Attorney-General (Vict) v The Commonwealth

[1962] HCA 37

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ.

ATTORNEY-GENERAL (VICT.) v. THE COMMONWEALTH

(1962) 107 CLR 529

1 August 1962

Constitutional Law (Cth)

Constitutional Law (Cth)—Marriage—Legitimacy—Legitimation—Commonwealth power to make laws with respect to marriage—Legitimation of child by subsequent marriage of parents—Legitimacy of child of void marriage believed valid—Investment of State courts with jurisdiction to declare that applicant is legitimate child of his parents or that he or his parents or child or a remote ancestor or descendant is or was a legitimated person—Validity—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxi.), (xxxix.), 76, 77 (iii.)—Marriage Act 1961 (Cth) (No. 12 of 1961), ss. 89-93, 94.

Decisions

1962, August 1.
The following written judgments were delivered:-
DIXON C.J. By his statement of claim in this action the Attorney-General for the State of Victoria seeks a declaration that Pt VI of the Commonwealth Marriage Act 1961 (No. 12) and s. 94 of that Act are invalid. The defendant Commonwealth demurs. The purpose of the Attorney-General of Victoria is to set at rest as soon as may be doubts which may now or years hence affect or attend the title to proprietary rights and other private rights. (at p539)

2. Part VI which contains ss. 89 to 93 is headed "Legitimation". Section 94 is the first section of Pt VII which is headed "Offences": s. 94 deals with "bigamy". The question of the power of the Commonwealth Parliament to enact s. 94 does not appear to me to be very serious but the question of the validity of what is enacted in Pt VI, particularly in ss. 89 and 91, is indeed serious. No source of legislative power extending to legitimation generally can be invoked unless it be the power conferred upon the Parliament by s. 51 (xxi.) to make laws with respect to marriage. The subject matter of the power is simply expressed by the one word "marriage." But the fewer the words in which the subject matter of a constitutional power is expressed the more extensive sometimes may be the field laid open to a generous interpretation. Nevertheless it may seem a paradox that bastardy, being a legal condition resulting from birth out of wedlock, should be removed by an exercise of a power to make laws with respect to marriage. But what s. 89 and s. 91 do is to seize upon the fact that at some time a marriage takes place between the parents - in the first case a valid marriage some time after the birth of the illegitimate child, in the second case an invalid marriage, considered by one party to be valid, as a result of which the child was born. The Commonwealth claims that it is with respect to that marriage, the valid subsequent marriage or the invalid prior marriage, that the impugned law was made and that it is within power because the law is but fixing consequences to a marriage, in the one case a valid subsequent marriage, in the other case an ostensible marriage, void but with a sufficient appearance of validity to persuade one party to believe in it. The argument for the Commonwealth, formulated with telling brevity, is that Pt VI is a law with respect to marriage because it determines the legal effects, in relation to the progeny of a man and a woman, of a marriage or a putative marriage between them. For the Attorney-General of the State the paradox remains; he maintains that the argument does not show that the law is one "with respect to" marriage; it is a law with respect to nothing but legitimation, the marriage actual or ostensible between the parties being at best a limiting condition. The case for the State Attorney-General is simply that the provisions fail for defect of power: they deal only with a status arising under State law for the purpose of the devolution of property and other rights depending on family or personal relationships. (at p540)

3. The sections of Pt VI must be dealt with separately and in detail, in order to determine their relation to the subject of marriage. Section 89 is directed to legitimating children whose parents were not married to one another when they were born but intermarried subsequently: they are legitimated whether or not when they were born their parents might lawfully have married each other. The section bears a strong resemblance to s. 1 of the Legitimacy Act, 1926 of the United Kingdom (16 and 17 Geo. 5 c. 60) as amended by s. 1 of the Legitimacy Act, 1959 (7 &8 Eliz. 2 c. 73). Sub-section (1) of s. 89 provides that a child whose parents were not married to each other at the time of his birth but have subsequently married each other is by virtue of the marriage for all purposes the legitimate child of his parents. The sub-section expressly says that the child may be born and the marriage may have taken place before or after the commencement of the Act and also that the child is legitimate from his birth or the commencement of the Act whichever is the later; but sub-s. (5) qualifies the effect of this general statement by providing that the section does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled by virtue of a disposition that took effect before the marriage of the parents of the child or the commencement of the Act whichever was the later, or entitled by devolution of law on the death of a person who died before the marriage of the parents of the child or the commencement of the Act whichever was the later. The qualification is expressed to apply whether the person became so entitled mediately or immediately in possession or in expectancy. The words "by virtue of the marriage" are to be noticed because they may be said to give the provision a more apparent connexion with marriage as a subject of legislative power. In the counterpart in the United Kingdom statute the words are "the marriage shall legitimate the child". On the other side the savings of sub-s. (5) bring out, what indeed is obvious enough, that the chief operation or effect of legitimation is to place the child in the same category as legitimate children for the purpose of inheritance, of sharing as next of kin, of filling descriptions found in wills, settlements and other assurances of property when the description depends on, or implies, blood relationship at some point and generally in affecting the operation or application of legal instruments or legal categories governing rights, duties, liabilities, privileges or immunities. Sub-section (4) saves, at all events in great measure, the effect of legitimations which under State law took place before the commencement of the Act and sub-s. (3) excludes from the application of s. 89 marriages when the domicile of the father was not Australian or the marriage did not take place in Australia (unless it took place under Pt V of the Act or what may be described as the corresponding previous legislation; (see s. 4)). Section 90 deals with the operation of marriages between parents abroad to legitimate a child born before the marriage but there is no reason to think that support for its validity may be obtained from any other legislative power and so far as it would operate to change the law its validity would seem to stand or fall with that of s. 89. Section 91 takes as its postulates first that there is a void marriage, and second that there is a child of that void marriage. If at the time that child was conceived or at the time when the marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid, then the child of the void marriage is to be deemed for all purposes the legitimate child of his parents. One of the parents must have been domiciled in Australia when the child was born, or, if the parent died before the birth, at his death: (sub-s. (2)). But the section applies whether the child was born before or after the commencement of the Act whether marriage took place in or outside Australia or before or after the commencement of the Act. Sub-section (4) of s. 91 is to the same effect as sub-s. (5) of s. 89: it excludes the application of s. 92 in relation to a child so as to affect any estate, right or interest in any real or personal property (and so on, as in s. 89 (5)) to which a person has become or may become entitled (as in s. 89 (5)) before the birth of the child or the commencement of the Act whichever was the later. The provision is based on s. 2 of the Legitimacy Act, 1959 of the United Kingdom (7 &8 Eliz. 2 c. 73): that section makes it very clear that the devolution of titles of honour, of interests in real and personal property and other rights are within the operation of the provision. It will be seen that in s. 91 the connexion with marriage is nothing more than that the child was born of parents between whom a void marriage had been celebrated. The marriage must have been entered into de facto before his birth but not necessarily before he was conceived. At one point or the other one party to the void marriage must have believed in the validity of the void marriage. Is that a law "with respect" to marriage? (at p542)

4. A marriage taking place after the commencement of the Matrimonial Causes Act 1959 is void if one of the parties at the time it was celebrated was lawfully married to some other person, if the parties were within the prohibited degrees of consanguinity or affinity, if the consent of either party was unreal by reason of duress, fraud, mistaken identity, mistake as to the nature of the ceremony or mental incapacity of a party or if the marriageable age had not been reached by one of the parties to the marriage: see s. 18 of the Matrimonial Causes Act 1959. It is not necessary to discuss the grounds under the laws of the States for treating marriages celebrated before the commencement of that Act as invalid; it suffices to say that a marriage within the prohibited degrees may be voidable and not void (Svanosio v. Svanosio (1918) VLR 267 and Liddell v. Moss (1920) SR (Q) 104 ) and the marriageable ages were different. But a void marriage is no marriage at all. (at p542)

5. We are here dealing with bastardy or illegitimacy as a legal conception. When s. 89 (1) says that the (otherwise bastard) child is legitimate for all purposes and s. 91 says that in the conditions it stipulates the child shall be deemed for all purposes to be the legitimate child of his parents, they are surely speaking of the purposes of the law. If they are speaking only of social purposes, of the respect paid to the child born out of wedlock by his neighbours, the law contained in s. 89 and s. 91 would appear to have no sanctions and to provide little basis for any legal discussion of its falling within or outside the head of power. The validity of a law as an exercise of a legislative power must depend upon its legal operation. The test of the validity of a law as one made with respect to a given subject matter must in the end be what it does with reference to the subject matter. Doubtless simple statements like the foregoing may conceal many complications: for on the one hand the subject matter may itself involve or include a penumbra of things that are incidental, consequential and ancillary and a law as to some aspects of these things would not be ultra vires, and on the other hand the operation of a law upon any subject may not be apparent on its face but yet be clear when the actual practical working of cause and effect is perceived. Perhaps in this Court Sloan v. Pollard (1947) 75 CLR 445 , and Griffin v. Constantine (1954) 91 CLR 136 supply examples: they are examples which have the advantage of illustrating the difficulty while at the same time possessing no other bearing upon this case. It may be said at once that the power conferred by s. 51 (xxi.) should receive no narrow or restrictive construction. In Quick and Garran at p. 608 a wide connotation of the words "with respect to marriage" is suggested by a reference to a denotation which perhaps needs a little explanation. For it covers "consequences of the relation including the status of the married parties, their mutual rights and obligations, the legitmacy of children and their civil rights". These are indefinite and highly abstract words but the status of the married parties evidently refers to the particular legal position they hold by reason of their married state considered as a legal position which unmarried persons do not share; their mutual rights and obligations means those arising out of the married state and the legitimacy of children refers to the status of children born to them in wedlock. In all this "marriage" is considered as the source of the mutual rights and of the legal consequences which flow from it but requiring the definition, the support and the enforcement of the federal law. Sir Harrison Moore doubted whether the power was intended to go so far: - "But" (he wrote) "it enables the Commonwealth to determine what marriages shall be recognized in the Commonwealth, the forms for the celebration of marriage, the consents of parents, guardians etc., the capacity of the parties and the establishment or removal of disabilities to intermarriage. Whether it goes further and enables the Commonwealth Parliament to legislate as to the effect of marriage on the property of the spouses, their contractual and tortious responsibility, and their rights of succession inter se may be doubted". Moore, The Constitution of the Commonwealth of Australia, 2nd ed. (1910) p. 474. But the decision of the questions before us does not appear to me to depend on the resolution of these doubts. The question, for example, whether s. 89 is valid does not lie so much in the extent of the legislative power with respect to marriage as in an appreciation of what s. 89 does, or in other words of its operation. When it says "the child is for all purposes the legitimate child of his parents" it is stating a proposition about his place in the law and the manner in which the law operates upon him and applies to and with reference to him. It is not a statement of a concept independently of its consequences; it is directed to placing him in a legal category, and to conferring upon him a status in the law for the purpose of affecting his rights and duties; the rights and duties being almost entirely, if not entirely, those depending on State statutes, upon the principles of the common law and the doctrines of equity, upon law which it is outside the powers of the Parliament directly to change. It is difficult to apprehend a distinction between a valid federal law "legitimating" an illegitimate child and a law placing him in the same category and under the same rights and duties as the law, the State law, has created for children of their parents born in wedlock. An illustration may be obtained from the Third Schedule of the Victorian Administration and Probate Act 1958. Clauses 3 and 4 of the schedule allow certain rebates from the duty imposed by s. 116 upon the estates of deceased persons. Among others "children" of the deceased to whom part of the final balance of the estate passes are or may be entitled to rebates. Clause 9 defines "children" for the purpose of the schedule and it provides that where the deceased person was a woman the illegitimate children of such person shall be included. Now it seems quite obvious that (if valid) s. 89 would operate to remove the illegitimate children who fall within s. 89 into the category of legitimate children although the deceased person be a man. This is, clearly enough, contrary to the intention of the State, but of course State law must give way under s. 109. Under s. 52 of the same Act distribution of an estate on intestacy is provided for and the persons entitled in the various contingencies that may occur are set out. Repeatedly children are referred to. That means, needless to say, legitimate children, and of course s. 89 (subject to the operation of sub-s. (5) of that section) will apply so as to bring within the class persons who under the law of the State are not legitimate and (even under Pt III of Act No. 6564) would not have been legitimated under that law. It is convenient to illustrate the position by reference to the provisions of the Victorian Administration and Probate Act 1958, but there are almost countless examples to be found under the law of the various States of the change in the operation or application of the law of the State which would be worked and what, perhaps, it is not too venturesome to say is that there is very little or no other real or actual legal operation that can be found for s. 89 and s. 91. It would be tedious to refer to all the points at which the operation or application of the law which lies outside the province of the Commonwealth would be affected. Heirship matters little nowadays even in relation to titles of honour, whether the heirs be special or general, but perhaps the obvious point should not be omitted that where a question of heirship exists either at common law or under or according to some assurance or instrument requiring that an heir should be taken into account it might be found that it was the federal enactment that would determine it and that would apply right down the line and across to collateral lines. (at p545)

