Real Consent

From July 2024 there was a requirement announced that all celebrants must establish real consent from each party to the marriage. Real consent must be established by meeting with each party to marriage individually via a face to face meeting prior to the meeting. (s23B of the Marriage Act 1961) If they do not give real consent, the marriage could be deemed void by a court of law.

So what does Real Consent mean?

Consent

Consent is defined as, when someone understands what they’re being asked to do, and they give their permission clearly and freely – without feeling pressured. For the context of Australian marriage, “real consent” has a specific meaning under the Marriage Act 1961.

Real consent under the Marriage Act

Section 23B(1)(d) of the Marriage Act outlines that a marriage may be void if the consent of either party is not a “real consent” because:

“…it was obtained by duress or fraud;
that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or
that party did not understand the nature and effect of the marriage ceremony…”

Duress

Duress is the act of using force, coercion, threats, or psychological pressure, among other things, to get someone to act against their wishes. If a person acts under duress, they are not acting of their own free will and so may be treated accordingly in court proceedings.

This means someone agreeing to something they don't want to do because someone else has pressured or threatened them, they don't want to do it but they feel like they don't have a choice.

In regards to a marriage they might feel like if they don't go through with the wedding their partner might leave them, or financially they might be in trouble due to the amount that they've spent on the weeding, or pressure from friends and family who have made travel arrangements etc.

If you get married under duress, your marriage may be deemed as void.

Fraud

A fraudulent marriage is when two people get married, but one of them lies about something very important, like their religion or ability to have children, and the other person doesn't know the truth.

Fraud can also include such things as not being honest about the reason for the marriage, a persons identity (real name, background etc), being tricked into getting married, or by not having the right intentions for marriage such as to get an Australian Visa even those you don't want me in a relationship with the other party.

If you are fraudulent your marriage may be deemed as void.

Mistaken as to the nature of the ceremony performed

This means that one party to marriage doesn't understand what the nature of the ceremony is. An example of this may be that the ceremony is being presented in a language that is not understood by one party, that are led to believe that it is a commitment ceremony but in fact, it is a legal wedding. This would mean that they have been mistaken as to the nature of the ceremony.

If you are mistake as to the nature of the ceremony your marriage could be deemed as void.

Did not understand the nature and effect of the marriage ceremony

Though this is similar to the above, this is slightly different as it is about the ability for both parties to understand marriage and what is means.

All adults are presumed to have the capacity to make decisions and give consent, but this is not always the case. There may be reasons that someone is not able to understand what marriage actually means and is not able to give consent, such as, someone that has no skills to communicate, has reduced mental capacity or is having trouble with knowing where they are and what they are doing.

If the celebrant can't be sure that both parties of the marriage are understanding on what they are doing they may need to have additional conversations with family members or potentially a medical team (with permission from the party to marriage).

Intoxication

Intoxication is the condition of having physical or mental control markedly diminished by the effects of alcohol or drugs.

This means that where a party to marriage is intoxicated they have a reduced capacity to make decisions and give consent. if a party to marriage is intoxicated the celebrant should refuse to marry the couple as real consent cannot be established.

What happens if consent is not real?

If a person can prove they were not providing real consent during the marriage, a court can nullify the marriage. It would be as though the marriage never took place.

Depending on the circumstances there can be other consequences of such a decision. The celebrant may have committed an offence. S100 of the Marriage Act 1961 forbids us from solemnising a marriage where we have reason to believe there is a legal impediment, such as a lack of real consent. The party creating the duress may have committed an offence under forced marriage provisions of the Criminal Code Act 1995.

Some real life examples and information

Forced marriages by year:

2013/14 - 11

2014/15 - 33

2015/16 - 69

2016/17 - 70

2017/18 - 90

2018/19 - 91

2019/20 - 92

2020/21 - 79

2021/22 - 84

A large percentage of these forced marriages are from human trafficking and slavery.

In Western Australia in 2015 a couple were married but the bride was unconscious and wasn't able to give real consent. See the story here.

A Victorian mother has been jailed after forcing her daughter to marry the man who would later go onto murder his wife. See the story here.

Three other examples of where real consent was not received:

The case of Nagri and Chapal involved a 24-year-old Indian-born man who was forced to marry in a cultural ceremony that was later solemnised in a civil ceremony, under duress from his uncle to honour his family.

