Difficulties of Recognition

258. Polygynous Aboriginal Marriages. To the extent that traditional marriage is polygynous (as it is in a minority of cases), recognition might be seen by some as an affront to the established view of marriage in Australian society. One solution would be to recognise only monogamous marriages (and perhaps, where a marriage is polygynous, only the first wife as a spouse).[74] But such selectivity, in the context of functional recognition of marriage, is both arbitrary and self-defeating. The Commission’s approach is to recognise the consequences of marriage for particular purposes. To the extent that these consequences involve drawing upon the husband’s property or rights, it is arbitrary and unfair to exclude a second wife. To the extent that they involve extra claims upon the State or third parties (eg social security benefits) the position may be different, but there is no reason to exclude benefits to second or later wives altogether.[75] Certain other contexts involve no conflicting or competing claims. For example, the extension of a right of non-compellability in the law of evidence to a second wife does not compete with its application to the first wife. Here the only question is whether respect for an established Aboriginal social practice, which is in relevant respects like marriage un der the general law, supports the extension of the privilege to more than one wife. In principle, there is no reason why it should not do so.

259. Polygamy and Australian Family Law. This conclusion is supported by other social and legal developments in Australia. The Family Court has jurisdiction with respect to void Australian marriages, including marriages void as polygamous under s 23(1)(a).[76] Problems of competition between wives already occur, under the Family Law Act between former and subsequent or de facto wives, and under State legislation on de facto relationships between legal and de facto wives and, arguably, between several de facto wives.[77] There is no prohibition in Australian law on a man cohabiting with more than one woman (and vice versa): the courts may well be called on to deal with resulting conflicts over assets or the custody of any children of the relationships.

260. Recognition of Polygyny. The Commission concludes that the continuation of polygyny is a matter for Aborigines themselves to decide. Functional recognition of traditional marriage should entail recognition of polygyny where it exists. Problems of competition between wives, or bet ween wives and husbands, should be considered in context as they arise (as is already the case under existing legislation on de facto relationships).

261. The Question of Marriageable Age. A more difficult issue is the recognition of marriages of spouses (invariably, girls) below ‘marriageable age’ in Australian law.[78] Marriages of girls below the legally permitted age still occur in some Aboriginal communities, although the age at which girls marry seems to be increasing. Recognition of a marriage where a girl is below the age of 14 or 16 might be thought to violate the principle behind the legal restriction — that young people should in their own interests be prevented from marrying below a certain age.[79] Three approaches might be taken. The first, which is that taken in the Workmen’s Compensation Act (NT), is to recognise as marriages only those marriages where the spouses are above marriageable age. Spouses below that age would not qualify for the relevant protection or benefit (unless under some other category such as ‘dependant’). A second possibility is simply to recognise the marriage as it exists, irrespective of the age of the parties, in conformity with the relevant customary rules and practices. This approach is taken in most of the other existing legislation in this field. Thirdly, it would be possible not to recognise traditional marriages where a partner was below marriageable age, but in recognising marriages where marriageable age had been reached to take into account the previous relationship of the parties. This is the approach adopted. in the case of ‘foreign’ marriages, by the Marriage Amendment Act 1985 (Cth).[80] If the first approach is thought to be correct, this is a desirable refinement. However in the context of functional recognition a majority of the Commission believes that the second approach is preferable. In each context, what is recognised is the actual, existing relationship between the parties. To deny to the parties protection or benefits based on a different view of preparedness for marriage is a distortion rather than a recognition of Aboriginal customary laws, and it does nothing to advance the values being asserted. In the Commission’s view there is no inconsistency between this conclusion and the provisions of Art 23 and 24 of the Civil and Political Rights Covenant dealing with marriageable age. Although some traditional marriages are entered into below ‘marriageable age’ in Australian law (presently 14 in the case of girls) the effect of the Commission’s proposals would not be to confer a legal status of marriage, but to confer benefits and protections on traditional spouses, irrespective of age, to the same extent as persons married under the Marriage Act.[81] However, one member of the Commission (Professor JR Crawford) believes that the third approach should be taken, as it is in s 88D(3) of the Marriage Act 1961 (Cth). This would avoid attaching direct legal effects to underage marriages and seek to prevent marriages at too young an age, an approach supported by some members of Aboriginal communities.

