223. Traditional Marriage Arrangements. According to Dr Bell, certain elements underpin traditional marriages:
there is the potential of marriage between certain categories of persons which is further refined by reference to actual kin, country, ritual and historical relations. Such a union is hedged in by certain taboos, including in-law avoidance. It is enmeshed in a complex web of kin obligations and responsibilities. It is underwritten by exchanges which both pre-and post-date any individual marriage. Violations or deviance from the marriage contract attract attention from different categories of person or persons.
Professor Berndt has defined four key elements as follows:
1. The couple should be eligible to marry according to local rules defining ‘ideal preferences and accepted authorities’.
2. Appropriate betrothal arrangements should have been made between the two kin groups concerned. An exchange of gifts ratifies the contract.
3. Actual marriage may be distinguished from the betrothal when the parties cohabit publicly and take on ‘marital responsibilities including sexual relations’.
4. The union is considered to be strengthened by the birth of the first child.
Marriage was a central feature of traditional Aboriginal societies. The need to maintain populations and thereby to ensure that there was always someone to attend sites and keep up traditions was matched by the desire to ensure that children were produced according to the right family groups and the correct affiliations. For these purposes freedom of marriage was restricted by the prohibitions against the marriage of certain close relatives and by the rule of exogamy, that is, marrying outside one’s group. An important factor in determining the parties to a marriage was the balancing of kinship obligations, including reciprocal obligations between individuals, families or larger groups. The interests of the parties, and their attraction or affection for each other, were considered subsidiary to these obligations. The creation of marriage alliances and the obligations that this involved were closely linked with relationships to the land. Spiritual affiliation with land included a series of ritual obligations and duties often acquired through inheritance in either the male or female line, or both. And marriage was a primary means for maintaining attachment to land. According to Dr Bell
Perhaps the most important difference between Aboriginal marriage patterns and those of white Australia is that the marriage is not seen as a contract between individuals but rather as one which implicates both kin and country men of the parties involved. If we explore the web of relations which surround an arranged marriage entered into at the time of initiation of a young male, we find that at least three generations are implicated.
224. Arranging Marriages. One important way in which marriages were arranged was infant betrothal. Usually this was between a young girl and an older man. A man’s first marriage would not necessarily fall into this category: his first wife might well be an older widow. A girl could be betrothed either as a potential mother-in-law or as a wife. Indeed it was possible for a girl to be betrothed before she was born and to grow up knowing who her future husband was likely to be. The promised relationship created a series of lifelong responsibilities and obligations between the young man and his promised wife’s relations. For example, the young man might be required to provide food for his future mother-in-law. While the girl was growing up she would normally have regular contact with her promised husband, so that when the marriage eventually took place he was no stranger to her. However, the fact that negotiations had taken place and promises made was no guarantee that a marriage would take place, or that a girl would consider herself obligated to remain married to her promised husband. Refusal to marry, or to perform obligations to family associated with marriage arrangements, would usually give rise to arguments, but if the prospective husband or wife persisted in refusal, renegotiation was possible. This might involve arranging a substitute or agreeing to compensate the aggrieved person in some way.
225. Patterns of Marriage and Remarriage. The age of marriage was very different for men and women, and differed also as between various parts of Australia. Usually, a girl would marry at or about the age of puberty; a man not until later (in his late twenties or even later). Among some Aboriginal groups, at least, marriages were often polygynous (with a husband having two or more wives): a wife, on the other hand, would have only one husband at a time, although usually she would be married to several husbands in succession, as the former husband died or the marriage broke up. There was, in most groups, no single marriage ceremony, although particular acts or events (eg sharing a campfire) would result in the recognition of the marriage by the community. Divorce could occur by mutual consent or unilaterally, again, in most cases, without any particular formality: divorce involved, and was signified by, the termination of cohabitation. However, if a wife eloped or otherwise left a husband without his consent, he might try to bring her back by force, seek to punish her or her lover, or seek compensation. In each of these respects he might be assisted by his kin. Similarly if a husband became involved with another woman his wife might be required by customary law to ritually and publicly fight the other woman.