6. We are all familiar with the rule that in any disposition of property whether testamentary of inter vivos a reference to son, daughter, nephew, niece, sister or any ordinary descriptive term implying blood relationship is to be construed as confined to those filling the description by legitimate blood relationship: only a very strong context or a context aided by extrinsic circumstances leaving no logical escape will authorize any other interpretation. The rule when it became settled was not considered artificial but to accord with the intention expressed in the words. But however that may have been, it is clear that s. 89 and s. 91 would, if valid, give the rule a different application or operation; it would no longer apply to illegitimate sons or daughters legitimated under those sections whether they thus qualified as objects of the disposition or were persons through whom the actual objects traced their relationship. Take again the rebuttal of the presumption of a resulting trust by the relationship of the donee: the theory of advancement did not apply to an illegitimate child to whom the donor did not stand in loco parentis. Here again the operation of s. 89 and of s. 91 would be to change the application in fact of this rule. In questions of the custody, guardianship and maintenance of infants, in the interpretation of statutes on many subjects and in every matter where the relationship forms for purposes of State law a criterion of right, duty, privilege, immunity or other legal relationship, s. 89 must change or affect the operation of State law. The point is that that is how the law operates and not with respect to marriage. (at p546)

7. If we turn now to s. 91, what has already been said of s. 89 will be seen to be equally applicable except for one characteristic. The characteristic excepted is that the de facto marriage which it postulates and which, if it were valid, would render the offspring legitimate may be said to be avoided or invalidated by Commonwealth law. May the legitimation of the offspring of the parents if one of them believes in the validity of the marriage be treated as nothing but a compensatory qualification of the invalidity ? If so, would that suffice to make it a law with respect to "marriage" ? Plainly its purpose is to give the status of a child born in wedlock to a child born out of wedlock, not to alleviate the condition of the parent who married "innocently", so to speak. The marriage need not take place before the conception of the child: it need not be since the Matrimonial Causes Act 1959. The better view appears to be that the section is a provision for conferring a status of legitimacy and that the requirement that there shall be a void marriage, although it provides a link with "marriage" in the sense of a pretended or invalid marriage, does not make it a law with respect to marriage. It is in fact an adoption with modifications and in some respects extensions of s. 1 of the Legitimacy Act, 1959 (U.K.) and possesses a like purpose which is not that of regulating marriage or otherwise of legislating with respect thereto but of affecting rights, duties and relations generally depending on legitimacy. In the argument for the Commonwealth the foregoing view that the substantial or chief legal operation of the provisions was to create the legal relations arising from legitimacy was by no means disregarded. The natural and historical relation of legitimacy to marriage was relied upon as warranting a use of the legislative power with respect to marriage to extend the boundaries of legitimacy. It is an argument that in part depends upon a more abstract or notional conception of legitimacy than has been conceded to it in the foregoing reasons. It is a conception which seems to pay insufficient regard to the fact that it is a legal conception adopted for the purposes operating by and upon the law. As an abstract social conception we cannot be concerned with it. Consistently, however, with the argument for the Commonwealth, a concession was made or suggested on behalf of the Commonwealth which it is difficult to accept. The concession was that although in face of s. 89 and s. 91 State law could not proceed on a basis that a child covered by thos provisions was not a legitimate child of his parents - for to do so would be to bring invalidity under s. 109 of the Constitution - yet the State could enact laws which would distinguish between the legitimate and (if one may use the expression) those federally legitimated, and mould their inheritance laws and other such laws to prefer the former and perhaps thus consequentially or impliedly exclude the latter. It is not clear how far the suggested concession went: for it was not developed. But it is necessary to say that, unless by a very restrictive and unnatural interpretation of s. 89 and s. 91, it seems impossible without doing violence to the application commonly ascribed to s. 109 to understand how such a result could be justified. (at p547)

8. As to s. 92 it seems unnecessary to add anything although it stands in Pt VI. It may be remarked, however, that under s. 77 of the Constitution it is not entirely free from difficulty. For example, it is by no means clear that the legitimacy referred to under sub-s. (1) (a) of s. 92 necessarily involves a matter arising under a law of the Commonwealth. It is enough to say that I think that the real usefulness of the section is in relation to s. 89 and s. 91 and if those sections are invalid it has no significance if it has anything to support it. (at p547)

9. Section 94 dealing with the offence of bigamy raises an entirely different question. The objections made to its validity are that it is not directed to a marriage as such but rather to public order and good morals. The suggestion is that the second marriage is no marriage and to make it an offence to go through the ceremony of marriage, being married, is not a law with respect to marriage. This view does not appear tenable. The crime consists in the profanation or misuse of the marriage ceremony. It is surely within the competence of the Commonwealth to make it an offence to enter into a marriage fraudulently to go through a marriage ceremony with no capacity to do so. How the crime is dealt with is entirely a matter of policy. Section 94 appears clearly enough to be law with respect to marriage or to matters incidental thereto, and it is a valid law of the Commonwealth. But as to Pt VI it is enough to say that the operation of ss. 89 and 91 is not in relation to marriage but in relation to legitimacy as a matter affecting proprietary and other rights, obligations, capacities and responsibilities. They are not laws with respect to marriage. (at p547)

10. The demurrer should be overruled. (at p547)

McTIERNAN J. The validity of Pt VI and of s. 94 of the Marriage Act 1961 - a Federal statute - is called into question in this action. The heading of Pt VI is "Legitimation", and it consists of ss. 89 to 93 inclusive. The side-notes to these sections are: "Legitimation by virtue of marriage of parents", s. 89; "Foreign legitimations", s. 90; "Legitimacy of children of certain void marriages", s. 91; "Declarations of legitimacy etc." (and of legitimation), s. 92; "Adoptions, and State etc." (and Territory) "law as to registration not to be affected", s. 93. Section 94 is in Pt VII of the Act; the heading of this part is "Offences", and the sidenote to s. 94 is "Bigamy". The ground on which the action is based is that s. 51 of the Commonwealth of Australia Constitution Act does not authorize the Parliament to pass any of the provisions of the Marriage Act 1961 which have been mentioned. The defence of the validity of the provisions is based on par. (xxi.) of s. 51. The subject of this power is designated, "Marriage". Sections 89 and 90 seek to confer on children born before their parents married - children whose status is bastardy - the status of legitimacy. These sections would if valid alter the status of such children from bastardy to legitimacy. They do not seek merely to draw the veil over the bastardy of such children but to invest them with the status of legitimacy in the concrete. Legitimacy has under English law a number of aspects: it is a status consisting of rights of inheritance from parents and next of kin ; it is a branch of family law comprising the rights and obligations arising from the relation of parent and child; it comprises rules of interpretation, which favour legitimate children. Section 89 enacts as to a "child" of the class of whom it speaks, a child born before the intermarriage of his parents, that he "is, by virtue of the marriage" (of his parents) "for all purposes the legitimate child of his parents . . .". It is apparent from the terms of the section that at the time of the marriage the person concerned might be sui juris, or he might not then be living: the section is expressed to apply if at the time of that person's birth there was a legal impediment to the marriage of his parents to each other. In view of the latter provision, it would appear to me to be difficult to support the validity of the section as an exercise of the marriage power on the theory that by its own inherent quality the marriage of the parents relates back so as to rectify the status of the child. That the section aims at vesting the "child" of whom it speaks with new juristic rights, such as are connoted by the status of legitimacy, is clear from sub-s. (5), whose purpose is to limit the vesting of such rights in the way mentioned in that sub-section. The frame work of s. 90 is different from s. 89. Its essential purpose is the same as that of s. 89. The gist of both sections is expressed in the words I have quoted from s. 89; these words artificially attribute to the marriage it mentions the virtue of rendering the child with which it is concerned "for all purposes" the legitimate child of his parents. Each of these sections mentions marriage only for the purpose of making it a mode of legitimation. The real object is to remove from the child with which the section is concerned all the disabilities under which a bastard labours and to put him before the law as a legitimate child: the result at which these sections aim is to give the child new juristic rights, those appertaining to the status of legitimacy. It does not follow from the fact that "marriage" is mentioned in these sections that they are laws "with respect to" - on the subject of - marriage. The test of the nature of the laws is the object to which they are primarily directed. In my opinion ss. 89 and 90 are really laws of legitimacy. If legitimacy is not a facet of marriage these sections cannot be supported under s. 51 of the Constitution. (at p549)

