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Wednesday, 4 April 1984
Page: 1156


Senator GARETH EVANS (Attorney-General)(10.03) —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.

I turn to the first category of amendments-those implementing the Hague Convention on Celebration and Recognition of the Validity of Marriages. The purpose of the Convention is to assist in making more uniform provision between nations in relation to the recognition of marriages celebrated abroad.

The Hague Convention

Problems of recognition of marriages celebrated abroad have arisen in a number of countries which insist that, when their citizens marry abroad, they do so in conformity with their own laws. The placing of limitations on the grounds on which countries may refuse recognition to marriages celebrated abroad would be of general benefit to all, and particularly to those whose personal affairs involve several countries. As Australia has a greater number of such individuals than most countries, anything that helps to reduce the incidence of 'limping marriages'-marriages which are recognised as valid in one country but not in another country-will be to the benefit of this country.

It is hoped that ratification of the Convention by Australia will encourage other countries to do likewise. This will, in turn, encourage greater recognition abroad of marriages celebrated in Australia. Ratification by Australia will also be of benefit in relation to Australia's participation in the Hague Conference on Private International Law. So far, the common law members of the Hague Conference, including Australia, have not ratified many conventions and this has been the subject of criticism from the civil law countries. As section 43 of the Family Law Act 1975 states, the family is the natural and fundamental group unit of society. This Convention, which deals with marriage, the legal foundation of the family, is an appropriate one with which to commence Australia's implementation of conventions arising out of the Hague Conference.

Celebration of Marriages

Chapter I of the Convention deals with the celebration of marriages. It is a response to the difficulties often facing persons seeking to be married in a country of which they are neither nationals nor domiciliaries. The Convention imposes an obligation on the states who are parties to it to allow the celebration of a marriage between people who meet certain requirements. A significant difficulty for Australia to date on the question of the celebration of marriage has been that marriage celebrants do not have the resources to check whether parties have capacity to marry each other under a foreign law. 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 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 in Australia or outside Australia under Australian law. This amounts to a variation of Australia's 'choice of law rules'-that is, those rules of law which determine, where the laws of more than one country are relevant to a topic , which country's laws will be applied. However, it represents a considerable simplification of the present position and will allow Australia to accede to chapter I of the Convention, as Australian law will require each of the parties to a marriage to meet the requirements of Australian law only before they may marry under that law.

To give an example of the way this will assist parties: Australian law at the moment would declare a marriage entered into in Australia between two people domiciled overseas to be invalid if those parties did not have legal capacity to marry under foreign law. Under these amendments, the marriage would be valid if the parties had capacity under Australian law.

Recognition of the Validity of Marriage

Chapter II of the Convention imposes upon states that are parties to the Convention an obligation to recognise marriages that are validly celebrated under the law of the state 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.

The Bill provides, in addition, in new section 88D, that these common law rules will remain in operation to a limited extent, so that 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 Marriage Act. Part VA is to apply to all marriages whether solemnised before or after the Convention comes into force for Australia. The Government has taken the view that it is desirable that the Convention should have the widest possible application. This will, however, mean that some marriages will now be recognised as valid which were previously not recognised as valid in Australia. It is regarded as undesirable that a marriage entered into in good faith in the belief that it would be valid should be rendered invalid by operation of the Convention. Accordingly, there is a saving provision in sub-section 88C (7) so that a marriage regarded as void before the Convention enters into force for Australia shall continue to be regarded as void, whether or not it would be valid under the Convention rules, if a party to that void marriage has subsequently remarried.

Under Part VA a marriage solemnised in a country outside Australia, other than under Part V, is to be recognised as valid throughout Australia if the marriage was, at the time it was solemnised, recognised as valid by the law of the country where it was solemnised or, alternatively, if the marriage is recognised as valid under that law at the time its validity falls to be determined- paragraphs 88B (1) (a) and 88B (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 II of the Convention. A marriage solemnised in a country outside Australia will not be required to be recognised as valid under the Convention rules in a number of circumstances. First, it will not be recognised where either party was at the time of the marriage already married to some other person. Secondly, where one of the parties was at the time of the marriage domiciled in Australia it will not be recognised if either of the parties was not of marriageable age. Thirdly, where neither was domiciled in Australia at the time of the marriage, it will not be recognised while the parties are below the minimum age at which a person can with permission marry in Australia-that is , 16 years for males, and 14 years for females. Finally, the marriage will not be recognised where the parties are within the prohibited relationship or where the consent of either of the parties was not a real consent.

