Aboriginal Law Bulletin
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by Peter Sutton
In February 1984, Mr. H.B. Bradley of Ward Keller, a Darwin legal firm, asked my consultancy firm, Sutton Partners, to provide advice ‘on the issues which are relevant to determine whether or not a person is married to an aboriginal native "according to the customs of the group or tribe of aboriginal natives of Australia to which he belongs".’ The latter quotation is from the Motor Accidents (Compensation) Act 1979 (N.T.), under which Ward Keller's client, the Territory Insurance Office, received claims by dependants of persons killed in motor vehicle accidents.
The client's financial constraints in this case limited our report to eleven hours of research and writing. This is, therefore, no more than a minimal overview of the subject.
Modern-day anthropologists largely agree that a living tradition is not a fixed reproduction of past behaviour and values, but a continuously developing body of belief and practice which is seen as rooted in its predecessors, even if different from them. It is not possible to point to a learned book written a hundred yers ago and quote its definition of Aboriginal marriage as if it were still an adequate basis for deciding whether a contemporary union is a marriage under Aboriginal custom or tradition. In the present context a knowledge of past accounts is highly useful but arriving at an adequate definition of Aboriginal customary marriage for a particular place in one's own time requires a serious research effort, still, talent and patience. We cannot, therefore, offer a simple shopping-list of features which an unskilled investigator might tick off as a means by which an insurance claimant's marital status can be quickly and simply determined. We do (see below) outline the key problem areas and suggest how they might be tackled.
There is no simple translation of the European notions of 'custom' or 'tradition' (or, for that matter, 'tribe') into Aboriginal languages. Simply asking an Aboriginal person if a certain marriage was 'traditional' or 'tribal' is not an adequate method of investigating the issue at hand. The Aboriginal words translated as 'married to', 'wife', and 'husband' are not equivalent in meaning to the English words, which must be treated as glosses rather than dictionary-type definitions. In some Aboriginal languages, for example, a man's wife's sister and brother may be referred to by the same term as that translated as 'wife' even though neither had entered into a marital relationship with him. (See also Crawford 1982: 4 on the 'problem of translation'.)
The Motor Accidents (Compensation) Act refers to the 'customs of the group or tribe' to which the Aboriginal person belongs. No definition of 'group or tribe' is offered. It should be pointed out that Aboriginal people may identify a marriage rule or custom with a certain region, with a language-owning group (such as Warlpiri, for example), or with Aboriginal society generally. One should not be overly concerned with the establishment of some sort of group title or 'tribal name' for the individuals whose cases are being investigated.
Traditions of the cultural groups of both spouses, as well as of the residential communities in which they lived, are all relevant.
Professor R.M. Berndt (1962-338-9) offers a useful 'broad definition of traditional aboriginal marriage' which includes four main elements:
1. The couple are eligible to marry according to local rules which define preferred and acceptable alternative kin relationships between which marriages may be contracted.
2. The two kin groups concerned (husband's and wife's) have come to acceptable betrothal arrangements, which may have involved exchange of gifts.
3. Although betrothal shades into marriage, actual marriage is involved when the couple live together publicly, both attending to their marital obligations including sexual relations.
4. The birth of the first child strengthens the union' (ibid.).
This list actually combines factors of different orders. Eligibility according to the kinship of prescriptive marriage system is a precondition for choice as spouse. Agreement between the respective families - given the willingness of the couple to enter into marriage –is the primary mechanism required before the marriage can take place, but in a sense also constitutes an element of the marriage so long as it lasts. Living together publicly is a useful criterion but, as is well known, some who live together are not considered 'married' under Aboriginal custom and some who are so married may spend long periods apart, and have no sexual relationship. The birth of the first child is more appropriately discused below in section 4 where we deal with 'degrees of marriage'.
