The right to marry a person of one’s choice is a legal right in Bhutan. With the exodus of Bhutanese to Australia, the courts are inundated with couples seeking marriage certificates. While there are vulnerabilities of abuse associated this right, the issues of inconsistent procedure in the issuance of marriage certificates and the concept of de facto marriage are a cause of concern.  

Marriage is an intimate, personal, and private contract between the partners. State intervention should be minimal in any private affair. Marriage is no exception. The marriage certificate is one form of State intervention to protect the rights of parties, including children.

Section Kha -1-3 of the Marriage Act of Bhutan 1980 requires married couples to obtain a certificate of marriage from the court to be recognised as legally married. Section Kha-1-4 and 5 require that the couple must appear before the court along with male and female sureties. The sureties have the duty to inquire and ensure that the couple fulfils the conditions for the marriage certificate. This is a huge responsibility. They are not witnesses but sureties meaning they are equally liable as the couple if found furnishing false or misleading information to the court to obtain the marriage certificate. This law also mandates the court to ensure that the couple fulfils the marriage conditions under the law.

However, there are reports of different courts applying different procedures to obtain a marriage certificate. Some courts require the couple to not only produce sureties but also share their entire social media and personal chats, messages, and photographs as evidence of their relationship. Some require appointments and some follow different procedures, confusing couples. While courts must have adopted these procedures with the best intentions, the production of social media and personal photos and messages can be deemed intrusive and may infringe on the person’s right to privacy.

 Further, it is not mandatory to be on social media or photographic evidence to prove one’s relationship under Bhutanese law. Since the couples submit affidavits and sureties have a legal duty, the courts do not have obligation to inquire much.  Any violation if found in an affidavit or false information by sureties, will face criminal sanctions including imprisonment and fines. Inconsistent procedures may create doubts and loss of public confidence in the system and service delivery.

 There is no de facto marriage under Bhutanese law. If any marriage certificate is obtained by declaring false information to the court, it is not de facto. It is a criminal offence. Further, under Section 234 of the Migration Act of Australia 1958, furnishing false or misleading information or document “with the intent that the document is used to help a person, being a person not entitled to use it, to gain entry or to remain in Australia” is liable for imprisonment for 10 years or fines of up to $110,000 or both.” 

 Therefore, even if the couple has already left for Australia by giving false information, if the Australian government comes to know, the couple could face these heavy criminal sanctions and penalties in Australia besides criminal sanctions in Bhutan when they return to the country. Furnishing false information or documents will severely affect the reputation of Bhutan. Therefore, it is incumbent on every Bhutanese protect national interest while pursuing one’s dream because the nation comes first. 

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.