 23B(1)(d)(ii) in the facts of this case.

Official Trustee in Bankruptcy v Edwards[32] concerned a couple who lived together and who had participated in a ceremony of marriage in Hawaii. Sometime later, there were proceedings in the Supreme Court of New South Wales between the couple under the De Facto Relationships Act 1984 (NSW) in which consent orders were made whereby the man transferred property to the woman. Thereafter, the man became bankrupt on his own petition. The Official Trustee in Bankruptcy sought to set aside these orders on the basis that the proceedings under the De Facto Relationships Act 1984 (NSW) were commenced without jurisdiction and were an abuse of process. This was because, so the Official Trustee argued, the couple were married in the ceremony undertaken in Hawaii. The De Facto Relationships Act 1984 (NSW) is limited to dealing with the rights of de facto partners who are not married to each other.
[32](1997) 21 Fam LR 829.

The man and woman argued that the marriage ceremony which they participated in in Hawaii was not valid under Australian law because, at the time of the ceremony, they both believed the marriage would not be valid under Australian law with the result that their consent to the marriage was not ‘a real consent’ for a reason set out in s 23B(1)(d)(ii) of the Marriage Act: they were both mistaken as to the nature of the ceremony performed. It was not suggested that the marriage ceremony was not recognised as valid under the laws of Hawaii.

This submission was rejected by Simos J. His Honour considered that s 23B(1)(d)(ii) should be construed as meaning that the consent of either of the parties is not a real consent because that party is mistaken as to the nature of the ceremony performed ‘as being in the nature of a marriage ceremony’.[33] There was no warrant for construing the section as if it provided that the consent of the parties was not a real consent because of their mistaken belief as to the validity in Australia of the marriage ceremony which was performed in Hawaii, notwithstanding that they were not mistaken as to the nature of the ceremony being one of marriage. By way of example, he observed that there would be a mistake as to the nature of a marriage ceremony performed ‘if either or both parties to the ceremony mistakenly believed that the marriage ceremony was one of betrothal only, or was merely a form of religious conversion’.[34] His Honour then set out a number of extracts from family law textbooks which explained the nature of a mistake which would be sufficient to give rise to an absence of ‘real consent’, including the following:[35]
[33]Ibid 832.
[34]Ibid 832.
[35]Ibid 833; Malcolm D Broun et al, CCH Australia, Australian Family Law & Practice, vol 1 (at Release 601) ¶11-700, emphasis added.

Mistake as to the ceremony
The consent of one of the parties may not be a real consent because that party was mistaken as to the nature of the ceremony performed. If one party did not realise that it was a marriage ceremony that was being performed so that the party did not really consent to marriage, then the marriage is not valid. There have been cases where a person has gone through a form of marriage in the mistaken belief that he or she was going through only an engagement ceremony or a form of religious conversion. These marriage ceremonies have not been valid.
However in cases where parties realised the ceremony was one of marriage, but for their own reasons did not expect it to be binding, the marriages were held to be valid, unless duress was proved. A mistake as to the nature of the ceremony vitiates consent, but a mistake as to its effect, does not.

Justice Simos found that both the man and the woman, ‘understood that the nature of the ceremony in which they participated was one of marriage and that they consented to it, although they maintained that they believed at all times that the marriage would not be valid under Australian law’.[36] In finding that the marriage was valid under the law of Australia, his Honour reasoned that although:

… both defendants believed that their marriage in Honolulu would not be recognised as valid under Australian law, neither defendant was mistaken as to the ceremony performed being, in its nature, a marriage ceremony. The view of the defendants as to the validity or otherwise of the marriage in Australia is, in my opinion, simply irrelevant to the question as to whether they were mistaken as to the nature of the ceremony.[37]

[36]Ibid 834.

[37]Ibid 836.

The Court of Appeal refused leave to appeal from the judgment of Simos J.[38]
[38]Miller v Official Trustee in Bankruptcy [1997] NSWCA 203.

