Traditional Marriage: Definition and Proof

265. Problems of Definition. The difficulty of defining traditional marriage was raised in a number of submissions to the Commission.^[94] If what is meant is an exhaustive definition setting out in terms Aboriginal marriage rules, this is true. But to codify Aboriginal customary law in this way would be most undesirable, even if it were possible, and the existing Australian legislation on traditional marriage makes no such attempt.^[95] For example s 3(b) of the Status of Children Act (NT) defines marriage to include ‘a relationship bet ween an Aboriginal man and woman that is recognised as a traditional marriage by the community or group to which they belong’. Whether a marriage exists in any particular case under this Act will depend, in case of dispute, on whether it can be shown that by the rules and practices of the relevant group the marriage is recognised as valid. Evidence may have to be adduced in various ways to show this. In practice — if the Northern Territory experience so far is any guide — disputes are likely to be rare.^[96] The following points should also be noted about definitions of marriage such as that in s 3(b) of the Status of Children Act (NT).

• Polygyny. The definition is not restricted to monogamous marriages. It is sufficient that the relationship is shown to exist in the particular case, irrespective of whether it exists also in another case or cases.

• Marriageable age. There is no specific requirement of a minimum age.

• Divorce. No direct provision is made for divorce, for example in situations where one party regards the marriage as terminated but the other party (and, perhaps, the group to which he or she belongs) does not. The legislation does not adopt any formal divorce machinery, but relies on the existence of a marriage relationship. Once the relationship has terminated the marriage would be taken to have ceased.

• Residential links. The definition does not require the parties to reside in an Aboriginal community, but they must at the relevant time ‘belong to’ such a community or group. Temporary residence away from the group would not necessarily prevent them from ‘belonging’ in this sense. But if they did cease to ‘belong’, presumably they would cease to be traditionally married under the definition.^[97]

• Inter-group marriage. It can happen that a marriage is recognised by the community or group of one of the spouses but not by the other’s. Normally the relevant group would be that ‘to which they belong’ as a family unit. However it should be sufficient that the marriage is recognized by at least one community to which one or both spouses belong. The marriage would of course have to be shown to be ‘a traditional marriage’ in other respects.

266. The Commission’s View. The problems of definition can be resolved by this form of definition.^[98] It should be sufficient that the spouses, or one of them, belongs to an Aboriginal community and that (subject to the consent requirement recommended in para 262) the relationship between them is recognized as a marriage in accordance with the customary laws of that community. Residual problems of definition may be able to be resolved through two ancillary provisions:

• a presumption of continuance of marriage (para 267);

• an optional registration facility (para 268).

267. The Continuance of Traditional Marriage. It might be thought a difficulty with the proposed definition that the spouses could find themselves ‘unmarried’ if they ceased to ‘belong’ to their community, eg by taking up permanent residence in a city. It is undesirable that status should be lost in this way while the marriage relationship continues essentially unaffected, As provided in the Status of Children Act (NT) it should be sufficient for recognition that the relationship was recognised as a marriage by the Aboriginal community to which the spouses belonged when the marriage was entered into, where the relationship has continued even after the spouses ceased to reside in that community.

268. An Optional Registration Facility? The Royal Commission on Human Relationships in its brief discussion of Aboriginal traditional marriage referred to the problems of proof. and suggested that:

The problem of recognition might be simplified if there were provision for recording a tribal marriage by a local register on the declaration of both parties. At the least such a record could give rise to a presumption of validity of the marriage. It may be preferable to restrict recognition to cases where the parties apply to record the marriage.^[99]

The Chairman of the Royal Commission has subsequently confirmed in correspondence with this Commission that it was not intended that ‘registration should be the exclusive basis of recognition’ of traditional marriage.^[100] An obvious difficulty with registration is the logistical one of providing the machinery for registration to widely dispersed, often remote communities. It is likely that few Aborigines would trouble to register their marriage, unless some issue or problem had arisen which suggested that registration was desirable. The probative value of registration under such circumstances would be reduced. With one exception, Australian legislation, whether on traditional marriage specifically or on de facto relationships more generally, provides for no machinery of registration or recording of status. The exception is the provision, in the Family Relationships Act 1975 (SA), for obtaining a declaration that a person is a ‘putative spouse’. This rather cumbersome machinery has limited the value which the South Australian reforms relating to de facto relationships would otherwise have had. Unless registration was made dependent upon some inquiry as to the validity or acceptance of the traditional marriage, it could not be conclusive, as distinct from presumptive, evidence of marriage. On any view it would be necessary to inquire into the existence of traditional marriage where no registration had been applied for. It may be doubtful, therefore, whether the probative advantages of registration would out weigh the difficulties involved in introducing it and making it effective. However, it would be a useful expression of Aboriginal community attitudes towards marriage to treat registration in a local registry to be established at the option of the local community as presumptive evidence of the existence of traditional marriage. Views expressed to the Commission tended to support this view,^[101] which gains support also from Art 16(2) of the Convention on the Elimination of all forms of Discrimination against Women (1980), which requires ‘all necessary action including legislation … to make the registration of marriages in an official register compulsory.’ This provision is not directly applicable, given that the Commission’s approach to the recognition of traditional marriage is not to equate such marriages to marriages under the Marriage Act 1961 (Cth) but to attach consequences to them for particular purposes.^[102] Nonetheless Art 16(2) supports the view that a system of optional registration of traditional marriages should be available to assist in establishing the fact of the marriage. Aboriginal communities, acting through their councils or otherwise, should be given assistance to set up and maintain such a register.

269. Other Questions of Application. Two further issues of application should be mentioned:

• Retrospectivity. It would not be appropriate for the proposed legislation to apply with fully retrospective effect, that is, to transactions or claims already dealt with or resolved. But it is undesirable not to apply the legislation with prospective effect to existing traditional marriages. The legislation should apply only to claims to recognition arising in respect of transactions, claims or events after it comes into force. This form of qualified retrospectivity meets, as far as possible, the legal and social needs of persons already traditionally married. In addition it is an appropriate indication that traditional marriages, as an aspect of Aboriginal customary laws, are being acknowledged, not enacted.^[103]

• Co-existence of State and Territory laws. On the assumption that the proposed legislation were to be enacted by the Commonwealth Parliament,^[104] State or Territory laws recognising traditional marriages for particular purposes and which are capable of coexisting with the Commission’s recommendations for recognition should not be excluded.