Mr Nagri began receiving financial and employment assistance from his uncle after arriving in Australia in 2008. In 2011, Mr Nagri’s uncle approached him about a woman, Ms Chapal, that he considered to be a suitable wife, and subsequently made arrangements for the pair to meet. It was then decided by Mr Nagri’s uncle and mother that Mr Nagri and Ms Chapal were to be married. Mr Nagri advised his uncle that he was in love with somebody else and did not wish to marry Ms Chapal; however, his uncle told him that the marriage must proceed as he had given his word and arrangements had already been made.

One month after the ceremony, Mr Nagri confessed to his new wife that he had married her under pressure to honour his family. In 2012, Mr Nagri applied to the Family Court of Australia for an annulment of the marriage. The magistrate acknowledged that [Mr Nagri’s] uncle ‘recognised and acknowledged that he played a very significant part in his nephew entering into the marriage…he believed that he had authority, and almost absolute authority, over [Mr Nagri]’ (Nagri & Chapal [2012] FamCA 464, paragraph 11).

The Family Court ruled the marriage void as the man was subject to ‘duress imposed upon him at the time of the ceremony of marriage. Thus, his consent to the marriage was not a true and informed consent’ (Nagri & Chapal [2012] FamCA 464, paragraph 29). The court also saw that, despite Ms Chapal’s statement of consent upon entering her marriage, there was in fact a degree of decision-making by others on her behalf.

In 2010, the Victorian Department of Human Services received a report suggesting that a 13-year-old girl had stopped attending school as it was her parents’ intention that she would be getting married overseas. Child protection workers who spoke to the child were told that: she was not attending school as her father had said that he did not like her going to school and because she was engaged to be married and was planning to travel overseas in two to three weeks’ time in order to meet her fiancée [sic] and be married in [another country].

The child also said that she had been engaged for one month to a 17-year-old man named [name]. [The child] said that she had only seen a photograph of this man. When asked by [the workers] how she felt about getting married, [the child] told us that she did not know what to say as she had not met her fiancé (Department of Human Services & Brouker and Anor [2010] FamCA 742, paragraph 9).

Justice Mushin formed the belief that the girl did not understand the significance and the consequences of marriage. Further, he believed that she would be deprived of an education, and may have been at risk of sexual exploitation and emotional harm. He also ruled that, since neither the girl nor her potential spouse was of marriageable age, the marriage could not be recognised in Australia. He ordered that the girl be placed on the Airport Watch List at all points of arrival and departure so that she could not be removed from Australia by her parents for the purpose of marriage

The case of Kreet & Sampir [2011] FamCA 22 highlights how an individual can be coerced and deceived during childhood and made to marry once they reach the legal age of consent.

In 2011, Ms Kreet applied for an annulment of her marriage to Mr Sampir on the grounds that she consented to the marriage under duress. When Ms Kreet was 17 years of age she formed an online relationship with Mr U. Ms Kreet lived in Sydney and Mr U lived in Melbourne. Her parents did not support the relationship and threatened that they would take her to India and arrange a marriage for her to someone else if she did not end the relationship.

When she did not end the relationship, her father told her that when she turned 18 they would go to India to find her an appropriate husband, and that he had been considering some of the wedding proposals from Ms Kreet’s uncle. Ms Kreet’s father made threats to Mr U, saying that he would kidnap and rape Mr U’s mother and sisters. He also physically assaulted his daughter by slapping her across the face and hitting her on the back.

Ms Kreet made several attempts to live with Mr U in Melbourne; each time, her parents travelled to Melbourne in an attempt to bring her back to Sydney. On the final occasion they offered her a proper wedding to Mr U in India as an enticement. On arrival in India, however, ‘discussions began about an appropriate suitor and [Ms Kreet’s] passport was taken from her…[Ms Kreet’s] parents then introduced the man who was to become her husband’ (Kreet & Sampir [2011] FamCA 22, paragraph 24).

Ms Kreet agreed to the marriage under the belief that her father would kidnap and rape Mr U’s mother and sisters if she did not consent. Ms Kreet ‘begged her parents not to force her to go through with the marriage and her father’s response was to continue to threaten harm to Mr U’s family’ (Kreet & Sampir [2011] FamCA 22, paragraph 27). After the marriage, Ms Kreet lived with her husband in India while her parents returned to Australia. Ms Kreet refused physical intimacy with her husband, which culminated in assaults. Shortly after the marriage, an application was made for Ms Kreet’s husband to obtain a visa to come to Australia; however, Ms Kreet withdrew her sponsorship of her husband while on a trip back to Australia, which meant that he could not be granted the visa.

The court ruled that although she gave all of the indications of consent (ie a public ceremony), her consent was not real because it was obtained by duress, and therefore the marriage was void.

Examples taken from aic.gov.au - When saying no is not an option: Forced marriage in Australia and New Zealand