11.26   Article 23 of the CRPD recognises the right of persons with disabilities to marry and found a family. The focus of this Inquiry is on the Commonwealth legal framework for marriage, namely the Marriage Act 1961 (Cth) and the Guidelines on the Marriage Act 1961 for Marriage Celebrants (the Guidelines), to ensure that persons with disability are ‘not unnecessarily prevented from entering a marriage’.[23]

11.27   Stakeholders supported the ALRC’s proposal for amendment to the threshold under the Marriage Act for ‘real consent’ to marriage,[24] to provide that, instead of a reference to mental incapacity, the consent of either of the parties may be void where that party did not have decision-making ability with respect to the marriage.[25]

11.28   The Victorian Deaf Society raised concerns about difficulties facing the people who would assess a person’s decision-making ability with respect to marriage and of discerning ‘real consent’ as ‘there are people who don’t get the concept of marriage but do enjoy the time they spend together’.[26]

11.29   To assist in the role of marriage celebrants to determine real consent, the ALRC recommends that existing guidelines for marriage celebrants alsobe amended.

Real consent to marriage

Recommendation 11–1           Sections 23(1)(iii) and 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) should be amended to remove the references to ‘being mentally incapable’ and instead provide that ‘real consent’ is not given if ‘a party did not understand the nature and effect of the marriage ceremony’.

11.30   The Marriage Act 1961 (Cth) provides that a marriage will be void in a number of circumstances. Specifically, ss 23(1)(iii) and 23B(1)(d)(iii) of the Marriage Act states that a marriage is void where ‘the consent of either of the parties was not a real consent because … that party was mentally incapable of understanding the nature and effect of the marriage ceremony’.[27]

11.31   Before a marriage is entered into, the person solemnising the marriage must determine that the parties to the marriage are mentally capable of understanding the nature and effect of the marriage ceremony.[28] It is an offence for a celebrant to solemnise a marriage where they have reason to believe that one of the parties does not meet this standard.[29]

11.32   Disability Rights Now has expressed the view that these provisions effectively exclude ‘some people with disability, particularly those with cognitive impairments from entering into marriage’.[30] Similarly, the Illawarra Forum submitted that the ‘terminology must be reviewed to reflect a clear distinction between intellectual disability and mental capacity … people with disability should be assessed on their mental capacity as opposed to their disability’.[31]

11.33   However, academics Bruce Arnold and Dr Wendy Bonython submitted that,

as a binding legal agreement, inherent with responsibilities as well as rights, it is of fundamental importance that parties entering a marriage understand what it is they are binding themselves to. For people who lack the capacity to understand this, marriage should not be available.[32]

11.34   Sections 23(1)(iii) and 23B(1)(d)(iii) of the Marriage Act reveal a tension between the need to protect persons with disability from exploitation or forced marriage, while ensuring that any person with disability who is able to understand and consent to marriage should be entitled to marry freely.

11.35   This formulation of the test was first introduced in the Matrimonial Causes Act 1959 (Cth).[33] There have only been three reported decisions with respect to this test.[34] In 2014, Foster J in Oliver and Oliver concluded that the test

not only required a capacity to understand ‘the effect’ but also refers to ‘the marriage’ rather than ‘a marriage’ … taken together the matters require more than a general understanding of what marriage involves.[35]

11.36   Foster J also stated that ‘the relevant point of time in proving mental incapacity is the time of the marriage ceremony’.[36]

11.37   This interpretation of the provision reflects the ALRC’s approach to decision-making ability being context and time specific, and relevant to the particular decision to be made. However, in order to ensure clarity, and consistency with the ALRC’s approach to language in this Inquiry,[37] the ALRC recommends amendment of ss 23(1)(iii) and 23B(1)(d)(iii) of the Marriage Act to void a marriage if ‘a party did not understand the nature and effect of the marriage ceremony’.

