Saturday, 16 September 2017

What the High Court has said about the "traditional" view of marriage

One of the arguments against equal marriage is the argument that to enable equal marriage is  therefore to vary from traditional marriage, and to invoke religion. Traditional marriage is said to be, of course, the union of one man and one woman voluntarily entered into for life.

"Statute law now tells us who are capable of marrying."

-Justice Windeyer in the Marriage Act case (1962)

Of course the obvious problem with that argument is- what about the law? If a marriage is for life (as opposed to entered into for life) then divorce cannot exist. Divorce as a concept, as we saw from the example of Henry VIII onwards, was based on secular law.

The High Court has looked at the concept of marriage in two cases- the Marriage Act case (1962) and Commonwealth v ACT (2013), and demonstrated that the traditional version of marriage is not locked in time- and is determined by the law, not religion.

"The status of marriage, the social institution which that status reflects, and the rights and obligations which attach to that status never have been, and are not now, immutable."  

- Chief Justice French, Justices Hayne, Crennan, Kiefel, Bell and Keane in Commonwealth v ACT (2013)

"The Marriage Act regulates the creation and recognition of the legal status of marriage throughout Australia."

- Commonwealth v ACT (2013)

The High Court in that case ruled that the ACT same sex marriage law was invalid because it conflicted with the Marriage Act 1961. The High Court was at pains to say that the Commonwealth had the power to legislate for same sex marriage, if it chose to do so, and that the topic of marriage under the Constitution was not stuck in a 1900 timewarp of what is and what is not marriage.

Indeed John Howard's amendments in 2004, not any earlier enactment,  are seen as the cause of the current troubles:

"The 2004 amendments to the Marriage Act made plain (if it was not already plain) that the federal marriage law is a comprehensive and exhaustive statement of the law of marriage. Those amendments applied the newly introduced definition of marriage to the provisions governing solemnisation of marriage and gave effect[81] to that definition in the provisions governing the recognition of marriages solemnised outside Australia. Section 88EA of the Marriage Act (inserted[82] by the 2004 amendments) provides expressly that a union solemnised in a foreign country between persons of the same sex must not be recognised as a marriage in Australia."

"The federal Parliament has power under s 51(xxi) to make a national law with respect to same sex marriage."

- Commonwealth v ACT (2013)

Their Honours went on to say:

