Existing Recognition of Traditional Marriages under Australian Law

237. The Position at Common Law. Initially, colonial courts faced with questions of recognition of Aboriginal marriages adopted a rather reserved and equivocal attitude, consistent with their doubts about recognition of Aboriginal traditions and customary law generally.[16] Thus in R v Neddy Monkey, Justice Barry stated that the Court could not ‘without evidence of their [the Aborigines’] marriage ceremonies, assume the fact of marriage’.[17] This suggested that recognition might be possible if appropriate evidence was available. But attitudes soon hardened, and general non-recognition became the rule, in this context as elsewhere. In R v Cobby Chief Justice Martin stated:

We may recognise a marriage in a civilized country but we can hardly do the same in the case of the marriages of these Aborigines, who have no laws of which we can take cognisance. We cannot recognise the customs of these Aborigines so as to aid us in the determination as to whether the relationship exists of husband and wife.[18]

A decision which had first been framed in evidentiary terms thus became an uncompromising assertion of law. With few exceptions, later courts took a similar view,[19] although in one case involving custody of Aboriginal children, the presumption of marriage from long cohabitation was applied in favour of a traditional marriage of 19 years standing, despite the absence of any evidence that the statutory formalities had been complied with.[20] In other cases the presumption has not been applied,[21] and it will rarely be helpful. Other possibilities of ‘common law’ marriage, although they may have been relevant to early colonial Australia, are excluded by the exhaustive language of the Marriage Act 1961 (Cth).[22] It is still possible that a court might recognise a customary marriage for specific purposes, if only as a fact relevant to the proceedings.[23] But any more general recognition is most unlikely, given the terms of the Marriage Act 1961 (Cth).

238. Traditional Marriages as ‘De Facto Relationships’. Under State Law. A traditional marriage may qualify as a de facto relationship under the law of some States. For example a traditional marriage after five years or the birth of a child would entitle a party to status as a ‘putative spouse’ under South Australian legislation.[24] What is recognised here, however, is not marriage but cohabitation, a recognition which would be extended equally to a de facto relationship without any traditional elements.

239. Recognition of Traditional Marriage under Australian Legislation. More directly relevant are some instances of recognition of traditional marriages as such. Traditional marriages are recognised for particular purposes by one Commonwealth Act and a number of Northern Territory Acts, and there is legislation in Victoria to recognise traditional Aboriginal marriage for the purposes of adoption. Until 1979 traditional Aboriginal marriages were also recognised in Queensland.

  • Commonwealth. Under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) compensation on the death of a Commonwealth employee is payable to dependants, including spouses. ‘spouse’ is defined by s 3 to include:

in relation to an aboriginal native, or a deceased aboriginal native, of Australia or of an external Territory ... a person who is or was recognized as the husband or wife of that aboriginal native by the custom prevailing in the tribe or group of aboriginal natives of Australia or of such a Territory to which that aboriginal native belongs or belonged.

  • Northern Territory. The most significant legislation in this field is that of the Northern Territory, where a number of Acts have extended recognition to traditional marriages for various purposes. The Adoption of Children Act (NT), which was amended in 1984 to include traditionally married Aborigines, is illustrative:

... an Aboriginal who has entered into a relationship with another Aboriginal that is recognised as a traditional marriage by the community or group to which either Aboriginal belongs is married to that other Aboriginal and all other relationships shall be determined accordingly.[25]

  • Queensland. Until 1979 Queensland legislation extended the privilege of non-compellability to female Aborigines or Islanders living with a defendant Aborigine ‘as man and wife otherwise than in lawful marriage’,[26] deemed the children of such unions to be legitimate and provided that the surviving spouse of such a union would be entitled to all damages or benefits as if the union were a lawful marriage.[27] These provisions were repealed in 1979.[28]

  • Victoria. The Adoption Act 1984 (Vic) s 11(1)(b) provides that an adoption order may be made in favour of ‘a man and woman ... whose relationship is recognised as a traditional marriage by an Aboriginal community or an Aboriginal group to which they belong and has been so recognised for not less than two years’. The Children (Guardianship and Custody) Act 1984 (Vic) s 12(12) defines ‘spouse’ for the purposes of eligibility for an order of custody or guardianship under the Act to include a ‘traditional spouse’, defined in a similar way as in the Adoption Act 1984 (Vic) but without the two year qualification.[29]

There is as yet no other Australian legislation in force of this kind.[30]