2. The term "Marriage" only outlines the power granted by par. (xxi.) of s. 51: it does not particularize its contents, but nothing diverse in kind from what is connoted by the term marriage falls within the scope of the power. The words "with respect to" are words of "indication" not of "enlargement". The term marriage bears its own limitations and Parliament cannot enlarge its meaning. In the context - the Constitution - the term "marriage" should receive its full grammatical and ordinary sense: plainly in this context it means only monogamous marriage. In my view, the term in par. (xxi.) refers to marriage as a social transaction: but as the term marks the outer limits of the power conferred by par. (xxi.) its meaning is not imprecise. In my view, the term cannot be extended further than to embrace uniting in marriage and the status of marriage. The meaning of status used in relation to marriage is discussed in Ford v. Ford (1947) 73 CLR 524 . A function of marriage is to confer legitimacy on children born in lawful wedlock. In the case of the children to whom ss. 89 and 90 refer they would be legitimated by the operation of these sections, not by marriage, if the sections are valid. In writing about the relation of marriage to legitimacy, Mr. Jackson said in his treatise on the Formation and Annulment of Marriage, p. 34: "The Statute of Merton brought to a head differences in ecclesiastical and lay attitudes to the law of illegitimacy. The legitimacy of a child has obvious connexions with marriage". Marriage is one branch of family law: legitimacy is another branch of that law. The Constitution is guarded in granting power to the Parliament to legislate on the subject of domestic relations. Section 51 (xxi.) grants power to legislate on "Marriage": s. 51 (xxii.) mentions, as subjects of legislative power, "Divorce and matrimonial causes, and in relation thereto parental rights and the custody of children". Does the term "Marriage" tacitly extend to bastardy or legitimacy? Fr. G. H. Joyce S.J. writes in his study of The History and Doctrine of Christian Marriage 2nd ed., p. 264: "Legitimacy and dower are more or less intimately connected with marriage". The husband of a married woman is presumed to be the father of her child but by proper and cogent evidence the child may be proved to be a bastard. Legitimacy is correlative to marriage and the parenthood of both husband and wife, not merely to marriage. Legitimacy and marriage are connected in that a child born of the marriage is legitimate: but they are not parts of a whole subject which the term marriage is apt to describe. A competent legislature may make legitimation conditional on the fact of subsequent marriage, registration or any process it thinks fit to prescribe: it may legitimate any person, who is illegitimate, by direct enactment. Marriage under English law does not itself legitimate children born before marriage. The term "marriage" in s. 51 bears its own limitations and one is that in its lay aspect, the legitimation of antenati, children born before marriage, is beyond its province. The Parliament of the Commonwealth cannot under its marriage power pass a law giving marriage - that is the subsequent marriage of the parents of children born before marriage - that effect. In my view ss. 89 and 90 are unconstitutional intrusions into fields of law which under s. 51 of the Constitution stay with the States and are part of their exclusive province of legislation. In my opinion both these sections are beyond the competence of the Parliament of the Commonwealth. (at p550)

3. Section 91, an important provision in Pt VI, is an entirely different kind of law from ss. 89 and 90. Its operation is by way of rectifying the status of a child whom the law cannot regard as legitimate merely because it places the marriage of the child's parents in the category of a void marriage. The child with whom the section is concerned is not one born out of wedlock in the sense that he was born before the marriage of his parents: he is, in fact, a child born of a marriage between his parents. The object of the section is to declare that the child derived the status of legitimacy from the marriage of which he was born if either parent was in bona fide as prescribed. The section does not seek, as do ss. 89 and 90 to ascribe to marriage, the extraneous quality of a legitimating process. I think that s. 91 is in substance a law on the subject of "Marriage" and is therefore valid. (at p550)

4. In my view s. 92 might be justified as a good exercise of power to make laws under s. 51 (xxi.) if legitimacy were part of the subject matter "Marriage". It follows from the view I have taken as to the interpretation of this power, that s. 92 cannot stand except as ancillary to s. 91. But I express no opinion as to whether it would be correct to "read down" s. 92 so as to limit its operation in that way. Subject to this I would declare s. 92 invalid. (at p551)

5. Section 93 raises no separate constitutional question. It is ancillary to each of the preceding sections in Pt VI. As I think that s. 91 is valid, I would declare s. 93 valid in so far as it limits the operation of s. 91. (at p551)

6. The last of the sections which are in question is s. 94. It describes conduct equivalent to the felony of bigamy and imposes punishment for such conduct. The argument against the validity of this section was based upon the history of the felony of bigamy. It does not seem to me necessary to recapitulate that history. The conclusion sought to be drawn from it is that bigamy belongs to the sphere of crime, not of marriage law, and the section is bad because crime in general is not a head of power mentioned in s. 51 of the Constitution. Section 94 does describe conduct substantially equivalent to the felony of bigamy. But I think that the conduct can be regarded under another aspect. In my opinion, a constitutional justification for the enactment of s. 94 is that it is a law for the protection of the monagamous character of marriage and the use of the ceremony or form of marriage for unlawful purposes; and to legislate for those purposes is not a departure from the subject matter of par. (xxi.) of s. 51. (at p551)

7. It seems to me to be sufficient to make an order that ss. 89 and 90 are invalid. (at p551)

KITTO J. The Commonwealth demurs to a statement of claim by which the Attorney-General for the State of Victoria seeks declarations of invalidity, for excess of legislative power, in respect of the provisions contained in six sections of the Marriage Act 1961 enacted by the Parliament of the Commonwealth. The sections are ss. 89 to 94 inclusive, and their main provisions may be broadly described as having to do with three topics: legitimation per subsequens matrimonium, the legitimacy of the child of a void marriage, and the crime of bigamy. The Constitution contains no specific grant of power to make laws with respect to legitimation or legitimacy, or with respect either to bigamy in particular or crime in general; and there is no head of federal power which is or could be relied upon to support any of the challenged provisions (leaving aside s. 92 for the moment), unless it be the power with respect to marriage (s. 51 (xxi.)), or the incidental power (s. 51 (xxxix.)) in its application to the execution of the marriage power. (at p552)

2. Sections 89 and 90 provide for the legitimation of illegitimate children by the marriage of their parents. The former section applies where either the father was domiciled in Australia at the time of the marriage or the marriage took place in Australia or, under certain federal enactments, outside Australia. The latter section applies where the marriage took place outside Australia and the father, though not domiciled in Australia at the time of the marriage, was then domiciled in a place by the law of which the child became legitimated by virtue of the marriage. Each section, where it applies, makes the child "the legitimate child of his parents" as from the later of two events - in the case of s. 89 the child's birth or the commencement of the Act, and in the case of s. 90 the marriage of the parents or the commencement of the Act. Legitimation under s. 89 is limited by sub-s. (5) so as not to affect any estate right or interest in property to which a person is entitled by virtue of a disposition which took effect, or by devolution by law on the death of a person who died, before the marriage of the parents or the commencement of the Act, whichever was the later; but, with this qualification, legitimation under either section is "for all purposes". (at p552)

3. Whether these sections are laws with respect to marriage is a question to be decided upon consideration of their purported legal operation, that is to say of the changes that they purport to make in the existing law. Each provision, in a case to which it applies, alters the legal situation both of the child and of the parents, and consequently the legal situation of every person who may trace relationship to the child through the parents or vice versa. Whereas formerly the fact that the child was born of the parents was denied recognition for legal purposes generally (though it was recognized for some particular purposes), it is now to be recognized for all legal purposes, subject, in cases under s. 89, to the qualification in s. 89 (5). The common law, "shutting its eyes to the facts of life", as Viscount Simonds put it in Galloway v. Galloway (1956) AC, at p 311 , "described an illegitimate child as filius nullius". By the Act, if the sections be valid, the law admits him to the title of a lawful child and admits his natural parents to the title of his lawful parents. The ultimate legal consequences are to be found in the application of a variety of statutory provisions, wills, settlements and other instruments. Classes described by reference to relationship, as by such expressions as "child", "parent", "nephew", may become enlarged by the inclusion of the child in virtue of his legitimation: for instruments using such expressions take effect on the footing that unless a different intention appears they are to be understood "according to the meaning of the terms used by the law": Boyes v. Bedale (1863) 1 H &M 798, at p 803 (71 ER 349, at p 351) . That is to say that instruments employing such expressions, if they employ them without qualification, possess an inherent flexibility of application since they describe classes the width of which at any given time depends upon the extent of the recognition which the law accords at that time to actual relationships. Accordingly, a legitimation provision is not a law affecting legal interpretation: it does not make instruments operate otherwise than in accordance with the intention they disclose, but only alters the situation in which that intention takes effect. As Romer J. observed in regard to wills in In re Bischoffsheim; Cassel v. Grant (1948) Ch 79 , citing Kay J. in In re Andros; Andros v. Andros (1883) 24 Ch D 637, at p 639 : "The only relevant rule of construction is that a bequest in an English will to the children of A. means to his legitimate children and that rule does not carry the matter very far, for the question remains who are his legitimate children and that is not a question of construction at all, it is a question of law" (1948) Ch, at pp 86, 87 . This necessarily means that the divers matters which form the subjects of instruments referring to children, or parents, or relatives to be traced through the one to the other, continue to be governed by the relevant instruments, and the instruments continue to mean what they meant before. I ought, I think, to add that for my own part I should have thought the learned Solicitor-General for the Commonwealth was right when he said that if a State legislature should consider that the extension by ss. 89 and 90 (and s. 91 also) of the class of persons to be recognized as lawful children results in any of its laws taking effect in a manner of which it disapproves the remedy is in its own hands. A State law which refers to "children", for example, might be amended so as to limit the class to children born or conceived during the marriage. That would suffice to create, between such children on the one hand and legitimate children generally on the other, just such a distinction as the common law has made familiar by distinguishing for the purposes of succession to realty between children born in lawful wedlock on the one hand and all legitimate children (including those whose legitimation per subsequens matrimonium under the law of another country is recognized in England) on the other. (at p553)

