There is a widespread belief that same-sex couples will be lawfully able to marry from today Monday 19 August. The Marriage (Definition of Marriage) Amendment Act 2013 comes into effect on 19 August 2013. However the Marriage Act 1955 provides that to be married a couple must first give notice to the registrar of an intention to marry, and be issued with a marriage license. The license is to be issued by the registrar not earlier than the third day after the notice is given. A same-sex couple therefore cannot legally apply for a marriage license before 19 August – as they would not lawfully be able to marry before then. A notice of intention must certify that the applicants are lawfully able to marry – specifically that “that there is no lawful impediment to the intended marriage”. Until 19 August that would not be the case for a same-sex couple, as the new law was not yet in effect. So any notices submitted before the 19th would be invalid.
The Marriage Forms Regulations 1995 containing the Notice of Intention to Marry forms were amended by the Marriage (Forms) Amendment Regulations 2013 – the latter coming into force from 16 August 2013. However these merely described the new forms required, and did not legalise same-sex marriage. If the earliest date that a legal notice can be given of an intended marriage is 19 August, the earliest that a registrar could issue a valid license would be 22 August. In practice the earliest that a legal same-sex marriage could occur would also be 22 August 2013. Any earlier marriages would be unlawful, and void.
A Media Release issued on 12 August 2013 by the Registrar-General of Births Deaths and Marriages, Jeff Montgomery (the Department of Internal Affairs) stated
Couples will use the forms for marriages occurring from 19 August, the first day same sex couples can get married …
“The new notification of marriage form includes the terms ‘bride’, ‘bridegroom’ and ‘partner’. Couples need to fill out the form and then one of the couple needs to bring the form to a Registry Office, make a statutory declaration in front of a Registrar of Marriages and pay the fee. Three days later we will issue the couple a marriage licence.”
Comment: Those same-sex couples who signed (only one member is required to do so ) and submitted a Notice of Intended Marriage on Friday 16 August 2013 – indicating by way of “solemn declaration” that they knew of “no legal impediment to the intended marriage” made false declarations in breach of the Oaths and Declaration Act 1957. Under the Marriage Act 1955 which remained in force until midnight Sunday 18 August 2013, they would not have been entitled to get married at the time they signed the statutory declaration so the Notice of Intended Marriage is INVALID. The earliest it could have been lawfully signed was on 19 August 2013 when the Marriage (Redefinition of Marriage) Act 2013 came into force.
See: Statutory Declaration Point 4. [to be completed in front of the Registrar]
4. that there is no lawful impediment to the intended marriage
And I make this solemn declaration conscientiously believing the same to be true and by virtue of the Oaths and Declarations Act 1957