Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes On Recent Australian Statutes
Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes On Recent Australian Statutes
Marriage, Matrimonial Causes, Legitimacy and Adoption: Miscellaneous Notes On Recent Australian Statutes
During the 1000s, some important statutes which bear on- matters
of personal law, and notably on marriage, mabimonial causes,
legitimacy and adoption have come into operation in Australia. The
Mabimonial Causes Act 1959 came into operation early in 1961 and is
a comprehensive exercise of Cornmonwealth legislative power
primarily dep'endent upon section 51 (xxii) of the Constitution of
the Commonwealth power to make laws with respect to divorce, and
matrimonial causes. It is an elaborate and complex statute and its
constitutional base is, of course, broader than, that single paragraph.[l]
It was a response to a question asked by one of the Founding Fathers
in 1897 "What subject is more fitted for generallegislation?"12] though
the answer was not given in temls of comprehensive Commonwealth
law for sixty years. The Marriage Act 1961 was a further comprehen-
sive exercise of Commonwealth legislative power, this time principally
based on the power conferred on the Commonwealth by section
51 ( xxi) of the Constitution to legislate with resp'ect to marriage. In
Part 6 of that Act, provision was made for legitimation by subsequent
marriage, the recognition of foreign legitimations, and for the
legitimacy of the issue of a putative marriage. This raised important
and difficult constitutional questions in the High Court of Australia
which will be considered later.£3l Then in 1964, the Victorian Par-
liament enacted the Adoption of Children Act which is a compre-
hensive Act and, inter alia, fonnulates rules for the assumption of
jurisdiction by a Victorian court to make adoption orders and for the
recognition of foreign adoption orders. Adoption is a matter regulated
by State law, and the enactment of the Victorian Act followed con-
ferences attended by the 'law officers of the Commonwealth and the
States for the purpose of 'reaching agreement on unifonn legislation.
In this article it is proposed to consider some aspects of these three
Acts and their interpretation.
geographical area of Australia as defined in the Acts. [8] This may mean
that a person will be held to be domiciled in Australia for the purpose
of those Acts, while he may still retain an English dOlnicile of origin
for purposes of succession to movable property. If this is so it will be
necessary to modify the time-hallowed rule that no person can at the
same time have more than' one domicile. [9] That results in this case
from the fact tllat the statute speaks peremptorily to an Australian
court. For an English court not subject to such a peremptory obliga-
tion, a question of modification of the one domicile rule may also
arise. in the context of recognition of an Australian decree. If a
migrant with an English domicile of origin is granted a divorce by
an Australian court on the footing that he has acquired an Australian
domicile, although he has not established a domicile in a State or
Territory, will such a decree be recognized in England? It is possible
to argue that an English, court is not bound to accept the new statutory
creature, domicile in Australia, and may take the view that the failure
to show a domicile in an established common law sense in a State
leads to the conclusion that at all material times the petitioner retained
his domicile of origin in England. Thi'i question has not yet been
answered. It is submitted that the better view is that an English court
should recognize the Australian decree in such a case. The reason
may be stated in these terms:
"The citizen of a federation is subje.ct to two legal systems, State and
federal, in both of which domicile may be relevant. And within
Australia, as Barry, J., said in Lloyd v. Lloyd, there is unity of law
with respect to matrimonial causes throughout the country. This
follows from the distribution of legislative power by the constitution
and from the exercise of that constitutional power. The legislative
framework within which this unity of law is established contemplates
Australia as a single law district within which a domicile by reference
to the common law concepts of animus and factum may be established:
why, having regard to these considerations, should an English court
insist that the only domicile which can be established at common law
in Australia is one established in a State or Territory? Is there not more
practical good sense, more adequate appreciation of the character and
organization of a federal structure, in accepting the notion of an
Australian domicile in such a case?"[10]
If this were accepted by an English court, it would follow that a
court not constrained so to do by authority of statute, would accept
a view of the law at variance with the classical rule of the singleness
of domicile, because the petitioner in such a case would be held to
be domiciled in Australia for purposes of divorce jurisdiction, and
domiciled in England for purposes of succession to movable
property. [11]
8 Cowen and Mendes da Costa, "The Unity of Domicile" (1962) 78 L.Q.R. 62;
Cowen and Mendes da Costa, "Matrimonial Causes Jurisdiction: The First
Year" (1962) 36 A.L.J. 31, at pp. 34-6.
9 Rule 4, Dicey, Conflict of Laws (7th ed., 1958), at p. 89.
10 Cowen and Mendes da Costa, "The Unity of Domicile" (1962) 78L.Q.R. 62,
at p. 68.
11 Cowen and Mendes da Costa, "Matrimonial Causes Jurisdiction: The First
Year" (1962) 36 A.L.J. at p. 35.
26 AUSTRALIAN INTERNATIONAL LAW 1965
16 [1963] 2 W.L.R. 17. See also Sara v. Sara (1962),31 D.L.R. (2d) 566.
17 See Cowen, "A note on Potentially Polygamous Marriages" (1963) 12 I.C.L.Q.
1407, at p. 141l.
18 (1963), 4 F.L.R. 292 at p. 295; [1964] A.L.R. 3, at p. 5.
19 [1953] P. 246.
20 [1957] V.R. 17.
28 AUSTRALIAN INTE,RNATIONAL LAW 1965
21 See Cowen and Mendes da Costa, Matrimonial Causes Jurisdiction, at pp. 93-7.
22 (1962), 4 F.L.R. 104, at p. 110; [1963]· A.L.R. 197, at p. 202.
23 Cowen and Mendes da Costa, Matrimonial Causes Jurisdiction, at p. f11.
24 Ibid at pp. 98-9.
25 (1962), 4 F.L.R. 94; [1963] A.L.R. 817.