4. Of course, not every enactment which confers the status of legitimacy upon illegitimate children is properly described as a law with respect to marriage. If the legitimation is made to depend not upon the contracting of a valid marriage but upon the taking of some other step by the parents or one of them or by someone else - upon a formal acknowledgment of the child by the parents, for example, or the order of a Court or of an executive official - there is not such a relation between the law and the subject of marriage as would justify the description. But in such a case, it seems to me, the enactment is rightly to be described not only as a law with respect to legitimation but also as a law with respect to the step to which a legitimating effect is given. The purpose and operation of the law is to annex a legal incident to the step, and there seems to be no error of proportion or perspective in regarding the step itself, no less than legitimation, as a topic of the law. But, however this may seem in regard to legitimating steps of other kinds, at least it should be conceded, I think, where a marriage between a child's parents is made to spell the legitimation of the child. For it is of the essence of marriage, from a legal point of view, that it produces, or provides a pre-requisite for, the legal recognition of family relationships; and what a law does which provides for legitimation by marriage is simply to add to the legal significance of marriage in this very matter of legal relationships. It is not as if, under such a law, the change of status as between child and parents depended upon the intention or agreement of the parents when marrying one another. If it did, marriage, though referred to in the enactment, could hardly be described as a subject in respect of which the law was made. But a law which makes the legitimation of a child - perhpas one might more appropriately say the legitimation of the parents as such - an inevitable legal consequence of the inter-marrying of the parents seems to me to be a law directly and squarely upon the subject of what marriage amounts to in law, and therefore upon the subject of marriage. Whether a law operating by reference to the married status, a Married Women's Property Act for example, is also a law upon marriage is a question of a different kind, and I say nothing about it. Here we are concerned only with a law dealing with the legal nature of marrying, a law joining with other laws to fix the bounds of the legal changes which marrying is to bring about. (at p554)

5. When Pothier wrote his Traite du Contrat de Mariage, he included in his chapter on the civil effects of marriage an article containing a full discussion of legitimation per subsequens matrimonium, evidently considering that to do so was by no means to travel beyond the bounds of his subject. Perhaps to one steeped in systems of law derived from the Roman it comes more naturally to treat legitimation by marriage as a subdivision of the topic of marriage than it does to one whose habits of thought have been formed in the common law, and in whose mind, therefore, the topic of marriage is altogether separate from that of legitimation save in relation to the exceptional case where the principles of private international law require notice to be taken of foreign rules. Nevertheless I doubt whether anyone who reads the celebrated judgments in the cases of Birtwhistle v. Vardill (1835) 2 Cl &F 571 (6 ER 1270); (1840) 7 Cl &F 895 (7 ER 1308) , and In re Goodman's Trusts (1881) 17 Ch D 266 , can fail to receive the impression that those who took part in those cases conceived themselves to be considering a branch of the law as to the effect of marriage. Indeed, the subject of legitimation by marriage is very generally treated and spoken of in the books as if the most natural approach to it is from the angle of its being marriage in its legitimating aspect. Pothier, for example, wrote of the Constitution of Constantine (to which he pointed as the origin of legitimation by subsequent marriage) as having provided that not only should the marriage give the woman the title and the rights of a lawful wife "but should give equally to the children whom he should have had of that woman while she was no more than a concubine the title and all the rights of lawful children": Pt V, c. 2, art 2, s. 1. The legitimation of ante-nati he described as coming about "par la seule force et efficace du mariage"; and he quoted the Latin: "Tanta est vis matrimonii, ut qui antea sunt geneti, post contractum matrimonium legitimi habeantur". To my mind, a law by the operation of which so much vis, so much force et efficace, attaches to marriage should not be denied the description of a law with respect to marriage. (at p555)

6. I conclude, therefore, that ss. 89 and 90 are laws of the Commonwealth validly made under s. 51 (xxi.) of the Constitution, and I turn to ss. 91 and 94. Those sections, though different from one another in nature, are, I think, alike in this that they both should be considered in association with s. 18 of the Matrimonial Causes Act 1959 (Cth). That section declares that a marriage is void in each of five cases. The cases may be thus described: (a) where either party is, at the time of the marriage, lawfully married to some other person; (b) where the parties are within the prohibited degrees of consanguinity or affinity and their marriage is not permitted under s. 20; (c) (subject to certain exceptions) where the marriage is not valid under the law of the place where it takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages; (d) where the consent of either of the parties is not a real consent, because of duress, fraud, mistake as to the identity of the other party or the nature of the ceremony, or mental incapacity; and (e) where either of the parties is not of marriageable age. Such a provision having been made, and clearly made in execution of the power with respect to marriage which is vested in the Parliament by s. 51 (xxi.) of the Constitution, the question which seems to me to be crucial in regard to the validity of ss. 91 and 94 of the Marriage Act is whether those sections are not laws with respect to matters incidental to that execution, and so within the power under s. 51 (xxxix.) of the Constitution to legislate upon incidental matters. It is settled that the matters to which that power extends are not such as are incidental to the subject matter of other powers (for these are within the grant of those other powers themselves), but are such additional matters as arise in the course of exercising other powers: Attorney-General for the Commonwealth v. Colonial Sugar Refinery Co. Ltd. (1914) AC 237, at p 256 ; Le Mesurier v. Connor (1929) 42 CLR 481, at p 498 . What s. 91 does by its leading provision (and its remaining provisions merely qualify this in certain respects) is to require that a child of a void marriage shall be deemed for all purposes to be the legitimate child of his parents as from his birth or the commencement of the Act (whichever is the later) if, at the time the child was begotten or the marriage took place (whichever was the later), either party believed on reasonable grounds that the marriage was valid. Thus the Parliament, having rendered void five classes of marriages which otherwise would have been valid, has by s. 91 done no more than add an ancillary provision, limiting the legal consequences of the avoidance. In respect of marriages which are merely voidable, it had enacted a limitation of a comparable kind in s. 51 (2) of the Matrimonial Causes Act itself, providing that a decree of nullity of a voidable marriage does not render illegitimate a child of the parties born since, or legitimated during, the marriage. I should not doubt that that was a valid provision, as being a law upon a matter arising incidentally in the execution of the marriage power by the enactment of s. 51 (1), whereby a decree of nullity of a voidable marriage is made to annul the marriage from the date of the decree absolute. In my opinion, s. 91 is valid for a like reason. (at p556)

7. Then, s. 94 enacts in sub-s. (1) that a person who is married shall not go through a form or ceremony of marriage with any person; and it provides as the maximum penalty imprisonment for five years. In sub-s. (4) it enacts that a person shall not go through a form or ceremony of marriage with a person who is married, knowing, or having reasonable grounds to believe, that the latter person is married; and it provides a similar penalty. The remaining sub-sections are ancillary and need to be described. The provisions of sub-ss. (1) and (4), and consequently the provisions of the section as a whole, appear to me to be laws upon a matter incidental to the rendering void of polygamous marriages by s. 18 (1) (a) of the Matrimonial Causes Act, and the making of provision in ss. 45 and 46 of the Marriage Act as to the forms and ceremonies by which valid marriages may be solemnized. Such provisions as those of s. 94 (1) and (4) appear to be traditional in systems of law which insist upon the monogamous character of marriage. Originally the Church, regarding marriage as a sacrament and the married state as essentially monogamous, undertook the punishment of persons who profaned its ceremonies by misapplying them to bigamous purposes, deceitfully making solemn affirmation that no impediment stood in the way. In England the jurisdiction passed to the temporal courts, at latest by the statute 1 Jac. I, c. 11 (see Russell on Crime, 11th ed. (1958) p. 826); and parliaments have gone on ever since enacting laws for the punishment of bigamy. Why the practice should so long have persisted of making provisions on the subject in such drastic terms as those of s. 94, instead of confining severe penalties to the case where the party already married has used the marriage ceremony as a means for deception of the other, is a question that has puzzled Professor Glanville Williams (see (1945) 61 L.Q.R. pp. 76-78), notwithstanding his recognition that "it is this ceremony that, through the force of tradition, maintains the institution of monogamy and keeps families stable". But whatever one may think about that, the fact remains that the exercise of legislative power to make marriage monogamous by rendering void a bigamous marriage has for centuries been accompanied by legislation making it a crime to go through a ceremony of marriage bigamously. Accordingly, when a legislature exercises a power to make laws with respect to marriage by denying validity to bigamous marriages and by prescribing the forms and ceremonies by which valid marriages may be solemnized, it is faced by long tradition with an incidental question, whether it should not add a criminal sanction directed to keeping the forms and ceremonies of marriage from being used for bigamous unions. When it gives its answer in the form of an enactment such as s. 94, it legislates, in my opinion, upon a matter incidental to the execution of its power in respect of marriage. (at p558)

8. Only ss. 92 and 93 remain to be mentioned. No more need be said of the latter, which saves the validity and effect of adoptions and the operation of State and Territory laws providing for entries in registers, than that it must necessarily stand or fall with ss. 89-91. On the other hand, s. 92, while it would necessarily fall with ss. 89-91 if they were to be held void, is not necessarily valid if they be upheld: for in the latter event there remains a question to which the Chief Justice has drawn attention. The section purports to invest the Supreme Court of a State or Territory with jurisdiction to hear and determine an application for a declaration (a) that the applicant is the legitimate child of his parents, or (b) that he or his parents or child or a remote ancestor or descendant is or was a legitimated person. In so far as the section purports to invest State courts with federal jurisdiction, it must depend for its validity upon s. 77 (iii.) of the Constitution. This is limited to conferring federal jurisdiction with respect to any of the matters mentioned in ss. 75 and 76; and of these the only description of matter that seems relevant is a matter "arising under any laws made by the Parliament": s. 76 (ii.). Whether the jurisdiction which s. 92 purports to confer is so limited, or should be so confined by an application of s. 15 A of the Acts Interpretation Act 1901-1957 (Cth), that the section is supportable under these provisions of the Constitution is a question which has not been argued, and it appears not to be within the intended scope of the demurrer. Subject to the exclusion of that question, the demurrer, in my opinion, should be allowed. (at p558)

TAYLOR J. The Marriage Act 1961 is a comprehensive statute enacted pursuant to the power of the Parliament of the Commonwealth to make laws for the peace order and good government of the Commonwealth with respect to "Marriage". It contains a great many provisions and its main purpose is to establish a uniform marriage law throughout the Commonwealth. As may be expected it deals with the subject of marriageable age and the marriage of minors, the application of the prohibited degrees of consanguinity and affinity referred to in ss. 18-20 of the Matrimonial Causes Act 1959 and the Second Schedule to that Act, it makes provision for authorizing prescribed persons to solemnize marriages and for the definition of their functions and duties, it creates certain offences and contains a number of transitional provisions. But it is with certain provisions of Pt VI of the Act that we are immediately concerned. Initially this Part deals with the legitimation of children by subsequent marriage. In particular s. 89 provides that a child whose parents were not married to each other at the time of his birth but have subsequently married each other is, by virtue of the marriage, for all purposes the legitimate child of his parents as from his birth or the commencement of the Act, whichever was the later. This provision applies in relation to a child whether or not there was a legal impediment to the marriage of his parents at the time of his birth and whether or not the child was still living at the time of the marriage. But it does not apply in relation to a child unless at the time of the marriage of his parents his father was domiciled in Australia or unless the marriage took place in Australia or outside Australia under Pt V of the Act or under the Marriage (Overseas) Act 1955. Further, the provision does not apply in relation to a child so as to affect any estate, right or interest in real or personal property to which a person has become, or may become, entitled, either mediately or immediately, in possession or expectancy, by virtue of a disposition that took effect, or by devolution by law on the death of a person who dies, before the marriage of the parents of the child or the commencement of the Act, whichever was the later (sub-s. (5)). Section 90 deals with the case of what are called foreign legitimations and operates to legitimate children born out of wedlock where the marriage of its parents took place outside Australia and the father was not domiciled in Australia at the time of the marriage. Section 91 deals with a different type of case. Where there has been a child of a void marriage such child shall be deemed for all purposes to be the legitimate child of his parents if, at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that the marriage was valid. The operation of the section is subject to appropriate requirements as to domicile and sub-s. (4) contains a provision similar to that contained in s. 89 (5). Each of these provisions is impugned on the ground that it does not answer the description of a law with respect to "Marriage". Rather, it is said, they should be characterized as laws with respect to inheritance or, perhaps, laws with respect to family relations. On neither of these views, it is contended, can they be justified by reference to the constitutional power relied upon. (at p559)

