Modern Australian

a new form of marriage in the time of coronavirus?

  • Written by Henry Kha, Lecturer in Law, Macquarie University

Prime Minister Scott Morrison has announced that only five people can attend a wedding as part of the tough new restrictions to prevent the spread of the coronavirus.

But why this number specifically? According to the Marriage Act 1961, for a marriage to be legally valid in Australia, five is the minimum number of people who need to be present at the ceremony: the couple, two witnesses and a celebrant.

But the need to have at least two witnesses or even a marriage celebrant has not always been a legal requirement.

A brief legal history

The formal requirement that a marriage celebrant officiate a wedding was first introduced in the Fourth Lateran Council of 1215, a medieval council of senior church officials convened by the pope.

The Roman Catholic Church had sought to discourage irregular or secret marriages by urging people to marry before a priest. As marriage was understood to be a sacrament, a marriage celebrant became a necessary requirement to ensure that couples met the legal and religious criteria.

The 16th century Council of Trent, a series of counter-Reformation meetings, introduced the requirement that a valid church marriage also required two witnesses. The aim was to prevent fraud and promote certainty in the formation of marriage.

Read more: In the age of coronavirus, only tiny weddings are allowed and the extended family BBQ is out

England had undergone the Protestant Reformation by this time and had not adopted all of these rules. According to medieval canon law, English couples could marry without anyone else being present by simply exchanging wedding vows in present tense (for example, “I take you to be my wife from this day forward”).

This caused uncertainty and led to elopements. There were also rogue priests who performed secret marriages for eloping couples known as “fleet marriage” (named after the London chaplaincy in Fleet Prison).

The great English poet John Donne married in this way. He was arrested and only freed after proving that his marriage was legal.

The Church of England consequently wanted to exercise more control over all marriages. Lord Hardwicke’s Marriage Act 1753 was subsequently introduced, requiring that all recognised marriages be performed by an authorised clergyman of the Church of England.

The presence of a celebrant was thus a legal requirement for all marriages in England. (Jewish and Quaker marriages were exempt from this law.)

The Marriage Act 1836 ended the Church of England’s monopoly over marriages, legalising the civil ceremonies that exist today.

The act also introduced the requirement that two witnesses be present at a wedding. A system of registering births, deaths and marriage was introduced in the UK the same year. This meant that more formal evidence was required in order to register a marriage, hence the witnesses.

The English laws were then brought to Australia, and this is why five people have to be present at a wedding.

a new form of marriage in the time of coronavirus? Weddings are still happening around the world during coronavirus, such as in Thailand, but people are taking more precautions. RUNGROJ YONGRIT/EPA

Could we legalise proxy marriages?

Given the current rule on social distancing, it might be time to consider whether proxy marriages should be introduced.

A proxy marriage is a wedding performed by a marriage celebrant where one or both of the marrying parties are not present. A proxy, nominated by either marrying party, acts as a surrogate for one or both people who are getting married.

Read more: Should I cancel my wedding? My kid's birthday party? Why the government has banned indoor gatherings of over 100 people

A proxy marriage is not a legally recognised form of marriage in Australia because a couple must be physically present at a wedding ceremony for the marriage to be valid. Proxy marriages are also outlawed in many other countries due to concerns over sham marriages, particularly for immigration purposes.

However, proxy marriages were historically used to facilitate arranged marriages over long distances, such as Napoleon Bonaparte’s proxy marriage to an Austrian duchess in 1810.

Proxy marriages are notably legal today in a few American states, though it is generally restricted to members of the armed services who are on active duty. Some proxy marriages are also taking place over Skype, a practice increasingly common in immigrant communities.

So long as the true consent of a person to enter into a genuine committed relationship can be established, then there really is no reason to outlaw proxy marriages. Desperate times call for desperate measures.

The Australian government has already limited weddings to five people. If a lockdown is ever called and weddings are banned, life and love still need to go on. Proxy marriages could be a viable solution in a lonely planet.