Aboriginal customary rules governing whom one should or may licitly marry are changing. Bell (1980) provides satistical evidence for a specific N.T. case (Warlpiri, 1959-1979). However, in this contextweare less concerned with eligibility than with the question of what kinds of existing or past unions are to be recognised in law as customary marriages. For this reason we here concentrate on Aboriginal recognition of unions as marriages, rather than on how recognised spouses-to-be are selected.
Some unions are planned as customary marriages while one or both potential spouses may still be in infancy or perhaps as yet unborn, and if eventually consummated with continuing family agreement from both sides this type of case presents a few real problems of recognition. It is true, of course, that a young girl may go to live with her promised husband and be his 'wife' before assuming sexual relations with him, so that even in this type of case family agreement plus cohabitation do not equal customary marriage in its fullest sense. It is also true that promised spouses may begin a sexual relationship before openly cohabiting (before being 'properly married'; see Warner 1968:75).
Most marriages, however, are not of the 'promise' type. While some are prearranged between families, others are essentially begun by the couple as a non-marital union which is later accepted as a marriage by their kin. Even where such recognition obtains right from the start of the marriage, there are still 'degrees of marriage'. A couple who are recognised as husband and wife under Aboriginal custom, when they start to produce a family, are usually seen as having a marriage which is more solid and more likely to endure than that of a childles couple (see Berndt 1962: 335; Warner 1958: 77; Berndt and Berndt 1981: 200). Childless spouses are married, but spouses who have had children are, perhaps, more firmly so.
Because casual liaisons may develop into 'sweetheart' relationships, which then develop into recognised marriages, it is likely one will often encounter a couple whose relationship is transitional between two such stages rather than surely and simply one or the other. Warner (1958: 82 ff.), writing about north-east Arnhem Land as it was in the late 1920's, lists and discusses five 'extra-legal sexual relations between men and women' which are recognised as 'possible, i.e., the tribe would not condemn them as unpardonable offences against customary law'. These are:
'(1) relations when the legal spouse of either or when both spouses are carrying on an affair without the mate's full knowledge; (2) runaway matches when the man and woman go to a distant clam to live - usually a true love match, but not always; (3) a union when a man steals a woman from her husband and takes her to his own clan; (4) a union when warring clansmen kill off the husbands of the women and keep them for themselves; and (5) the union of a daughter whose father has given her to a relative without a legal claim to her in another tribe.
Each of the above is considered illegal and condemned by all people, yet each is practiced to a considerable degree among all the tribes in this region, and each frequently leads to a permanent union that has full tribal recognition.
So a gradual, developmental relation between, for example, 'sweetheartship' and 'marriage' may involve not only 'gradual marriage' but also 'gradual divorce' (in the case of a 'stolen' spouse). The state of such graduations, where the persons concerned speak their own languages, may be more accurately signalled in those languages than in explanations given in English. Note, for example, Shapiro's translations (1981: 71):
As ('sweetheart' relationships) progress, the adulterer is likely to refer to his paramour as his 'female' (connoting 'wife') rather than as his 'hole' (as he had earlier), and to commence prestation (gift-giving) to her cognates (family). The cuckold, for this part, may still claim the woman as his 'female', but eventually the claim will probably be dropped and the woman said to have been 'stolen'.
In English, Northern Territory Aboriginal people will usually distinguish three main kinds of relationship relevant here: 'sweethearts' or 'running around with so-and-so'; 'just living together'; and 'properly married'. Bell (in Bell and Ditton 1980: 92) says she has 'never heard women (in Central Australia) in doubt as to whether a couple were just 'living together', 'playing around', or actually 'married', although she recognises that questions of adjudication are relevant to the isue (ibid., and see below section 8).
Where a couple live together, there may be a time when the relevant families, or perhaps even the spouses concerned, are not in full agreement as to whether they are also properly married (see section 8 below). Conversely, there may be a period of unclarity about whether or not a marriage has been diminished to the point of termination after a married couple have separated. Aboriginal spouses may spend long periods apart (see Berndt 1962: 341); Berndt and Berndt 1981: 197; Bell 1980: 262), for example if the husband is a cattle station employee, or the couple is elderly, without losing their married status. Divorce may be gradual (see Berndt 1962: 336-7, 339), and these days is not often marked in any ceremonial way (see Shpairo 1981: 72).
