MOST Australians would have been shocked to read of the purported ‘‘marriage’’ involving a 12-year-old girl that was allegedly entered into by a newly arrived student at an Islamic ceremony in the Hunter.
The ‘‘husband’’, who subsequently moved to Sydney, has been charged with sexual intercourse with a minor.
If these claims are found to be true, the community is right to be outraged.
Australia has an absolute minimum age for marriage of 16years under the Marriage Act 1961, and even marriage between 16 and 18 can only take place with a court order in ‘‘exceptional and unusual’’ circumstances.
While we used to allow a reduction in marriageable for girls (not boys) to the age of 14, the law was changed to provide a uniform set of provisions in 1991.
As a result any ‘‘marriage’’ that is supposed to take place involving a 12-year-old girl is not a real marriage at all, and is legally void.
Australian law takes this issue of under-age marriage so seriously that even when a marriage takes place overseas between parties whose home is in the overseas country, where such marriages might otherwise be lawful, the Marriage Act specifies that an under-age marriage will be void for the purposes of Australian law.
But an issue that doesn’t seem to have been mentioned so far is: what about the celebrant? Reports have not yet revealed who is alleged to have conducted this sham ‘‘marriage’’.
It seems likely that such a person may have committed a criminal offence, and there ought to be serious consideration given to a prosecution.
It an offence for a person to ‘‘purport to solemnise a marriage if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void’’.
Anyone who carried out a wedding ceremony involving a 12-year-old girl in Australia would have ‘‘reason to believe’’ the marriage would be void, as they should be aware of the age of the child.
They should be aware because a notice of intended marriage must be provided, accompanied by a birth certificate for each of the parties.
It is an offence for an authorised celebrant to solemnise a marriage without requiring such a notice.
It makes no difference to the commission of the above offences whether the marriage ceremony was in accordance with Islamic rites.
Australian law applies to all marriages or purported marriages celebrated in Australia.
The law allows a high degree of freedom to ‘‘recognised denominations’’ (of which Islam is one) in setting out marriage ceremonies in accordance with their beliefs. But it draws a sharp and clear line when it comes to marriageable age.
Is this an interference with the right to free exercise of religion? Yes, it is to some extent.
The right to religious freedom is a fundamental and important right, recognised in international law and under our Constitution.
But all those provisions are read subject to the importance of balancing out other rights. And in Western societies for many years, the right of a child not to be pushed into an early marriage and sexual relations has been recognised as a good and proportionate reason for qualifying religious freedom.
The authorities in Australia should be concerned if any religious group is conducting ‘‘marriage ceremonies’’ leading to relationships that are not regarded as valid marriages under Australian law.
Doing so only leads to confusion and heartbreak when the consequences of the ceremony are not as people may have thought.
Leaders of religious groups and authorised celebrants need to be very clear when any ceremony they conduct ‘‘looks like’’ a marriage service but cannot lead to a recognised marriage under the law.
Another example would be a ceremony conducted purporting to allow someone to take more than one wife in polygamy. The law of Australia does not allow a polygamous marriage to be entered into in this country, or by people who usually live here who might resort to other jurisdictions.
It is good to see that leaders of the major Islamic organisations have condemned the alleged ‘‘marriage’’. But individual celebrants, or those acting as celebrants, who are found to be conducting such ceremonies should be prosecuted.
Neil Foster is an associate professor of law at the University of Newcastle.