The Importance of Consent:
Why no-one can force you to marry, to kiss in your wedding, or to have sex afterwards

 
by Jennifer Cram - Brisbane Marriage Celebrant (02/03/2020)  |  Categories: | Wedding Ceremony | Wedding Legals |
Bride with slave chain
                            handcuffCelebrants in Australia have to make a big deal about something called Real Consent. What this means is that we have to be on the lookout for any indication that you might not be freely and willingly agreeing to marry, and if we are at all concerned, to pull the plug on the wedding. Real consent means that you are not being physically forced, emotionally or psychologically coerced, which could be threats or just family or community pressure, or tricked into the marriage by being told it wasn't a legal ceremony, for example. So here's what you need to know about consent, getting married, and your wedding ceremony.

Your Notice of Intended Marriage doesn't commit you to marry

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When you lodge your Notice of Intended Marriage with your celebrant that's all you're doing. Fulfilling the requirement to give a minimum of one calendar month notice that you intend to get married.  It is not a contract. So it doesn't actually obligate you to go through with the wedding.


No surprises allowed!

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Both of you must be fully aware of when you're going to get married. You can surprise your guests.You can even surprise your witnesses. Practicality demands that you don't surprise your celebrant (or your photographer).  It is illegal to surprise either or both of the marrying couple. So one of you can't organise the wedding without the other's knowledge and agreement. And no-one can spring the wedding on both of you.


Your Declarations don't commit you to go through with the wedding

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Before you can marry, each of you has to make and sign your Declaration of No Legal Impediment to Marriage in front of your celebrant. While you can't be married without making this declaration, all it does is confirm that you are legally free to marry. The fact that you have made this Declaration is not binding consent to marry.

Turning up doesn't commit you to go through with the marriage

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Getting dressed up, walking down the aisle, or even saying "I Do" when asked does not commit you to go through with the marriage. In Australia, the "I Do" or "I Will" questions are not legal. They are traditional. Guests expect to hear them. But they are not legally binding. Of course, if at that point one of you was to answer "No", then your celebrant would stop the wedding. And not just for a few moments to check with you, because the circumstance of  having everyone there, expecting to see you marry, could be deemed to be pressure.

Your celebrant must stop the ceremony if they are unsure that your consent to the marriage is real

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Obviously, if you answer No  to the "I Do" question your celebrant is going to stop the ceremony. They are required to stop the ceremony if anything raises their suspicions that your consent isn't real. This might be something you say or do that suggests you are unwilling. Or it might be something someone else says or does.

Your Legal Vows create your marriage

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Basically you can pull out of the marriage any time until you have said your legal vows. I ask everyone here to witness that I [Full Name], take you, [Full Name] to be my lawful wedded ....."  Once you have both said those words you are legally married, are already married, when you, your witnesses, and your celebrant sign the Register and Certificates. It is too late to pull out, so you can't ask your celebrant to destroy the certificates or not register your marriage. Once you have said your vows the only action you can take is to get a divorce. Unless it was a forced marriage or there was some other reason why the marriage was unlawful. In which case you should see a lawyer as quickly as possible.

You can't be forced to kiss

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Personally, I hate it when I hear a celebrant say to a groom "You may kiss your bride", for the simple reason that it denies the bride any right to consent, or not to consent. While that was the legal position in past times when a husband gained what was called conjugal rights on marriage (which basically meant he owned his wife's body and could do with it what he wished), that is now not the case. I always ask my couples if they want to be invited to kiss and, if they say yes, do invite them to seal their vows with a kiss. One of my grooms asked me not to say anything, and he asked his bride if he could kiss her. That was lovely!

Consummation of your marriage is not legally required

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In most countries, if your marriage isn't consummated (that is, you don't have sex after your marriage), that's grounds for annulment. Not in Australia. Our lawmakers decided that, as there was no way to make sure that the sex was consensual, they wouldn't make that a requirement. And forcing your spouse to have sex is a crime in Australia. As a result
  • You do not have to have sex after you are married
  • Whether or not you have sex after you are married, the only way to end your marriage is to apply for a divorce
  • You can't be forced to have sex with your spouse.
Jenny xxx Let's talk soon about how you
                      can have the best ceremony ever
 
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