'Secondary spouses' were found among the Dieri of South Australia (see Elkin 1974: 161-2 for a discussion of the literature) and 'second class marriage' is reported for Western Arnhem Land (Berndt and Berndt 1981: 195). These are institutionalised relations between persons who stand in a marriageable kin relationship, who are normally married in a primary sense to someone else, and between whom there is an ongoing sexual and economic relationship. These cases are not cases of polygyny (one man having more than one wife) in the usual sense.
Polygynous marriages are often said to have disappeared from communities where missionary influence is strong, but it is not uncommon for second and third marriages to be concealed from authorities where those authorities disapprove of polygyny. This is a good reason for treating non-Aboriginal missionary opinions on who is polygynously married with a great deal of reservation.
There is no strictly necessary relationship between degrees of acculturation and European contact and the extent of polygyny in a particular community (Long 1970). Some young men in their twenties at communities such as Oenpelli at present have more than one wife. It has been suggested that one of the potential impacts of mining royalties may be a bolstering of such marriages in certain areas (J. von Sturmer, pers. com.). At present one must assume that polygyny will be around for an indefinite future, even if it continues to decline in gross terms.
For insurance purposes we suggest that there is no ground for considering some wives in a customary polygynous situation to be more truly married than others. As Professor Crawford has recently written (1982: 15):
It is suggested that selectivity, in the context of functional recognition of (Aboriginal customary) marriage, is both arbitrary and unnecessary. What is being recognised here are the consequences of marriage, in particular in areas of compensation for death and injury, devolution of property etc. To the extent that these consequences involve drawing upon the husband's property or rights, it is arbitrary and unfair to exclude a second wife.
Aboriginal customary marriage, as Professor Berndt puts it, "is not just a union between two individual persons, but the linking together of two families in a special kind of relationship" (1962: 335). Earlier anthropologists tended to undervalue the role of women in Aboriginal marriage arrangements (see Hiatt 1965, 1967, Hamilton 1978 for a detailed discussion of the Maningrida example, Spencer and Gillen 1899 (Ch III) for an early example relating to Central Australia). Whether a woman is married by orthodox betrothal and prearrangement between families, or elopes with or is 'stolen'or simply wooed by a man and their marriage is recognised by the families subsequently, (or woos), it seems that approximately the same members of the respective families are involved. There are distinct regional traditions as to who these people should be (those who have a customary primary jural status in recognising marriages), and there is also likely to be incomplete overlap of this set of people with those whose views actually count in the real process of recognition. The available generalisations about whose views count in recognising marriages are mostly guarded, suggesting that each case or each area requires specific investigation before one can make detailed statements on the subject.
Professor Berndt, referring to 'the majority of interested persons' whose views count in a north-west Australian context, says that these 'would, generally, be the parents, mothers' brothers, and fathers' sisters of each, the girl's brothers and her male cross-cousins and parallel cousins' (1962: 334). Hiatt (1965: 41-4) found that at Maningrida the primary right to bestow a women in mariage was held by her mother, who consulted her brothers (and perhaps also her sisters) about the decision. Conducting her research among Maningrida women, rather than men, Hamilton (1978: 31) found that women did not admit the possibility of bestowing their own daughters in marriage, that many women nominate the girl's maternal grandmother as bestower, some nominate the father (girls themselves thought their fathers bestowed them), and old women believed they had the right to bestow their daughters' daughters. The lesson from this kind of detailed, professionally sound research is that any investigation of whose views count in the process of arranging or recognising an Aboriginal customary marriage must not rely simply on the opinion of one person or persons of one gender. Nevertheless, one can make the generalisation that it is the close family of the two individuals who are 'in command of all the necessary facts on which to decide the issue', rather than some vague grouping such as 'the community' or some elected body such as a village council (Bell and Ditton 1980: 92).