11.38   The ALRC does not, however, make recommendations to include a statutory test of decision-making ability in the Marriage Act, or to require consideration of the available decision-making supports. This is because of concerns about such provisions unintentionally resulting in a higher threshold for real consent to marry for persons with disability.[38]

Guardians and consent

11.39   In some jurisdictions, under guardianship legislation, a guardian of a person with disability cannot consent or refuse to consent to a marriage, but may give an opinion as to whether the guardian thinks the marriage should proceed.[39]

11.40   Disability Rights Now has suggested this may give guardians ‘undue influence over the extent to which a person with disability can realise their right to freely marry’.[40] Similarly, Family Planning NSW expressed the view that ‘the opinion of a person with disability’s guardian should not be taken into account when determining a person’s capacity to consent to marriage’.[41] The ALRC suggests this may be an issue that could be considered in the course of review of state and territory guardianship legislation.[42]

Guidelines on the Marriage Act

Recommendation 11–2           The Guidelines on the Marriage Act 1961 for Marriage Celebrants should be amended to reflect the removal of the reference to ‘mental incapacity’ in the Marriage Act1961 (Cth) and to provide further guidance on determining whether or not a person can ‘understand the nature and effect of the marriage ceremony’.

11.41   Commonwealth registered marriage celebrants may solemnise marriages under the Marriage Act and Marriage Regulations 1963 (Cth) and must comply with the Code of Practice for Marriage Celebrants and ongoing professional development obligations.[43] There are a number of guidelines for celebrants[44] and celebrants must undergo performance reviews by the Registrar of Marriage Celebrants.[45]

11.42   As outlined above, it is an offence for a celebrant to solemnise a marriage where they have reason to believe there is ‘a legal impediment’.[46] The Guidelines state that, if a celebrant believes the consent of one or both parties is not a real consent, they ‘should refuse to marry the couple, even if the marriage ceremony has commenced’.[47]

11.43   The Guidelines suggest that to determine whether a party’s consent is real, a celebrant should speak to the party in the absence of the other party, speak to third parties and keep relevant records.[48] The Guidelines state:

in cases where there is doubt about whether a party has the mental capacity to understand the nature and effect of the marriage ceremony, a very simple or general understanding will be sufficient. A high level of understanding is not required. The authorised celebrant should ask questions of the person about whom they have concerns in order to gauge the level of their understanding of the marriage ceremony and what it involves.[49]

11.44   The Guidelines also provide a list of questions to assist celebrants to identify situations where consent issues may arise.[50] However, stakeholders considered the existing guidance to be inadequate. The Physical Disability Council of NSW submitted that a celebrant who may not have any knowledge of disability should not be authorised to make a judgement about a person’s capacity to consent to marriage.[51]

11.45   Further, the Physical Disability Council of NSW highlighted that the Guidelines do not ‘consider communication needs and augmented communication used by people with disability’.[52] The Council recommended amendment to clauses of the Guidelines which relate to obtaining a translator or interpreter[53] in order to ensure compliance with art 21 of the CRPD, which requires acceptance and facilitation of the use of ‘sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions’.[54]

11.46   The revised 2014 Guidelines provide for ceremonies conducted in a sign language such as Auslan[55] and for vows to be exchanged in a sign language.[56] The ALRC acknowledges this positive development and encourages provision of additional guidance for marriage celebrants in relation to determining real consent, including ensuring different communication needs are met.[57]

Other concerns

11.47   In Australia, persons with disability may experience discrimination or difficulties in exercising their rights to marry and to form intimate relationships. In particular, the Disability Rights Now report asserted that persons with disability

experience paternalistic and moralistic attitudes from support staff and service providers and their needs for assistance in developing and maintaining relationships and friendships and their decisions to enter into marriage or partnerships receive little or no support at a policy or service delivery level.[58]

11.48   The ‘subject of sexuality and intimate relationships are [a] generally silent, ignored and invisible aspect of the lives of people with disability’.[59] Some stakeholders emphasised that many persons with disability may be denied the right to engage in intimate relationships. Stakeholders outlined a range of difficulties including: legislative barriers under state and territory law;[60] attitudes of family, carers and service providers;[61] risk management processes and policies;[62] limited access to information;[63] difficulty accessing sex workers;[64] and the need for education and awareness raising in relation to persons with disability and sexual and reproductive health.[65]

11.49   While important, many of these issues arise at a state or territory level. The key to addressing them extends beyond the limits of law or legal frameworks and into other levers for attitudinal and cultural change.[66] The ALRC does not make recommendations in relation to these issues but notes that they may be considered in the review of state and territory legislation.[67]