We all make promises to other people – sometimes face to face, sometimes over the phone, sometimes in passing conversation (implicitly), sometimes with conditions, sometimes without meaning it, sometimes speaking under our breath, sometimes making that promise to oneself in respect of another person – and of course, sometimes formally, by signing a legally binding document (in contract) or in some other official or business situation.
In relationships, people can make promises to each other in a very informal way – such as when a woman says to her beloved, “We’ll be together forever, won’t we?” and he replies, “Yes, my love, forever.”
But that doesn’t constitute a marriage – not because the intention isn’t as heartfelt and genuine as any other vow, but because marriage in Australia has specific requirements in order to be recognised as such. These requirements include the necessity of having two formal witnesses present while the legal wording and the marriage vows are said. This is part of the requirements of section 44 of the Marriage Act 1961.
How Many People Need To Be Present At The Wedding?
The very smallest of wedding parties possible for a legal marriage ceremony in Australia is 5 (five): the bride, the groom, the celebrant, and the two witnesses. It’s not possible for a valid marriage ceremony to include just the bride, the groom and the celebrant.
The celebrant cannot be one of the witnesses.
There’s nothing to bar a family member from being a witness. Equally, it is not necessary that the witnesses are Australian citizens. They must, however, be over 18. They have an important function as part of the marriage ceremony.
Of course, a wedding doesn’t have to limit itself to the minimum – there can be hundreds of people present if the bride and groom wish!
What Do Witnesses Witness?
Everyone present at a marriage ceremony is, of course, a witness to the ceremony. However, there are two formal witnesses whose specific function is legally necessary. The Marriage Act 1961, Section 45 (2), states that the vows must be said in the presence of the authorized celebrant and the witnesses.
The witnesses must also be there to witness the authorised celebrant state, as set out by the Marriage Act 1961, Section 46, that he/she is duly authorised by law to solemnise marriage according to law. The Registered Marriage Celebrant specifically addresses the fact that the couple is to be joined in marriage in his/her presence and in the presence of “these witnesses”.
Do The Witnesses Need To Sign Anything?
It’s necessary for the two witnesses to sign all three copies of the marriage certificate. It is neither possible for someone else to sign on their behalf, nor for the witnesses to say they’ll sign later. To comply with the requirements of Section 50 of the Marriage Act 1961, the signing must be immediately after the marriage has been solemnised.
It’s part of the ceremony, in fact. The Marriage Celebrant will state that the Signing of the Register will occur; during that period, there’s usually music or some other element to engage the interest of the wedding guests. The business of signing usually takes approximately 5 minutes – it may take a little longer, but it is rarely less.
Any Witness Will Do?
While anyone over 18 can be a witness, that doesn’t mean that the couple can drag two strangers off the street to be their witnesses, moments before the ceremony. The Marriage Certificates will have been prepared in readiness for the ceremony, including the names of the witnesses (requiring only their signature at the appropriate time in the ceremony).
The couple will need to have communicated the names of the witnesses to the Registered Marriage Celebrant sufficiently in advance to enable the necessary preparations.
“I Can Provide The Witnesses” – is that true?
It is not recommended or desirable that the two witnesses to a couple’s marriage be provided by the Marriage Celebrant. The reason for this is that it puts everyone involved in an invidious position if there should arise any questions relating to the marriage.
The Explanatory Material provided by the Attorney-General’s Department to Registered Marriage Celebrants discusses this issue. It explains that there’s a particular object in requiring the attendance of witnesses to the ceremony – that is, their evidence will be available if it arises that the identity of either the bride or the groom comes into question, or if the circumstances in which the ceremony was performed come into question. This is exactly why the witnesses should be “persons who know the parties to the marriage”.
It is explicitly stated that the provision of the witnesses is the “responsibility of the parties to the marriage”. A Marriage Celebrant should absolutely not be advertising his/her ability to provide witnesses to the ceremony. If a celebrant is requested to provide witnesses to the ceremony, it “might arouse suspicion as to the propriety of the marriage” – and this is something no bride and groom would want!
There may be extraordinary cases in which the bride and groom positively cannot provide witnesses but the celebrant is satisfied as to the genuineness of their relationship and identity. It is up to the Marriage Celebrant in such extraordinary cases to make a judgement call about providing witnesses. But ordinarily, such requests should “not be acceded to”, as stated by the Attorney-General’s Department.
Can The Witnesses Be Attendants?
If the bride wishes her maid of honour to be her witness, that is perfectly acceptable. The same is true if the groom wants his best man to be his witness.
Since witnesses have an important part to play in the purpose and legality of a wedding, it is a privilege and an honour to be asked to perform that role. There are no words to say, no special requirements, no need to do anything in the ceremony except to hear what is said, and to sign the Marriage Certificate as witnesses. The Marriage Celebrant will guide the witnesses to approach the Signing of the Registry at the appropriate time.