Most cases of Aboriginal/non-Aboriginal marriage would fall under the definitions of marriage other than the one under consideration here. However, it is not at all difficult to imagine situations where a mixed marriage is considered to have been recognised in the customary Aboriginal way, and perhaps where the other legal definitions of marriage fail to apply. In any case, it would be unfair to suggest that such recognised mixed marriages were 'only de facto' if the spouses were seen as licitly and 'properly married' under the system of their community.
Perhaps the most difficult cases arise when a woman is in two relationships, one of which is an Aboriginal customary marriage, and the other of which might be regarded as a de facto marriage to a non-Aboriginal. The case Gladys Namugu, Albert Julama and Michael Daly described by Berndt (1962) is just such a case. Berndt observed (1962: 342-3):
In "outback" areas, in fact, in many caes a quasipolyandrous (polyandry = woman with more than one husband) situation developed. An aboriginal woman might be the mistress of "white" station manager, stockman, drover, etc., attracted to him partly at least by the material goods he could offer her - which meant, in such circumstances, prestige as well. At the same time her aboriginal husband was forced to accept the situation or relinquish her altogether, since he was powerless to take action.
... the assumption is that a"tribal" marriage holds good only when it does not conflict with European interests, and that an aboriginal husband (or wife, although this situation is less likely to arise) has no rights in regard to his wife should a "white" man take a fancy to her.
We suggest that the facts of an Aboriginal customary marriage are independent of other relationships a woman may have with men other than her Aboriginal husband, and should not fail to be recognised simply because she is in a polyandrous or 'quasi-polyandrous' situation.
As far as the Territory Insurance Office is concerned, determining whether a person is single or married may usually be a relatively uncomplicated matter. So long as some basic principles of etiquette continue to be observed (e.g. using the least intrusive means, avoiding the creation of disputes by retailing confidences, using interpreters where this will ensure accuracy, taking a flexible approach which will appreciate regional variations, taking inquiries at a gentle pace etc.; also see von Sturmer 1981), the less problematic cases wil only require thoroughness, intelligence, tact and general background knowledge of the sort presented in this report.
The more difficult cases, which may involve assessing the state of a disputed relationship, should not be attempted without assistance from someone with appropriately specialised knowledge of the community and cultural group(s) concerned. In some cases this may involve retaining the services of an Aboriginal consultant not personally very involved with the case to advise on its background. An anthropologist, where available, may also be of assistance.
If English is being used, the assessor should avoid terms not already known to the persons being spoken to. For example, say 'single' rather than 'unmarried' or 'spinster'. In fact, it should ideally be a prereequisite for such an inquiry that the investigator is familiar with the appropriate terms for categories of unions before proceeding to specific questions about the case in hand. This can be achieved in a preliminary way if one knows the genealogies involved and can ask for a description of the various relationships between people on the charts. This is a process which involves some technical skill.
The history of the union will reveal much about its status at the time of the death of one of its members. This is often information which is public knowledge among the couple's kin and neighbours but this does not mean one can talk about it openly, or i n certain company, or in mixed company. Circumspectness is essential. It is better to be told a narrative of the history of the union than to ask specific questions about it, where possible. Such a narrative is seldom volunteered.
Etiquette also demands that one approach the right people in asking about a union. We suggest that one start with the surviving spouse, that person's actual mother, sisters, mother's mother, mother's sisters, mother's brother; brothers, mother's brothers; father, father's sisters and brothers; and children, where adult. While interviewing the first such
kin, it is advisable to ask who else one should talk to. If an insufficient range of kin are spoken with, disputed cases maybe concealed by those with a vested interest and aggrieved others may subsequently take action for redress. Close kin of both the deceased and the surviving member of the union should be consulted.