2. A further provision which is attacked is s. 94 of the Act which, in effect, provides that bigamy shall be an offence punishable by imprisonment. The force of the argument that this provision is invalid has eluded me for however narrow a view be taken of the constitutional power, it must be implicit that the Parliament of the Commonwealth may prescribe the requisites of a valid marriage, that it may attribute a legal effect to the marriage itself, and that it may provide that neither party shall, whilst the marriage subsists, go through a form of marriage with another person. Such a provision is, in my view, at the very heart of o power to make laws with respect to marriage. (at p560)

3. To a considerable extent the plaintiff's argument depended upon the initial contention that the constitutional power is limited to an authority to make laws with respect to the solemnization of marriage. The ultimate basis for this contention is that in s. 51 of the Constitution, par. (xxi.) - "Marriage" - is immediately followed by par. (xxii.) - "Divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants". This latter head of power, of course, authorizes laws with respect to the dissolution of marriages and this is a power, it is said, which would be conferred by par. (xxi.) if it stood alone. But it does not stand alone and it is contended that, in the presence of par. (xxii.), it ought to receive the limited construction suggested. I do not assent to this contention and would not be prepared to do so even if it seemed to me that, standing alone, par. (xxi.) would justify the enactment of every law expressly authorized by par. (xii.) for the fact that the constitutional instrument contains express provision for the matters mentioned in the latter paragraph provides no warrant for reading "Marriage", merely, as "Solemnization of Marriages". What must be borne in mind is that the expression with which we are concerned is used to define a broad constitutional power and in the paragraph in question the word "marriage" - appearing without limitation or qualification - is entitled to as wide an interpretation as it can reasonably bear. It is, of course, impossible to suggest a synonym which will precisely define the limits of the power and, no doubt, its full meaning will be worked out only in the fullness of time. But in the meantime I feel bound to regard the paragraph as justification for the enactment of any law with respect to marriage considered as an institution. That is to say, that it extends not only to laws prescribing the form and requisites of a valid marriage but also to laws defining and regulating the respective rights duties and obligations of the parties inter se. Indeed, the full measure of the legal effect of a marriage can be determined only be reference to the rights duties and obligations, which, by law, arise out of the relationship and I can see no reason why a constitutional power to make laws with respect to the subject matter of "Marriage" should not be thought to authorize laws defining or modifying and re-defining the legal incidents of the relationship. It is, of course, a relationship which is not by any means constituted or regulated exclusively by a congeries of legally enforceable rights and duties. In respect of many aspects of the relationsip, as Atkin L.J. observed in Balfour v. Balfour (1919) 2 KB 571 , "Each house is a domain into which the King's writ does not seek to run, and to which his officers do not seek to be admitted" (1919) 2 KB, at p 579 (see also Gage v. The King (1961) 1 QB 188 ). (at p561)

4. I should add that in expressing the view which I have concerning the content of the constitutional power I feel fortified by the decision in In re Marriage Legislation in Canada (1912) AC 880 . In that case the questions which were before the Judicial Committee were concerned with the powers, inter se, of the Parliament of a Province and the Parliament of the Dominion with respect to the making of laws relating to the validity of marriages celebrated in a particular manner. By s. 91 of the British North America Act 1867 the Parliament of the Dominion had exclusive power to make laws, it should be observed, with respect to marriage and divorce. But by s. 92 the legislature of each Province might exclusively make laws in relation to the solemnization of marriage in the Province. The argument against the validity of the particular provincial statute that was impugned was that "all questions relating to the validity of the contract of marriage, including the conditions of that validity, were within the exclusive jurisdiction conferred on the Dominion Parliament by s. 91" (5). As a corollary it was argued that the provincial power extended "only to the directory regulation of the formalities by which the contract is to be authenticated, and does not extend to any question of validity" (1912) AC, at p 886 . This argument was rejected, the Judicial Committee being of the opinion that the terms of the grant of exclusive power to the provincial legislatures should be understood as importing "the whole of what solemnization ordinarily meant in the systems of law of the Provinces of Canada at the time of confederation . . . including conditions which affect validity" (1912) AC, at p 887 . As a consequence the grant of provincial power, as so construed, was to be understood as an exception from the grant of exclusive power made to the Dominion Parliament. Their Lordships did not purport to say what residue of exclusive power in relation to laws with respect to marriage remained in the Parliament of the Dominion after making the necessary exception from its general grant but there can be no doubt that much remained as is illustrated by the case of Hill v. Hill (1928) 4 DLR 161 . In that case it was held that a provincial statute which authorized a married woman to sue in any form of action as if she were an unmarried woman - and which, therefore, affected her status and purported to entitle her to sue her husband for slander - was an invasion of the exclusive power of the Parliament of the Dominion to make laws with respect to marriage. These observations are I think more than sufficient to dispose of the objection to s. 94 but they do not dispose of the objections to the other sections which are under attack. (at p562)

5. It is said by Blackstone that by the common law of England a legitimate child was one "born in lawful wedlock, or within a competent time afterwards" (Commentaries vol. i p. 446). The parents of any such child were bound to maintain and protect it and, in some measure, to give it an education suitable to its station in life though as Blackstone acknowledges, with due moderation and propriety, it could not be denied that the laws of his time had defects in the lastmentioned particular (p. 451). All other children were said to be bastards and could "be made legitimate, and capable of inheriting, by the transcendent power of an act of parliament, and not otherwise; as was done in the case of John of Gaunt's bastard children, by a statute of Richard the Second" (Commentaries vol. i, p. 459). In the course of his discussion Blackstone refers to the distinction between civil and canon law, on the one hand, and the English common law, on the other, concerning the principle of legitimation by subsequent marriage and, in support of the common law, he sets out the reasons upon which "we may suppose the peers to have acted at the parliament of Merton when they refused to enact that children born before marriage should be esteemed legitimate". But there seems reason to doubt "that in the thirteenth century the question was discussed on what, in modern times, would be considered its real merits". These are the words of Sir Dennis FitzPatrick in an article in the Journal of Comparative Legislation (N.S. vol. vi p. 35) whilst Pollock and Maitland seem to think that on that occasion history may have been falsified "in order to secure a triumph for English law" (The History of English Law 2nd ed. (1898) vol. i, p. 209.) However this may be, it has been pointed out that in spite of the general terms of the resolution of the barons, it was made effective "only by a procedural rule, applicable at least to a Possessory Writ, that the special plea in an action for the recovery of land that a child was not born in wedlock was tried by a jury in the Common Law Courts" and that, "apart from this special case, the question of legitimacy would be left as an issue to be tried by the Ecclesiastical Courts" (Potter - Historical Introduction to English Law and its Institutions, 3rd ed. (1948) p. 212). Indeed, it is said, that "Even after the Reformation there is authority for saying that legitimum per subsequens matrimonium was recognized by the Ecclesiastical Courts". As Pollock and Maitland put it "Thenceforward (i.e. after the statute of Merton) the king's justices assumed the right to send to a jury the question whether a person was born before or after the marriage of his parents, and it might fall out that a man legitimate enough to be ordained or (it may be) to succeed to the chattels of his father, would be a bastard incapable of inheriting land either from father or from mother (vol. i p. 127). At a later stage these learned authors again refer to the disagreement between the temporal and spiritual courts concerning the "retroactive power" of marriages in relation to antenuptial children. Their observation is that "the bastard remained incapable of inheriting land even though his parents had become husband and wife and thereby made him capable of receiving holy orders and, in all probability, of taking a share in the movable goods of his parents". In a footnote the authors acknowledge that they know of "no text that proves that the bastard legitimated by the marriage of his parents could succeed to a 'bairn's part' of the father's goods" but they say "it seems quite certain that the church courts must have tried to enforce their own theory within a sphere that was their own and we doubt very much whether the king's court would have prohibited them from so doing" (vol ii pp. 277, 378). The question whether the rule should be incorporated into the law of England, which had been the subject of such a sharp difference of opinion between the ecclesiastical courts and the temporal courts, seems to have provided the basis for a controversy which continued, in some form or other, for nearly seven hundred years until it was brought to an end by the Legitimation Act of 1926. (at p563)

6. These observations may not be thought to throw a great deal of light on the present problem but what is of importance to notice is that although, more particularly in earlier times, legitimacy was of great importance in matters involving questions of descent and inheritance, that was by no means its only importance. It was of importance concerning the status of the child itself, in relation to the rights and duties of the child and his parents inter se and with respect to the child's position and name as a member of the family. "From legitimacy flow many important considerations, the right of inheritance, the right of bearing the father's name, kinship and family ties, the right to be maintained, educated, and protected" (Eversley - Domestic Relations - 6th ed. (1951) p. 317). (at p564)