262. Consent to Marriage. A different question is whether recognition should be extended to a traditional marriage in the exceptional case where the relationship is regarded as a traditional marriage by the relevant Aboriginal community, but one party may be resisting the marriage.[82] The consent of the parties to a traditional marriage may be regarded as necessary to its survival, but not essential to its classification as a marriage.[83] It can be argued that the functional approach to recognition avoids the difficulty, since no status of marriage is created or imposed, but protections equivalent to those attaching to Marriage Act marriage are conferred. These protections are essentially non-coercive in character.[84] However the principle that a relationship should not be recognised or sanctioned as a marriage by the law if one party has not consented to the relationship is a basic one, strongly reinforced in international human rights instruments.[85] Accordingly a relationship should not be recognised for legal purposes as a traditional marriage under the proposed legislation if one of the parties has never (ie at the time when the issue of recognition arises or at an,,’ previous time) consented to the relationship.[86] This limitation will rarely need to be applied, but it is important to affirm the principle of consent to domestic relationships as a basic principle of the law.

263. Sexual discrimination. Underlying the problems discussed above is the argument that recognition, even indirect. of traditional marriage might appear to involve an endorsement of practices which are sexually discriminatory. It is true that such marriages may involve plural wives . but not plural husbands,[87] and that girls often marry at or around the age of puberty, while boys rarely do. Aborigines would probably perceive these as differences rather than inequalities or discrimination. Recent anthropological writing emphasises the traditional balances in Aboriginal practices between the sexes: in food-gathering, in ritual and in other respects.[88] In any event the relevance of this argument to proposals for functional recognition is far from clear. The benefits and protections of functional recognition are as likely (in practice, more likely) to apply to Aboriginal wives as husbands. Refusing to accord those benefits and protections is not justified. Recognising traditional marriages for specific purposes does not involve establishing a status of marriage from which the parties can not withdraw, or enforcing Aboriginal marriage rules against unwilling spouses,[89] or withdrawing legal protection from Aboriginal spouses in other ways.[90] Nothing in the Commission’s proposals for recognition of traditional marriage involves any discrimination against Aboriginal women, within the meaning of the Sex Discrimination Act 1984 (Cth), or the Convention on the Elimination of all Forms of Discrimination against Women of 1980, on which it is in part based.[91]

264. Mixed Marriage. One problem which might occur, at least in theory, is that of marriage between two persons one of whom was not an Aborigine according to the broad definition already discussed,[92] but which one or both of the parties claim as a ‘traditional marriage’. Since traditional marriages are to be distinguished from de facto relationships, the only situation in which such a claim could be made would be where the non-Aboriginal spouse had in effect been incorporated within the relevant Aboriginal community (eg by initiation, the allocation of a sub-section classification, or long residence in the group), and the relationship in question had other characteristics of a traditional marriage within that group. Although this situation will arise only very rarely, there is no good reason to exclude it from recognition, in particular since to do so would be to exclude the Aboriginal partner (in practice, often the wife) from the protections of the proposed law.[93]

[74]As in some of the Canadian cases: cf R v Nan-e-quis-a-ka (1889) Terr LR 211; R v Bear’s Skin Bone (1899) 4 Terr LR 173 (second marriage polygamous under Criminal Code). The latter decision need not have relied on the validity of the first marriage, as the Code provision prohibited de facto polygamy of all kinds.

[75]These situations are discussed in more detail in Ch 14.

[76]Family Law Act 1975 (Cth) s 6, 60, 71. See JH Wade, ‘Void and De Facto Marriages’ (1981) 9 Sydney L Rev 356. The Family Court’s jurisdiction is independent of questions of the validity of foreign polygamous marriages, a matter now governed by Marriage Act 1961 (Cth) Part VA (inserted 1985), which, however, preserves the common law (except on one point): s 88E(1).

[77]As Jacobs J pointed out in In re Fagan (1980) 23 SASR 454, 464 the Family Relationships Act 1975 (SA) ‘clearly contemplates the co-existence of a putative spouse and a lawful spouse’. There was no reason, therefore, to consider the word ‘wife’ as requiring a monogamous relationship. In some contexts justice will positively require that the singular ‘wife’ include the plural: cf Din v National Assistance Board [1967] 2 QB 213; Coleman v Shang [1961] AC 481. cf Seidler v Schallhofer [1982] 2 NSWLR 80.