R.M. Berndt suggested a series of major 'tests' for the existence of an Aboriginal customary marriage (1962: 335). These were:
For various reasons already discussed, we take the view that the only really important 'test' is that the couple and their families agree that they are in an Aboriginal marriage (often expressed as 'properly married Blackfella-way'). Where this agreement is lacking, the couple are not married in this sense, but where some relevant people regard the couple as properly married and others do not, the conclusion is not so simple. The couple may say they are properly married while neither's family will agree. Again, the family of one member of the union may be willing to recognise it as a marriage but the other family may not. Furthermore, not all positions of'f disputants can always be aligned simply with the family of one side or the other. Disputes about matters other than the recognition of the marriage (ceremonial matters, money matters etc.) may be standing in the way of the recognition of the marriage, in cases where neither side actually opposes the union itself so much as the grouping associated with one half of it.
In other words, some unfairness may be introduced if a state of dispute is treated as prima facie evidence of non-marriage. This is because some views disputing the marital status of a union are irrelevant to its generally received status in the community, and also because part of the community does not. Those who treat the disputed union as a customary marriage may feel greatly aggrieved if the currency of the dispute is enough to convince an insurance assessor -that the deceased was single.
An assessor may become inadvertently involved in the settlement of a dispute resolution may be appropriate. Bell and Ditton (1980: 92) say that 'Settlement councils may find it inappropriate to be the adjudicating bodies in such domains as marriagewhich, like fighting, are the concern of the actual families involved. Only the close family are in commance of all the necessary facts on which to decide the issue.' Hamilton (1978: 34) refers to the role of women's mothers' brothers at Maningrida in the resolution of conflicts over their bestowal as wives and Hiatt (1965: 44) says that consultations over the bestowal of a girl usually resulted in harmoniously reached decisions.
In a submission to the Australian Law': Reform Commission (Aboriginal customary' law reference) the Tribal Elders of Roper River said that 'If at any time this recognition of traditional marriages, under European law, creates conflict to our traditional culture, then these conflicts must be resolved by a meeting of our elders' (Crawford 1982: 12). This is not, however, the same as requiring the resolution of disputes over the state of a union to be a matter for a council of 'elders' or elected members. Professor Crawford (1982: 17) thinks that disputes about whether or not a marriage is 'tribal' will be rare, citing the N.T. experience. He draws attention to the definition of Aboriginal marriage in the Status of Children Act 1978 (N.T.) as 'a relationship between an Aboriginal man and woman that is recognised as a traditional marriage by the community or group to which they belong', then adds: 'Whether a tribal marriage exists in any particular case under this Act will depend in case of dispute on whether it can be shown that by the rules and practices of the relevant group the marriage is recognised as valid.' With respect, we suggest that the definition cited may also be taken to imply that the community or group decide each case as it arises, rather than that the group's rules be appealed to as a test of validity. In any case, as we have said, we do not regard a whole community or its representatives as having a mandate for the resolution of disputes about who is married to whom.
One of the problems with using 'elders' or community councils as authorities on marriages is that they tend to be mostly or entirely male. (Bell 1980: 264) suggests that, at least for Yalata (S.A.), which is a traditionally-oriented desert community, love unions of young people may be supported more as marriages by the girl's mother and female kin than by her make kin and disappointed 'promised spouses.' Our own experience at Aurukun (Cape York Peninsula) suggests that women also tend to support Aboriginal girls' marriages to non-Aboriginals more than men (see also Bell 1980: 245 on desirability of European husbands on grounds of less violence and alcohol problems and more leisure). An investigation carried out by a male insurance assessor maybe somewhat restricted among Aboriginal women, and women may more readily confide in a female assessor (particularly a mature one).
We suggest that generous time be allowed for disputed cases to be resolved by the families concerned, where resolution appears desirable. Consultations with each family independently, then together, may be useful.
Professor Crawford (1982: 16) notes that in the context of functional recognition of Aboriginal customary marriage the preferable approach to the problem of spouses being below marriageable age is to ignore the age problem and 'simply to recognise the marriage as it exists, irrespective of the age of the parties, in conformity with the relevant customary rules and practices'. We support this approach. It is true, of course, that some under-age wives in such marriages may not yet have entered into a sexual relationship with their husband, who is often said to be 'growing them up' (see, e.g., Goodale 1971: 44), but this does not reduce their status as husband and wife to something less.
