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Marriage Ordinance 1961

CONSOLIDATED ACTS OF SAMOA 2010

MARRIAGE ORDINANCE 1961

Arrangement of Provisions

TITLE
1. Short title
2. Interpretation

PART I
ADMINISTRATION

Registrar-General and Registrars

3. Application of Ordinance
4. Registrar General and Deputy Registrar-General
5. Repealed

Marriage Officers

6. Appointment of marriage officers

PART II
RESTRICTIONS ON MARRIAGE

7. Marriage of persons within prohibited degrees of relationship void
8. Validation of certain marriages already solemnised
9. Minimum age of marriage
10. Consent to marriage of minors
11. General provisions relating to consents
12. Marriages without marriage officer void
13. Marriages not to be void because of defects in procedure
14. Notice of marriage

PART III
SOLEMNISATION OF MARRIAGE

15. Mode of solemnisation
16. Marriage to be solemnised within 3 months of notice

PART IV
REGISTRATION OF MARRIAGES

17. Repealed
18. Repealed
19. Repealed
20. Repealed
21. Repealed

PART V
GENERAL

22. Repealed
23. Repealed
24. Repealed
25. Repealed
26. Repealed
27. Repealed
28. Repealed
29. Repealed
30. Offence to solemnise marriage contrary to provisions of this Ordinance
31. Offence to solemnise marriage falsely pretending to be marriage officer
32. Offences in connection with false statements and improper solemnisation of marriages
33. Offences generally
34. Regulations
35. Enactments ceasing to be part of law of Samoa, and savings
Schedules

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THE MARRIAGE ORDINANCE 1961
1961 No.8

AN ORDINANCE to consolidate and amend the law relating to marriage.

(28 September 1961)
(Commencement date: 28 September 1961)

1. Short title - (1) This Ordinance may be cited as the Marriage Ordinance 1961.

(2) This Ordinance is divided into parts as follows:

PART I Administration (sections 3 to 6).

PART II Restrictions on marriage (sections 7 to 14)

PART III : Solemnisation of marriage (sections 15 and 16)

PART IV : Registration of Marriages (sections 17 to 21)

PART V General (sections 22 to 35).

2. Interpretation - In this Ordinance, unless the context otherwise requires:

"Affinity" means relationship by marriage;

"Consanguinity" means relationship by blood;

"'Deputy Registrar' means a Deputy Registrar appointed under the Births, Deaths and Marriages Registration Act 2002;

"Minister" means the Minister of Justice;

"Minister of religion" means a marriage officer licensed as such on the nomination or at the request of a religious body;

'"Registrar" means the Registrar appointed under the Births, Deaths and Marriages Registration Act 2002.

PART I
ADMINISTRATION

Registrar and Deputy Registrar

3. Application of Ordinance - (1) The provisions of this Ordinance, so far as they relate to capacity to marry, shall apply to the marriage of any person domiciled in Samoa at the time of the marriage, whether the marriage is solemnised in Samoa or elsewhere.

(2) The provisions of this Ordinance, so far as they relate to the formalities of marriage, including the provisions relating to consents to the marriage of minors, shall apply to any marriage solemnised in Samoa, whether or not either of the parties to any such marriage is at the time of the marriage domiciled in Samoa.

4. Registrar and Deputy Registrar - (1) The Registrar shall be charged with the general administration of this Ordinance.

(2) A Deputy Registrar shall, under the control of the Registrar, have all of the powers, duties and functions of the Registrar.

(3) Where a vacancy occurs for any reason in the office of Registrar, or in the absence of the Registrar, and for so long as the vacancy or absence continues, -

(a) the Deputy Registrar if there is only one; or

(b) a Deputy Registrar so authorised at any time in writing by the Minister or by the Registrar in every other case,

has and may exercise and perform all the powers, functions, and duties of the Registrar.

5. Repealed

Marriage Officers

6. Appointment of marriage officers - (1) The Head of State may by warrant under his or her hand license as a marriage officer any Minister of religion or other person whom the Head of State believes to be a fit and proper person to be so licensed.