7. The canon and civil law principle of legitimation by subsequent marriage, naturally enough, found ready acceptance in the countries of Western Europe. In more recent times it has been incorporated into the laws of such countries as England, the United States of America, New Zealand and the Australian States which did not find their origin in the civil law. But it is apparent that this is not the only form or process known to civilized communities by which an antenuptial child may be legitimated. As already pointed out it may be accomplished by a special Act of a competent legislature. It may, in New South Wales, be accomplished by an adoption pursuant to the Child Welfare Act, 1939-1956 though, it would seem, legitimation qua both parents would be effected only if the application for adoption be made jointly by the parents of the child after their marriage. No doubt in that case the presumption under s. 168 of that Act would be that the adopted child was the lawful child of their marriage. In some of the American States legitimation may be accomplished by judicial decree, in another by written instrument recorded in the same manner as a deed and, in yet another, by a notarial act. Again, in some of the States, public acknowledgement by a father of his illegitimate child and the receiving of it into his family with the consent of his wife is said to establish the child as legitimate. I mention these matters for one purpose only; they establish that legitimation is not necessarily associated with marriage and the matters referred to seem to justify the conclusion that a law with respect to legitimation is not, per se, a law with respect to marriage. On the other hand, they indicate to my mind that such a law is not, considered alone, a law with respect to descent or inheritance for it does not, of its own force, provide for or determine the devolution of property. It is, of course, true that if, and as long as, inheritance laws provide for the devolution of the property of a deceased intestate for the benefit of his next-of-kin an antenuptial legitimated child will share. But this is merely because his legitimation enables him to assert that he is within the general class of next-of-kin. Nevertheless, if the power to prescribe the rules of inheritance resides in one legislative body and a power to make laws with respect to legitimation resides in another, the former body may, if it so wishes, so alter the rules of inheritance as to exclude such a child from benefit just as it might, if it so chose, so alter the rules as to exclude a wife. None of these observations, however, establish that ss. 89, 90 and 91 of the Marriage Act are laws with respect to marriage and it is, I think, necessary to consider a little more closely the purpose, character and effect of the principle which, in the first place, s. 89 purports to introduce. (at p565)

8. The introduction of legitimation by subsequent marriage into Roman law is ascribed to the Emperor Constantine. First of all it was, it seems, intended as a temporary law but, with some modification, it was "made perpetual by Justinian". The history of its development in Roman law and its adoption in other countries is traced in the article by Sir Dennis FitzPatrick previously referred to (see also Law Quarterly Review (1920) vol. 36 p. 255). According to Lord Fraser, whose observations are quoted in the latter article "the object of its Imperial authors - an object which it accomplished - was to put down that system of concubinage which had grown into almost universal favour throughout the Empire, and which the law regarded as semi-marriage". The same view is shared by the learned author of the earlier article who observes that "it is to be gathered from the texts, which have come down to us, that among the Romans the parents of natural children were commonly desirous of raising them to the higher status, and it is understood that this method of effecting that object was devised, partly at least, with a view to providing an additional inducement to parties living in the state of concubinage, which was even then condemned by the Christian teachers, to exchange that state for the state of matrimony" (Journal of Comparative Legislation N.S. vol. vi at p. 29). When the principle was first introduced it applied with respect to children then in existence but "Justinian removed this limitation". Nevertheless "the rule continued to be applicable only to children born of concubinage to the exclusion of children born of those looser connexions which were strongly condemned by the law". But where the rule operated "the marriage effected the legitimation ipso jure". This was the origin of the rule which has found its way into the law of so many countries though modifications in the rule and variations in its application may be noticed from time to time whilst fictions were introduced to explain how it was that legitimation of pre-nuptial children came to be accomplished by the marriage of the parents. According to Pollock and Maitland "the disabilities annexed to bastardy are regarded by the canonists as a punishment inflicted on offending parents" (Vol. ii p. 376) and Tindal L.C.J. in Birthwhistle v. Vardill (1840) 7 Cl &F 895, at p 936 (7 ER 1308, at pp 1322, 1323) observed that the canon law regarded the subsequent marriage as evidence of the parents' repentance of their former sin and, on that account, by positive rule of law, it operated to legitimate any antenuptial child. Scottish law, however, seems to have come to regard the subsequent marriage as conclusive evidence of an earlier marriage prior to the child's birth. But in each case the legitimation was inseparably bound up with the marriage and was accomplished irrespective of the intention of the parties to the marriage. Of course, one would not readily suppose that parents marrying after the birth of a child would not desire to legitimate it but in a footnote to his article previously mentioned Sir Dennis FitzPatrick observed that he had "come across certain references to the subject from which it would appear that parents of illegitimate children in France are by no means so anxious to legitimate them as the authors of the code seem to have expected". I mention this only to stress the fact that legitimation in such a case, and the legitimation for which s. 89 provides, is accomplished by force of the marriage itself. It is inextricably bound up with it and it is impossible either for the parents, or for the child, to avoid that consequence of subsequent marriage. Indeed, legitimation by subsequent marriage became so much a feature of the marriage itself that in some countries "where the subsequent marriage was of a ceremonial character, it appears . . . to have been not unusual to have the children present and taken from under the mother's cloak, as if they had been born in wedlock". This practice is said to have been adopted, no doubt for more abundant caution, when John of Gaunt married his third wife (Law Quarterly Review (1920) vol. 36 p. 267). Such children were "mantle children" but the unconvincing piece of legerdemain which the practice involved received little recognition in England even in the very early days (see also Pollock and Maitland vol. ii, p. 397). (at p566)

9. It is possible to see that in England there has always been a distinction between what may perhaps loosely be called legitimacy for the purpose of inheritance to land and legitimacy for other purposes. It may be that the distinction has not always been clearly defined but it has persisted and, indeed, it persisted in one form until the Legitimation Act, 1926. In modern times the distinction is to be observed in the case of persons who, though not born in wedlock, are legitimate according to the law of their parents' domicil at the time of birth. The existence of this distinction led the author of one of the articles previously referred to "to call attention to the peculiar status in England of a child who is born in Scotland of unmarried parents domiciled there and is afterwards legitimated by their subsequent marriage. In England", it is then said, "this child is partially legitimate; he is not legitimate there for the purpose of succession to real property in England, the descent of which is governed by the law of England, but he is legitimate in England for all other purposes" (Law Quarterly Review (1920) vol. 36 p. 261). These observations are founded upon the opinions of the Judges in Birtwhistle v. Vardill (1840) 7 Cl &F 895 (7 ER 1308) where it was held that a child born in Scotland, of parents domiciled there, who at the time of his birth were not married, but who afterwards intermarried in Scotland, though legitimate by the law of Scotland, could not take, as heir, lands of his father in England. But I find it difficult to understand how it can be said that a child may be partly legitimate and partly illegitimate or - in spite of the fact that I have used the expression loosely - how a child may be legitimate for some purposes and illegitimate for others. The true explanation of the decision in the case mentioned is, I think, given by Lord Brougham in the following passage: "The learned Judges have given no opinion upon the question whether or not a person legitimated by subsequent marriage in a country where that law prevails, is therefore legitimate all the world over: nor, perhaps, was it incumbent on them to argue this for the purpose of answering the question put to them by the House. They contend that the statute, or rather the common law recognized and declared by the statute, requires something beyond mere legitimacy to make an heir to English real estate. They agree with the Court below, that legitimacy alone is not sufficient; it must be as was there said (5 Barn. and Cress. 454), legitimacy sub modo, - legitimacy and being born in wedlock. Consequently they appear plainly to admit, that a person may be legitimate for all other purposes, and yet incapable of taking land by descent - that we ought not to say 'a man's eldest lawful son is his heir at law', but 'his eldest lawful son if born in lawful wedlock'" (1840) 7 Cl &F, at p 955 (7 ER, at p 1330) . Later, in In re Goodman's Trusts (1881) 17 Ch D 266 , the Court of Appeal held that a child born before wedlock, of parents who were at her birth domiciled in Holland, but legitimated according to the law of Holland by the subsequent marriage of her parents, was entitled to a share in the personal estate of an intestate dying in England as one of her next-of-kin under the Statute of Distributions. In the course of his reasons James L.J. referred to Vardill's Case (1840) 7 Cl &F 895 (7 ER 1308) and said: "What the assembled Judges said in Doe v. Vardill, and what the Lords held, was, that the case of heirship to English land was a peculiar exception to the rights incident to that character and status of legitimacy, which was admitted by both Judges and Lords to be the true character and status of the claimant. It was only an additional instance of the many anomalies which at that time affected the descent of land. Legitimate relationship in the first degree was of no avail if the claimant were an alien, or if he were of the half-blood, or in the direct ascending line, which, pace Professor Blackstone, were precious absurdities in the English law of real property. But in this particular case, the exception is, at all events, plausible. The English heirship, the descent of English land, required not only that the man should be legitimate, but as it were porphyro-genitus, born legitimate within the narrowest pale of English legitimacy. Heirship is an incident of land, depending on local law, the law of the country, the county, the manor, and even of the particular property itself, the forma doni. Kinship is an incident of the person, and universal. It appears to me that a statement of the law so given, and so accepted nearly fifty years ago, which has been adopted without question by jurists as a correct statement of English adhesion to the universal law and comity of nations, is not to be questioned at this time by any tribunal short of the House of Lords, and I should humbly think not by them" (1881) 17 Ch D, at p 299 . (See also per Cotton L.J. (1881) 17 Ch D, at p 299 and per Romer J. in In re Bischoffsheim: Cassel v. Grant (1948) 1 Ch 79 and Bamgbose v. Daniel (1955) AC 107 ). These authorities, which recognized the right of a person legitimate according to the law of his parents' domicile at the time of his birth to share in his father's personal estate in England, but which denied him the right to inherit his father's English land unless born in wedlock, show that the rules concerning succession to English land have been worked out on very special principles. Accordingly it does not necessarily follow that because a person is disqualified as an heir to English land he must be regarded by English law as the illegitimate offspring of his parents. If he were to be so regarded the anomalies would be abvious as James L.J. so colourfully pointed out in Goodman's Case (1881) 17 Ch D 266 : "What is the rule which the English law adopts and applies to a non-English child? This is a question of international comity and international law. According to that law as recognized, and that comity as practised, in all other civilized communities, the status of a person, his legitimacy or illegitimacy, is to be determined everywhere by the law of the country of his origin - the law under which he was born. It appears to me that it would require a great force of argument derived from legal principles, or great weight of authority clear and distinct, to justify us in holding that our country stands in this respect aloof in barbarous insularity from the rest of the civilized world. On principle, it appears to me that every consideration goes strongly to show, at least, that we ought not so to stand. The family relation is at the foundation of all society, and it would appear almost an axiom that the family relation, once duly constituted by the law of any civilized country, should be respected and acknowledged by every other member of the great community of nations. England has been for centuries a country of hospitality and commerce. It has opened its shores to thousands of political refugees and religious exiles, fleeing from their enemies and persecutors. It has opened its ports to merchants of the whole world, and has by wise laws induced and encouraged them to settle in our marts. But would it not be shocking if such a man, seeking a home in this country, with his family of legitimated children, should find that the English hospitality was as bad as the worst form of the persecution from which he had escaped, by destroying his family ties, by declaring that the relation of father and child no longer existed, that his rights and duties and powers as a father had ceased, that the child of his parental affection and fond pride, whom he had taught to love, honour, and obey him, for whom he had toiled and saved, was to be thenceforth, in contemplation of the law of his new country, a fatherless bastard? Take the case of a foreigner resident abroad, with such a child. If that child were abducted from his guardianship and brought to this country, can any one doubt that the Courts of this country would recognize his paternal right and guardianship, and order the child to be delivered to any person authorized by him? But suppose, instead of sending, he were to come himself to this country in person, would it be possible to hold that he would lose his right to the guardianship of the child in this country because of the historical or mythical legend that the English barons and earls many centuries ago cried out in Latin, Nolumus leges Angliae mutare? Can it be possible that a Dutch father, stepping on board a steamer at Rotterdam with his dear and lawful child, should on his arrival at the port of London find that the child had become a stranger in blood and in law, and a bastard, filius nullius? (at p569)

