COMMON LAW MARRIAGES.
How did it begin?
Truth is, common law marriages have always been around, since time immemorial
and before. Only in recent times have statutory laws been passed to 'regulate'
marriages... The aboriginals of Australia have been marrying at common law for
thousands of years. see.Recognition
of Aboriginal Customary Laws. How much simpler are their laws. But did you
know we ordinary Australians can also be married at common law too?
How did the resurgance of common law marriage come about for us. (The aboriginals
never left it). Here is the story.
On Saturday 16 August 2003 my good friend Marco was to be married to my newer
friend Erin. I have known Marco and his family for many years, and see him as
my brother in spirit. We have shared many journies and battles together and
the tests of an enduring friendship have been passed with flying colors, so
I concern myself with certain of his affairs, and seek the best for him.. I
made a special effort to attend his wedding which was to be held at his parents
place in Doonan, Queensland.
The hour was about 12 noon and the wedding was to commence at about 2 pm. Whilst
hanging out with the groom to be I asked him by what law and by what instrument
he was to be married? He said he didn't know. I said is it the Marriage
Act 1961? He wasn't sure so together we did some investigation
to find out by what law and by what instrument his marriage was to be executed.
Time was precious. We jumped on the internet and downloaded appropriate legislation
and consulted his marriage celebrant. The investigation revealed his marrage
was to be conducted according to the Marriage Act 1961
and the instrument was a Marriage Certificate pursuant to that legislation.
Upon so signing this certificate the Marriage Act 1961
and the consequences thereof would become part of their lives forever. Prior
to that day neither Marco or myself had read either the Act or its associated
regulations. We downloaded the Act (107 pages), and its associated regulations
(149 pages) and were shocked to find out what he was signing himself too.
The golden rule is "never ever sign or agree to governement
legislation or regulations that you have not read and understood"
The Marriage Act 1961 is onnersome. It invokes many other Acts. Here are some
of those Acts. Remember when you agree to the marriage Act 1961, you are agreeing
to all the rules and regulations therein. It is taken that you understand those
Acts and legislations. Having signed the marriage act it is taken that you have
consented to all its associated acts and provisions thereof. The simple act
of marriage thus becomes a nightmare of legislation of thousands
of pages
Familly Law Act 1975
Crimes Act 1914
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001
(No. 24, 2001)
Witness Protection Act 1994
Administrative Appeals Trubunal Act 1975
Statutory Declarations Act 1959
Consular Fees Act 1955
Marriage Amendment Act 1976;
Marriage Amendment Act 1985
Marriage Amendment Act 2002 (No. 77, 2002)
This is not all the legislation that you agree to when you marry pursuant to
the marriage Act. There are many more subsidiary legislation than this. I've
put some others at the bottom of this page.
I think that the marriage Act invokes too many rules, penalties and threats.
Marco, thought so too, as do many other couples who have since become married
at common law. Do you think that these days we have too many unnecessary or
burdomson rules in our lives? Do you think it's wise to not volunteer
to be bound by more legislation than you need too?
There is a tendency of governments to impose themselves upon all aspects of
our lives. With legislation governments purport the right or claim the right
to intrude into these aspects. Once we were happy being married without legislation.
Now we have piles of books rules and regulations, where previously the common
law and common sense of the community prevailed. Previously it was only God,
husband and wife. Previously for, say, the christian faith, the only book referred
to was the bible. Governments attempt to intrude upon our lives and write themselves
into our lives with their legislation and rules. Yes, we agree that we do need
rules and codes of conduct for our community. These rules are important. Yes
we do agree to those codes and rules of conduct that are sensible and necessary.
However at this time the average person cannot possibly cope to know the huge
volume of laws in existence that purportedly impose themselves into their daily
lives. It is unreasonable to impose upon a married couple the task of learning
volumes of legislation, in order to avoid the maxim "ignorance of the law
is no excuse" . The common law way is much simpler.
The problem with Australia, and many of the so called developed countries is
that we are over-regulated. A case of FORM OVER FUNCTION. The Acts and Legislation
regarding marriage is a good example. Where is the benefit of all this legislation
to the average persons who are decent and honest.
Why would any person volunteer to bind themselves to this legislation when so
many (aboriginal) members of our community are exempt?