(2) Any such licence may at any time be revoked by the Head of State in a like manner.

PART II
RESTRICTIONS ON MARRIAGE

7. Marriage of persons within prohibited degrees of relationship void - (1) Subject to the provisions of this section, a marriage which is forbidden by the provisions of the First Schedule to this Ordinance shall be void.

(2) Any persons who are not within the degrees of consanguinity but are within the degrees of affinity prohibited by the said Schedule may apply to the Supreme Court for its consent to their marriage, and the Supreme Court, if it is satisfied that neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the termination of any previous marriage of the other party, may make an order dispensing with the prohibition contained in the First Schedule to this Ordinance so far as it relates to the parties to the application and, if such an order is made, that prohibition shall cease to apply to the parties.

(3) The Registrar of the Supreme Court where any order under this section is made shall send a copy in duplicate of the order to the Registrar.

(4) No marriage not forbidden by the provisions of the First Schedule to this Ordinance shall be void only on the ground of consanguinity or affinity.

8. Validation of certain marriages already solemnised - All marriages solemnised before the commencement of this Ordinance that by virtue of section 7 of this Ordinance would have been valid and lawful if this Ordinance had been in force when they were solemnised shall be deemed to have been and to be valid and lawful, and the issue born of any such marriage (whether born before or after commencement of this Ordinance) shall be deemed to have been born in lawful wedlock:

PROVIDED THAT where either of the parties to any such marriage has thereafter during the lifetime of the other party to the marriage and before the commencement of this Ordinance lawfully married any other person, the first marriage shall be deemed to have been dissolved immediately before the solemnisation of the second marriage:

PROVIDED ALSO THAT this section shall not affect any estate, right, or interest in any real or personal property to which any person has become absolutely entitled before the commencement of this Ordinance, or affect any proceedings commenced in any Court before the commencement of this Ordinance, or any decree, order, or judgment made or given (whether before or after the commencement of this Ordinance) in any such proceedings.

9. Minimum age of marriage - A marriage officer shall not solemnise or record any marriage unless the husband is at least 18 years of age and the wife is at least 16 years of age, but no marriage shall be invalidated by a breach of the provisions of this section.

10. Consent to marriage of minors - (1) A marriage officer shall not solemnise or record the marriage of any man under the age of 21 years or of any woman under the age of 19 years without the consent of one of the parents or the guardian of such man or woman, if either of those parents or such guardian is alive and resident in Samoa.

(2) A District Court Judge may in any case, if the Judge thinks fit to do so, grant exemption from the requirements of this section.

(3) No marriage shall be invalidated by any breach of the provisions of this section.

11. General provisions relating to consents - (1) Every consent under section 10 of this Ordinance shall be in writing witnessed by some person who shall add his or her occupation and address, and the consent shall be delivered to the marriage officer to whom notice of the intended marriage is given.

(2) Any such consent given may, by notice in writing signed by the person giving consent, be withdrawn at any time before the marriage officer solemnises the marriage.

12. Marriages without marriage officer void - If any person knowingly and wilfully marry in Samoa in the absence of a marriage officer, the marriage shall be void.

13. Marriages not to be void because of defects in procedure - (1) Except as provided in section 7 or in section 12 of this Ordinance, no marriage shall be deemed to be void by reason of any error or defect in the notice or declaration required before solemnisation, or in the registration of the marriage when solemnised where the identity of the parties is not questioned, or on account of any other infringement of the provisions of this Ordinance.

(2) Nothing in this section shall exempt any marriage officer, Registrar, or other person who does anything contrary to the provisions of this Ordinance from any penalty for any offence under this Ordinance committed by any such person.

14. Notice of marriage - (1) A marriage officer shall not solemnise or record any marriage unless notice in writing of the intention of the parties to enter into such marriage has been given to the marriage officer by one of the parties thereto at least 10 clear days before the day of the marriage.

(2) On receipt of such notice the marriage officer shall publish the same in such manner and form as the Head of State may from time to time prescribe.

(3) On every such notice there shall be payable by the person giving the same such fee (if any) as may be prescribed, and all such fees shall be payable into the Treasury.

