233. The Present Position. At present, Aboriginal traditional marriages are given little or no recognition in Australian law.[1] Both social and legal problems can arise from the failure to accord legal status to established, socially recognized unions between Aborigines.[2] No accurate statistics are available, but it has been estimated that at least 90 per cent of marriages amongst traditional Aborigines are not contracted under the Marriage Act 1961 (Cth).[3] In the Northern Territory the proportion may be higher. The Aboriginal Population Records kept by the Department of Aboriginal Affairs indicate that there are 4,889 ‘tribal unions’ but only 151 ‘legal marriages’ among Northern Territory Aborigines.[4] These are estimates rather than exact figures (and they may include relationships which are not considered as traditional marriages) but it seems clear that there are a considerable number of traditional marriages in the Northern Territory, South Australia, Western Australia and (to a lesser extent) in Queensland. A consequence of the non-recognition of these traditional marriages is that the parties lack many of the protections and benefits accorded by the general law to legally married persons.[5] Their children are illegitimate.[6] A surviving spouse may not qualify for benefits, for example workers’ compensation or insurance payments on the death of his or her partner. The consequences of non-recognition of traditional marriage for child custody, adoption and guardianship can be important: for example, a traditionally married couple would not usually be eligible to adopt a child under State law. Despite a tendency toward the assimilation of marriages and established de facto relationships in some States, the general law attaches consequences to marital status in a variety of areas, some central to marriage, others incidental or peripheral’.[7]

234. Anglo-Australian Concept of Marriage. In analysing recognition of traditional marriage, as of other institutions existing across cultural boundaries, a significant problem of translation arises. In English and Australian law marriage came to be defined in accordance with the Christian ideal of monogamous lifelong union.[8] Legal provisions for maintenance and divorce, influenced by such a conception, were not likely to be appropriate to less formal unions, unions which may be actually or potentially polygamous. The point was made in Hyde v Hyde itself: what Sir James Wilde regarded as a potentially polygamous Mormon marriage was not, in the English sense, properly speaking a ‘marriage’ at all, and so could not be recognised for the purpose of granting matrimonial relief.[9] Similarly the South African Supreme Court refused to equate a marriage in accordance with native law and custom recognised by South African law as a ‘marriage in accordance with our common law’, so that the widow could not claim compensation from a motor vehicle insurer for death of her ‘husband’.[10]

235. Changing Ideas and Rules. The arguments for and against recognising established Aboriginal unions under customary law as ‘marriages’ need to be considered in the light of changing conceptions of marriage in the wider society, and corresponding changes in Australian law. There is a greater acceptance of relationships which do not involve legal marriage. Marriage is fairly freely terminable, on a single ground of marital breakdown evidenced by a year’s separation, under the Family Law Act 1975 (Cth). The actual decision in Hyde v Hyde is not law in Australia:[11] under the Act foreign polygamous marriages are recognised in Australia for the purposes of granting matrimonial relief, a result towards which the common law is also moving.[12] The equation, for certain purposes, of stable de facto relationships with marriage under the general law is already presenting the courts with situations similar in some respects to Aboriginal traditional marriages.

236. Aboriginal Ideas of Marriage. Aborigines themselves unhesitatingly describe their traditional unions as marriages, and distinguish between marriage and other (ie de facto) unions.[13] Australian legislation, federal and State, makes the same equation.[14] Nor has the point been doubted by anthropologists. In RM Berndt’s words:

‘Tribal’ marriage or ‘customary’ marriage must still be regarded as marriage in the sense of a socially sanctioned and ratified agreement with an expectation of relative permanency …[15]

The question is to what extent and (if not generally) for what purposes should traditional marriage be equated to marriage under the general law.

[1]For the exceptions to non-recognition (especially in the NT) see para 239.

[2] This has been noted by a number of Commonwealth inquiries in the family law field, although in each case the issues were left to this Reference: see Australia, Royal Commission on Human Relationships, Final Report, AGPS, Canberra, 1977, vol 4, 125-6; vol 5, 80, 142-4; Commonwealth, Parliamentary Joint Select Committee on the Family Law Act, Family Law in Australia, AGPS, Canberra, 1980, vol 1, 9; vol 2, 85-7.

[3]H Dagmar, Aborigines and Poverty. A study of interethnic relations and culture conflict in a WA town, Katholicke Universiteit, Nijmegen, 1978, 101. At a central Australian community where mission influence had been and remained strong, it was reported in 1983 that there had been only one church marriage in five years, and that less than 20% of the local people were church married: ACL Field Report 7, Central Australia (1982) 41.

[4]These figures exclude ‘persons of Aboriginal descent living in the normal urban environment’: LG Wilson, Submission 321 (15 March 1982). Figures of the NT Registrar of Births, Deaths and Marriages indicate that traditional marriages account for around 90 per cent of Aboriginal nuptial births in the Territory: Department of Aboriginal Affairs (JPM Long), Submission 315 (21 January 1982).

[5]W Morgan-Payler, Transcript of Public Hearings Melbourne (20 May 1981) 2756-7.

[6]It is true that many of the consequences of illegitimacy, especially in relation to inheritance and property, have now been virtually eliminated by State and Territory legislation. But the status of illegitimacy remains, and can still have legal consequences, eg with respect to custody and adoption.

[7]See para 324.

[8]Hyde v Hyde (1866) 1 LR P & D 130, 133 (Sir J Wilde). This was also true in other countries where the Christian concept of marriage was influential.

[9]id, 134: ‘if the relation there existing [sc in some foreign countries] between men and women is not the relation which in Christendom we recognize and intend by the words “husband” or “wife” … the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial observer’.

[10]Suid-Afrikaanse Nasionale Trust en Assuransie Mawskappy Bpk v Fondo 1960 (2) SALR 467 (AD). This injustice was remedied by statute: Bantu Laws Amendment Act 1963 (SAf). cf HR Hahlo, ‘The Matrimonial Regimes of South Africa’, in JND Anderson (ed) Family Law in Asia and Africa, Allen and Unwin, London, 1968, 143, 146-8. See also N Rubin, ‘Customary Family Law in Southern Africa: Its Place and Scope’, id, 255.

[11]However, the definition of marriage underlying Hyde v Hyde remains important both in the Marriage Act 1961 (Cth) s 46(1) and the Family Law Act 1975 (Cth) s 43(a).

[12]Family Law Act 1975 (Cth), s 6. For analogous English developments see Lee v Lau [1967] P14; Aljahi Mohamed v Knott [1969] 1 QB 1; TC Hartley, ‘Polygamy and Social Policy’ (1969) 32 Mod L Rev 155; UK Law Commission Report No 42, Polygamous Marriages, London, HMSO, 1971. cf Haque v Haque (1962) 108 CLR 230. For the Marriage Amendment Act 1985 (Cth) see para 259 n 76.

[13]Transcript Broome (25 March 1981) 464. cf para 229.

[14]See para 239.

[15]RM Berndt, ‘Tribal Marriage in a Changing Social Order’ (1961) 5 UWAL Rev 326, 341. And see para 223-7.