Enforcement of Traditional Marriage Rules

246. Enforcement by the General Law of Aboriginal Customary Marriage Rules. One form of legal recognition of traditional marriages could involve the enforcement under the general law of the norms and practices accepted by the Aboriginal community in question as their marriage rules. This approach might seem to avoid the difficulty of ‘translating’ traditional marriages into the terms of the general law. It would also demonstrate a direct form of support for, or underwriting of, Aboriginal marriages and domestic institutions. There are however serious difficulties with any such proposal. Direct underwriting of Aboriginal marriage rules would change the location of authority over domestic relations from the Aboriginal community or group to courts or other agencies. At present, within certain limits, the general law allows Aboriginal communities to maintain distinctive forms of marriage and sharing based on kin structures without overt interference. Direct recognition of this kind would involve much more intervention by outside authorities in Aboriginal domestic affairs. Moreover, both traditionally and in modem times, Aboriginal marriage rules were not enforceable in any of the limited ways which would be available under the general law. The point is made by LR Hiatt with respect to the Gidjingali:

No formal judicial agency existed to enforce such [marriage] rules ... but public opinion operated as a controlling factor ... and helped to secure a high degree of conformity.[48]

A closely related point is that these rules were flexible and subject to negotiation. There was usually provision for relaxing the rules, or compromising disputes, to meet particular situations. Direct enforcement would lead to a crucial loss of flexibility, quite apart from the problem of changing Aboriginal rules and practices. The Commission has been repeatedly warned of the dangers of underwriting or codifying, and thereby ‘freezing’, rules whose survival or adaptation is properly a matter for Aboriginal communities themselves.[49]

247. Aboriginal Requests. A number of submissions called for an increased degree of Aboriginal authority over marriage. For example the Tribal Elders of Roper River, in Resolutions forwarded to the Commission, stated:

MARRIAGE

If a person steals someone who is promised to another person in marriage, or if a person goes with a person of a different skin group, they should also be punished in our traditional way by the elders, and if necessary by physical punishment. We would also like traditional marriages to be recognised under European law and for wives and husbands to have the rights and obligations which come from this recognition of traditional marriages. If at any time this recognition of traditional marriages, under European law, creates conflict to our traditional culture, then these conflicts must be resolved by a meeting of our elders.[50]

Similarly, some Aborigines living in traditional communities suggested that the Commission should support the system of promised marriages.[51] They regard it as wrong for a person to have access to the police and the general law in order to avoid a marriage, because this undermines Aboriginal law. Other views expressed to the Commission show a degree of acceptance of young people being able to choose their own marriage partners. In some communities this has been specifically allowed provided it is a ‘right skin’ marriage.[52]

248. Conflicts over Marriages. Enforcement by the general law of traditional marriage rules could involve the enforcement of promises to marry. This is a matter of particular concern to many Aborigines. The conflicts aroused by promised marriages are demonstrated by a number of well publicised incidents in recent years.[53] These raise complex and difficult questions, including:

  • the girl’s age and the question of her consent to the marriage;

  • the opportunity to opt out of the marriage;

  • the enforceability of any promises made by the parents;

  • the nature and extent of any traditional sanctions imposed;

  • the transformation of relationships between Aboriginal men and women:

  • the consequences for a girl who seeks outside assistance.[54]

249. Basic Standards. The present law, which makes coercion to marry unlawful and promises to marry unenforceable, is an articulation of a standard based on the need for freedom of choice of intending partners, whether to marriage or to other marriage-like relationships. The law does not sanction contracts or arrangements for the marriage or cohabitation of persons made by third parties (including kin or family members). In this respect, parents and others may have informal influence only in the formation of marriage or similar relationships. The ideal of freedom of choice is carried even further: the parties themselves are free not to marry despite an earlier promise to do so.[55] Their freedom not to marry, or to choose another marriage partner, is in this sense inalienable, a basic human right.[56]

250. Aboriginal Perspectives. In Aboriginal tradition the stability of relationships has tended to be seen as a consequence of social solidarity rather than individual choice. The emphasis is on marriage as an aspect of more general social relations between families. There is no necessary conflict between this view of marriage (which has been adopted, to varying degrees, by many cultures at different times) and the law. The freedom the law allows includes freedom to adopt marriage arrangements of different kinds, provided the parties are of the age of consent and do consent. Questions of enforcement arise only when these conditions are not met: in practice, the issue is one of enforcement against a reluctant or unwilling marriage partner. The issue is therefore not simply one of the imposition of an alien standard on Aboriginal communities; it is whether the general law should continue to underwrite the freedom of individual Aborigines to choose their marriage partners, despite traditional arrangements and practices to the contrary, or whether it should allow the enforcement by Aboriginal communities of those arrangements and practices (or should enforce them itself) against Aboriginal men or women who do not, at the time, accept them.