(4) At any time when regulations have been made requiring a declaration to be made that no restrictions on any marriage exist, no marriage officer shall solemnise or record any marriage unless such declaration has been made contemporaneously with or subsequently to the giving of notice.

(5) No marriage shall be invalidated solely by a breach of the requirements of this section.

PART III
SOLEMNISATION OF MARRIAGE

15. Mode of solemnisation - (1) Every marriage in Samoa shall take place between the persons named in the notice given under this Ordinance, and shall, subject to the provisions of this Ordinance, be solemnised with open doors in such manner as the marriage officer thinks fit.

(2) Every such marriage shall be solemnised in the presence of a marriage officer and 2 or more witnesses.

16. Marriage to be solemnised within 3 months of notice - A marriage shall not be solemnised after the expiration of 3 months from the date of the notice of the intended marriage.

PART IV
REGISTRATION OF MARRIAGES

17. Repealed
18. Repealed
19. Repealed
20. Repealed
21. Repealed

PART V
GENERAL

22. Repealed
23. Repealed
24. Repealed
25. Repealed
26. Repealed
27. Repealed
28. Repealed
29. Repealed

30. Offence to solemnise marriage contrary to provisions of this Ordinance - Every marriage officer who knowingly and wilfully solemnises any marriage contrary to the provisions of this Ordinance, or where there is any other lawful impediment to the marriage, commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years, or to a fine not exceeding 6 penalty units.

31. Offence to solemnise marriage falsely pretending to be marriage officer - Every person who falsely pretends to be a marriage office and solemnises any marriage, knowingly and willfully so doing, commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 5 years.

32. Offences in connection with false statements and improper solemnisation of marriages - Every person commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years, or to a fine not exceeding 4 penalty units, who knowingly and wilfully:

(a) makes or causes to be made any false declaration for the purposes of this Ordinance.

(b) repealed.

33. Offences generally - (1) Every person who fails to comply with or does any act in contravention of any of the provisions of this Ordinance commits an offence.

(2) Every person who commits an offence against this Ordinance for which no specific penalty is elsewhere provided shall be liable on conviction to a fine not exceeding 1 penalty unit.

(3) No prosecution under this Ordinance shall be commenced after the expiration of 3 years from the date when the offence was committed.

34. Regulations - (1) The Head of State, acting by and with the advice of Cabinet, may from time to time make regulations for any purpose for which regulations are contemplated or required by this Ordinance, and may make all such other regulations as may in his or her opinion be necessary or expedient for giving full effect to the provisions of this Ordinance and for the due administration thereof.

(2) Without limiting the general power conferred by subsection (1) of this section, it is hereby declared that regulations may be made under this section for all or any of the following purposes:

(a) prescribing the manner and form of the publication of notices of marriage;

(b) prescribing the form and contents of any declaration required as a condition of the solemnisation of any marriage and the persons by whom it is to be made;

(c) prescribing the form of words to be used by the parties to any marriage and by the marriage officer in cases where the marriage officer solemnising the marriage is a Registrar or other person than a Minister of religion;

(d) repealed;

(e) repealed;

(f) prescribing fees for the doing of any act under this Ordinance.

(3) It shall be the responsibility of the Minister to lay all regulations made under this section before the Legislative Assembly within 28 days after the making thereof if the Assembly is then in session; and if not, to lay such regulations before the Assembly with 28 days after the commencement of the next ensuing session.

35. Enactments ceasing to be part of law of Samoa, and savings - (1) As from the date of the coming into force of this Ordinance, the enactments specified in the Second Schedule to this Ordinance shall cease to be part of the law of Samoa.

(2) The ceasing by the operation of this Ordinance of any provision to be part of the law of Samoa shall not affect a document made or anything whatsoever done or regulations made under or relating to the provision so ceasing to be part of the law of Samoa, and every such document, thing, or regulation, so far as it is subsisting or in force at the time when such provision ceased to be part of the law of Samoa, shall continue and have effect as if it had been made or done under this Ordinance.

