Marriages in Aboriginal Societies Today

226. Pressures for Change. Pressures have been placed on Aboriginal marriage practices both by government policy and the activities of missionaries. Increasing social contact has exposed Aborigines to new values which formed no part of indigenous culture. Speaking of the 1930s, AP Elkin commented that:

The custom of old men marrying young girls is changing in those parts of Northern Australia occupied by whites. Many young men are now seen with young wives though seldom with any children. Polygamy is also being dropped. Such changes are apparently the direct or indirect result of white influence.^[21]

The education system has brought young girls and boys together in a way which would not have occurred in traditional societies.

Promised marriages are no doubt dwindling away … You get a lot of these young kids who have been to school, they have been educated, and they have tasted alcohol, they know what is money, they drive fast cars … As far as tribal marriages are concerned it is not for them. A lot of them will marry the wrong way, or in other words not their right skin group, and once they do that a lot of them will leave their community, their tribe. It is really a matter of principle go away for a while, for any length of time until everything is forgotten, and they go back.^[22]

227. Promised Marriages Today. The exchanging of marriage promises continues in many traditionally oriented Aboriginal communities, although some changes have taken place.^[23] For example, it appears that age differences between spouses have narrowed and a girl will not marry her promised husband until after leaving school. It is also increasingly likely that a promised marriage will not occur at all (especially if there is a large age disparity between the parties).^[24] A consequence of the failure of ‘promises’^[25] is that it is becoming less common for marriage arrangements to be made. In some communities the practice of exchanging promises has practically disappeared. In others it has been modified.^[26] It is much more likely that a girl, even if living in a traditionally oriented community, will be able to choose her own marriage partner despite the fact that she may have been promised at birth. And it is more common for a girl to air her grievances over a prospective marriage. Resistance to promised marriages has come both from young men and young women.^[27] Resentment may be directed at parents as the persons responsible for the promise. A consequence is that parents may deny their own, or assert the others, responsibility for making the promise.^[28] On the other hand, Professor Hamilton observes that while opposition to promised marriages comes from some whites and also from younger Aboriginal people who seek freedom of choice, as they grow older Aboriginal men may still take second and third betrothed wives. She comments that only the concerted opposition of the young seems likely to modify the system, especially in areas such as Arnhem Land.^[29] This view accords with the views expressed to the Commission during its public hearings.^[30]

228. Traditional Marriages Today. While Aboriginal marriage rules and customs have been maintained, especially in more remote communities, despite external pressures,^[31] amongst most urban and fringe-dwelling Aborigines formal marriage rules and institutions have diminished in importance.^[32] Polygyny has also declined, certainly in communities where mission influences were strong, but also, it seems, more generally, under the impetus of economic change.^[33] Dr Sutton states that:

Polygynous marriages are often said to have disappeared from communities where missionary influence is strong, but it is not uncommon for second and third marriages to be concealed from authorities where these authorities disapprove of polygyny … At present one must assume that polygyny will be around for an indefinite future, even if it continues to decline in gross terms.^[34]

This view was reaffirmed during the Commission’s public hearings, where the continued existence of polygyny in the more traditional communities was asserted, although its decline was also generally acknowledged.^[35] Even with the decline in polygyny, other aspects of traditional marriage are still followed and maintained. Among the Tiwi the ‘breakdown of polygamy did not materially change the position with [marriage] contracts’.^[36] Admitting the decline of traditional marriage rules (including polygyny) in particular areas does not mean that its disappearance is desired or accepted.^[37] A number of communities in submissions to the Commission specifically sought recognition of their marriage rules by the general law.^[38]

229. Flexibility of Traditional Marriage Rules. Rules regarding ‘correct’ or ‘straight’ marriages, and rules relating to betrothals and marriage, are important.^[39] But the apparent rigidity of these rules is tempered in various ways. ‘Alternative’ or ‘irregular’ marriages with other persons were possible, provided that the basic incest rules were not broken. It seems that these possibilities are greater now, under the pressure of contact with the wider society.^[40] Dr Bell, for example, refers to an increased ‘willingness to stretch the scope of correctness’ at Warrabri.^[41] But the possibilities have always existed. According to Piddington:

while acculturation has weakened the objection to many marriages (as it has weakened the observance of other traditional rules), alternative marriages have always been an accepted feature of Australian kinship organisation … an essential part of Aboriginal social life.^[42]

Dr Bell comments that:

Marriages between persons other than those stated as correct … tend to be fragile, attract disapproval and censure from families and home communities, and create enormous confusion should there be any children of the union. These children must go through life with an ambiguous social classification and are very often the brunt of family disputes.^[43]

Secondly, there may be degrees of marriage.^[44] Childless spouses may be considered less firmly married than couples who have children. Casual liaisons may develop into relationships that are considered as marriages by the community concerned. Thus it may be that a relationship is considered transitional at a given time, being more than a casual liaison yet not yet regarded as a full marriage. Similarly there may be situations in which a couple may not be fully considered as divorced. The flexibility of marriage laws, and the fact that there may be degrees of marriage, have implications for the recognition and proof of traditional marriages.^[45] But they do not mean that traditional marriages cannot be defined or ascertained. Bell and Ditton comment that they ‘never heard women in doubt as to whether a couple were just “living together”’.^[46] Sutton argues that in establishing whether there is a traditional marriage:

the only really important ‘test’ is that the couple and their families agree that they are in an Aboriginal marriage (often expressed as ‘properly married blackfella-way’).^[47]

Thus in Police v Ralph Campbell the question whether a witness was traditionally married was resolved by seeking the views of the witness and her parents.^[48] There may be situations in which the spouse, the relevant families and the kin may disagree as to whether the parties are properly married.^[49] Disagreement does not necessarily mean that there is no marriage, but the views of all those whose opinions matter must be taken into account, in determining whether there is a marriage.^[50]