[78]Under the Marriage Act 1961 (Cth) s 11 a girl may marry at 16 with the consent of her parents. In exceptional circumstances, judicial permission to marry at 14 may be obtained: s 12. The ages for boys are 18 and 16 respectively. A marriage entered into below the relevant age is void: Marriage Act 1961 (Cth) s 23(1)(e); Family Law Act 1975 (Cth) s 51(2)(e). For the purposes of custody of children and maintenance and property distribution under the Family Law Act 1975 (Cth) s 60, 70 a marriage includes a void marriage.

[79]There is also concern in many Aboriginal communities at underage marriages by young girls: see eg ACL Field Report 7, 14, 18, 24.

[80]The Marriage Act 1961 (Cth) (as amended in 1985) provides (s 88C (3)):

Where neither of the parties to a marriage to which this Part applies was, at the time of the marriage, domiciled in Australia, the marriage shall not be recognized as valid in accordance with sub-section (1) at any time when the female party is under the age of 14 years or the male party is under the age of 16 years.

s 88D (2) provides a stricter rule in line with the policy underlying the Marriage Act 1961 (Cth) for marriages solemnised abroad where one party was domiciled in Australia at that time: such a marriage ‘shall not be recognized in Australia as valid if, at the time of the marriage, either party to the marriage was not of marriageable age within the meaning of Part II’. Recognition under s 88C(3) is recognition of a status, not functional recognition (for particular purposes) as proposed for traditional marriage. Indeed that distinction is drawn in the Marriage Act 1961 itself. s 88E(4) (inserted in (985) provides that:

This Part shall not be taken to limit or exclude the operation of a provision of any other law of the Commonwealth, or of a law of a State or Territory, that deems a union in the nature of a marriage to be a marriage for the purposes of the law in which the provision is included.

[81]Art 16(2) of the UN Convention on the Prevention of all Forms of Discrimination against Women of 1980 (see para 182) requires that ‘the marriage of a child shall have no legal effect’. But it is not clear that Art 16(2) is concerned with ‘legal effects’ attributed to relationships by way of functional protection (as with existing laws on de facto relationships and traditional marriage, none of which contain any provision relating to marriageable age) or whether it is concerned only with marriage as a status. Since the broader interpretation would actually involve withdrawing protection from underage partners, the narrower view should be preferred. This view is impliedly accepted by the Marriage Act 1961 (Cth) s 88E(2) and (4) (as inserted in 1985), which provides that the non-recognition of certain marriages entered into by persons below marriageable age does not exclude the operation of Australian laws treating a union as a marriage for particular purposes. Seen 80.

[82]eg in the context of promised marriage see para 848-51.

[83]See para 227, 229-30.

[84]See para 315, 318, 319.

[85]See para 180 (ICCPR Art 23(3)), 182 (Women’s Discrimination Convention Art 16(1)(b)). See also Australian Bill of Rights. Bill 1985 Art 13(b). No specific requirement of consent to the relationship is stipulated in existing provisions recognising traditional marriage: para 239.

[86]Thus a distinction is drawn between consent to the relationship (a matter exclusively for the parties) and its classification as a traditional marriage in accordance with the customary laws of the relevant community, a matter as to which the views of the parties will be relevant but not necessarily conclusive.

[87]Dr D Bell suggests that in rate instances plural husbands did exist among some Aboriginal groups: Submission 338 (July 1982).

[88]See para 37, 117.

[89]See para 251 for rejection of recognition by way of enforcement of Aboriginal marriage rules, and para 262 for the requirement of consent.

[90] It is not proposed to recognise traditional marriages as ‘marriage’ for the purposes of rape is marriage laws: see para 318. A general customary law defence is also rejected: see para 442-50.

[91]See para 182, 193. In two specific respects the Women’s Discrimination Convention does present difficulties: these are discussed in para 261, 268.

[92]See para 88-95.

[93]This result can be achieved by the legislation referring to the spouses as ‘members of an Aboriginal community’ rather than as ‘Aborigines’.