Recognition of Traditional Marriages as De Facto Relationships

242. The Present Law. For some purposes, the present law extends the benefits or protections of marital status to persons living in de facto relationships (ie as ‘husband and wife’ ‘although not legally married’).[40] To the extent that traditionally married Aborigines satisfy the varying statutory criteria for a de facto relationship, their marriage might be said to be indirectly recognised by the law — recognised in the sense that similar legal consequences will attach to the relationship as attach to marriages.

243. Advantages of this Form of Recognition. There may be advantages in this form of ‘recognition’. No specific legislation would be required (as distinct from a general review of legislation to ensure that de facto relationships are adequately and consistently dealt with.[41]) Distinguishing traditional marriages, recognised by the relevant Aboriginal community, from temporary or de facto relationships, not so recognised, can be difficult, at least in marginal cases. The difficulty has been increased by changes in Aboriginal ways of life, but it was always present, since marriages could come to be accepted not by a single act or at a single moment but gradually. The process might be characterised by exchanges of gifts before and after cohabitation commenced but in some cases full acceptance was suspended until a child was born to the union.[42] The problems of definition are not insurmountable, but they are real.

244. Disadvantages of Recognition as De Facto Relationships. But there would be significant disadvantages in this form of ‘recognition’. As the New South Wales Law Reform Commission has emphasised, the State and Territory legislation dealing with de facto relationships is uneven in coverage, and arbitrary in its selection of relationships to which it applies.[43] Qualification periods range from one year to five, in different States and for different purposes. In some of the areas of greatest concern for present purposes (eg child custody and adoption) coverage by State and Territory law is the least satisfactory. This uneven, partial treatment is likely to continue. It cannot be assumed that all States will extend the benefits and protections of marriages to de facto relationships in the reasonably near future or at all. Apart from practical difficulties, differing views are held as to the desirability of such a development.[44] The New South Wales Law Reform Commission recommended against equating de facto relationships to marriages. Instead it proposed that the law be changed to remedy injustices in certain areas.[45] These issues are not directly ones for this Commission, but they are relevant in assessing the suitability of one method of dealing with traditional marriage. For the foreseeable future, State legislation on de facto relationships will provide no generally applicable remedy. Even if this difficulty could be overcome, however, it would not follow that legislation on de facto relationships would be suitable or adapted to dealing with traditional marriages. Existing legislation in this field is designed to deal with informal relationships between members of the general community. For example, the South Australian legislation makes provision for sharing benefits (eg workers’ compensation) between competing Marriage Act and de facto spouses, or for resolving similar problems of competition.[46] It is an unresolved question whether these provisions (with their reference to ‘cohabiting … as … husband and wife’) apply to competition between plural de facto wives, ie to situations of de facto polygyny.[47] It cannot be assumed that State legislation framed with distinct situations in mind would be suitable to traditional marriages.

245. The Need for Special Recognition. There is more fundamental objection. To treat a traditional marriage as a de facto relationship is to deny recognition of what it purports to be. It is true that Aborigines enter into de facto relationships. But some Aborigines enter into traditional marriages, recognised by themselves and others as distinctive, socially-sanctioned arrangements. If possible, these should be specifically recognised, thus maintaining rather than eroding a distinction Aborigines themselves are concerned to maintain. Recognition of traditional marriage should be approached through an examination of the specific legal and social problems involved, rather than through the use of general, and residual, categories. Only if there is no sufficient case for the recognition of traditional marriages as such should the problems be left to be resolved by the general law on de facto relationships.

[40]It is unnecessary to describe in detail the varying State and Commonwealth legislation in this field. See NSWLRC 36, Report on De Facto Relationships, Government Printer, Sydney, 1983. See also RJ Bailey, ‘Legal Recognition of De Facto Relationships’ (1978) 52 ALJ 174; E Evatt, R Watson & D McKenzie, ‘The Legal and Social Aspects of Cohabitation and the Reconstituted Family as a Social Problem’, in JM Eekelaar & SN Katz (ed) Marriage and Cohabitation in Contemporary Societies, Butterworths, Toronto, 1980, 398.

[41]This is, of course, a matter outside the Commission’s Terms of Reference. For existing federal legislation extending benefits, etc to de facto spouses see NSWLRC 36, 81-4.

[42]RM Berndt & CH Berndt, The World of the First Australians, 4th rev edn, Rigby, Adelaide, 1985, 200, 207. See para 228-9.

[43]NSWLRC 36, ch 4. cf Lesiw v Commissioner of Succession Duties (1979) 20 SASR 481.

[44]cf R Deech, ‘The Case against Legal Recognition of Cohabitation’, in Eekelaar and Katz, 300; SM Cretney, ‘The Law relating to ‘Unmarried Partners from the Perspective of a Law Reform Agency’, id, 357. The Royal Commission on Human Relationships made the crucial point: ‘If parties refrain from marrying because they do not want to incur the legal and financial obligations of marriage then the law should be slow to impose those obligations on them’: Report, vol 4, 73. The objection has less force in the context of traditional marriage (at least so far as concerns recognition of marriage for purposes consistent with the relevant marriage traditions), the parties to which do intend to be married according to those traditions.

[45]NSWLRC 36, 97-117.

[46]Administration and Probate Act 1919 (SA) s 72h. The problem exists also under the Family Law Act 1975 (Cth): cf In the Marriage of Lutzke (1979) FLC 690-714; In the Marriage of Ostrofski (1979) FLC 690-714.

[47]The point was left open by Jacobs J in In re Fagan (1980) 23 SASR 454, 465, although the tenor of his judgment is that there could be two de facto putative wives: see id, 464.