The other authority of significance is the decision of the Family Court in Simpson Morgan v Burreket,[39] which concerned an application by a woman for a decree of nullity based on s 23B(l)(d)(ii) of the Marriage Act. She asserted that the marriage was void because she had not given her real consent; she had mistakenly believed that the marriage ceremony would only be effective under Islamic law, not under State law. She claimed that the marriage, which was conducted by a Sheik who was an authorised celebrant, was not to be a civil or state ceremony, but an Islamic marriage only, which was not binding under civil law and only binding under Islamic law. The Islamic marriage was ‘similar to being engaged’, and only necessary because, in the Islamic religion, she and he could not engage in sexual intercourse unless they were married. The applicant signed a document bearing the words ‘Commonwealth of Australia Marriage Certificate’.
[39][2009] FamCA 138.

Taking the applicant’s evidentiary case at its highest, Fowler J refused the application on the basis that:[40]

… the wife had undertaken what she thought was a marriage ceremony in accordance with Islamic Law binding on her under that law but not binding on her under Australian Law. There was on the evidence clearly on the balance of probabilities an understanding on her part that the ceremony which the Sheik performed was a marriage ceremony. Her failure in understanding was not as to its nature but as to its effect. She thought that the ceremony she went through was not binding upon her under Australian Law.
The law is clear that a mistake as to the nature of the ceremony vitiates a party's consent to a marriage but a mistake as to its effect does not. Although her solicitor opened on the basis that she did not believe it was a marriage ceremony on the whole of the evidence I find that she did so believe. … Her case therefore at its highest is that she did not believe that the marriage was effective to bind her under Australian Law but was an effective Islamic marriage.

[40]Ibid [42]–[43], emphasis added.

The circumstances considered in the above two authorities are broadly analogous to this matter and the reasoning which they reveal is applicable here. Marco, Mara and the Revd D. Rock all understood that what occurred on 8 June 2019 was a marriage. When Marco and Mara spoke with the Revd D. Rock about their need to depart overseas, they asked him if he would be willing to perform a ‘religious wedding ceremony’. Mara’s evidence was that the Revd D. Rock agreed to conduct a ‘religious wedding service’ for them; the Revd D. Rock’s evidence was that he agreed to conduct a ‘commitment ceremony’. The different description the Revd D. Rock may have used to describe the ceremony he agreed to conduct is of little moment. The ceremony he conducted complied with the marriage rites recognised by the Baptist Union of Australia and, at its conclusion, he considered, as did Marco and Mara, that they were married in the eyes of God. To use the examples referred to in Official Trustee in Bankruptcy v Edwards, this is not a case where either or both parties, or the Revd D. Rock, mistakenly believed that the ceremony was one of betrothal only, or was a form of ‘religious conversion’.

The Applicants’ submission that the ceremony was in the nature of a ‘registration of the marriage in the eyes of God’ and ‘fundamentally different from entry into a legal marriage’ fails for at least two reasons. First, it proceeds from the false premise that the Marriage Act recognises a dichotomy between ‘legal’ and ‘religious’ marriages. As I have already explained,[41] the Marriage Act gives legal recognition to marriages which accord with recognised religious rites. Secondly, it ignores the misapprehension under which the Rev D. Rock, Mara and Marco laboured in their understanding about the effect of the ceremony. As explained by the Revd D. Rock, he was ‘careful to avoid making any suggestion that Marco and Mara were being married according to law’ because of his understanding that ‘without a [notice of intention to marry] and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act, there could not be a marriage which was valid according to law’.
[41]See above at [79].

This evidence highlights that the failure of understanding which underpinned the ceremony conducted by the Revd D. Rock (which was shared by Mara and Marco) concerned the effect of the ceremony, not its nature. They erroneously believed that non-compliance with the formal requirements under the Marriage Act was fatal to the validity of the marriage under the Marriage Act.

Because a mistake as to the effect of a ceremony does not vitiate a party's consent to a marriage, the claim that Marco and Mara’s marriage is void by operation of s 23B(1)(d)(ii) of the Marriage Act must fail. It is unnecessary to determine the other submission advanced on behalf of Marco and Mara based on the construction of s 23B(1)(d).

Disposition

I have rejected the Applicants’ primary and alternative contentions. I find that Marco’s Will was revoked by his marriage to Mara on 8 June 2019. In the circumstances of this case, the Court will make a declaration to that effect. The Applicants’ summons for revocation filed on 17 February 2021 will accordingly be dismissed.

I will hear the parties on costs.

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[2022] VSC 699

21 November 2022