Property Division 
Friday 7 March 2008
As long ago as 8 November 2002, the federal Attorney- General announced that each of the Australian states and territories had agreed "to a referral of powers to the ACommonwealth in relation to dealing with property disputes relating to separating de facto couples".1 The Family Law (De Facto Property and Other Amendments) Bill is scheduled to be introduced to the commonwealth Parliament in the Spring sittings. To date, Queensland, New South Wales, Western Australia and Northern Territory have tabled legalisation giving effect to the referral. While Victoria's progress in that regard has apparently stalled, is it arguable that the Family Law Act 1975 (Cth) (the Act) does in fact already cover the property and financial aspects of de facto marriages? Fundamental to the above question is a consideration of what a "marriage" actually is. Debate has recently resurfaced as to what should constitute a legal "marriage" in contemporary terms. Many overseas jurisdictions are extending the definition of marriage to cover homosexual couples and Tasmania has recently put in place a system for the registration of "significant" relationships. The Family Court's decision in Attorney-General for the Commonwealth v Kevin and Others2 gave rise to a significant amount of commentary regarding the adequacy of the current legal definition of marriage in reflecting community practices and standards. What is a marriage? In August this year, the federal Parliament acted to insert, for the first time, a definition of the term "marriage" into the Marriage Act 1961. The only other legislative indication of the meaning of the term appears in s43(a) of the Family Law Act 1975, which provides that a court shall, in the exercise of jurisdiction under that Act, have regard to "the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life".3 There has been a relative dearth of guidance from the High Court as to the intrinsic or constitutional meaning of "marriage".4 This may in part be a consequence of the fact that federal Parliament did not exercise its power to legislate with respect to marriage until the Matrimonial Causes Act 1959 (Cth) and the Marriage Act 1961 (Cth). The requirements as to what constitutes a "valid marriage" for the purposes of Australian law remain substantially set out in the latter. The Marriage Act, in addition to now defining "marriage" otherwise prescribes what features of a marriage will cause it to be legally valid. Section 23B(1)(c) of the Marriage Act provides that a marriage is "void" where "by reason of s48 the marriage is not a valid marriage". Turning then to s48, a marriage "is not a valid marriage" where it is "solemnised otherwise that in accordance with" ss40 to 47 of that Act. Those sections make provision for the role of authorised celebrants, the giving of notices of intention to marry, the presence of witnesses, the form of ceremony and the requirement of celebrants to explain the nature of the marriage relationship. A "void" marriage under the Marriage Act therefore seems to include a marriage that is solemnised but does not otherwise meet requirements of form and procedure contained within ss40 to 47. In the Marriage of L,5 the Full Court of the Family Court stated that "a ‘de facto relationship' connotes a connection between a man and a woman who live with each other as husband and wife but are not married to each other". For the purposes of this article, a "de facto" or "domestic" relationship is taken to be one that has all the hallmarks of a marriage, or the consortium vitae, save for the ceremonial formalities required by the Marriage Act. Historical development The development of the current law relating to marriage has its basis in ecclesiastical law. Before the decree of the Council of Trent in 1563, marriage existed in "the popular mode of verbal contract or spousals, accompanied by folk rituals".6 The Church and canon law encouraged the constructive formalisation of relationships to be marriages - in the "Finer Report" of 1974 it was stated that "in order to reduce the chances of exposure to deadly sin through sexual waywardness, the Church maximised the number of ways in which a lawful union could be contracted. In the result, marriage became a formless contract requiring little more than the consent of the parties".7 As Christopher Lasch states, "Because it upheld marriage as an antidote to lust, the Catholic Church made it easy to marry and almost impossible to obtain a divorce." 