  1. "The cases commonly referred to as providing a definition of "marriage" in s 51(xxi) of the Constitution must be read in the light of the issues decided in those cases. Each case dealt with a particular question about either succession to property or the jurisdiction of the English courts to grant a decree of dissolution in cases concerning a marriage contracted in, and governed by the law of, a foreign country.
  2. Bethell v Hildyard[39] concerned succession to property by the child of a marriage contracted by an English man in Bechuanaland with a Baralong woman according to the customs of the Baralong people. The marriage was held not to be a valid marriage according to the law of England because the customs of the Baralong people permitted polygamy. The child was held not entitled to succeed to her father's property.
  3. What was said in Hyde v Hyde[40] was directed to the construction of the statute which conferred[41] jurisdiction on the Court for Divorce and Matrimonial Causes to grant a decree of dissolution of marriage. The marriage which the petitioner sought to dissolve had been formed in what was then the Territory of Utah. The law which governed the marriage permitted the husband to take a second wife. The Hyde v Hyde definition was proffered in the course of identifying the difficulties that would have been encountered in seeking to apply the statute (including, as it then did[42], the matrimonial offence of adultery) to a potentially polygamous marriage.
  4. Observing that, at federation, English law would recognise as a marriage only a union having the characteristics described in Hyde v Hyde, and would not provide matrimonial remedies in respect of any other kind of union, accurately describes the then state of the law. But the definitions of marriage given in Hyde v Hyde and similar nineteenth century cases governed what kinds of marriage contracted in a foreign jurisdiction would be treated as yielding the same or similar rights and consequences as a marriage contracted in England in accordance with English law. They were cases which necessarily accepted that there could be other kinds of relationship which could properly be described as "marriage" and the cases sought to deal with that observation by confining the kinds of marriage which would be recognised in English law to those which closely approximated a marriage contracted in England under English law.
  5. The great conflict of laws writer, A V Dicey, described[43] the rule which was adopted in the cases as an "instance of the principle that the rules of (so-called) private international law apply only amongst Christian states". The rule treated some, but not all, forms of marriage contracted according to other laws as either not worthy of recognition or not able to be recognised because their incidents were not compatible with English law. But the rule necessarily accepted that there were other systems of law providing for forms of marriage other than marriage of the kind for which English law provided. The rule depended upon classifying the legal systems which provided for such other forms of marriage as not being the legal system of a "Christian state".
  6. These being the bases for the nineteenth century decisions, those decisions did not then, and do not now, define the limit of the marriage power (or the divorce and matrimonial causes power) in the Constitution. Decisions like Hyde v Hyde reflect no more than the then state of development of judge-made law on the subjects of marriage and divorce and matrimonial causes. Subsequent development of both judge-made law and statute law shows this to be so.
  7. First, it was established in 1890 by Brinkley v Attorney-General[44] that, despite the frequent reference found in earlier decisions to "Christian marriage" and "marriage in Christendom" as distinct from "infidel" marriages[45], a monogamous marriage validly solemnised according to the law of Japan between "a natural born subject of the Queen ... having his domicil in Ireland" and "a subject of the empire of Japan", though not a Christian marriage, would be declared to be valid in English law. References made in earlier cases to a religious basis for the adoption of a particular definition of marriage must be seen in this light.
  8. Second, statements made in cases like Hyde v Hyde, suggesting that a potentially polygamous marriage could never be recognised in English law, were later qualified by both judge-made law and statute to the point where in both England and Australia the law now recognises polygamous marriages for many purposes[46]. "

" The social institution of marriage differs from country to country. It is not now possible (if it ever was) to confine attention to jurisdictions whose law of marriage provides only for unions between a man and a woman to the exclusion of all others, voluntarily entered into for life. Marriage law is and must be recognised now to be more complex. Some jurisdictions outside Australia permit polygamy. Some jurisdictions outside Australia, in a variety of constitutional settings, now permit marriage between same sex couples. These facts cannot be ignored or hidden."

-High Court in Commonwealth v ACT (2013)

"Other legal systems now provide for marriage between persons of the same sex. This may properly be described as being a recent development of the law of marriage in those jurisdictions. It is not useful or relevant for this Court to examine how or why this has happened. What matters is that the juristic concept of marriage (the concept to which s 51(xxi) refers) embraces such unions. They are consensual unions of the kind which has been described. The legal status of marriage, like any legal status, applies to only some persons within a jurisdiction. The boundaries of the class of persons who have that legal status are set by law and those boundaries are not immutable.When used in s 51(xxi), "marriage" is a term which includes a marriage between persons of the same sex."

- High Court in Commonwealth v ACT (2013)

"Marriage is so fundamental and so universal an institution of society that it is not easy to set limits to a power to make laws with respect to it."

-Justice Windeyer in the Marriage Act case (1962)

"I express no view on whether, theoretically, it would be within the power of the Commonwealth Parliament to make polygamy lawful in Australia. That question has absolutely no reality."

- Justice Windeyer in the Marriage Act case 

Apparently that "reality" is still real for Cory Bernardi and Bill O'Chee.

"The matters about which the Commonwealth may to-day make laws with respect to marriage are those of the kind generally considered, for comparative law and private international law, as being the subjects of a country's marriage laws."

-Justice Windeyer again 

"In the Australian Colonies ... statute law had given a civil character to the contract of marriage, while recognizing the place that religious rites might have in its solemnization. Statute law prescribed the conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities."