Upon reading the legislation, the essential elements for a marriage at common
law became apparent. The elements that the community requires at common law
were simple and are described in the act, and when it all boild down, the volumes
of legislation were not necessary for the average couple. Provided we comply
with the essentials as required by law, then a common law marriage may be easily
performed, and there is no need to bind youself to the Marriage Act 1961 and
its associated legislation. The essential elements are basic and generally agreed
to by the non-aboriginal members of our community. We summarised these essential
elements and incorporated them into a draft marriage certificate. Further research
was done and thereafter we put together an official common law marriage certificate.
I've extracted a few of the essential parts from the
Marriage Act which were necessarily considered, and have included them here.
We recomend that you undertake your own research and decide for yourself whether
or not you want to make a stand for your rights and become married at common
law. There are a great many who have absolute and unquestioning faith in government
and the laws they pass, there are those who question those laws and whose faith
and trust is not automatic. You have free will and a mind that is capable of
discernemnt.
Section 43 Marriage may be solemnized on any day etc.: A marriage
may be solemnized on any day, at any time and at any place.
Section 44 Witnesses: A marriage shall not be solemnized unless
at least 2 persons who are, or appear to the person solemnizing the marriage
to be, over the age of 18 years are present as witnesses.
Section 45 Form of ceremony: (1) Where a marriage is solemnized
by or in the presence of an authorized celebrant, being a minister of religion,
it may be solemnized according to any form and ceremony recognized as sufficient
for the purpose by the religious body or organization of which he or she is
a minister. (2) Where a marriage is solemnized by or in the presence of an authorized
celebrant, not being a minister of religion, it is sufficient if each of the
parties says to the other, in the presence of the authorized celebrant and the
witnesses, the words: “I call upon the persons here present to witness
that I, A.B. (or C.D.), take thee, C.D. (or A.B.), to be my lawful wedded wife
(or husband)”; or words to that effect..
Elements of a common law marriage.
Some requirements for marriage at common law are:
1. Neither the bride or groom is presently married.
2. The bride and groom are over the age of 18 (our common law). (Aboriginals
can marry at the age of puberty ie 14 or 15)
3. The bride and groom are not close blood relatives.
4. Bride and groom who give vows to each other that they shall be man and wife
to the exclusion of all others.
5. At least two witnesses over the age of 18, one of whom is a person deemed
by the bride and groom as authorised, according to their faith and/or their
community, to conduct the ceremony.
Normally the state has imposed itself into marriages by creating a special class
of witness called a marriage celebrant, which was previously the role of a church
official. One of the reasons why celebrants came into vogue were the numbers
of persons being married who were athiests and who had no religious beliefs.
How do such people as this get recognised as being married? Who marries them?
The state did a constructive thing and created legislation to provide for such
people who were athiests etc. However, by so creating, they did not exclude
common law marriage via the church etc. <<<
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OTHER ACTS LINKED WITH THE MARRIAGE ACT 1961
Act Number and year Date of Assent Date of commencement Application, saving
or transitional provisions
Marriage Act 1961 12, 1961 6 May 1961 Ss. 1–3, 5(1) and 9, Part III (ss.
