Marriage

Wondering about the adequacy of briefing clerics on religious visas after reports that Parramatta Local Court has accepted the plea by Muhammad Riaz Tasawar regarding the offence of solemnisation of a marriage by an unauthorised person. Tasawar was apparently the first person in NSW to be charged with the solemnisation of a marriage by an unauthorised person in the past 20 years.

The Marriage Act 1961 (Cth) provides for three categories of authorised celebrants who may solemnise marriages in Australia -

• ministers of religion of recognised denominations (who are registered under Subdivision A of Division 1 of Part IV of the Act) 
• State and Territory Officers (who are authorised by virtue of Subdivision B of Division 1 of Part IV of the Act), and 
• Commonwealth-registered marriage celebrants (who are registered under Subdivision C of Division 1 of Part IV of the Act), a  category encompassing both civil celebrants and ministers of religion who are not aligned with a recognised denomination.

Ministers of religion of recognised denominations who are authorised to solemnise marriages (an authorisation indicated through a registration number) may solemnise marriages according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which that person is a minister.

The cleric is entitled to be registered to solemnise marriages if  nominated for registration by that denomination, ordinarily resident in Australia, and at least twenty-one years of age. The Registrar of Ministers of Religion (a position held by the State/Territory BDM Registrars) may refuse an application for registration on the grounds that there are  sufficient registered ministers of the denomination to meet the needs of the locality in which the applicant resides, the applicant is not a fit and proper person to solemnise marriages, or the applicant is unlikely to devote a substantial part of his or her time to the performance of functions generally performed by a minister of religion.

The Act requires that a marriage must not be solemnised unless:

•  notice of the intended marriage has been given to the authorised celebrant within the required notice period,
• each party has produced specific documents to the authorised celebrant: evidence of date and place of birth, evidence of identity and evidence of the termination of any previous marriage, where relevant,
• each party has made a declaration as to his or her belief that there is no legal impediment to the marriage, and
• the authorised celebrant is satisfied that the marriage will be valid, including that each party has given real consent .

The authorised celebrant must also ensure that information about marriage education and counseling is made available to the parties to the marriage.

Tasawar was apparently living in Australia on a Religious Workers visa (subclass 428, now replaced by the Temporary Work (Long Stay) Activity visa), sponsored and employed as imam at the Mayfield mosque). That visa provides for the temporary stay of people who will be full-time religious workers in Australia, ie "work of a religious nature for which the applicant has had relevant religious training" and directly serving an organisation’s religious objectives, typically by providing spiritual leadership, providing teaching or guidance in religion, pastoral care and conducting worship ceremonies. ministering, pastoral care or proselytising other high level specialist work in relation to the above.

Tasawar argued that he believed he had done nothing wrong in "marrying" a 12 year old girl to a 26 year old man (in Australia on a student visa) because the union was never officially registered.

There is no indication in the reporting as to whether he was being disingenuous, simply had not been alerted about expectations regarding marriage under the Marriage Act 1961 (Cth) or the briefing is inadequate.

The SMH reports that the cleric

met with the 26-year-old man, his 12-year-old bride-to-be, the girl's father, her younger brothers and sister and another man. The group all acted as witnesses to the marriage which was conducted by Tasawar. ...

Police were made aware of the underage marriage when, a month later, the 26-year-old man, applied at Centrelink to become the child's guardian.

He was arrested and charged with 25 counts of sexual intercourse with an underage child. ...

When Tasawar was arrested in February, he told police he didn't believe the marriage was a "full marriage".

"In his view, he did not believe it was a full marriage because he had not officially registered it... however throughout the interview [he] referred to it as a marriage," the agreed facts said.

Police alleged that the cleric, the 'husband' and the bride's father all believed the marriage was legitimate and official. The girl's 61 year old father was charged with allowing his daughter to be "joined in an illegal union" and to start a sexual relationship with the man.

Tasawar was fined $500 and deported to Pakistan on cancellation of his visa. The student (who is unidentified in the interests of the child) was also deported.

The action is a reminder of the importance of consent in national and international law. The Universal Declaration of Human Rights art 16(2) for example states that "Marriage shall be entered into only with the free and full consent of the intending spouses". There are reiterations in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Convention on the Elimination of All Forms of Violence Against Women art 16(1)(b)  prohibits forced marriage on the basis of a right to freely and fully consent to marriage. People under the age of 16 are deemed to lack the capacity to consent to marriage.