- Justice Windeyer

His Honour set out the history of law concerning marriage. It is enlightening, stretching back to the Council of Trent (1545-1563):

"In England the marriage law was administered in the ecclesiastical courts until the middle of the nineteenth century. It was based upon canon law as it was before the Council of Trent, but modified and circumscribed by statutes. Significantly, those statutes came to be known as "Marriage Acts". This helped to mark out marriage law as a topic for English lawyers. Among such Acts, passed before 1900, were 32 Hen. VIII, c. 38 (1540), concerning pre-contracts and the degrees of consanguinity; 12 Car. II, c. 33 (1660), made permanent by 13 Car. II, c. 11, confirming marriages contracted "since the beginning of the late Troubles" according to enactments introduced during the Commonwealth; 26 Geo. II, c. 33 (1753), Lord Hardwicke's Act against clandestine marriages; 4 Geo. IV, c. 76, the Marriage Act of 1823; 5 & 6 Wm. IV, c. 54 (1835), Lord Lyndhurst's Act making marriages within the prohibited degrees void, not voidable; 6 & 7 Wm. IV, c. 85, the Marriage Act of 1836, which among other provisions permitted marriages at register offices; 19 & 20 Vict., c. 119, the Marriage and Registration Act of 1856. Then came the various Matrimonial Causes Acts. These began in 1857 with 20 & 21 Vict., c. 85, which provided, for the first time in England, for dissolution of marriage by judicial decree. (at p579)
8. In the Australian Colonies too there were Marriage Acts, before Federation. And, both in England and Australia, this statute law had given a civil character to the contract of marriage, while recognizing the place that religious rites might have in its solemnization. Statute law prescribed the conditions and circumstances in which men and women might enter into matrimony, the method of doing so and the consequences of incapacities, impediments and informalities. It thus dealt with who might be married and how. Rules concerning these matters, and with them divorce from matrimonial obligations and dissolution of the bonds of matrimony, constitute marriage law in a primary sense. It is a body of rules relating to the creation or the termination of the status of husband and wife, as distinct from the legal attributes, incidents and consequences that attach and give a substance to that status. (at p579)
9. It was suggested in argument that to restrict the power to legislate with respect to marriage to subjects that constitute marriage law in this primary sense, would be to give it a narrow application. But to think of marriage forms and ceremonies, capacities and consents as a small area for law making is to take much for granted. The statute law of marriage may seem to be in a small compass. But it embodies the results of a long process of social history, it codifies much complicated learning, it sets at rest some famous controversies. Marriage is now in law a consensual compact. But it is not dissoluble at will; and it must be celebrated by an authorized person, and he may be a clergyman. "Irregular" marriages by verba de praesenti or verba de futuro subsequente copula are no longer valid. We have no need to-day of the learning so impressively marshalled by Willes J. in Beamish v. Beamish [1861] EngR 475; (1861) 9 HLC 274 (11 ER 735) , or of the reflection of it in New South Wales in Reg. v. Roberts (1850) 1 Legge 544 . If we ever need it, it is only in such unusual circumstances as occurred in Victoria in Quick v. Quick (or O'Connell) [1953] VicLawRp 36; (1953) VLR 224 , or when an echo of battles long ago about "common law marriages" comes to us from abroad, as recently it did for Phillimore J. in Lazarewicz (otherwise Fadanelli) v. Lazarewicz (1962) P 171 . Lawyers can forget, and mostly do forget, the refined canonical learning about pre-contracts and direment and prohibitive impediments. Statute law now tells us who are capable of marrying. The history of the degrees of consanguinity and affinity does not trouble us. The days are long gone when they were, to use Pollock and Maitland's words, "enveloped in exuberant learning," "a maze of flighty fancies and misapplied logic" - when, for example, a man might not, without a dispensation, marry a relative within the seventh degree or his godfather's daughter. All this elaborate doctrine was pruned by statute in the time of Henry VIII. The circumstances may be found in the judgments of the Queen's Bench in Reg. v. Chadwick and Reg. v. St. Giles in the Fields [1847] EngR 62; (1847) 11 QB 173 (116 ER 441) . The prohibited degrees are now tabulated in the Act. These are all large tracts for law."

Having never been taught the refined canonical learning about pre-contracts and direment and prohibitive impediments, I am glad to have never done so. That is one "tradition" that I am glad has gone.

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