Revocation of a will by marriage; it’s not always the case.

The Marriage Act 1961 and Marriage Regulations 2017 provide the rules for getting married in Australia. Section 42 of the Marriage Act provides a person must:

  • not be married
  • not be marrying a parent, grandparent, child, grandchild, brother or sister
  • Not marry unless a court has approved a marriage where 1 person is 16-18 be at least 18 years old, 
  • understand what marriage means and freely agree to marry
  • use specific words during the ceremony
  • give a notice of intended marriage form to an authorised marriage celebrant at least 1 month and no more than 18 months before your wedding.
  • be married by an authorised marriage celebrant 

The couple don’t have to be:

  • Australian citizens, or
  • permanent residents of Australia
  • employment-related or travel commitments
  • wedding or celebration arrangements
  • medical reasons
  • legal proceedings

On the wedding day, marriage certificates must be signed by:

  • you and your spouse
  • your authorised marriage celebrant
  • two witnesses, over 18 years old

Within 14 days of the marriage the celebrant must submit the marriage paperwork to the registry of births deaths and marriages in the state or territory the couple were married.

A ceremonial certificate of the marriage is given to the married couple by the marriage celebrant on the day.

Early approval

If there is less than 1 month until the chosen wedding date s 42(5) of the Marriage Act a prescribed authority may approve the marriage reasons for getting married in less than one month include:

A marriage is considered valid where the following requirements are observed: 

  • It is performed by an authorised celebrant. An authorised celebrant includes religious ministers and registered marriage celebrants;
  • The parties provide notice to the celebrant of the intended marriage at least one month before the marriage takes place;
  • Both parties provide an official birth certificate or acceptable document if a birth certificate is not available;
  • Both parties must prove that there is no legal obstruction to the marriage (e.g, a divorce decree if previously married);
  • The marriage is solemnised at any time, date or place (e.g, a garden marriage is considered valid);
  • The marriage must be witnessed by at least 2 other people who are at least 18 years old;
  • The authorised celebrant must explain the legal nature of a marriage;
  • The parties, celebrant and witnesses must sign a marriage certificate that is then sent to the appropriate State/Territory Registry.

Section 13(1) of the Wills Act 1997 provides that

‘[a] will is revoked by the marriage of the testator’.

The central issue in Re Sambucco [2022] VSC 699 is whether, by participating in the ceremony, Marco Sambucco and Mara Batur were lawfully married. Marco, had had cancer for approximately four years, and died on 9 September 2019, leaving a will made in 2015 (the Will). The Will gives the entirety of his estate to a discretionary testamentary trust in which his issue and certain companies are the primary beneficiaries.

The background

On 8 June 2019, Marco and Mara participated in a ceremony described as a ‘religious commitment ceremony’ (the ceremony).  They had decided to marry in  On 5 May 2019, approached the Revd D. Rock  an authorised celebrant under the Marriage Act 1961 (Cth) (the Marriage Act) and asked him to officiate at their wedding ceremony.

The Revd D. Rock told Marco and Mara that they would need to fill in a notice of intention to marry under s 42 of the Marriage Act subsequently provided them with a notice of intention to marry which they completed and signed on 20 May 2019. The notice specified their marriage date as 13 July 2019, and that the Revd D. Rock would be the celebrant.

Marco and Mara had a genuine intention to marry. The Revd D. Rock conducted the ceremony on an earlier date than planned because of the decision to seek urgent medical treatment for Marco overseas.

The Revd D. Rock was properly authorised to solemnise marriages. Importantly the ceremony conformed with the marriage requirements prescribed by The Baptist Union of Australia, and was valid under Division 2 of Part IV of the Act.

Marco left no issue.  The secondary beneficiaries under the testamentary trust are his parents, siblings their spouses and their issue, and certain companies.  In December 2019, Mara estimated the net value of his estate to be about $5,300,000.

On 10 December 2019, Mara obtained a marriage certificate from the Registry of Births, Deaths and Marriages which certified that she and Marco had been married.

Mara then applied for a grant of letters of administration of Marco’s estate on the basis of intestacy as the Will had been revoked under s 13(1) of the Wills Act; which were granted on 31 January 2020.

The matter

On 17 February 2021, Marco’s parents, Pier and Odilla,  and his sister, Luisa Sambucco (the Applicants), sought the revocation of the grant of letters of administration on the basis that Marco and Mara’s marriage didn’t comply with the ‘formalities’ prescribed by the Marriage Act; therefore the Will wasn’t revoked.

The starting point in finding the legal validity of Marco and Mara’s marriage is under s 48(1) of the Marriage Act which states;

‘subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage’.

As submitted on behalf of Mara, and acknowledged by counsel for the Applicants, s 48(2) saves a marriage from invalidity by reason of non-compliance with the various formal requirements prescribed by the preceding provisions in Division 2 of Part IV of the Act.  

Because the ceremony conformed with the form and ceremonial requirements for marriage prescribed by The Baptist Union of Australia, the ceremony was consistent with ss 41 and 45(1) giving it validity at law by operation of Division 2 of Part IV of the Marriage Act.

The decision

The Court held that the applicant’s case, failed as far as non-compliance by Marco and Mara with the ‘formalities’ prescribed by the Act.

The Court accepted that a religious marriage ceremony prescribed by s 45(1) of the Act (or in the alternative, a civil marriage ceremony under s 45(2) of the Act), the only indispensable requirement expressly identified by the Act as necessary to solemnise a marriage between two people entitled to marry each other.

The Applicants’ submission that the ceremony was in the nature of a ‘registration of the marriage in the eyes of God’ and ‘fundamentally different from entry into a legal marriage’ fails for at least two reasons.

First, it proceeds from the false premise that the Marriage Act doesn’t give legal recognition to marriages which accord with recognised religious rites.

Secondly, it ignores the misapprehension under which the Rev D. Rock, Mara and Marco laboured in their understanding that

‘without a [notice of intention to marry] and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act, there could not be a marriage which was valid according to law’.

Re Sambucco [2022] VSC 699 at [117]

In dismissing the applicant’s summons for revocation the Court found that Marco’s Will was revoked by his marriage to Mara on 8 June 2019.

 

 

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