254. Which Approach? So far this Chapter has considered and rejected two different approaches to the recognition of traditional marriages: equating them to de facto relationships, and enforcing Aboriginal customary marriage rules under the general law. It is necessary to consider two further approaches. The first is the general or categorical recognition of traditional marriage as ‘marriage’ for all purposes of Australian law. This would equate traditional marriages with marriages solemnised in accordance with the Marriage Act 1961 (Cth). The second approach involves equating traditional marriages with ‘marriage’ under the general law for particular purposes only.
255. Categorical Recognition. This form of general recognition has a number of advantages, in particular simplicity of drafting, and coverage of the many legal areas in which’ marital status has an impact. It would also be a direct recognition by the general legal system of the validity of an important aspect of Aboriginal customs and traditions. The strength of these arguments must, however, be weighed against the disadvantages which may flow from categorical recognition. It cannot be assumed that the legal consequences of marriage under the general law can be applied to traditional marriages without distortion. For example, as soon as traditional marriage is regarded as ‘lawful’ marriage, the parties become subject to the prohibitions on polygamy in s 23(1)(a) and 94(1) and (4) of the Marriage Act 1961 (Cth), which do not presently apply. Recognition of traditional marriage for all purposes would thus entail the prohibition, with a criminal sanction, of an established, presently lawful, practice. That is certainly not ‘recognition’ of traditional marriage. Similar questions would arise in respect of marriageable age, divorce, maintenance and property distribution and the registration of marriages. It may of course be possible to qualify general recognition by excluding those aspects of Marriage Act marriage which are inconsistent with established Aboriginal traditional marriage rules and practices, or by refusing to recognise traditional marriages in a range of cases where conflicts with the general law may occur. But this would then not be categorical or general recognition.
256. Functional Recognition. The alternative approach is a functional one: it requires a more detailed examination of areas in which marital status is relevant, to determine whether the recognition of traditional marriage is appropriate in each area. Advantages of this approach are that an assessment can be made of whether traditional marriages should be equated with Marriage Act marriage for particular purposes, and that it helps to minimise, if not avoid, the danger of foisting upon the parties to traditional marriages consequences that have no traditional equivalent and which may be disruptive or counterproductive. Responses to the Commission’s Discussion Paper 18, which tentatively recommended functional recognition of traditional marriages, varied, but there was, on the whole, broad support for this approach. Responses included:
Family Law Council. The Council supported the proposals of the Commission for functional recognition of traditional marriages, including the recognition of plural marriages for specific purposes.
Department of Aboriginal Affairs (Commonwealth). The Department supported the Commission’s tentative proposals, commenting that functional recognition would not require the enactment or codification of marriage rules, thus leaving communities freedom to modify their rules to cope with new situations.
Dr Diane Bell expressed the view that functional recognition avoided the relatively crass forms of social engineering sometimes implied in discussions of marriage and domestic relations, while giving appropriate recognition and support to Aboriginal institutions.
257. The Commission’s Conclusion. The Commission concludes that the functional approach is the best and least intrusive way of recognising Aboriginal traditional marriages. It does not require the codification or enactment of traditional marriage rules, and it thus provides freedom to develop rules to cope with new situations. It is an extension of an existing legislative approach, as well as a fulfilment of Commonwealth responsibility for Aboriginal people. It is a recognition, even if indirect, of important aspects of the Aboriginal social fabric and of customary laws, and it makes provision for Aboriginal spouses which ought to be made. This approach does not involve the enforcement of any aspects of traditional marriages which are contrary to basic individual rights. Before examining the various areas for recognition, however, certain difficulties with the recognition of traditional marriage must be faced. These would be relevant whichever approach to recognition is adopted, but they are largely overcome by the functional approach.
Sub-s 94(1) and (4) prohibit persons from going through a ‘form or ceremony of marriage’ being already married or to a person who is already married, and s 23(1)(a) invalidates plural marriages where a party is already ‘lawfully married to some other person’. These provisions do not apply to traditional Aboriginal marriages, or to de facto relationships.
See further para 204-8 for general arguments in favour of the functional approach to recognition.
ALRC DP 18, para 13.
A number of submissions expressed initial concern with the Commission’s approach. However, after discussions it appeared that these concerns related to specific problems, and did not involve the rejection of this form of recognition: eg Federation of Aboriginal Women, Submission 368, (10 January 1983); Human Rights Commission (PH Bailey) Submission 346, (September 1982); Law Society of NSW, Submission 358, (16 November 1982).
Family Law Council (Justice Fogarty) Submission 393 (28 November 1983) 2.
Department of Aboriginal Affairs (JC Taylor) Submission 370 (2 February 1983) 3.
D Bell, Submission 338 (July 1982). See also Commissioner for Community Relations (Hon AJ Grassby) Submission 344 (21 September 1982) 2: D Collins MLA (NT), Submission 351 (1 October 1982) 1.
See para 239.
See para 192-3, and cf para 2 8-263.