Authors: Henry Kha, Lecturer in Law, Macquarie University

Read more https://theconversation.com/with-this-ring-i-thee-and-your-proxy-wed-a-new-form-of-marriage-in-the-time-of-coronavirus-134659

NEWS

From the bushfires to coronavirus, our old 'normal' is gone forever. So what's next?

The world faces profound disruption. For Australians who lived through the most horrific fire season on record, there has been no time to recover. The next crisis is now upon...

cleaning the house (while fitting in a workout)

Jan Kopřiva/UnsplashThe washing, drying, ironing, airing, pushing baby in his pram – these can all take on a different aspect if done with figure consciousness … Stretch to the ceiling...

a lesson from game theory the coronavirus contrarians ignore

ShutterstockIt has been said we are “at war” with the COVID-19 coronavirus. I’m not drawn to martial metaphors, but that’s not wrong.Another way to put it is that we, as...

why sexual offence trials often result in acquittal, even with credible witnesses

ShutterstockA distinctive feature of the prosecution of Cardinal George Pell is that the former choirboy who accused him of sexual abuse (known in the High Court as Complainant “A”) was...

Pandemic policing needs to be done with the public's trust, not confusion

The law on what we can and can’t do during the coronavirus outbreak is changing on an almost hourly basis. Some of what is written now might be overtaken by...

As use of digital platforms surges, we'll need stronger global efforts to protect human rights online

ShutterstockAs millions of people are moving work and social interactions online to protect themselves from COVID-19, existing online safety measures may not be enough to deal with a surge in...

Without international students, Australia's universities will downsize – and some might collapse altogether

ShutterstockThe loss of international students due to COVID-19 restrictions, and predicted second semester declines, will see universities lose between A$3 and 4.5 billion, according to Universities Australia. The higher education...

Does JK Rowling's breathing technique cure the coronavirus? No, it could help spread it

Harry Potter author JK Rowling says a breathing technique has helped her coronavirus-like respiratory symptoms, a claim that has been widely reported and shared on social media.Her tweet includes a...

Should everyone be wearing face masks? It's complicated

ShutterstockShould members of the public be wearing face masks during the COVID-19 pandemic? It’s a controversial question, with different countries and authorities giving different advice. We have reviewed the results...

The coronavirus ban on elective surgeries might show us many people can avoid going under the knife

ShutterstockAs part of the government’s response to the COVID-19 pandemic, all elective surgeries across Australia have been temporarily cancelled. Elective surgery is non-urgent surgery people choose (elect) to have: things...

video games are boosting well-being during the coronavirus lockdown

ShutterstockThe same week social distancing measures were announced in Australia (March 16 – March 22), sales of game consoles leaped 285.6%. Prior to this, sales were declining month on month...

what should I do during the coronavirus pandemic?

ShutterstockThe new respiratory coronavirus COVID-19 is particularly worrying for the 2.7 million Australians who already suffer from asthma. That’s roughly one in nine people.Viral respiratory infections, in particular those that...

Popular articles from Modern Australian

DIFFERENT TIPS FOR YOUR SITTING ROOMGet Through Lockdown with Retail Therapy: Buying Your First Designer Bag OnlineBright Ways to Cut The Costs of Business Travel Why polished concrete floors are warmer and more comfortable than you thinkAustralia limits alcohol use during coronavirus pandemicHoneymoon Planning: 6 Tips for Creating the Trip of Your LifetimeEffective and Time-Saving Fitness Tips Every Working Mom NeedsSafety First: Tips & Tricks for Your First Road Trip8 Essential Woodworking Tools You Need in Your ArsenalThe Future of Gambling Sponsorship in Australia5 Common First Aid CoursesSafety Tips for Operating Your Wood HeaterANZ Access Advantage card reviewBeyond Beauty - 5 Ways Cosmetic Procedures Can Improve More Than Just Your AppearanceHow to Make Extra Cash From Your Assets