251. The Commission’s Approach. In practice Aboriginal communities may not be able to resolve problems relating to promised marriage without outside involvement.[57] Communities are not isolated or self-contained; there is regular contact with other Aboriginal communities and nearby town s. If a girl decides to leave her community rather than enter into a promised marriage and refuses to return, members of the community who resort to physical coercion will commit criminal offences, of greater or lesser seriousness. Such an incident is no longer internal to the Aboriginal community. In any event the law cannot countenance physical coercion on any person to enter into, or remain in, a marriage or similar relationship. The resolution of disputes over promised marriage should not occur through the use of physical force. More generally, for the reasons already given, the Commission does not believe that the law should be used as a means of enforcing Aboriginal marriage rules, including promises to marry.[58]

252. Problems of Policing. The general law presently gives no status to promises to marry and provides no legal excuse for persons who use force to ensure that promised marriages take place. If someone is assaulted or otherwise physically threatened, legal protections are available . It has been argued that while this is true in theory, in practice Aboriginal girls and women have great difficulty getting such assistance.[59] This results both from their isolation and lack of access to communications but also, it is said, from a police policy of non-intervention in Aboriginal domestic disputes.[60] In such cases the police may be in a very difficult position. It is well known that the police are reluctant to intervene in domestic disputes, whether the persons involved are Aboriginal or non-Aboriginal.[61] There can be a fine line between invasions of privacy resulting from unnecessary intervention, on the one hand, and the proper protection of persons on the other. Domestic disputes often lead to emotions becoming aroused or confused, alcohol may be involved, and persons may react irrationally. The police in attempting to deal with such difficult situations may inflame the problem rather than resolving it.[62] But people are entitled to protection against violence, including domestic violence.

253. Support for Aboriginal Communities. In this context it is important that support be given to Aboriginal communities in resolving disputes over domestic relations. The National Aboriginal Conference’s submission to the Joint Select Committee on the Family Law Act included a proposal that a committee be established to hear divorce disputes, and to provide counselling.[63] Similar suggestions have been made to the Commission. It is difficult however to see how a body with jurisdiction extending beyond particular communities or regions could be made to work. This matter will be dealt with in the general context of local justice mechanisms in Part VI of this Report.[64]

[48]LR Hiatt, Kinship and Conflict, ANU Press, Canberra, 1965, 83.

[49]See para 200-202 for general discussion of these problems. See further para 461-5, 512-15.

[50] J Roberts, Transcript Darwin (3 April 1981) 884-90, 901-15, 961-76 986-90. See also L Roughsey and others, Transcript Mornington Island (24 April 1981) 1720-87; M Luther, Transcript Alice Springs (13 April, 1982) 1281-1300; J Whitbourn (on behalf of Warrabri Community), Submission 269 (5 May 1981); T Edgar, Transcript Broome (2,1 March 1981) 464; H Wilson (on behalf of Peppimenarti Community), Submission 250 (6 April 1981).

[51]H Boxer, Transcript Fitzroy Crossing (30 March 1981) 703.

[52]See para 228-9.

[53]These included cases involving a 19 year old Gurindji girl from Wattie Creek (NT): the Age, 18 February 1982, NT News, 8 February 19 2, Sydney Morning Herald, 9 February 1982, The Australian, 9 February 1982, Darwin Sun, 10 February 1982, NT Parliamentary Record, 11 March 1982, 9-42; a 15 year old Warlpiri girl from Yuendumu (NT): The Australian, 28 January 1982, Sydney Morning Herald, 21 January 1982 & 8 February 1982; and a 13 year old girl from La Grange (WA): West Australian, 13 February 1982.

[54]Promises to marry are mutual: it is not only the girl who may seek to avoid or renegotiate a promise. But in practice it is likely to be easier for the man involved (who may be considerably older) to do so.

[55]On the unenforceability of contracts to marry by minors, see Coxhead v Mullis (1878) 3 CPD 439; Ditcham v Worrell (1880) 5 CPD 410; Watson v Campbell (No 2 ) [1920] VLR 347. But such contracts are now generally unenforceable: Marriage Act 1961 (Cth) s IIIA. cf also Marriage Act 1961 (Cth) s 23(1)(d)(i) which declares marriages void where there is no real consent (eg duress).

[56]See para 180, 182, 192-3. This is nonetheless so in that, as Ms P Ditton pointed out, ‘arranged marriage is still the norm in many societies around the world’, including some groups with substantial populations in Australia: Submission 465 (1 January 1985) 2.

[57]H Boxer, Transcript Fitzroy Crossing (31 March 1981) 703-6; G Gleave, Transcript Willowra (21 April 1981) 1579.

[58]See para 246, and cf para 447-50 for the rejection of a general customary law defence in criminal cases.

[59]In some communities domestic violence may be regarded as something to be dealt with by the parties concerned and not a matter for the police: Transcript of Women’s Meeting Aurukun (28 April 1981) 70-1.

[60]Ms Dawn Lawrie, Independent Member of the NT Legislative Assembly, received widespread publicity when she raised these issues for debate in the NT Legislative Assembly: NT Parliamentary Record, 11 March 1982, 9-17.

[61]On problems of domestic violence see ALRC ACTLR4, Domestic Violence in the ACT, AGPS, Canberra, 1984; ALRC 30, Domestic Violence, AGPS, Canberra, 1986; JA Scutt, Even in the Best of Homes: Violence in the Family, Penguin, Melbourne, 1983; C O’Donnell and J Craney (ed) Family Violence in Australia, Longman Cheshire, Melbourne, 1982. See also the Crimes (Domestic Violence) Amendment Act 1983 (NSW).

[62]See para 844-77 for further discussion of policing issues.

[63] NCA Submission to Joint Select Committee on the Family Law Act, Submissions, vol 1, 740.

[64] See para 833-4. See also para 321.