33. The ecclesiastical courts in England had not relinquished their doctrine of legitimation by subsequent matrimony. They maintained and continued to apply it within their jurisdiction. The result was that in matters concerning real property, the royal court's view of legitimacy prevailed, except in the peculiar case of the bastard eigne and the mulier puisne. But for entry into Holy Orders and some other matters, including it seems the administration of the goods of intestates, the Church still had its way and decided legitimacy according to its rules: Pollock and Maitland, History of English Law, vol. ii, 378n, and see Co. Litt. 243a-245a. So that for a time legitimation by subsequent matrimony was still a part of English law. But events in England in the fifteenth and sixteenth century rapidly carried the matter a stage further. The ius et consuetudo regni, the law of the king's court, had by then become the common law of England. Fortescue's argumentative defence of its rules, written about 1470, may have been provoked by some proposal to introduce canon and civil law doctrine: see Barrington on the Statutes (1796) p. 48. By the time of the Reformation, or shortly afterwards, the common law rule had quite supplanted the canon and civil law doctrine of legitimation in relation to succession to personalty. That came to be regulated by statutes. And references in statutes to next of kin, or to children, were read as meaning those who were legitimate according to the common law. To them, and not to bastards, grants of administration might be made. To them and not to bastards the goods of an intestate should go. The land law had become the law of the land. The lex terrae was the lex Angliae. (at p594)

34. The law of marriage, however, remained the concern of the ecclesiastical courts until the nineteenth century. The common law courts were not often directly concerned with it. How far sentences of the ecclesiastical courts created estoppels in temporal courts was never an easy subject: See the Duchess of Kingston's Case (1776) 20 St Tr 355 , especially the opinion given by De Grey C.J. (1776) 20 St Tr, at pp 538-546 ; and the notes to Kenn's Case (1606) 7 Co 42 (77 ER 474) and to Bunting v. Lepingwell (1585) 4 Co 355 (76 ER 950) . From various causes, partly procedural, the jurisdiction of the ecclesiastical courts in cases of general bastardy declined. By 1617 it had been held by the Common Pleas that when in an action on the case for calling a man a bastard the defendant justified that he was a bastard, this should be tried by a jury and not by the ordinary: Hobart, p. 179. The old learning on these topics is summarized in Bacon's Abridgment under "Bastardy" and in Comyn's Digest under that title and under "Certificate". It is not necessary to go into it here. Ultimately bastardy was determined by the common law for all purposes; and subsequent marriage, if it had any bearing, affected only social estimation, not legal recognition. (at p594)

35. From this survey of the development of the law either of two conclusions, relevant to the present question, might perhaps be drawn. One is that the statutory introduction of the principle of legitimation by subsequent marriage is but a restitution to the law of marriage of a part that had become lost to it; the statutory restoration of which is, therefore, a law with respect to marriage. But that would be simply to resort to antiquarian learning. We are concerned with the law of to-day, not with the law of the Middle Ages. The only reason for going back into the past is to come forward to the present, to help us to see more clearly the shape of the law of to-day by seeing how it took shape. The other view, and the one that I therefore think the correct one, is that by the course of legal development bastardy and marriage have become separate topics of law. A relationship that was the product of procedural law and the jurisdiction of the ecclesiastical courts has long ceased to exist. Legitimation and marriage are thus, I consider, different subjects for legislation to-day. I do not for a moment dispute that if a mediaeval canon lawyer had been asked whether the Church's doctrine of legitimation by subsequent matrimony was a law with respect to marriage he would have readily answered that it was. He would, I imagine, have at once assigned it to the fourth of the five divisions of canon law referred to in the mnemonic hexameter iudex, iudicium, clerus, connubia, crimen. In canonical jurisprudence the purpose of the doctrine was to encourage the parents to enter into matrimony for their own spiritual welfare. Its method was to deem a marriage to have taken place before the birth of the legitimated child. Its essential condition was the capacity of the parents to have married at that date. None of these considerations applies to the provisions in the Commonwealth Act. Its concern is the temporal welfare of the children, not the spiritual welfare of their parents. And in any event we are not to decide this question by reference to canonical jurisprudence. (at p595)

36. The viewpoint of the civilians seems somewhat more relevant. Some writers, influenced perhaps by the classical idea of the law of persons, dealt with the law of legitimacy and illegitimacy by reference to status. Grotius, for example, writing of Roman-Dutch law, dealt with marriage and with legitimate and illegitimate issue as separate topics and in separate chapters under the general heading "The Legal Conditions of Men", that is to say the law of status. A somewhat similar arrangement has been followed by a modern writer, Professor Lee, in his Introduction to Roman-Dutch Law. Pothier in his work on the Contract of Marriage, to which I referred earlier, considered legitimation by subsequent marriage among the civil effects of marriage, of which he listed a great many, both personal and proprietary. However, the differing ways in which institutional writers in the past have arranged their material do not mean much for present purposes. The French and German Civil Codes are more illuminating, for they embody systematic modern classifications of legal topics and deal with marriage as a wholly civil institution. Having read the relevant parts of them, it seems to me unlikely that either a French or German lawyer would readily regard legitimation by marriage as a part of marriage law. The former would, I imagine, regard both topics as embraced separately by the law of persons. The latter would perhaps say that they are separate divisions of family law. However that may be, we must interpret the Australian Constitution having regard to the categories and classifications of English law. (at p596)

37. In my opinion, the private international law cases to which we were referred, In re Goodman's Trusts (1881) 17 Ch D 266 ; In re Luck's Settlement Trusts (1940) 1 Ch 864 and In re Bischoffsheim (1948) 1 Ch 79 , are entirely consonant with the view that s. 89 is not a law with respect to marriage. In those cases the question whether or not a person was legitimate arose in connexion with claims to property. They establish that that question is one of status, and that status depends upon domicile, and that if a person is legitimate by the law of his domicile English law will recognize that status however created, whether by legitimation brought about by subsequent marriage or by recognition, or by birth. The validity by English law of the act or event, marriage or whatever it be, creating the status is irrelevant. The only question is what is the status by the law of the domicile. The troublesome question of what is the relevant domiciliary law need not detain us. I do not read the proceedings in Birtwhistle v. Vardill (1835) 2 Cl &F 571 (6 ER 1270); (1840) 7 Cl &F 895 (7 ER 1308) , on either of the occasions on which it was before the House of Lords as containing anything decisive for present purposes. The decision ultimately arrived at, fifteen years after the case began, after two hearings in the House of Lords, was that which had been succinctly stated by Abbott C.J. when the case was before the King's Bench in 1826 (1826) 5 B &C 438 (108 ER 163) : "The simple question is who is the heir to lands in England. The rule as to the law of the domicile has never been extended to real property" (1826) 5 B &C, at p 451 (108 ER, at p 168) . And as Holroyd J. put it, and this accords with the view later taken by Westlake and others: "I take it that legitimacy alone is not sufficient to make a person inherit socage lands, it must be legitimacy sub modo: the heir must be a child born after marriage" (1826) 5 B &C, at p 454 (108 ER, at p 169) . Throughout the proceedings the question, it seems to me, was one of legitimacy, of status, of heirship, not of marriage. The catch words - Questio Status. Legitimacy - which the reporters placed beside the headnote in Birtwhistle v. Vardill (1835) 2 Cl &F 571 (6 ER 1270) correctly state the subject matter of the case. The marriage and its effect in Scots law were not in dispute. The case in one aspect certainly involved the law of marriage, but only, it seems to me, because of the argument, warmly espoused by Lord Brougham, that the canon law theory or fiction, then prevailing in the law of Scotland, whereby the subsequent marriage was deemed to be ante-dated should in the case of a Scottish marriage be, as it were, received and recognized in England. This view was not accepted. (at p597)

38. Before leaving s. 89 I should refer to the suggestion, or concession, by counsel for the Commonwealth that a State might by statute curtail the effect of the Commonwealth Act. I do not myself see how this could be. I fully share the doubts that the Chief Justice has expressed. A State statute could, no doubt, give whatever meaning the legislature liked to any word appearing in it. But I cannot accept the proposition that was put forward as consistent with s. 109 of the Constitution. The status of legitimacy created by legitimation pursuant to s. 89 must, if the Commonwealth law be valid, apply throughout Australia and for all Australians. I do not think that its ordinary legal meaning can be impaired by any State. The States are, for many purposes of private international law, separate countries in relation to one another. But the relation of a State to the Commonwealth is an entirely different matter. It is governed by the Constitution. (at p597)

39. I go now to another question altogether, the validity of s. 91. This introduces into Australia the doctrine of putative marriage. At first sight, I was inclined to think this enactment also to be beyond the constitutional power over marriage, because its emphasis seemed to be on the legitimacy of children rather than on the character of the union of their parents. But, on consideration, I have come to the conclusion that it is well within power. (at p597)

40. The doctrine of putative marriage has been long known to the civil law. And I think that in civil law countries it would be generally regarded as part of the law of marriage. Its history, theory and substance are discussed in two learned and interesting articles by Doctor Cohn, The Nullity of Marriage in the Law Quarterly Review (1948) vol. 64, 324 and 533. References to its place in modern Continental systems may be found in Burge's Colonial and Foreign Law, New edition (1910), iii, pp. 20, 83, 113, 114, 235-237 et passim. It is perhaps worth noticing that they are in the volume on marriage, and that legitimacy and legitimation are dealt with in another volume. (at p597)

41. The origin of the doctrine of putative marriage seems to have been in the canonical concept of good faith. Many of the rules of the canon law existed pro salute animae. The illegitimacy of children was a consequence of the guilt of their parents. If in the eyes of the Church they were not guilty, having had no guilty knowledge or intent but acting in good faith, then the consequence of guilt should not follow. (at p598)

42. The doctrine was known to Bracton and treated by him as part of English law. In a passage which he took from the work of the canonist Tancred he said, "If a woman in good faith marries a man who is already married, believing him to be unmarried, and has children by him, such children will be adjudged legitimate and capable of inheriting": as quoted by Pollock and Maitland, op. cit. ii, 376. He went on to say that the principle only applied when the invalid marriage was contracted in facie ecclesiae. A clandestine marriage would not suffice. Those who chose to be married clandestinely could not rely upon good faith. Fleta repeated Bracton. But after a time the principle was lost to English law. (at p598)