Another provision of Part VA, section 88E, provides, in accordance with the policy expressed in Article 12 of the Convention, that the determination of the question of validity of a marriage which is incidental to the determination of another matter, such as inheritence, shall be resolved in accordance with the Convention rules. A further provision of the new Part, section 88F, provides a prima facie method of proof of a marriage alleged to have been solemnised in a foreign country.

Legitimacy of children

Two sets of amendments relate to Part VI of the Act, which deals with the legitimacy of certain children. The major amendment, in clause 22, inserts new sections 91A and 91B into the Act. These sections deal with the legitimacy of children born to a married couple as a result of artificial insemination by donor or in vitro fertilisation. They do not themselves make provision in relation to the parentage of these children; they merely ensure that, if State or Territory law does so provide, then the operation of the legitimation provisions of the Act will extend to those children. Various States have indicated, in the course of discussions in the Standing Committee of Attorneys- General, their intention to deem a child born in this way to be the child of the married couple, and to sever the biological link with sperm or ovum donors.

Section 91A deals with three separate cases-sperm donation alone-sub-section (1 )-ovum donation alone-sub-section (2)-and donation of both sperm and ovum-sub- section (3). In respect of each of these procedures, where a law of a State or Territory requires the resulting child to be treated as a child of the man and the woman, or either of them, the child will be deemed to be legitimate. A related provision is inserted by clause 20 into section 89, to ensure that where an unmarried couple have a child by these procedures, and subsequently marry, the child will be legitimated by virtue of that subsequent marriage, if they are deemed to be the parents by State or Territory law.

The other amendment to Part VI, in clause 21, involves the extension of the operation of section 90 of the Act, which deals with legitimation by virtue of a foreign marriage, to situations where the foreign country involved does not recognise the status of illegitimacy. Israel is one such country. 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 simply on that of the child's father. This change is in line with the general policy of the Government to remove unwarranted distinctions based on sex.

Notice of Intended Marriage

Minor amendments are made to section 42 of the Act by clause 16, to improve the operation of the provisions dealing with notices of intended marriage. The most important, contained in clause 16 (a), is the extension of the maximum period prior to the date of the marriage within which the notice can be filed, from three months to six months. 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. Clause 18 is a consequential amendment to the overseas marriage provisions of the Act. Clause 16 (b) adds Australian diplomatic officials 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.

Sub-section 42 (5) of the Act allows a prescribed authority to effectivelty waive the minimum requirement of one month's notice, if he is satisfied that the circumstances of the particular case justify his so doing. Clause 16 (c) of the Bill inserts a new provision designed to prevent a party who has been refused this waiver by one authority, simply seeking permission from another authority without disclosing the previous refusal. The suggestion for this amendment arises out of representations to the Ombudsman on this matter.

Fees for Civil Celebrants

Clause 24 of the Bill makes it an offence for a civil marriage celebrant to charge a fee higher than that prescribed by the regulations for the solemnisation of a marriage. While the present legal position is that the prescribed fees are the legal maximum that can be charged 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 charge for other matters ancillary to the actual solemnisation, such as flowers or music. I should also point out that the Government is keeping under close review the level of fees to ensure, consistently with overall economic restraint, that the fees represent an adequate remuneration for this important service. Earlier this 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 by clauses 5-9 of the Bill to that of marriage education. 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. Grants made for the purposes of marriage education will thus complement the activities of marriage counselling organizations under the recently amended definition of marriage counselling in the Family Law Act 1975.

Miscellaneous amendments

A number of amendments will rationalise the operation of the Act or correct minor errors. Amendments to the definition of ''Judge'' (clause 3 (a)) and to section 99 (clause 23) are in this latter class. Clause 14 removes an unnecessary provision concerning the constitution of the Administrative Appeals Tribunal for certain purposes, and clause 15 brings the criterion for appointment of celebrants under section 39 into line with the policy expressed in section 33 in relation to ministers of religion of recognised denominations. Other formal amendments are made by the Schedule.

Last year this Parliament enacted long-needed changes to the laws governing the termination of marriage. This Bill represents the other facet of the Government' s commitment to resolving the problems faced by ordinary men and women in Australia in that most personal areas of their lives. In extending the grounds for recognition of marriages entered into overseas, in ensuring the legitimacy of children, in broadening the scope of education for married life and easing procedural restrictions on entry into marriage, 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 Senate.

Debate (on motion by Senator Peter Baume) adjourned.