22–24), Part VIII (ss. 107–110) and s. 120: 6 May 1961
Remainder: 1 Sept 1963 (see Gazette 1963, p. 1977)
Statute Law Revision (Decimal Currency) Act 1966 93, 1966 29 Oct 1966 1 Dec
1966 —
Marriage Act 1973 35, 1973 27 May 1973 1 July 1973 (see Gazette 1973, No. 70,
p. 3) Ss. 8(2) and 12(2)
Statute Law Revision Act 1973 216, 1973 19 Dec 1973 31 Dec 1973 Ss. 9(1) and
10
Marriage Amendment Act 1976 209, 1976 20 Dec 1976 Ss. 1, 2 and 30: Royal Assent
Ss. 14 and 31: 1 July 1976
Remainder: 20 June 1977
(see Gazette 1977, No. S93) Ss. 2(4), 14(2), 15(2), 23(2) and 30
Domicile (Consequential Amendments) Act 1982 2, 1982 4 Mar 1982 1 July 1982
(see
s. 2 and Gazette 1982, No. G26,
p. 2) —
Marriage Amendment Act 1985 7, 1985 29 Mar 1985 Ss. 4, 10–13 and 23: 7
Apr 1986 (see Gazette 1986, No. S153)
Remainder: 26 Apr 1985 Ss. 8(2), (3) and 25(2)
Statute Law (Miscellaneous Provisions) Act 1988 38, 1988 3 June 1988 S. 3: Royal
Assent (a) —
Law and Justice Legislation Amendment Act 1990 115, 1990 21 Dec 1990 S. 49:
Royal Assent (b) —
Sex Discrimination Amendment Act 1991 71, 1991 25 June 1991 Part 3 (ss. 11–17):
1 Aug 1991 (c) Ss. 3 and 17
Territories Law Reform Act 1992 104, 1992 30 June 1992 S. 24: 1 July 1992 (d)
—
Witness Protection Act 1994 124, 1994 18 Oct 1994 18 Apr 1995 —
Family Law Reform (Consequential Amendments) Act 1995 140, 1995 12 Dec 1995
Schedule 1 (Part 7): 11 June 1996 (see s. 2(4) and Gazette 1996, No. GN5) (e)
—
Statute Law Revision Act 1996 43, 1996 25 Oct 1996 Schedule 5 (item 79): Royal
Assent (f) —
Law and Justice Legislation Amendment Act 1999 125, 1999 13 Oct 1999 Schedule
13: Royal Assent (g) —
Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000
137, 2000 24 Nov 2000 Ss. 1–3 and Schedule 1 (items 1, 4, 6, 7, 9–11,
32): Royal Assent
Remainder: 24 May 2001 Sch. 2 (items 418, 419) [see Table A]
Law and Justice Legislation Amendment (Application of Criminal Code) Act 2001
24, 2001 6 Apr 2001 S. 4(1), (2) and Schedule 34: (h) S. 4(1) and (2) [see Table
A]
Marriage Amendment Act 2002 77, 2002 8 Oct 2002 Schedule 2 (items 1–14,
16–56): 5 Nov 2002
Schedule 2 (item 15): 8 Apr 2003
Schedule 1: 1 Sept 2003 (see Gazette 2003, No. GN31)
Remainder: Royal Assent Sch. 1 (item 27) and Sch. 2 (items 5, 10, 17) [see Table
A]
(a) The Marriage Act 1961 was amended by section 3 only of the Statute Law (Miscellaneous
Provisions) Act 1988, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives
the Royal Assent.
(b) The Marriage Act 1961 was amended by section 49 only of the Law and Justice
Legislation Amendment Act 1990, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives
the Royal Assent.
(c) The Marriage Act 1961 was amended by Part 3 (sections 11–17) only
of the Sex Discrimination Act 1991, subsection 2(1) of which provides as follows:
(1) Part 1, sections 4, 7 and 8, Parts 3 and 4 and the Schedule commence on
1 August 1991.
(d) The Marriage Act 1961 was amended by section 24 only of the Territories
Law Reform Act 1992, subsection 2(3) of which provides as follows:
(3) The remaining provisions of this Act commence on 1 July 1992.
(e) The Marriage Act 1961 was amended by Schedule 1 (Part 7) by the Family Law
Reform (Consequential Amendments) Act 1995, subsection 2(4) of which provides
as follows:
(4) The amendments made by Part 7 of Schedule 1 commence on the commencement
of section 5 of the Family Law Reform Act 1995.
(f) The Marriage Act 1961 was amended by Schedule 5 (item 79) only of the Statute
Law Revision Act 1996, subsection 2(1) of which provides as follows:
(1) Subject to subsections (2) and (3), this Act commences on the day on which
it receives the Royal Assent.
(g) The Marriage Act 1961 was amended by Schedule 13 only of the Law and Justice
Legislation Amendment Act 1999, subsection 2(1) of which provides as follows:
(1) Subject to this section, this Act commences on the day on which it receives
the Royal Assent.
(h) The Marriage Act 1961 was amended by Schedule 34 only of the Law and Justice
Legislation Amendment (Application of Criminal Code) Act 2001, subsection 2(1)(a)
of which provides as follows:
(1) Subject to this section, this Act commences at the later of the following
times:
(a) immediately after the commencement of item 15 of Schedule 1 to the Criminal
Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000;
Item 15 commenced on 24 May 2001
<<< EOF