Marriage Law Reform Association

“ A man if he does marry his deceased wife’s sister can always protect his property by the operation of his will; and I think, with all due deference to other members of the Conference, it would be rather out of place for us to suggest legislation to the Imperial Government on a question which has been so often and so prominently debated in both Houses of Parliament. I may be a little singular in my view, but as the matter has never come before our local Parliament I should not feel justified in committing the Colony to an opinion on the subject. ”

“ In Western Australia we have a law legalising marriage with a deceased wife’s sister, but I think it has scarcely ever, if ever, been taken advantage of. I think myself that it is a very unfortunate thing that there should be different laws relating to marriage throughout the Empire; and I hope, and I have no doubt that as time goes on there will be some means devised of having one law of marriage throughout the whole Empire. ”

“ The only answer, therefore, to the inquiry raised by Sir Henry Holland, is that which is furnished by the practice of federated States like those of America, where, in the opinion of the best authorities, a marriage legal at the place of contract, if not against public morals and in the general belief inimical to the interests of the federal community, would everywhere entitle the issue to inherit land. ”

“ Her Majesty’s dominions be deemed and held to be and to have been a valid marriage to all intents and purposes: Provided, nevertheless, that this Act shall not render valid any marriage in any case in which either of the parties to the marriage has afterwards, and before the passing of this Act, lawfully intermarried with another person; nor shall this Act be construed to deprive any person of any land or other property which he has lawfully inherited, or to which he has become lawfully entitled before the passing of this Act. ”

“ Wisdom: In all points but one they recognise the validity of the marriage in the Colonies; but upon the one point, namely, that of succession to real property they refuse to alter the law of England so as to meet our case. This grievance tends more in my opinion to create a feeling of irritation than any act on the part of the Imperial Government, as tending to throw a slur upon our marriages ”

“ As far as I know, England is exactly in the same position with regard to her Colonies as any other country in this respect, that if the marriage is not recognised as valid in that country, the issue of that marriage cannot inherit land in that country. ”

“ Although the marriage is legally sanctioned, it still lacks one very important element, it is not merely as a matter of property it lacks the fulness of sanction which we all desire to see given, but it places the marriages contracted in the Colonies on a different level from the marriages contracted in England, or from marriages contracted in the Colonies which are not within those prohibited relations ”

“ I fancy even in England they are scarcely referred to very much at the present time, but I wish to put the matter before the Government and the Conference, simply upon the ground that this time, when England and her Colonies are drawing so much more closely together than they have been before, would be a fitting time to remove what I think is a great anomaly in the laws of England and Australia upon a matter of great vital moment, and upon a matter in which the people of both countries take the very greatest interest. ”

“ As far as the history of the legislation of the Colonies is concerned, it is in a sufficiently small compass. South Australia, the Colony which I represent, was the first, I think, to pass a statute permitting these marriages. For four different sessions of Parliament the statute was passed, and after four different sessions the Royal Assent was refused, but finally, upon the 30th of March, 1871, the Royal Assent was given. That statute permitted marriages in the province between a man and the sister of his deceased wife, or the sister’s daughter. ”

“ And again:—"One should say that nothing can be more pregnant with inconvenience; nay, that nothing can lead to consequences more strange in statement than a doctrine which sets out with assuming legitimacy to be not a personal status, but a relation to the several countries in which rights are claimed, and, indeed, to the nature of different rights. ”

“ The Courts decided that the marriage was void. As far as Lord Wensleydale’s opinion on the other question was concerned, and as far as the opinion which Lord Campbell and Lord Cranworth expressed in the other direction, that the marriage would have been valid if the parties had been domiciled in Denmark, those were really obiter, they were not necessary to the decision of the facts. The parties were admittedly not domiciled in Denmark, but admittedly domiciled in England. The only question, therefore, was, being domiciled in England, was the marriage in Denmark valid? ”

“ We have got our law in this country—we very properly, after perhaps an unreasonable demur, allowed you to have your law, and now you want us to change our law of inheritance, although we have not changed our law as to the validity of marriages in this country, because we have allowed you to make these marriages valid in the Colonies. ”

“ It is to be recognised as a valid marriage, and I have no doubt Sir Samuel Griffith intends that all the consequences of a valid marriage shall follow. Although in Scotland the law of inheritance of real estate has not been changed by the recognition of children born before wedlock, I think that there is some difference between the position in Scotland and our position. ”

“ His view is that there cannot be an uniform law for the whole Empire, but that a marriage legally made in any one part of Her Majesty’s dominions by persons domiciled there should be recognised as valid in every other part of Her Majesty’s dominions. ”

“ As a matter of practical administration, going from these general principles to the manner in which it is practically administered by the fiscal departments in England, as far as personalty is concerned the marriage is considered good; as far as realty is concerned the marriage is considered bad. ”

“ Thorburn, from Newfoundland, that it is a matter that has been so thoroughly discussed and thrashed out in both Houses of the Imperial Parliament that it is scarcely wise on our part to try and bring pressure to bear upon them, as they are not likely to be very much influenced by what we say. ”