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Wednesday, 20 March 1985
Page: 617

Mr LIONEL BOWEN (Attorney-General)(5.52) —I move:

That the Bill be now read a second time.

The principal purpose of this Bill is to give legislative effect in Australia to the Convention on Celebration and Recognition of the Validity of Marriages signed by Australia in July 1980. The Bill represents a significant step for Australia in that it is the first of the Hague conventions Australia has signed and will be the first to which Australia has given effect.

In addition, the Bill proposes certain other amendments to the Marriage Act 1961 with which I will deal at a later stage. The Bill is, for the most part, substantially the same as that introduced last year.

The Hague Convention

For many years it has been recognised that marriage is such a fundamental and universal human institution that, wherever possible, a marriage celebrated in one country should be recognised as valid all over the world. Nevertheless, there are limits to the extent to which the policy of one country is acceptable in another. To reconcile these conflicting goals a complex set of rules has developed in the common law, governing recognition of marriages involving parties whose domicile is not Australia, or marriages celebrated outside Australia.

In 1983, 35 per cent of all marriages taking place in Australia involved one party who had been born overseas. The common law rules as they now stand would refer the validity of those marriages where one party was still domiciled outside Australia, partly to the law of the domicile.If a marriage takes place overseas it might be necessary to refer to the law of a number of countries to determine its validity in Australia. The Hague Conference on Private International Law in 1976 finalised the Convention on the Celebration and Recognition of the Validity of Marriages-the Hague Convention-to facilitate the recognition in one country of marriages solemnised in another country.

Celebration of Marriages

Chapter I of the Hague Convention deals with the celebration of marriages in countries party to the Convention. The Hague Convention requires a member country to allow the celebration of a marriage on its territory where the couple meet the requirements of the law of that country, provided that one of the parties is a citizen of that member country or habitually resides there. At the moment Australian law forbids the marriage of parties in Australia where the law of the domicile of both of the parties forbids it. In practice, it is difficult for celebrants in Australia to form an opinion about the domicile of the parties or the law of a foreign country.

The Bill proposes to deal with this problem by recognising the position which, as a matter of practice, has existed in Australia for many years; namely, that marriage celebrants in Australia marry persons in Australia-whether or not they are foreigners-by reference only to Australian law. To enable Australia to comply with Chapter I of the Hague Convention, the application of Part III of the Marriage Act-dealing with void marriages-is varied by clauses 10 to 13 of the Bill so that the rules of that Part will apply to all marriages solemnised after the amending provisions come into force in Australia or outside Australia under Australian law. This amounts to a variation of Australia's 'choice of law rules' and means that each of the parties to a marriage will only be required to meet the requirements of Australian law before they may marry under that law.

Recognition of the Validity of Marriages

Chapter II of the Hague Convention imposes upon countries that are parties to the Convention an obligation to recognise marriages that are validly celebrated under the law of the place of celebration, subject to certain basic exceptions. This obligation will involve recognition being given to some marriages which would not be considered valid under the common law rules of private international law.

In implementing the Convention the Bill also provides, in new section 88E, that these common law rules will remain in operation to a limited extent, so that even if a marriage would not be recognised as valid under the Convention, it will nevertheless be recognised as valid if the common law rules so provide. Essentially, the Convention operates as a gloss upon the common law, as it will provide an additional basis upon which the recognition of validity of foreign marriages may be afforded.

The Convention rules are contained in a new Part-Part VA-to be inserted in the Act by clause 23. To give the maximum benefit, Part VA is to apply to all marriages whether solemnised before or after the Convention comes into force for Australia. The only difficulty that this may cause will arise where a party to a marriage, which was previously regarded as invalid, has remarried prior to the commencement of the new rules, relying on the invalidity of the prior marriage. Accordingly, there is a saving provision in new sub-section 88D (5) so that the first marriage in that situation will continue to be regarded as void, whether or not it would be valid under the Convention rules. Priority is thus given to the subsequent marriage, which was entered into in good faith.

Part VA will extend recognition to a marriage solemnised in a country outside Australia as valid throughout Australia if the marriage was, at the time it was solemnised, recognised as valid by the law of the country where is was solemnised or, alternatively, if the marriage is recognised as valid under that law at the time its validity falls to be determined-paragraphs 88C (1) (a) and (2) (a). Analogous provisions will apply to marriages solemnised overseas by foreign diplomatic or consular officers.

These rules of recognition will, however, be subject to a number of exceptions permitted by Article 11 of the Convention and set out in sub-sections 88D (2) and (3). A marriage solemnised in a country outside Australia will not be required to be recognised as valid under the Convention rules where: Firstly, either party was, at the time of the marriage, already married to some other person; secondly, either party was not of the minimum Australian marriageable age, which is 16 years for males and 14 years for females; thirdly, the parties were within a prohibited relationship; or, fourthly, the consent of either was not a real consent.

