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Criminalising non-compliance with marriage formalities?

Sep 29, 2018, 23:28 PM
Family Law, wedding, marriage, marriage formalities, criminalisation, non-compliance,
Rebecca Probert's article in the June 2018 issue of Family Law ([2018] Fam Law 702) reviews why the legislation only makes specific reference to certain religious groups and shows how other groups are still encompassed within its framework. It demonstrates that the offence of not registering a marriage can only be committed by someone with the duty – and power – to register it.
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Date : Jun 11, 2018, 09:44 AM
Article ID : 117210
In recent months there have been proposals to criminalise those conducting marriages that do not comply with the formalities laid down by law. However, it is important to understand what offences already exist under the Marriage Act 1949 and the implications of the proposed expansion.

Rebecca Probert's article in the June 2018 issue of Family Law ([2018] Fam Law 702) reviews why the legislation only makes specific reference to certain religious groups and shows how other groups are still encompassed within its framework. It demonstrates that the offence of not registering a marriage can only be committed by someone with the duty – and power – to register it. It also shows that the existing offences relating to solemnisation similarly have the potential to apply to all faiths, but can only be committed where the individual in question has a specified role or fails to do certain specified acts.

Changes making it an offence to celebrate a marriage that is not legally binding would have the disadvantage of also outlawing the popular ceremonies conducted by humanists, pagans, and non-aligned celebrants. Any offence therefore needs to be carefully crafted and to focus on those cases that are deemed problematic, for example where deception is involved.
The full version of this article appears in the June 2018 issue of Family Law

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