240. Recognition of Traditional Marriages in Overseas Countries. In overseas countries there has been quite extensive experience with the recognition of customary marriage, including, for example, Indian marriages in the United States.[31] In Singapore the Women’s Charter 1961 withdrew earlier recognition of Chinese customary marriage (which was in a sense polygynous), imposing monogamy and judicial divorce and providing for women’s property rights arising out of marriage.[32] In Singapore (before 1961) and elsewhere, external judicial and legislative attempts at recognition have often produced an artificial construct with limited resemblance to the original.[33] There is no Canadian legislation specifically on Indian customary marriage, though it has been argued that the form of some provincial marriage legislation would al low the courts to recognise actually monogamous customary unions as common law marriages.[34] In the analogous area of adoption, customary adoptions have been recognised as such in Canada,[35] but it is doubtful whether the same view would be taken of customary marriages.[36] In Papua New Guinea the written law recognises both customary and non-customary marriages, but most marriages are customary marriages. The Marriage Act 1963 s 55(2) and the Local Courts Act 1963 s 17 require courts to recognise customary marriage and customary divorce, and the Customs Recognition Act requires customs to be taken into account in matters relating to marriage and divorce, custody, guardianship and adoption. The Constitution of Papua New Guinea also requires custom to be taken into account as part of the underlying law.[37] The courts when called upon to deal with disputes relating to customary marriages have been somewhat uneven in their application of custom, at times ignoring it or, while apparently taking custom into account, effectively applying Western standards.[38]

[16]See para 45.

[17](1861) 1 W & W (L) 40, 41.

[18](1883) 4 LR (NSW) 355, 356.

[19]In R v Tuckiar (see para 51) the trial judge was strongly critical of the Crown’s decision not to call the defendant’s wives to give evidence against him: see RM Berndt & CH Berndt, Arnhem Land Its History and Its People, Cheshire, Melbourne, 1954, 143.

[20]R v Pilimapitjimiri, ex parte Gananggu (1965) NTJ 776, 785 (Bridge 1).

[21]R v Neddy Monkey (1861) 1 W & W (L) 40; R v Byrne (1867) 6 SCR (NSW) 302. cf R v Fuzil Deen (1896) 6 QLJR 302. The presumption is not applicable to polygamous marriages, although a marriage will be presumed not be polygamous: Ng Ping On v Ny Choy Fung Kum (1963) 63 SR (NSW) 782.

[22]Marriage Act 1961 (Cth), s 41, 48.

[23]See the unreported decision of Forster CJ on an adoption application, discussed in para 74.

[24]See para 241.

[25]For similar recognition provisions see Status of Children Act (NT) s 3, Family Provision Act (NT) s 7(1 A), Administration and Probate Act (NT) s 6(4), (inserted 1979), Workmens Compensation Act (NT) s 17, Motor Accidents (Compensation) Act (NT) s 4, definition of ‘spouse’, para (e), Compensation (Fatal Injuries) Act (NT) s 4(3), Crimes Compensation Act (NT) s 4(2), Criminal Code (NT) s 1.

[26]Aborigines Act 1971 (Qld) s 48. For the predecessor provision see Aborigines and Torres Strait Islanders’ Affairs Act 1965 (Qld) s 41 (under which the privilege was extended only to ‘assisted’ Aborigines, and did not apply to proceedings in Aboriginal or Islander courts: s 41(2)).

[27]Aborigines Act 1971 (Qld) s 49. There were no equivalent provisions in the Torres Strait Islanders Act 1971 (Qld). See para 313-6.

[28]Aborigines and Islanders Acts Amendment Act 1979 (Qld) s 13.

[29]See para 361.

[30]An earlier example of legislation dealing with Aboriginal marriages was s 42 of the Aborigines Act 1905 (WA), which gave power to prohibit marriages ‘in contravention of tribal custom’ (another ground was ‘gross disparity in the ages of the parties’). s 42 was repealed in 1954.

[31]See GW Bartholemew, ‘Recognition of Polygamous Marriages in America’ (1964) 13 ICLQ 1022, 1033-68.

[32]See M Freedman ‘Chinese Family Law in Singapore: The Rout of Custom’, in Anderson (1968) 49.

[33]id, 55; cf JC Bekker, ‘Grounds of divorce in African customary marriages in Natal’ (1976) 9 CILSA 346. See also L Carroll, ‘Muslim Law in South Asia: The Right to Avoid an Arranged Marriage Contract During Minority’ (1981) 23 Journal of the Indian Law Institute 149.

[34] D Sanders, Family Law and Native People, Canadian LRC, Background Paper, 1975, 19-45, 133-4. In R v Nan-e-quis-a-ka (1889) 1 Terr LR 211 the Court held that the first, but not the second, wife of an Indian, married according to Indian custom, was married to him so as not to be compellable (nor, under the law at the time, competent) to give evidence against him. The judgment could be explained either as recognition of common law or customary marriage, but if the latter it is a rather eclectic form of recognition, accepting the custom of marriage, rejecting that of polygamy.

[35]Re Deborah; Kitchooalik and Enooyak v Tucktoo [1972] 3 WWR 194; [1972] 5 WWR 203 (North-West Territories Court of Appeal). See also para 384.

[36]Sanders (1975) 133-4.

[37]See para 406-7.

[38]H McRae, ‘Reform of Family Law in Papua New Guinea’ in D Weisbrot, A Paliwala and A Sawyer (ed) Law and Social Change in Papua New Guinea, Butterworths, Sydney, 1982, 127, 132; O Jessep, ‘Customary Family Law, The Courts and the Constitution in Papua New Guinea’ (1984) 3 Lawasia (NS) 1.