MARRIAGE, LEGITIMACY AND ADOPTION 29
31 [1960] V.R.733.
32 Adoption Act 1955, section 3 (1).
33 See G. D. Kennedy, "Adoption in the Conflicts of Laws" (1956), 34 C.B.R.,
at pp. 509-21.
32 AUSTRALIAN INTERNATIONAL LAW 1965
law of that State or Territory has, so long as it has not been rescinded
under the law in force in that State or Territory, the same effect as an
adoption order made in Victoria, and has no other effect.
42. (1 ) For the purposes of the laws of Victoria, the adoption of a
person (whether before or after the commencement of this Act) in a
country outside the Commonwealth and the Territories of the Common-
wealth, being an adoption to which this section applies, has, so long
as it has not been rescinded under the law of that country, the same
effect as an adoption order under this Act.
(2) This section applies to an adoption in a country if-
(a) the adoption was effective according to the law of that
country;
(b) at the time at which the legal steps that resulted in the adop-
tion wer~ commenced the adopter, or each of the adopters, was
resident or domiciled in that country;
(c) in consequence of the adoption, the adopter or adopters had,
or would (if the adopted person had been a young child) have
had, immediately following the adoption, according to the law
of that country, a right superior to that of any natural parent of
the adopted person in respect of the custody of the adopted
person; and
(d) under the law of that country the adopter or adopters were,
by the adoption, placed generally in relation to the adopted person
in the position of a parent or parents.
(3) Notwithstanding the foregoing provisions of this section, a Court
(including a Court dealing with an application under the next succeed-
ing section) may refuse to recognize an adoption as being an adoption
to which this section applies if it appears to the Court that the pro-
cedure followed, or the law applied, in connexion with the adoption
involved a denial of natural justice or did not comply with the re-
quirements of substantial justice.
(4) Where, in any proceedings before a Court (including proceedings
under the next succeeding section), the question arises whether an
adoption is one to which this section applies, it shall be presumed,
unless the contrary appears from the evidence, that the adoption
complies with the requirements of sub-section (2) of this section and
has not been rescinded.
(5) Except as provided in this section, the adoption of a person
(whether before or after the commencement of this Act) in a country
outside the Commonwealth and the Territories of the Commonwealth
does not have effect for the purposes of the laws of Victoria.
(6) Nothing in this section affects any right that was acquired by, or
became vested in, a person before the commencement of this Act."
Subsisting adoptions made under the laws of other States and
Territories are recognized in Victoria on the footing that they are to
have the same effect as an adoption order made in Victoria and. no
other. The general principle of recognition of interstate (including
territorial) orders follows the pattern set by section 95 ( 1) of the
Matrimonial Causes Act 1959 providing for the recognition of inter-
state decrees or dissolution or nullity of marriage. That section put at
end the controversy over the decision in Harris v. Harris[34] and the
implications of that decision,[35] in the matrimonial context, anyway.
The basis on which Fullagar, J., rested his decision, that section 18
of the State and Territorial Laws and Records Recognition Act 1901-
1950 (which provides that "all public acts, records and judicial pro-
ceedings of any State, if proved or authenticated as required by this
Act, shall have such faith and credit given to them in every Court
and public office within the Commonwealth as they have by law or
usage in the C'ourt and public offices of the State or Territory from
whence they are taken"), peremptorily required that a New South
Wales divorce decree be recognized in Victoria \vithout inquiry into
the assumption of jurisdiction by the New South Wales court,· may
raise a question whether it is lawful to limit the effect a:nd recognition
of a sister state adoption as is done in section 41 of th.e Adoption of
Children Act. It is submitted that it is lawful for the States so to
provide, and, in any event, it is possible to ensure this result by the
enactment of appropriate uniform State and Territorial legislation.
The notion that the measure of recognition to be accorded to a foreign
(in this case, a sister State) adoption is the measure accorded by the
recognizing State to its own adop'tions is, it is submitted, sound and
the express provision in seetion 41 puts an end to controversy over
this issue. [36]
The provision for the recognition of foreign adoptions in the
wider sense which is made by section 42 requires (1) that the foreign
adoption was effective accordjng to the law of that country; (2) that
the adopter(s) were resident or domiciled in the country of adoption,;
(3) that the effect of the foreign adoption is in· that country to give
the adopter a right superior to the natural parents in respect of the
custody of the child; (4) that the effect of the adoption is generally
to place the adopting parent in the position of a parent; (5) that the
procedure adopted in making the foreign adoption did not involve a
denial of natural justice and complied with the requirements of sub-
stantial justice.
As to this, it may be observed that as in the case of recognition of
foreign matrimonial decrees undeT section 95 of the Matrimonial
Causes Act, the Adoption of C'hildren Act provides broad symmetry
in local jurisdiction and recognition of foreign orders, save that in the
recognition provision there is no express requirement that the child
should be present within the jurisdiction in which the foreign adop-
tion was made. Apart from this the recognition provision reflects the
philosophy of Travers v. Holley.[37] In so far as the jurisdictional basis
is broad-the residence or domicile of the adopting parents-this is
reasonably satisfactory and it is not likely to produee many hard
cases. It is good that the legislature has not insisted that the adopter
be domiciled in the foreign country. Recently Scarman., J., proposed
36 See Re Pearson, [1946] V.L.R. 356. And see P. Gerber, uS ome Aspects of
Adoptions in the Conflict of Laws" (1965), 38 A.L.J. 309, and cases there
cited.
37 [1953] P. 246.
34 AUSTRALIAN INTERNATIONAL LAW 1965