Generally on Aboriginal marriage see LR Hiatt, Kinship and Conflict, ANU Press, Canberra, 1965; LR Hiatt, ‘Authority and Reciprocity in Australian Aboriginal Marriage Arrangements’ (1967) 6 Mankind 468; D Bell & P Ditton, Law: The Old and the New, 2nd edn, Aboriginal History, Canberra, 1984, 90-94, 96-8; HK Fry, ‘Australian Marriage Rules’ (1933) 25 Sociological Rev 3; R Piddington, ‘Irregular Marriages in Australia’ (1970) 40 Oceania 329; A Hamilton, ‘The role of women in Aboriginal marriage arrangements’, in F Gale (ed) Women’s Role in Aboriginal Society, 3rd edn, AIAS, Canberra, 1978, 29; JC Goodale, ‘Marriage Contracts among the Tiwi’ (1962) 1 Ethnology 452; PM Kaberry, Aboriginal Women, Sacred and Profane, Rutledge & Sons, London, 1939; W Shapiro, ‘Local Exogamy and the Wife’s Mother in Aboriginal Australia’, in RM Berndt, Australian Aboriginal Anthropology, University of Western Australia Press, Perth, 1970, 51; J Long, ‘Polygyny, Acculturation and Contact: Aspects of Aboriginal Marriage in Central Australia’, id, 292; F Rose, ‘The Australian Aboriginal Family: Some Theoretical Considerations’, in Forschen and Wirken, Festschrift zur 150-Jahr-Fier der Humboldt Universitat zu Berlin, vol 3, Dr Verlag der Wissenschaften (in Komm), Berlin, 1960, 415; MJ Meggitt, ‘Marriage Among the Walbiri of Central Australia: A Statistical Examination’, in RM Berndt & CH Berndt (eds) Aboriginal Man in Australia. Essays in Honour of AP Elkin, Angus & Robertson, Sydney, 1975, 146; W Shapiro, Social Organization in Aboriginal Australia, St Martin’s Press, New York, 1979, esp 83-8; RM Berndt & CH Berndt, The World of the First Australians, 4th rev edn, Rigby, Adelaide, 1985, 188-208; Sutton (1985).
D Bell, ‘Re Charlie Jackamarra Limbiari. Report to the Court’, in R v Charlie Limbiari Jagamara, unreported, NT Supreme Court, May 1984, 13, 14.
RM Berndt, ‘Tribal Marriage in a Changing Social Order’ (1961) 5 UWAL Rev 326, 338-9, and cf Sutton (1985) 13. None of these criteria may be considered absolute. The implications of this flexibility are examined in paragraph 229.
Berndt and Berndt suggest that unmarried women were very rare, but there are occasionally unmarried men: Berndt & Berndt (1985) 196-7. Both are, however, more common today: Bell & Ditton, 91; A Hamilton, ‘Gender and Power in Aboriginal Australia’, in N Grieve & P Grimshaw (ed) Australian Women, Oxford University Press, Melbourne, 1981, 76.
 See CH Berndt & RM Berndt, Pioneers and Settlers, Pitman Australia, Carlton, 1978, 51.
See Bell & Ditton, 91-2.
AP Elkin, The Australian Aborigines, rev edn, Angus and Robertson, Sydney, 1979, 155.
cf K Palmer, Grey Earth and Clean Sand, Western Desert Project, Flinders University of South Australia, Adelaide, 1982, 11.
Bell, ‘Re Charlie Jackamarra Limbiari’ (1984) 4.
Some anthropologists use the word ‘bestowal’ in preference to ‘betrothal’, eg Maddock, Hiatt. This carries implications about the nature of promised marriage. The word ‘betrothal’ is used here without any intention of entering into the anthropological debate.
D Bell, Daughters of the Dreaming, McPhee Gribble, Melbourne, 1983, 205-28.
ibid; Transcript of Women’s Meetings Kowanyama (28 April 1981) 174-5; J Biendurry, Transcript of Public Hearings Derby (27 March 1981) 583.
This could have been as high as 16-18 years. The problem with couching questions in terms of age is that it draws distinctions which have not been deemed relevant to people in the past. Also as the age of sexual maturity is falling answers in terms of age are more likely to mislead than clarify the situation: ACL Field Report 7, Central Australia (1982) 18. Comments along these lines, made by Tennant Creek women to Professor Tay and Dr Bell, seem generally applicable. The women also expressed concern at people marrying younger: ibid.
K Maddock, The Australian Aborigines, rev edn, Penguin, Ringwood, 1982, 67-70 analyses the literature with respect to age of marriage.
Berndt & Berndt (1985) 197.
id, 199-200. However in a number of groups there were formal ceremonies at different stages in the process of transition from unmarried to married status. Goodale, 460 identifies a form of marriage ceremony among the Tiwi. Palmer, 13-14 refers to ‘a single short ritual … known as kuri pikatja … which signifies the commencement of a marriage’ among the Yalata Pitjantatjara.
id, 15 (‘Divorce is recognised when a couple no longer live together and the parents of both husband and wife have agreed to accept the divorced status of the couple’). See also J Bucknall, Transcript Strelley (24 March 1981) 352-3.
See eg Police v Isobel Phillips, unreported, NT Court of Summary Jurisdiction, 19 September 1983 (JM Murphy SM). See para 648.