Constitution Defines Marriage

Marriage is codified into the Australian Constitution under S.51 (xxi)

It is further defined in the Commentaries on the Australian Constitution. Search Google to find and download the Commentaries.

Section 51 (xxi) in the Australian Constitution simply states that:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

Section 51. (xxi.) Marriage:

HISTORICAL NOTE.—“Marriage and divorce” is specified in the British North America Act, sec. 91, sub-sec. 26. “Recognition in other colonies of any marriage or divorce duly solemnized or decreed in any colony” was a subject which might be referred to the Federal Council under the Act of 1885. In the Bill of 1891, and also in the Adelaide draft of 1897, “Marriage and divorce” was one of the legislative powers. At the Sydney session, a suggestion by the House of Assembly of Tasmania was submitted, to omit the sub-clause and substitute “

The status, in other States of the Commonwealth, of persons married or divorced in any State.” Mr. Glynn said that there were strong objections in South Australia to the prospect of the grounds of divorce in that colony being extended as they had been in New South Wales and Victoria. The sense of the desirability of uniform laws of marriage and divorce prevailed, however, and the sub-clause was agreed to. (Conv. Deb., Syd., 1897, pp. 1077–82.) At the Melbourne session, before the first report, “Marriage” was placed in a separate sub-clause.


Marriage is a relationship originating in contract, but it is something more than a contract. It is what is technically called a status, involving a complex bundle of rights, privileges, obligations, and responsibilities which are determined and annexed to it by law independent of contract. According to the law of England a marriage is a union between a man and a woman on the same basis as that on which the institution is recognized throughout Christendom, and its essence is that it is (1) a voluntary union, (2) for life, (3) of one man and one woman, (4) to the exclusion of all others. (Bethell v. Hildyard, 38 Ch. D. 220.)

Laws relating to this subject will therefore embrace (1) the establishment of the relation, including preliminary conditions, contractual capacity, banns, license, consent of parents or guardians, solemnization, evidence, and rules in restraint, (2) the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights. Quaere whether this power will enable the Parliament to legislate with respect to breach of promise of marriage; immoral agreements concerning marriage; and the separate property of married women. It could be argued that the first two matters belong to the general law of contracts, and the last one to the general law relating to civil rights; both of which classes of laws are reserved to the States. It might be said, however, that they impinge on the principal grant of power, “marriage,” and are conveyed by it. In considering the validity of a marriage the requirements of two kinds of laws, not always coinciding in the same political community, have to be regarded; one is the law of the domicile—that is, the law of the country which the contracting parties look upon as their permanent home; the other is the law of the place in which the contract is made, or where the ceremony is performed. As regards the essential qualification and capacity to enter into the marriage relation, both the lex loci contractus and the lex domicilii must apparently be satisfied; the formal requisites, the mode of solemnization and the like, depend upon the lex loci contractus alone.
(Westlake, Priv. Internat. Law, pp. 52–5.)

The policy of the Imperial Government, to secure uniformity of marriage laws among the Christian races of the Empire, is shown in the manner in which several colonial Acts to legalize marriage with deceased wife’s sister have been discountenanced and disallowed. Such amending laws have been, however, at length sanctioned by the Crown in Ceylon, South Australia, Victoria, Tasmania, New South Wales, Queensland, Western Australia, New Zealand, Canada, and Barbadoes. In the countries in which the parties are domiciled the children of these marriages are legitimate by statute law, but in the United Kingdom, these marriages being still regarded as illegal, the offspring are liable to serious disabilities. By the law of England, “with regard to personal property the children of these marriages are regarded as legitimate; but with respect to realty, the status of legitimacy, which the law of the domicile gives them, is not recognized, on the ground that the established rule of law in deciding the title of real estate, lex loci rei sitoe, excludes such children.” (Hammick’s Marriage Law of Eng. and Cols. p. 253.)

“In regard to such legislation the difficulty still remains, that the Imperial Parliament has not yet (1892) agreed to this alteration in the law of marriage. Consequently, such marriages continue to be illegal in England, and those who avail themselves of the liberty afforded by colonial enactments to contract these marriages expose their offspring to disastrous consequences, as regards both inheritance and legitimacy, in the mother country. Hitherto, the Imperial Government and Parliament have shown no disposition to alter the law in this respect, for the behoof of the colonies in question.” (Todd’s Parl. Gov. in Col. 2nd ed. 198.)

The personal capacity of parties to enter into the contract of marriage depends upon their domicile; and where both parties had a foreign domicile, and, by the law of their domicile, their marriage was invalid by reason of consanguinity, a marriage which was contracted in England, and which would have been valid according to English law, was held invalid.
(Sottomayor v. De Barros, 3 P.D. 1. Digest of English Case Law, vol. vii. p. 626.)

A foreign marriage, valid according to the law of the country where it is celebrated, is good everywhere; but this applies only to the form, and not to the essentials of the contract, which depend on the lex domicilii. Therefore, if a marriage abroad of English domiciled subjects is polygamous or incestuous, the law of England will not recognize it, and will follow in that respect its own rules as to incest and policy. (Brook v. Brook, 9 H.L. Cas. 193. Id.)

When an English woman marries a domiciled foreigner, the marriage is constituted according to the lex loci contractus; but she takes his domicile, and is subject to his law. (Harvey v. Farnie, 8 App. Cas. 43. Digest of English Case Law, vol. viii. p. 215.)

The rule, that the lex loci contractus of a marriage establishes its validity, requires this qualification—that where the law of a country forbids marriage under any particular circumstances, the prohibition follows the subjects of that country wherever they may go. Each nation has a right to define and prohibit incest. If a marriage, though good according to the law of the domicile, were nevertheless contrary to the religious or moral notions of other States, it would be impossible to contend that it ought to be adopted by them. If the comity of nations were always to prevail, a foreign marriage between uncle and niece, under papal dispensation, must be held valid, and the issue might claim to take a Scotch estate and Scotch honours, although, had the marriage been contracted in Scotland, the parties might have been capitally punished. (Fenton v. Livingstone, 3 Macq. H.L. 497. Id. 216.)

British subjects resident in a British settlement abroad are governed by the laws of England, and consequently, with respect to marriage, by the law of which existed there before the Marriage Act, viz., the canon law. (Lautour v. Teesdale, 2 Marsh, 243. Id. p. 217.)

51. (xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights203, and the custody and guardianship of infants:

HISTORICAL NOTE.—For the history of the sub-section “marriage and divorce,” see Historical Note, sub-sec. xxi. At the Adelaide session, in 1897, a new sub-clause “Parental rights, and the custody and guardianship of infants” was added. It was thought, however, that, except incidentally to matrimonial suits, the control of children was not a federal matter, and accordingly at the Sydney session the sub-clause was attached to the preceding one, so as to read “Marriage and divorce, and in relation thereto, parental rights, and the custody and guardianship of infants.” (Conv. Deb., Syd., 1897, pp. 1082–5.) At the Melbourne session, before the first report, “Marriage” was placed in a separate sub-clause, and the words “and
matrimonial causes” were added




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