I'm doing a research paper re: Aboriginal marriage; where can I find info?

Answer 1

Here are many resources you can use to develop your paper...

Answer 2

Aboriginal Law Bulletin
http://www.austlii.edu.au/au/journals/AboriginalLB/1985/10.html
EVERYTHING IS ON THIS LINK w/sub links below.
Aboriginal Customary Marriage-Determination And Definition
1. Background
2. 'Customary', 'Traditional' And `Tribal'
3. Contracting Aboriginal Customary Marriages
4. Degrees Of Marriage
5. Whose Opinions Matters?
6. Mixed Marriages
7. Consultations
8. Disputed Cases
9. Age
Galarrwuy Yunupingu calls new Marriage law an attack on Aboriginal
culture
Adelaide Institute
Aboriginal marriage crisis talks fail
http://www.adelaideinstitute.org/Australia/002.htm
Marriage
http://www.janesoceania.com/australian_aboriginal_anthropology1/index1.htm
Until on the threshold of marriage, young women had little contact with the group into which they were destined to marry some day - that is, the affinal group to which the woman was betrothed or promised. After the age of nine years, or possibly later, the young woman was handed over to her future husband and sleep at his fire side from time to time. In this respect, the young girls generally aged between nine and thirteen were not required to participate in sexual relation with their future husbands until they were beyond puberty.

Answer 3

Conflict or anger itself does not have to cause an irreparable rift between partners. With good communication skills and a shared commitment to a marriage, even these are surmountable. How to save your marriage https://tr.im/23trW

However, at that point where one partner is at the brink of abandoning the relationship, how can the remaining partner save their marriage? If you are at the point where your spouse has asked for a divorce, what can you do?

You must realize first that, you do have a choice. Often, when confronted by a crisis, we find ourselves backed into a corner thinking we have no choice in the matter. How can we change the situation when it involves another person's feelings or decisions? While we cannot, must not and in no way manipulate, blackmail or threaten our partner into changing their mind, we can actually control how we react to the situation. If anything, you must realize that you still have control over yourself. You have the opportunity to look inward and take responsibility for your own feelings and actions and even have the chance to take personal inventory of what your partner is trying to tell you. Are there points in your marriage that must be changed? If so, respond appropriately and proactively.

Answer 4

I suggest you just search 'Aboriginal Marriage' on the web.
It should come up with good info.
Or check a book out at the library.

Answer 5

Indigenous Law Resources
Reconciliation and Social Justice Library
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6. RECOGNISING TRADITIONAL MARRIAGES

52. DIFFERING IDEAS OF MARRIAGE AND FAMILY.
The Commission's Terms of Reference refer specifically to the recognition of Aboriginal customary laws as they relate to the criminal law. But recognition is also of importance in the area of civil and family law. Conflicts can arise when the general law takes more restrictive views of marriage and of family structures than those applying in Aboriginal communities. What constitutes marriage and the obligations and responsibilities flowing from marriage may differ widely in different societies. Anglo-Australian law is based on the concept of marriage as a permanent monogamous union, a concept that is not necessarily appropriate for traditional Aboriginal marriages. There may therefore be difficulties involved in simply recognising traditional marriages as marriage for all purposes under the general law. [para 222, 233-6]

53. MARRIAGE IN ABORIGINAL TRADITION.
Despite these differences, Aboriginal marriage has been described as a 'socially sanctioned, ratified agreement with an expectation of relative permanency' (RM Berndt, 'Tribal Marriage in a Changing Social Order' (1961) 5 UWALR 326, 341). The elements of traditional marriage have been described in the following terms:

There is the' potential of marriage between certain categories of persons which is further defined by reference to actual kin, country, ritual and historical relations. Such a union is hedged in by certain taboos, including in-law avoidance. It is enmeshed in a complex web of kin obligations and responsibilities. It is underwritten by exchanges which both pre and post-date any individual marriage. Violations or deviance from the marriage contract attract attention from different categories of persons. (D Bell, 'Re Charlie Jackamarra Limbiari, Report to the Court in R v Charlie Limbiara Jagarnara (unreported, Northern Territory Supreme Court, May 1984, 13-14)).