8 Formal requirements including the registration of marriages were not effectively introduced in England until Lord Hardwicke's Marriage Act in 1753, supposedly "for the better preventing of clandestine marriages".9 Some commentators believe that the main purpose of that Act was to protect property interests10 while it also would have worked to prevent the occurrence of the former tort of jactitation of marriage. In any event, the development of the legal concept of marriage before the Council of Trent is aptly summarised in the judgment of Baker J in The Marriage of W and T, where he said by way of obiter "that the fact of marriage, namely, the mutual consent of two competent persons to take one another for man and wife during their joint lives, was alone considered necessary to constitute true and lawful matrimony, in the eyes of both Church and State".11 The fact of public cohabitation in itself gave rise to a strong presumption of such consent.12 What brings about a marriage therefore is historically entirely distinct from the notion of a ceremony or a wedding. The underlying concept of marriage appears to be the consensual union for life between a man and a woman, not what are the relatively recent formalities imposed on the union for the purposes of regulation. While it may be that the Marriage Act requires that certain formalities be undertaken for a marriage to be considered "valid", it is submitted that the absence of such formalities does not render the marriage non-existent, it simply means it is not valid under s48 and is therefore "void". A couple who consensually enter into a union, ostensibly for life and to the exclusion of others, in circumstances where the existence of their consent is corroborated by their cohabitation, may therefore be argued to have entered into a marriage, albeit a void one. Again, under the provisions of the Marriage Act a "void" marriage is one that is solemnised but does not meet requirements of form and procedure. In the Marriage of Kapadia,13 Kay J stated that "it seems to me that the essence of marriage is that it is a ceremony conducted between two persons of opposite sex who are each capable of contracting a valid marriage . . .". Does the fact that the parties have not participated in a form of ceremony necessarily mean the marriage has not been "solemnised"? Do the parties need to go through a "purported" marriage ceremony? In the Marriage of Lengyel and Rasad,14 Nygh J said by way of obiter that "if parties, speaking of a purely domestic situation, were to take themselves to the beach and, in the moonlight, pledge eternal troth, that would not be something that could be described, in any way, as a ceremony of marriage. But, on the other hand, if the parties go through a specific ceremony which, if certain authorised persons had been present, would have constituted a valid marriage, then, in my view, they have gone through a ceremony of marriage, albeit one which because of the absence of the required persons is void". it is submitted that this passage imparts his Honour's view that there is some threshold definition of a ceremony of marriage. Of course, had the "ceremony" on the beach taken place before an authorised celebrant, with appropriate advance notices and the attendance of witnesses, etc. there appears to be no reason why it could not be a valid ceremony of marriage. The absence of any or all of the requirements of ss40 to 47 of the Marriage Act is what, after all, renders the marriage void. In the subsequent decision of Najjarin and Houlayce,15 Nygh J made a declaration of nullity of marriage on alternate grounds, one being the fact that a ceremony of marriage did not take place. In a recent article, the now retired Chief Justice of the Family Court Alastair Nicholson observed that "[t]here are no longer any requirements in Australia for a religious ceremony associated with marriage, and its occurrence, formalities and registration are purely secular".16 Historically, the fact of cohabitation in itself was the ordinary means of "entering into" a marriage. As Professor John Wade has noted, "a ceremony was not legally mandatory in England in order to create a full status marriage at least between 1200 and 1753, and possibly before that time also. Moreover, a substantial period of cohabitation where the couple were known in the community as husband and wife, would lead to a very strong presumption that they had expressly or impliedly exchanged the necessary promises to be legally married".17 Could not the fact of cohabitation continue to give rise to the "very strong presumption that [a de facto couple] had expressly or impliedly exchanged the necessary promises" giving rise to the marriage relationship? The Family Law Act Part VIII of the Act confers jurisdiction on the Family Court to deal with "property, spousal maintenance and maintenance agreements". Section 79, which is included in Part VIII, states: "In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property . . .". Section 71 defines "marriage" for the purposes of s79 to include "a void marriage". As the Act does not include a definition of "void marriage" reference needs to be had to the Marriage Act, which incorporates all the above considerations. It is arguable in light of the foregoing discussion that in applying to void marriages, Part VIII of the Act operates to cover de facto relationships. As a matter of interpretation, it is interesting to note that for the purposes of Part VIII of the Act "marriage includes a void marriage" (per s71) while the provisions of Part VII (through s60E) are stated to apply "in relation to a purported marriage that is void". Does the co-existence of these two sections imply that not all void marriagesneed to be purported marriages, or vice versa? If s71 has a wider scope than s60E, can it be argued that the parties to a void marriage need not purport to be married at all? Constitutional considerations The