1. Bell, Diane 1980. Desert politics: choices in the marriage market. Pp 239-69 in M. Etienne and E. Leacock (eds.) Women and colonization: anthropological perspectives. New York: Praeger.
2. Bell, D. and P. Ditton. 1980. Law: the old and the new. Aboriginal women in Central Australia speak out. Canberra: Aboriginal Legal Aid Service; by Aboriginal History.
3. Berndt, R.M. 1962.Tribal marriage in a changing social order. University of Western Australia Annual Law Review 5: 326-46.
4. Berndt, R.M. and C.H. 1981. The world of the first Australians. Sydney: Lansdowne Press.
5. Crawford, J.R. 1%2. "The recognition of Aboriginal customary or tribal marriage". Australian Law Reform Commission, reference on Aboriginal customary law Research Paper No.2. Sydney: Australian Law Reform Commission.
6. Elkin, A.J. 1974. The Australian Aborigines. Sydney: Angus and Robertson.
7. Goodale, J.C. 1971. Wiwi wives. A study of the women of Melville Island, north Australia. Seattle: University of Washington Press.
8. Hamilton, A. 1978: "The role of women in Aboriginal marriage arrangements". Pp 28-35 in F. Gale led.) Women's role in Aboriginal society. Canberra: Australian Institute of Aboriginal Studies.
9. Hiatt, L.R. 1965. Kinship and conflict. A study of an Aboriginal community in nothern Arnhem Land. Canberra ANU Press.
10. Hiatt, L.R. 1967 "Authority and reciprocity in Australian Aboriginal marriage arrangements'. Mankind 6: 468-75.
11. Long, J.1970.'Polygyny, acculturation and contact: aspects of marriage in Central Australia'. Pp 292-304 in R.M. Berndt led.) Australian Aboriginal anthropology. Perth: Australian Institute of Aboriginal Studies; by U.W.A. Press.
12. Shapiro, W. 1961. Miwuyt marriage. The cultural anthroplogy of affinity in northeast Arnhem Land.
Philadelphia: Institute for the Study of Human Issues.
13. Spencer, W.B. and F.J. Gillen. 1899 The native tribes of Central Australia. London: Macmillan.
14. Von Sturmer, J.1981. "Talking with Aborigines". Australian Institute of Aboriginal Studies, Newsletter 15: 13-30.
15. Warner, W.L. 1958. A Black civilization. A study of an Australian tribe. Chicago: Harper and Brothers.
1. Crawford, J.R. and P.K. Hennessy 1982. "the recognition of Aboriginal tribal marriage - areas of functional recognition". Australian Law Reform Commission reference on Aboriginal customary law. Research Paper No. 3. Sydney: Australian Law
Reform Commission.
2. Falkenberg, A. and J. 1981. The affinal relationship system. A new approach to kinship and marriage among the Australian Aborigines at Port Keats. Aslo: Universitetsforlaget.
3. Gale, F. 1970. The impact of urbanization on Aboriginal marriage patterns. Pp 305-25 in R.M. Berndt led.) Australian Aboriginal anthropology. Perth: U.W.A. Press for A.I.A.S.
4. Kaberry, P. 1939. Aboriginal women, sacred and profane. London: Routledge.
5. Meggitt, M. 1965. "Marriage among the Walbiri of Central Austrlia". In R.M. and C.H. Berndt (eds.) Aboriginal man in Australia. Sydney: Angus and Robertson.
6. Peterson, N. 1969. "Secular and ritual links: two basic and opposed principles of Australian social organisation as illustrated by Walbiri ethnography". Mankind 7: 27-35.
7. Reay, M. 1963. "Aboriginal and white family structure: an enquiry into assimilation trends". Sociological Review 11: 1947.
8. Thomas, N.W. 1966. Kinship organisations and group marriage in Australia. Melbourne: Cheshire.
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