Traditional marriages may involve the betrothal or promise of a younger girl to an older man. A man's first marriage may however be to an older woman. While a girl is growing up she would be likely to have contact with her promised husband, but marriage itself occurs when the parties cohabit publicly and take on marital responsibilities including sexual relations (Berndt (1961) 338-9), with the birth of the first child cementing and reaffirming the marriage. Aboriginal women tended traditionally to marry at a younger age, with Aboriginal men not marrying till their late twenties or even later. Polygamy was common in some communities but rare or non-existent in others. Divorce was usually signified by the end of cohabitation, with the parties remarrying or forming other relationships. [para 223-5]

54. CHANGING MARRIAGE PATTERNS.
A number of factors, including government policy, missionary activities and contact with members of the opposite sex under the general education system have brought changes to traditional marriage practices. Among fringe dwelling and urban Aboriginal communities, formal traditional marriage institutions and rules are no longer of such significance. In more remote communities traditional marriage is maintained, although polygamy has declined. The apparent rigidity of rules relating to 'straight' or 'correct' marriages may have weakened, with 'wrong skin' marriages more frequent even in remote communities. As in the past a casual relationship may develop into a union that is considered a marriage by the community. In situations where there is disagreement as to whether a couple are married, the views of relevant persons within the families concerned may need to be taken into account in determining whether there is a traditional marriage. For example, in R v Ralph Campbell (unreported, NT Court of Summary Jurisdiction (8 June 1982)) the views of the Aboriginal woman concerned and her family were taken into account in determining that she was traditionally married. [para 225-9]

55. NON-RECOGNITION OF TRADITIONAL MARRIAGES.
There has been quite extensive recognition of traditional marriages in overseas jurisdictions. In Australia, on the other hand, Aboriginal traditional marriages are not recognised as marriages under the Marriage Act 1961 (Cth). They are not recognised at common law. They may qualify as de facto relationships for certain purposes under some federal, State and Territory laws. But there is only limited legislative recognition of traditional marriages as such in Northern Territory legislation, and in one Commonwealth and one Victorian Act (Compensation (Commonwealth Government Employees) Act 1971 (Cth); Adoption Act 1984 (Vic)). Failure to recognise traditional marriages may create difficulties. For example, the children of a traditionally married couple may be illegitimate, the couple may not be eligible to adopt a child, and a surviving spouse may not qualify for benefits such as workers compensation, insurance or social security payments on the death of his or her spouse. [para 237-40]

56. ALTERNATIVE METHODS OF RECOGNITION.
Any form of recognition of traditional marriage raises the difficulties of translation inherent in any attempt to match social institutions from widely disparate cultures (see para 47). It is necessary to consider four different ways in which recognition may be extended:

* de facto recognition;

* underwriting or enforcing traditional marriage rules:

* categorical recognition (ie equating traditional marriage to Marriage Act marriage for all purposes); and

* functional recognition (ie for particular purposes). [para 241]

57. DE FACTO RECOGNITION.
A traditional Aboriginal marriage which satisfies the statutory criteria for de facto relationships in Commonwealth, State or Territory laws may be said in a sense to be recognised as a relationship at least akin to marriage. This form of recognition has the advantage that no special legislation would be necessary to ensure recognition, and it overcomes any problems of distinguishing traditional marriages from de facto relationships. However it cannot be assumed that general de facto legislation will necessarily be suitable, as it is framed with distinct situations in mind, and in any event applies only to a limited extent in some States. More fundamentally, to treat Aboriginal marriages simply as de facto relationships is to blur the distinction made by Aborigines themselves between traditional marriages and other relationships. There may also be cases where it is proper to recognise traditional marriages but not de facto relationships for a particular purpose. [para 242-5]

58. ENFORCING TRADITIONAL MARRIAGE RULES.
Alternatively, norms and practices of Aboriginal communities relating to marriage could be enforced by the general law. This form of recognition however carries the risk of loss of control over their laws by Aboriginal people. It also brings an inflexibility to traditional marriage rules, rules which were traditionally flexible and subject to negotiation. Conflicts which have ocurred over promised marriages highlight the dangers of underwriting traditional marriages rules. The enforcement of promises to marry would involve difficult questions of policy, including:

* the girl's age and the question of her consent to the marriage;

* the opportunities to opt out of a marriage;

* the enforceability of any promises made by the parents;

* the effects on a girl who wishes to avoid marriage seeking the assistance of the police, and the consequent undermining of traditional authority.