need for the states to refer power to the Commonwealth to legislate with respect to a matter is predicated on the fact that the Commonwealth otherwise lacks the power to deal with that matter. Does a law with respect to a "void marriage" fall within the federal Parliament's constitutional power? If not, would the Act be necessarily read down so as to preclude application to de facto marriages? Section 51(xxi) of the Constitution gives the federal Parliament the power to make laws with respect to "marriage". As stated above, the High Court has considered the scope of the marriage power on relatively few occasions, and there has been a divergence of opinion in that Court as to what marriage means in a Constitutional sense.18 In the decision of Attorney-General for the Commonwealth v Kevin and Others, the Full Court of the Family Court stated "that it would be potentially highly destructive to the institution of marriage for its definition to be frozen at any point in time".19 While progressive Constitutional interpretation in the High Court may have reached its zenith in the 1990s,20 certainly McHugh J has envisaged a time where the marriage power may be seen to extend to the regulation of homosexual relationships. In Re Wakim, his Honour stated that "in 1901 ‘marriage' was seen as meaning a voluntary union of life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the parliament of the Commonwealth of power to legislate for same sex marriages, although arguably ‘marriage' now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others".21 The fact that "marriage" is now to be defined within the Marriage Act as the union of a man and a woman - to the exclusion of all others - voluntarily entered into for life, does not of course operate to define marriage for the purposes of the Constitution. Conclusion It may of course be argued that when enacting the Family Law Act, Parliament did not intend that the term "void marriage" should include de facto relationships; there is, however, no definition of that term in the legislation. It is submitted that the historical analysis of the development of the institution tends to support the view that the current concept of Law Act. PROPERTY DIVISIONa de facto or domestic relationship is indeed a "marriage" and that such relationships can properly fall within the marriage power of the Commonwealth. It is also submitted that a consideration of the provisions of the Marriage Act gives rise to the conclusion that a de facto relationship is indeed a "void marriage" for the purposes of Part VIII of the Family In light of the increasing judicial willingness to recognise "marriage" as an evolving concept, it may be that in order to properly "preserve and protect the institution of marriage" the Family Court will inevitably include the de facto relationship as its increasingly prevalent form.22 It is arguable that the current legislation would allow it to do so. . ADRIAN STONE is a solicitor in the family law department at Richard Calley Family Lawyers. He is also an accredited specialist in family law. 1. " Commonwealth wins de facto property powers", press release, 8 November 2002, Attorney-General's Department. 2. [2003] 30 Fam LR 1. 3. Recounts the dictum of Lord Penzance in Hyde v Hyde and Woodmansee[1861-73] All ER Rep 175. It should also be noted that s46(1) of the Marriage Actrequires celebrants to pronounce words "to the effect" of that section when performing ceremonies. 4. Meagher, D, "‘The times are they a-changin'? - can the commonwealth Parliament legislate for same sex marriages?" (2003) 17 AJFL134. 5. [1984] FLC 91-563 at 79,544. 6. Stone, The Road to Divorce: England 1530-1987(2nd edn), Oxford University Press, 1992, at p53. 7. Report of the Committee on One Parent Families(1974) vol 2, p86, cited in the judgment of Fogarty J in The Marriage of W and T(1998) 23 Fam LR 175 at 186. 8. Christopher Lasch, "The suppression of clandestine marriage in England: The Marriage Actof 1753" Salmagundi26 (1974) at pp 90-91. 9. 26 Geo II c33. 10. Stone, The Family, Sex and Marriage in England, 1500-1800, Harper, 1979, pp30- 35, cited in the judgment of Fogarty J in note 8 above, at 187. 11. (1998) 23 Fam LR 175 at 203. 12. Wade, "Void and de facto marriages" (1981) 9 Sydney Law Review356, at 359. 13. (1991) 14 Fam LR 883 at 887. 14. (1990) 14 Fam LR 198 at 201. 15. (1991) 14 Fam LR 889. 16. Justice Alastair Nicholson, "The Family Court and the legal regulation of marriage", (2003) vol 17 no 1, Australian Family Lawyer, p1 at p5. 17. Note 12 above, at 375. 18. See the comments of Nicholson CJ, Ellis and Brown JJ in note 2 above. 19. Note 18 above. 20. Stone, "Constitutional interpretation" in The Oxford Companion to the High Court of Australia, Oxford University Press, 2001, at p139. 21. Re Wakim; Ex parte McNally(1999) 198 CLR 511 at 553. 22. In 2001, 12 per cent of all couple families were de facto. The proportion of couples living together before marriage increased from 46 per cent in 1986 to 72 per cent in 2001, the marriage rate declined from 7.2 to 5.3 marriages per 1000 population over the same period - source, ABS 1986 and 2001 Censuses of Population and Housing.
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