Another provision of Part VA, section 88F, provides, in accordance with the policy expressed in Article 12 of the Hague Convention, that where the question of the validity of a marriage is incidental to the determination of another question-for example, relating to inheritance-the validity question shall be resolved in accordance with the Convention rules. A prima facie method of proof of a marriage alleged to have been solemnised in a foreign country is also provided in section 88G. The Bill also makes a number of other amendments.

Legitimacy of children

Some of these relate to Part VI of the Act, which deals with the legitimacy of children in certain circumstances. One amendment, in clause 26, inserts new sub-section 93 (3) into the Act. The background to this amendment can be found in the recent developments in technology to assist reproduction, most notably the technique of in vitro fertilisation. This technique, together with the related one of artificial insemination by donor, has given rise to discussions in the Standing Committee of Attorneys-General with a view to the enactment of uniform State and Territory legislation dealing with the parentage of these children. These discussions have not been concerned with the broader ethical and social issues raised by these techniques; they have simply been directed to the clarification of the status of the increasing number of children born in these ways. In general, the decision has been taken that a donor of genetic material should have no relationship with the child, and the legal parental relationship should be given to the 'social' parents.

In the context of Standing Committee discussions, some doubts were raised as to whether Part VI of the Marriage Act might not unintentionally frustrate part of this uniform law exercise. This would be so if the provisions of Part VI were to be interpreted by the courts as 'covering the field' with respect to the legitimation of children, leaving no room for the State laws concerned to have a valid operation. The problem is a constitutional one to do with the overriding effect of Commonwealth law. This amendment will make clear the intention of the Parliament not to affect the validity or effect of State and Territory laws dealing with the parentage of these children.

The other amendment to Part VI, in clause 25, involves the extension of the operation of section 90 of the Act. That section deals with legitimation by virtue of a foreign marriage, and presently has no operation where the relevant foreign law does not recognise the status of illegitimacy. The amendment will deal with such a case by treating a child as legitimate if its parents subsequently marry. The opportunity has also been taken to amend the application provisions of sections 89 and 90 so that they operate on the domicile of either parent, rather than only that of the child's father. This change reflects the situation in which a married woman now has a separate domicile, since the enactment of the Domicile Act 1982.

Notice of Intended Marriage

Minor amendments are made by clause 16 to section 42 of the Act to improve the operation of the provisions dealing with notices of intended marriage. The most important is the extension, from three months to six months, of the maximum period prior to the date of the marriage within which the notice can be filed. Extension of this time will allow celebrants and parties greater flexibility in making arrangements. The Family Law Council has considered this proposal, which has been put by civil celebrant groups, and sees no objection to it. Australian diplomatic officials are added to the list of those who may witness a notice of intended marriage. This will make the necessary paperwork easier for those who have to come from outside Australia to marry in Australia.

Fees for Civil Celebrants

The Bill inserts provisions to provide that a civil marriage celebrant is not entitled to charge a fee for the solemnisation of a marriage higher than that prescribed by the regulations. This will make it clear that the prescribed fees are the legal maximum that can be demanded for solemnisation. It seems desirable, in light of the particularly vulnerable position of parties about to be married, that there be a clear legislative statement to this effect, for the protection of both parties and celebrants. It is not intended by this provision to affect the ability of celebrants to make reasonable charges for other matters ancillary to the actual solemnisation, such as flowers or music. I should also point out that the Government is keeping under review the level of fees to ensure, consistent with overall economic restraint, that the fees represent an adequate remuneration for this important service. Early last year the fees payable were significantly increased in light of these principles.

Provision of 'Marriage Education'

As a continuing part of the Government's response to recommendation 61 of the Joint Select Committee on the Family Law Act-that 'education for marriage and family life be further supported'-the concept of 'pre-marital education' in part 1A of the Act is broadened to that of 'Marriage Education', by clauses 5 to 9. Organisations working in the area of pre-marital education have often indicated that one of the most useful times to engage in education for marriage is in that period shortly after the marriage has been entered into. Recently this Parliament enacted long needed changes to the laws governing the termination of marriage. This Bill represents another facet of the Government's commitment to resolving the problems faced by ordinary men and women in Australia in that most personal area of their lives. Particularly in extending the grounds for recognition of marriages entered into overseas, in ensuring the legitimacy of children recognised as such by State laws, and in broadening the scope of education for married life, this Bill is an affirmative statement of the importance of marriage as a fundamental and enduring institution. The Bill has no financial implications. I commend the Bill to the House.