Under present Australian law. Aborigines are free to choose their marriage partners. even though their traditional laws may require them to marry a promised partner. The Commission does not believe that this situation should be changed. The general law should not be used as a means of enforcing promises to marry, as this would involve the general law denying the right not to be coerced to marry. [para 246-53]

59. CATEGORICAL RECOGNITION.
Traditional marriages could be recognised as marriage for all purposes of Australian law. There are drafting advantages in doing so, but there are also disadvantages. Attaching all the legal consequences of Marriage Act marriage to traditional marriages risk causing distortions. Categorical recognition would involve foisting on Aboriginal communities consequences that are inappropriate and very often not wanted by Aborigines themselves. [para 255]

60. FUNCTIONAL RECOGNITION - THE COMMISSION'S PREFERRED APPROACH.
Functional recognition involves comparing traditional marriages with Marriage Act marriages for various purposes to determine whether particular consequences of recognition of that union as a marriage would produce results which are appropriate and consistent with Aboriginal perceptions of marriage. This case by case method reduces distortion and leaves Aboriginal customary laws free to maintain flexibility and development. It avoids enforcement of traditional marriage rules, particularly those which may infringe basic human rights. As will be seen, it minimises difficulties involved in recognising plural or underage marriages. [para 256-7]

* Polygamous marriages. Functional recognition overcomes difficulties of reconciling Aboriginal traditional marriages (which may be polygamous in some cases) with the requirement of monogamous Marriage Act marriage. Legal recognition of traditional marriages should allow the recognition of polygamy where it occurs. There is no reason why recognition of traditional Aboriginal marriages should not entail benefits or protection for more than one spouse. Problems of apportionment or multiple entitlement should be considered in the context in which they arise. [para 258-60]

* Marriageable Age. Marriages of girls below the age permitted under Australian law (ie 16 for boys, 14 for girls) still occur in some Aboriginal communities. A majority of the Commission believes that traditional marriages should be recognised as they exist, without requiring that rules relating to marriageable age under the general law be complied with. Under the approach of functional recognition, it is unnecessary and undesirable to deny the benefits of recognition, merely on the basis of marriageable age. Under this approach (and unlike Marriage Act marriages) what is recognised is the consequences of relationships regarded by Aborigines themselves as marriage. The relationships themselves are not enforced or made binding. (However one member of the Division (Professor JR Crawford) would not recognise traditional marriages for legal purposes at any time when a party is below the present minimum marriageable age in Australian law). [para 261]


* Consent to Marriage. On the other hand, the principle that marriage requires the consent of the parties is fundamental, and accordingly a traditional marriage should not be recognised for any purpose unless the parties (at or before the time when the issue of recognition arose) had consented to the relationship. [para 262]

* Sexual Discrimination. With the safeguards spelt out in this Chapter, the recognition of traditional marriage does not authorise or condone sexually discriminatory marriage practices. Functional recognition of traditional marriages for specific purposes involves according a benefit or status to a traditional union, which is just as likely (in practice, more likely) to protect or benefit Aboriginal wives as husbands. It does not involve enforcing or underwriting traditional rules, nor does it involve withdrawing legal protection from Aboriginal women. The Commission's recommendations do not contravene the Sex Discrimination Act 1984 (Cth) or the Convention of the Elimination of All Forms of Discrimination against Women on which that Act is based. [para 263]

61. GUIDING PRINCIPLES.
In determining those areas in which there should be functional recognition of traditional marriages the Commission has been guided by two principles:

* whether treating Aboriginal marriage as marriages under the general law, would conflict with Aboriginal traditions, practices and perceptions;

* whether there is evidence of a need or demand for recognition in each particular case.

At times these two principles may be in conflict. Meeting a perceived demand for recognition may involve consequences which can distort Aboriginal customs, traditions and perceptions. Where this has occurred the Commission has given greater weight to the needs and wishes of the parties, on the basis that Aboriginal people are entitled to determine their own priorities and should not be deprived of the access to the benefits available under the general law because their traditional marriages are not recognised. Whether they make use of those benefits or choose to maintain their traditions, practices and perceptions is then a matter for the Aboriginal people concerned. [para 270]

62. SPECIFIC RECOMMENDATIONS FOR RECOGNITION OF TRADITIONAL MARRIAGE.
On the basis that there should be functional recognition of Aboriginal traditional marriages for specific purposes, the Commission makes the following specific recommendations:

* Traditional marriages should be recognised notwithstanding that the relationship is actually or potentially polygamous. [para 258-60]

* There should be no minimum age requirements for traditional marriages.[para 26 l]

* The Commission's recommendations should apply to mixed marriages (ie between an Aborigine and a non-Aborigine) which are recognised as traditional marriages by the community in question. [para 264]