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SCHEDULES

FIRST SCHEDULE
Section 7

1. A man may not marry his:

(1). Grandmother

(2) Grandfather's wife

(3) Wife's grandmother

(4) Father's sister

(5) Mother's sister

(6) Mother

(7) Stepmother

(8) Wife's mother

(9) Daughter

(10) Wife's daughter

(11) Son's wife

(12) Sister

(13) Son's daughter

(14) Daughter's daughter

(15) Son's son's wife

(16) Daughter's son's wife

(17) Wife's son's daughter

(18) Wife's daughter's daughter

(19) Brother's daughter

(20) Sister's daughter

2. A woman may not marry her:

(1) Grandfather

(2) Grandmother's husband

(3) Husband's grandfather

(4) Father's brother

(5) Mother's brother

(6) Father

(7) Stepfather

(8) Husband's father

(9) Son

(10) Husband's son

(11) Daughter's husband

(12) Brother

(13) Son's son

(14) Daughter's son

(15) Son's daughter's husband

(16) Daughter's daughter's husband

(17) Husband's son's son

(18) Husband's daughter's son

(19) Brother's son

(20) Sister's son

3. The foregoing provisions of this Schedule with respect to any relationship shall apply whether the relationship is by the whole blood or by the half blood and whether the relationship is legitimate or illegitimate.

4. In this Schedule, unless the context otherwise requires, the term "wife" means a former wife, whether she is alive or deceased, and whether her marriage was terminated by death or divorce or otherwise; and the term "husband" has a corresponding meaning.

SECOND SCHEDULE
Section 35

ENACTMENTS CEASING TO BE PART OF THE LAW OF SAMOA

No. 16 - 1921 : The Samoa Act 1921, sections 284 to 300 (both inclusive)

No. 40 - 1945 : The Statutes Amendment Act 1945, section 74.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.

(c) All references to the male gender have been made gender neutral.

(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(e) Amendments have been made to up-date references to offices, officers and statutes.

(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

Amendments made by the Births, Deaths and Marriages Registration Act 2002

- section 2, "Deputy Registrar-General" and its definition is replaced with "'Deputy Registrar' means a Deputy Registrar appointed under the Births, Deaths and Marriages Registration Act 2002":

- section 2, "Registrar General" and its definition is replaced by '"Registrar" means the Registrar appointed under the Births, Deaths and Marriages Registration Act 2002.'

- Part 1 - the heading "Registrar-General and Deputy Registrar-General" are replaced by "Registrar and Deputy Registrar".

- section 4 the section title "Registrar-General and Deputy Registrar-General" are replaced by "Registrar and Deputy Registrar".

- section 4(1) replace the words "Registrar-General" with the word "Registrar".

- section 4(2) replaced.

- section 4(3) replaced.

- Repeal section 5.

- section 7(3) replace the words "Registrar-General" with "Registrar"

- Repeal Part IV: sections 17-21.

- Repeal section 22.

- Repeal section 23.

- Repeal section 24.

- Repeal section 25.

- Repeal section 26.

- Repeal section 27.

- Repeal section 28.

- Repeal section 29.

- Repeal section 32(b).

- Repeal section 34(2)(d) and section 34(2)(e).

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2008 No. 2

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) the commencement date has been inserted; and

(b) other minor editing has been done in accordance with the lawful powers of the Attorney General.

The amendments made by the Births, Deaths and Marriages Registration Act 2002 (BDM Act) to this Act were not incorporated in the "Consolidated and Revised Statutes of Samoa 2007". They are now incorporated in this review but are explained in the Revision Notes 2008 (above) rather than the Revision Notes 2008 No.2 as the BDM Act is a 2002 Act and its amendments to the Marriages Ordinance should have been incorporated under the "Consolidated and Revised Statutes of Samoa 2007".

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel).

REVISION NOTES 2009

There were no amendments made to this Act other than it was generally edited in accordance with the lawful powers of the Attorney General provided for by Section 5 of the Revision & Publication of Laws Act 2008.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).

REVISION NOTES 2010

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2010. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Revised by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).

The Marriage Ordinance 1961 is administered in the Ministry of Justice and Courts Administration.