43. In an appeal from Quebec - where the Civil Code states the principle in the same words as do Articles 201 and 202 in the Title Du Mariage in the French Civil Code - Lord Dunedin, delivering the judgment of the Privy Council, said: "The doctrine of putative marriage was well known to the canon law, and has been adopted by many systems founded on the canon law. In England the canon law on this subject has been abandoned. In Scotland it is in viridi observantia": Berthiaume v. Dastous (1930) AC 79, at p 87 . Why the doctrine came to be abandoned in England is a matter on which there is some difference of opinion. However it does not affect the question for us. (at p598)

44. Section 91 is in marked contrast with s. 89. It does not, as s. 89 does, deal with legitimation. It provides that the offspring of a union, which at relevant times was believed by at least one of the parties to be a valid marriage, are legitimate. That is to say, the union has one of the essential qualities of lawful wedlock, that the children of it are born legitimate. The law calls it a void marriage it is true; but the terminology and concepts of law at this point - void, voidable, a nullity - have always contained difficulties. If the marriage be null, how can it have any of the effects of a valid marriage? Jurists have debated this for centuries. Godd faith supplies the defect, was one answer. For our purpose the important fact is that the provision in question, s. 91, is not dealing with the status of a child who is the product of some merely casual and promiscuous intercourse. It is dealing with the offspring of a union that it calls a marriage, albeit a void marriage, one which the parties entered into as a marriage. Lord Chelmsford in Shaw v. Gould (1868) LR 3 H L 55 quoted the evidence of Scottish advocates as to the nature of a putative marriage as follows: "that is a marriage regular and solemn in point of form, but null in law, because of the existence of an impediment such as the prior existing marriage of one of the parties, both or either of the parties being ignorant of the existence of the prior marriage" (1868) LR 3 HL, at p 79 . That is what s. 91 is dealing with. Just as the test of legitimacy is birth in marriage, so one of the tests of whether a union is a marriage is, as Lord Cottenham said in the passage I referred to earlier, whether or not the children born of it are legitimate. I appreciate that the matter can be looked at in another way. It can be said, as Lord Phillimore once said, that "it is a possible jural conception that a child may be legitimate though its parents were not and could not be lawfully married. This principle was admitted by the canon law which governed western continental Europe till about a century ago": Khoo Hooi Leong v. Khoo Hean Kwee (1926) AC 529, at p 543 . But it seems to me that the law here in question is one with respect to marriage simply because it attributes one of the essential characteristics of marriage to a union that it recognizes as existing or as having existed. The Act also, it may be noted, treats this union as a marriage for the purpose of the doctrine of s. 89 of legitimation by marriage. This too accords with modern doctrine in some civil law countries. The motive and purpose of s. 91 may be to benefit the children. But its method is to do so by reference to the minds of the parents as determining whether or not their union was at the relevant time, in the well-known phrase, a "putative marriage". (at p599)

45. Section 92 providing for declarations of legitimacy is an important provision. But for the reasons referred to in the judgment of the Chief Justice and of Kitto J. it seems to me to extend to cases that are outside the constitutional power, unless its application be in some way restricted by the context, or it can be read in a limited sense. In terms it would authorize a State court to declare a person legitimate or legitimated for the purposes of local law when that status depended upon the law of another country. However convenient such a jurisdiction might be, it seems to me that the Commonwealth has no power to authorize the making of a declaration that a person is legitimate if his legitimation depended in no way on marriage but on, say, adoption or recognition by the law of a State of the United States or upon a rescription principis as in Malta (see Gera v. Ciantar (1887) 12 AC 557 ). As this matter was not argued, I say no more than that I agree that we should avoid making any pronouncement about this section. (at p600)

46. As to s. 94, which makes bigamy an offence, this, I think, is a law with respect to marriage. In a Commonwealth statute such a provision may, as a result of the Statute of Westminster, have a wider operation than State law can have. I do not think we need regard the existence of the crime of bigamy as making marriage monogamous. Monogamy is an essential of the Christian form of marriage. Whether or not it would be within the power of the Parliament to legislate for other forms of marriage, clearly what it has legislated for is Christian marriage. Moreover the Matrimonial Causes Act 1959, (Cth) expressly provides that a purported marriage is void if either of the parties is at the time married to another person. But whatever the present day reasons, or the seventeenth century reasons, for making bigamy a statutory offence, it is an offence that in practice is bound up with the law of marriage and divorce. It is by its very terms concerned with persons who, being married, go through the forms and ceremonies of marriage - that is to say persons whom Commonwealth law recognizes as married who go through forms and ceremonies that are now prescribed by Commonwealth law. (at p600)

47. In the final result I consider that s. 89 is invalid, s. 91 is valid, s. 94 is valid; and that s. 92 is of doubtful validity. It is not necessary to say how in those circumstances the demurrer should be dealt with, as the majority of the Court are of a different opinion. (at p600)

OWEN J. The Attorney-General for the State of Victoria seeks a declaration that Pt VI and s. 94 of the Commonwealth Marriage Act (No. 12 of 1961) are invalid as being outside the legislative powers of the Commonwealth Parliament. The defendant Commonwealth has demurred on the ground that the provisions in question are within the power of the Commonwealth Parliament under s. 51 (xxi.) of the Constitution to make laws with respect to marriage. The Marriage Act consists of nine Parts. Part I contains a number of definitions and some miscellaneous provisions to which reference need not be made. Part II is headed "Marriageable Age and Marriage of Minors" and deals with these subjects. Part III deals with prohibited degrees of consanguinity and affinity. Part IV contains provisions regulating the solemnization of marriages including such matters as the persons who may solemnize marriages and the conditions to be fulfilled in connexion with the marriage ceremony and Pt V makes various provisions relating to the solemnizing of marriages overseas. Part VI, which is the subject of attack, is headed "Legitimation" and the three relevant provisions in it are ss. 89, 90 and 91. Section 89 (1) provides that a child whose parents were not married to each other at the time of the child's birth but have subsequently married each other is, for all purposes, the legitimate child of the parents, and by sub-s. (2) this provision is to apply whether or not there was a legal impediment to the marriage of the parents at the time of the child's birth. Section 90 provides, in effect, that where the parents of a child born illegitimate have married each other outside Australia, the father not being domiciled in Australia at the time of the marriage, and by the law of the place where the father was domiciled at the time of marriage the marriage legitimated the child, the child is, for all purposes, the legitimate child of his parents whether or not the law of the father's domicile at the time of the birth of the child permitted or recognized legitimation by subsequent marriage. Section 91 legitimates the child of a void marriage if at the time of the intercourse that resulted in the birth of the child or the time when the ceremony of marriage took place, whichever was the later, either party to the marriage believed on reasonable grounds that it was valid. Section 94 of the Act which is in Part VII headed "Offences" makes it an offence for a person who is married to go through the form or ceremony of marriage with any person. In other words it makes bigamy a crime under Commonwealth law. I feel no difficulty at all about the validity of s. 94. It seems to me that a law forbidding a person who is married to go through a second ceremony of marriage with a person who is not his or her spouse and imposing a penalty in case of breach is a law "with respect to marriage". (at p601)

2. The provisions of Pt VI, however, present more difficulty. The fundamental objection to their validity is based upon the fact that the status of illegitimacy and the results that flow from it relate to the law of property and inheritance. Illegitimacy carries with it a social stigma, but in law the word refers to the status of a person who, because not born in lawful wedlock, cannot be presumed to be the lawful issue of those who are in fact his parents and who therefore has none of the rights of inheritance which belong to a person whose status is one of legitimacy. Accordingly, it is said, Pt VI is not a law with respect to marriage but a law with respect to property and inheritance rights. I agree that it is a law answering this last description but it does not follow that it is not also a law with respect to marriage. If the Act had contained a provision that all children born in lawful wedlock should be presumed to be legitimate, instead of leaving that presumption to be supplied by the common law, I would have thought it impossible to say that such a law was not within power. If so, it would seem to follow that a Commonwealth law declaring that all children born of a marriage entered into in accordance with the provisions of the Commonwealth Marriage Act should be illegitimate would be equally valid or, if the power to make such a law resides in the Legislature of a State, that a State law to that effect would be within its competence. No one supposes that any legislature would enact such a law. The mind rebels against the very idea but the cause of its rebellion surely is that there is such a close association in the minds of civilized people between the concepts of marriage and the legitimacy of children born of marriage and this tends, I think, to support the view that a power to make laws with respect to marriage and with respect to matters incidental to the execution of that power carries with it a power to legislate as to the status of children born to those who marry or, perhaps, to those who go through the ceremony of marriage in the belief in the minds of one or both of the participants that a valid marriage has been contracted. There can, in my opinion, be no doubt that under the marriage power the Commonwealth Parliament may make laws regulating the mutual rights and obligations of those who marry and I can see no reason why the power should not be wide enough to enable the relationship between those who marry and their children to be defined and regulated whether those children be born before or after marriage. Section 89 takes marriage as its starting point and lays down what its effect shall be on the status and relationship of a child born before marriage to those who are in fact its parents. The section is, in my opinion, within the law-making powers of the Commonwealth Parliament. This was the view expressed in Quick and Garran on The Australian Constitution. Speaking of s. 51 (xxi.) the learned authors said (at p. 608): "Laws relating to this subject will therefore embrace (1) the establishment of the relation, including preliminary conditions, contractual capacity, banns, license, consent of parents or guardians, solemnization, evidence, and rules in restraint, (2) the consequences of the relation, including the status of the married parties, their mutual rights and obligations, the legitimacy of children and their civil rights." From what I have said it follows that s. 90 is equally within power. (at p602)

3. Section 91 presents a somewhat more difficult problem. It takes as its starting point not a valid marriage but a marriage which is void and makes the legitimation of a child born to the parties to that void marriage depend upon the belief on reasonable grounds of one or both of them that the marriage was valid. But there is, I think, a sufficient nexus between such a provision and the power to legislate with respect to marriage. There can be no doubt that it is within the competence of the Commonwealth Parliament to declare what shall or shall not constitute a valid marriage and I can see no good reason why, if it can declare to be invalid that which on its face appears to be a valid marriage, it cannot limit the consequences of that invalidity upon the status of children born to the parties to the invalid marriage. (at p603)

4. Accordingly I am of opinion that the demurrer should be upheld. (at p603)

Orders

It appearing that the validity of s. 92 of the Marriage Act 1961 may depend upon questions not intended to be raised by the demurrer and that accordingly the demurrer should be treated as not extending to the validity of s. 92 that the same be excluded from the demurrer, and that subject to the exclusion thereof the demurrer be allowed and declare that ss. 89, 90, 91, 93 and 94 of the said Act are valid and order that no costs of the demurrer be allowed.