11.20 Article 23 of the CRPD recognises the right of people with disability to marry and found a family.[14] Persons with disability face a range of difficulties in exercising the right to marry and form intimate relationships. However, the focus of this section is on the Marriage Act 1961 (Cth) and the Guidelines on the Marriage Act 1961 for Marriage Celebrants (the Guidelines).

11.21 The ALRC asks whether amendment is required to the threshold under the Marriage Act for ‘real consent’ to marriage,[15] to provide that the consent of either of the parties may not be real consent where that party did not have decision-making ability with respect to the marriage.

11.22 In addition, the ALRC proposes that existing guidelines for marriage celebrantsbe amended to ensure they are consistent with the National Decision-Making Principles so that people who may have impaired decision-making ability are not unnecessarily prevented from entering a marriage.

Real consent to marriage

Question 11–2 Should s 23B(1)(d)(iii) of the Marriage Act 1961 (Cth) be amended to provide that, instead of a test of mental incapacity, a party who did not have the decision-making ability with respect to the marriage, does not give ‘real consent’?

11.23 The Marriage Act 1961 (Cth) provides that a marriage will be void in a number of circumstances. Specifically, s 23B(1)(d)(iii) of the Marriage Act provides 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’.[16]

11.24 As a result, 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.[17] It is an offence for a celebrant to solemnise a marriage where he or she has reason to believe that one of the parties does not meet this standard.[18]

11.25 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’.[19] Similarly, the Illawarra Foundation submitted that ‘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 ’.[20]

11.26 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.[21]

11.27 Section 23B(1)(d)(iii) reveals a tension between the need to protect people with disability from exploitation or forced marriage, while ensuring that any person with disability who is able to understand and consent should be entitled to marry freely.

11.28 This formulation of the test was first introduced in the Matrimonial Causes Act 1959 (Cth).[22] There have only been three reported decisions with respect to this test.[23] Most recently in Oliver and Oliver, Forster J 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.[24]

11.29 Foster J also expressed the view that ‘the relevant point of time proving mental incapacity is the time of the marriage ceremony’.[25]

11.30 This interpretation of the provision reflects the ALRC’s approach to capacity 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 and the one taken in relation to a similar provision under the Commonwealth Electoral Act 1918 (Cth),[26] it may be necessary to amend 23B(1)(d)(iii).

11.31 Therefore, the ALRC seeks stakeholder comment on possible amendments including, for example, whether the provision should provide that ‘the consent of either of the parties was not a real consent because … that party did not have decision-making ability with respect to the marriage’.

11.32 The ALRC does not intend, however, to make proposals 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 largely because of concerns that such inclusions may have the unintended consequence of making the test under the Marriage Act, which currently only requires ‘a very simple or general understanding … of the marriage ceremony and what it involves’,[27] more difficult to satisfy.

Guardians and consent

11.33 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.[28]

11.34 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’.[29] 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’.[30] This may be an issue that could be considered in the course of review of state and territory guardianship legislation.

Guidelines on the Marriage Act

Proposal 11–1 The Guidelines on the Marriage Act 1961 for Marriage Celebrants should be amended to ensure they are consistent with the National Decision-Making Principles.

11.35 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.[31] There are a number of guidelines for celebrants;[32] and celebrants must undergo performance reviews by the Registrar of Marriage Celebrants.[33]

11.36 As outlined above, it is an offence for a celebrant to solemnise a marriage where he or she has reason to believe that one of the parties does not meet the standard contained in s 23B(1)(d)(iii).[34] 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’.[35]

11.37 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.[36] The Guidelines state:

in cases of 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.[37]

11.38 The Guidelines also provide a list of questions to assist celebrants to identify situations where consent issues may arise.[38]

11.39 Stakeholders expressed a number of concerns about the Guidelines. The Physical Disability Council of NSW, for example, submitted that it did not consider

that a celebrant who may not have any knowledge of disability should be authorised to base this judgement. Issues could potentially arise where for example, a person with physical disability who has issues with their speech be incorrectly classed as ‘incapable’.[39]

11.40 Similarly, The Illawarra Forum submitted that the Act needs to be amended so that the marriage celebrant does not have the right or responsibility to ascertain ‘mental capacity’.[40]

11.41 The Physical Disability Council of NSW highlighted that the Guidelines do not ‘consider communication needs and augmented communication used by people with disability’.[41] The Council recommended amendment to clauses of the Guidelines which relate to obtaining a translator or interpreter[42] 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’.[43]

11.42 The ALRC recognises stakeholder concerns about the expertise of a marriage celebrant in determining whether a person has decision-making ability with respect to the marriage and the need for consideration of the communication needs of people with disability. It may be necessary to amend the Guidelines to provide additional guidance for marriage celebrants in relation to potential issues relating to decision-making ability and communication needs and requirements. The ALRC proposes amendment to the Guidelines to incorporate and have regard to the National Decision-Making Principles and guidelines. The NSW Capacity Toolkit also provides a useful model.[44]

Other concerns

11.43 In Australia, many persons with disability experience discrimination or difficulties in exercising their rights to marry, form intimate relationships, and sexual expression. In particular, 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.[45]

11.44 The ‘subject of sexuality and intimate relationships are generally silent, ignored and invisible aspect of the lives of people with disability’.[46] Some stakeholders emphasised that many people with disability may be denied the right to engage in intimate relationships. Stakeholders emphasised a range of difficulties including: legislative barriers under state and territory law;[47] attitudes of family, carers and service providers;[48] risk management processes and policies;[49] limited access to information;[50] difficulty accessing sex workers;[51] and the need for education and awareness raising in relation to people with disability and sexual and reproductive health.[52]

11.45 While important, some of these issues arise at a state or territory level and the key to addressing many of the others extends beyond the limits of law or legal frameworks, the focus of the ALRC’s work.[53] The ALRC does not intend to make proposals in relation to these issues.