Keri Phillips: Today on Rear Vision, we’ll take a look at the story of marriage in Australia since white settlement. It’s a story of ever-increasing state regulation in what was once a more private affair and one that shows how the law and society interact with each other to bring about social change. Our marriage laws have their roots in English common law, as Professor Rebecca Probert, an expert in the history of marriage law from the University of Warwick, explains.
Rebecca Probert: The origins of modern marriage go back to the eleventh century, which is when the Christian Church acquired authority over marriage. We don’t know that much about marriage practices before that. There are some hints that Anglo-Saxon marriage practices were not the same as the Christian Church; for example, in divorce being permitted. But we do also know that there were Christian marriage services being carried out even in the Anglo-Saxon period. How popular they were, we have no means of telling. We don’t have much information on what people actually did in this period, apart from at the very highest levels of society, which we can’t take as representative. So our knowledge of marriage really only dates from the Christian period, from the eleventh century onwards.
Keri Phillips: What do we know about it at this very early period?
Rebecca Probert: The basic idea was that marriage was entered into by the free consent of the parties and it was for life. Now, a marriage could be annulled on the basis there was some impediment to it coming into being; for example, if the parties were too closely related, or didn’t have capacity to consent. But other than that, it was for life. Whether you had marriage being entered into solely on the basis of consent is something of a debated issue, because the church also had legislation on banns and publicity and marriages being celebrated in church, even at this early period.
Keri Phillips: What do we know about how it evolved over the years, centuries, following the earliest evidence that you’ve just told us about?
Rebecca Probert: It really is a matter of evolution. Obviously you have the Reformation in the sixteenth century, so the Catholic Church becomes the Church of England, but not very much changes with that. It’s really only when you get into the seventeenth century you have a brief flirtation with civil marriage under the commonwealth. And then in the 1690s you start to get legislation beginning to define where marriages should take place and fining those that aren’t celebrated in the right place, so that the state is reinforcing the church’s prescriptions.Unchanging? The last time the Marriage Act was radically changed in Australia was in 2004.