Witnesses and Weddings

Why you need witnesses, who they can be, and what they are for

by Jennifer Cram - Brisbane Marriage Celebrant  © (05/12/2018)
Categories: |  Wedding Ceremony | Wedding Legals |
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Witnesses sign these
                        three documents - but they are not witnessing
                        your signaturesIn Australia, no matter whether you marry in church, at the registry office, or by a civil celebrant, and no matter whether you have the big white wedding with a large wedding party, or choose just to elope, the one thing that every wedding must have is two witnesses, no more and no fewer.

So, the smallest legal wedding you can have involves five people who must all be together in the same physical space for the whole ceremony. These five people are:
  • The two of you (Obviously)
    But that also means you can't get married over Skype, or Facetime, or Zoom, or by proxy. It also means that you can't legally marry yourself!
  • Your celebrant
    Without a celebrant who is authorised to solemnise your marriage you'll be having a romantic moment that won't change your legal status
  • Two adults to act as your witnesses
    And who are willing and able to consent to taking on this huge responsibility

Who can be a witness?

While in a traditional wedding it is usual for the two witnesses to be the Best Man and the Maid/Matron of Honour, it does not have to be that way.  There is no legal requirement that your witnesses must be part of your wedding party, or the same gender as you, or standing up in the front with you. Anyone present at your wedding can act as your legal witnesses.

Your two witnesses must be
  • Adults, that is, at least 18 years of age
  • Able to understand what is going on, so they must be able to understand the language in which the ceremony is conducted (if they don't,  you need to have an official interpreter)
  • Relatively sober at the time of the wedding
  • Present during the whole of the ceremony
  • Aware that, should the validity of your marriage ever be challenged, they could be called upon to give evidence in court
Your two witnesses do not have to be
  • Australian citizens, or permanent residents. They do not even have to live in Australia, so they can be visitors
  • Members of your wedding party. As long as they are present at the wedding (and can see and hear you make your vows) they can be sitting with your guests. Choosing your mothers, grandparents, the couple who introduced you, or people you want to honour, for whatever reason, adds a lot to the ceremony.
But they can be
  • Family members
    More and more of my couples are choosing to honour other special people, such as parents, grandparents, or other relatives
  • Friends
  • Service providers
    Your photographer or videographer can be a witness, as can employees of the venue where you hold your ceremony
  • Strangers
    If you are marrying in secret, or eloping to a destination without accompanying friends or family, it is perfectly legal to ask strangers to witness your marriage. I've often had hotel or resort staff act as witnesses. And my experience is that, if you are marrying in a park or other public space, most people are thrilled to be asked to be a witness. For some, it quite makes their day, even if they are too young to be a witness themselves, because they can sit with nanny or mum who is the witness and so feel part of the wedding. If your witnesses are strangers, make sure you get contact details and file that information with your marriage certificate. It is also nice to send a photo or two with a thank you note.

There is one thing that that your witnesses don't do

Although it is quite commonly believed that the witnesses witness the marrying couple’s signatures on the register and marriage certificates, this is not true. The Marriage Act (Section 44) is clear that they are required to witness the marriage, which means the marriage ceremony.

What marries the couple is the mandated words (the vows). Once they have both said those words, they are legally married. So the certificates are just evidence that the marriage has taken place.
It follows, therefore, that when the five people (couple, 2 witnesses and celebrant) sign the documents, no-one is witnessing anyone’s signature. What each is doing is confirming that the marriage took place.

What else do you need to think about in relation to your witnesses?

  1. Where you place the signing table
    Make sure that the signing table is set up to one side, but up the front, near where you and your wedding party are standing. 
    You could also have the signing table behind you, if you are standing in front of a gazebo, rotunda, or arbour, or you can have the table carried from where it has been placed, at one side, to in front of where you are standing in order to give your photographer and videographer the open space and line of sight created by the aisle, while also making sure everyone else who is present has a clear view of the signing. If you put the table behind the guests, you will have to walk past them, and that will delay everything because they will, naturally, assume you are walking back up the aisle, that it is all done and dusted, and it is time for congratulations. If your witnesses are not part of your wedding party, guests crowding round you could make it very difficult for the witnesses to get to the signing table. 
  1. What you do after you have signed
    The order in which the register and certificates are signed is marrying couple first, witnesses next, celebrant last. Once you have signed, and your photographer has finished taking posed photos, you will need to vacate the seats to allow your witnesses to sit down. Make sure you move to behind the table, not to where the guests can crowd around you, and delay the completion of the ceremony.
  1. That everyone signs using their normal signature
    Because their full legal names are written out on the certificates and register, it is not uncommon for witnesses to think they have to sign that way. What is required is their normal signature. For the two of you, your signature should be the way you've signed both the Notice of Intended Marriage and the Declarations of No Legal Impediment to Marriage.

What if one of your chosen witnesses doesn't turn up?

A legal witness must be present for the whole ceremony, so if someone you have asked to be your witness doesn't turn up, or hasn't arrived by the time the ceremony is due to commence, you need to find a substitute before the ceremony can go ahead. Any adult present will do, as long as they are briefed about their role and responsibilities as a witness, and consent to being a witness.

Do your witnesses need to be forewarned?

Being a witness is regarded to be honour, so most people would expect to be asked well ahead of time. But there is no legal reason to do so, and sometimes, to avoid upsetting people who expected to be witnesses but weren't chosen, it might be sensible to leave it to the last minute and pull names out of the hat.  That can be a lot of fun, and works brilliantly when you're having a surprise wedding because there is no risk of the fact you're getting married being leaked ahead of time.  One of my grooms had six brothers, and knew that choosing one of them would hurt the others. So we resorted to lucky door tickets, pulled the numbers out of a sporran (it was a Hogmanay wedding with lots of men wearing kilts), and, as luck would have it, his father won! Brilliant result.

Thanks for reading!
Jennifer Cram Brisbane Marriage
                        Celebrant Signature

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