* Registration of traditional marriages should not be required, but Aboriginal communities should be given power to operate a register, constituting prima facie evidence of marriage, should they so wish. [para 268}

* Children of a traditional marriage should be recognised as legitimate or nuptial children for all purposes of Australian law. [para 271]

* Traditional marriages should be recognised for the purposes of adoption. Thus the consent of both parents should be required for the adoption of a child of a traditional marriage and persons who are traditionally married should be qualified, in the same way as persons married under the Marriage Act 1961 (Cth), to adopt children under State and Territory law. Traditional marriage should also be recognised for the purposes of State and Territory legislation where marriage is a qualification for child custody or fostering. [para 273-279]

* The law should not be changed to impose on Aboriginal spouses legal obligations of mutual maintenance, and additional obligations to maintain their children, during their relationship. The extension of maintenance obligations to traditional spouses would not reflect Aboriginal perceptions of the role of husbands and wives in maintaining their domestic economy, nor would maintenance legislation be effective. The Commission does not believe there is any justification for imposing a new maintenance regime on parties to traditional marriages during the marriage.

Whatever the social and economic needs of the parties, they are unlikely to be improved by imposing a legal obligation to pay maintenance. [para 280-6]'

* For the same reasons it is not appropriate to make special provisions for an action with respect to property rights as between traditional spouses. [para 286]

* Similarly it is not desirable to equate traditional marriages with Marriage Act marriages for the purposes of maintenance and property distribution after termination of such traditional marriages. [para 287-90]

* There does not however appear to be any good reason for excluding a surviving traditional spouse from making a claim on intestacy or for family provision. [para 291-4]

* Traditional marriages should be recognised as 'marriage' for all worker's compensation purposes. [para 295-7]

* Similarly the parties from traditional marriages should be able to claim compensation for death or injury independently of whether they come within the definition of a de facto relationship for the purposes of accident compensation. [para 298-9]

* Traditional Aboriginal marriages should be specifically recognised for the purposes of criminal injuries compensation. [para 300]

* The Commonwealth Superannuation Scheme and private schemes should be amended to accommodate traditional marriages. [para 301]

* The Social Security Act 1947 (Cth) should be amended to bring it into line with the Department of Social Security's present policy of recognising a 'first' traditional marriage as 'marriage' for the purposes of the Act. Since departmental policy already adopts this view, such a recommendation should not involve little or no extra cost. The question whether the Act should be extended to apply to plural wives is more complex. The Commission recommends that if traditional marriage is to be recognised as marriage for any purpose under Social Security Act 1947 (Cth) it should be recognised for all purposes. The only substantial argument against doing so relates the possible aggregation of multiple payments (eg unemployment benefit in respect of several wives could all be paid to the husband). The Social Security Act 1947 (Cth) should be amended by the insertion of a provision that the term 'wife' and its cognates includes an Aboriginal woman whose relationship with an Aboriginal man is regarded as a marriage according to the customary laws of the community to which he, she or they belong, and does so notwithstanding that she is not the only wife as so defined. Ancillary provision should be made for separate payment of benefits or pensions payable to traditional spouses, and for modifications to be made to deal with any residual problem of multiple or aggregate payments. [para 313-16]

* Traditionally married persons should be compellable to give evidence for and against each other in criminal cases to a similar extent as persons married under the general law. The privilege relating to marital communications, where it exists, should apply equally to traditionally married persons. [para 313-16]

* The offence of bigamy should not extend to polygamous Aboriginal marriages. Criminal sanctions should not be imposed on polygamous marriages particularly as such sanctions do not apply to informal plural relationships in the general community. [para 317]

* The rule that a man cannot be convicted of raping his wife should not apply to a traditional marriage. [para 318].

* Traditional marriage should be recognised for the purposes of carnal knowledge charges, provided that the other party is shown to have consented. [para 319]

* Traditional marriage should be recognised for the purposes of spouse rebates under the Income Tax Assessment Act 1936 (Cth). [para 322]

* No specific recommendation is necessary as to jurisdiction of courts. In most respects, the Commission's recommendations relate to the recognition of traditional marriage in areas where the matter can arise generally in a court. The exception is the custody of children who would be recognised as legitimate and therefore, in a sense, children of a marriage. However the Commission does not favour extending the jurisdiction of the Family Court, either exclusively or concurrently, to deal with such cases. [para 323]

* There should be legislation recognising traditional marriages for the above purposes. [para 325]



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