Functional Recognition of Traditional Marriage

270. Guiding Principles. The Commission believes that the recognition of traditional marriages, in accordance with the approach outlined in Chapter 13, is desirable. But that approach does not involve conferring the status of Marriage Act marriage on traditional spouses, as distinct from equating traditional marriage with Marriage Act marriage for a range of purposes. In terms of their consequences, and the way in which they are viewed for various purposes, traditional marriages are sufficiently similar to marriage under the general law to warrant treating them in the same or similar way. It is necessary therefore to consider the particular areas and legal contexts in which the question of recognition of traditional marriages arises. In deciding on the areas for functional recognition, two principles have guided the Commission:

  • whether treating traditional marriage as marriage under the general law would conflict with Aboriginal traditions, practices or perceptions;

  • whether there is evidence of a need or demand for recognition in the relevant respect.

There may at times be conflicts between these two principles.[1] Where this is so greater weight should be given to the needs or wishes of the parties, as expressed for example by making the claim in question, on the basis that Aboriginal people are entitled to determine their own priorities and that they should not, unless they are compelling reasons to the contrary, be deprived of access to benefits generally available under the law. In this Chapter a number of specific areas in which questions of recognition arise are considered, together with the question of how other, residual, areas should be dealt with.

[1]For example, granting benefits such as family provision which have no counterpart in customary laws (cf para 294). This stems in part from difficulties inherent in the use of analogies to attempt to bridge two different cultures and legal systems: D Bell, Submission 491 (20 September 1985) 4.