Should those under 18 require special legal permission to marry?
Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
What they said ...
`Many marriages of minors have been absolute failures.'
Perth magistrate, Mr Len Roberts, who denied a young couple's application to marry
`If your parents think you can do it then that should be it. It's not up to the neighbours or society or the law because no one knows you'
Amie Willis, 17, whose application to marry was originally denied
On Monday, January 21, 1997, a Perth magistrate, Mr Len Roberts, denied the application of a pregnant 17-year-old girl to be allowed to marry the 22-year-old father of her child. The couple then went to the Western Australian Supreme Court, where Justice Kerry White ruled the magistrate had made errors in law and sent the matter back to the lower courts.
On Friday, January 24, a second magistrate gave the pair permission to marry.
The case has led the federal Attorney-General, Mr Williams, to consider a review of the relevant provisions of the Commonwealth Marriage Act.
Background
Section 13 of the Marriage Act 1961 states that any person under the age of 18 must have their parents' consent to wed and the permission of a judge or magistrate. Applicants must prove to the judge that the circumstances of their case are `so exceptional and unusual' as to justify an order allowing the marriage to occur. Further, the intended marriage partner of the person under 18 must be over 18.
In the case referred to above the magistrate, Mr Len Roberts, ruled in relation to the girl's pregnancy that `these circumstances in total are not so exceptional and unusual to justify ... an order being made.'
When the Commonwealth Marriage Act was passed in 1961 the minimum legal age for marriage for both parties was 21, unless they could obtain their parents' consent to marry younger.
In 1974 the law was amended so that girls needed to be only 16 years of age and boys 18 in order to marry.
The marriageable age for females was lifted from 16 to 18 in 1991. This brought the age at which a girl could legally marry into line with the age at which a boy could legally marry.
Arguments in favour of those under 18 requiring special legal permission to marry
The primary argument offered in favour of minors (those under the age of 18) requiring the permission of both their parents and a judge or magistrate before they are able to marry is that this serves to protect the minor from making a mistake.
According to this line of argument, a minor is not likely to have had sufficient life experience to make a sound decision when it comes to marriage and thus most marriages involving a minor should not occur.
This appears to have been the view of Perth magistrate, Mr Len Roberts, who when denying the young couple's application stated, `Many marriages of minors have been absolute failures.'
It has also been noted that marrying at a later age is more likely to ensure that the individuals involved know their own minds.
Ms Susan Bastick, the NSW secretary of the Australian Family Association, who married at 31, has claimed that there are significant benefits in marrying older.
`You meet someone and you know ... I knew this was the man I wanted to spend the rest of my life with,' Ms Bastick has stated.
According to this line of argument, older people know themselves better and have a wider basis on which to make comparisons and form judgements when choosing a marriage partner.
Those who believe that it should be made more difficult rather than less difficult for minors to marry note that even when marriage occurs between adults who generally have significantly greater personal maturity then there is still a high likelihood of marriage failure.
Currently some 40% of Australian marriages are likely to end in divorce.
It has also been claimed that while 75% to 80% of Australians will ultimately marry at least once, that the trend is towards later rather than earlier marriages.
It has been claimed that in 1995 the median age to marry for men was 29.2 and for women it was 26.8.
It has also been noted that according to the Australian Bureau of Statistics only 172 females of the 109,400 women who married in 1995 were 17 or younger.
It has been suggested that this indicates a tendency among both men and women to complete their secondary education and go on to tertiary education or take up employment before contemplating marriage. It has also been suggested that many young people are now using their relative independence to travel overseas.
Critics of attempts to lower the legal marriageable age and make it easier for young couples to marry claim that this would be a disincentive to them to complete their education or explore other life options.
It has also been claimed that lowering the legal marriage age does not reflect the current social and economic standing of women, many of whom have significant career or employment options which mean that they have other life choices than early marriage.
Finally it has been noted that for many young people co-habitation or de facto relationships are becoming the norm so that they can experiment with living in an intimate relationship before taking the further step of marriage.
According to this line of argument there is no need to lower the legal marriage age in order to meet the social and personal needs of the vast majority of young people.
Arguments against those under 18 requiring special legal permission to marry
One of the primary arguments offered against 17 year olds having to have special legal permission in order to marry is that it is possible for young people to be sufficiently mature to marry before they turn 18.
Amie Willis, the pregnant 17-year-old who was initially denied permission to marry, was reported as having claimed that maturity, not age, was the important consideration when considering whether a couple should be able to wed.
Justice Kerry White, of the Western Australian Supreme Court, in his ruling overturning the previous judgement of magistrate Len Roberts, appeared to agree. Justice White noted that the couple were in stable employment and were mature and responsible.
(However, Justice White's argument seems to criticise the grounds under which permission may be granted to minors to marry, rather than whether it should be necessary to have it granted.
In his judgement, Justice White stressed the suitability of the couple to marry and the fact that they were likely to supply a good home to their child.
The Marriage Act as it currently stands does not simply require minors to show their suitability to marry. Instead it requires them to show exceptional circumstances which justify their being given permission to marry.)
Another criticism made of the provisions of the current Marriage Act is that they are excessive. According to this line of argument if, as is currently the case, the law requires minors to have the permission of their parents before they can marry, it should not also be necessary for them to have the permission of a judge or magistrate.
This point has been made by Amie Willis, who has claimed, `If your parents think you can do it then that should be it. It's not up to the neighbours or society or the law because no one knows you.'
According to this line of argument, marriage is a private act concerning the individuals involved and their immediate families and it should not be the responsibility of others outside this group, including judges and magistrates, to determine whether a marriage should occur.
It is also argued that a marriage is not only the legitimate concern of those closely involved, but also, that if anyone is to give permission it should be the parents, rather than any outside authority, because the parents know their children far better.
It has further been claimed that the law is inconsistent in requiring those under 18 to have the permission of both their parents and a judge or magistrate before they are able to marry. A 16-year-old can leave home without the permission of a parent. The age of consent for sexual intercourse is 16. It is also possible to enter legally into a de facto relationship while still a minor, without the permission of parents or a judge.
Therefore, some have argued, why should it not be possible to marry while still a minor.
The chairman of the family law section of the Law Council of Australia, Michael Taussig, QC, has commented, `This young lady (the pregnant 17-year-old originally denied permission to marry) is legally able to have sexual relations, legally able to enter into a de facto relationship with someone, which in itself brings legal rights and obligations.'
Those who argue from this point of view also note that until 1991 it was possible for girls to legally marry at 16 and that the only reason this was changed to 18 was so that the legally marriageable age for females would be the same as that for males.
Some critics have argued that if it is desired to have the marriageable age for females the same as that for males then both could be able to marry legally at 16. These critics have noted that in New Zealand, Italy and Ireland the legal marriage age is 16.
It has also been claimed that the present provisions of the Marriage Act are out of step with current social reality. According to this line of argument, a significant number of young people are marrying as minors without the permission of a judge or magistrate, either because they are unaware that they require this permission or they believe they will be unable to get it and decide to get married anyway.
Federal MP, Mr Eoin Cameron, has claimed that between 1992 and 1994 642 marriages were performed in which the bride was under 18. Mr Cameron has suggested that most of these marriages occurred in violation of the Marriage Act.
It is claimed by some that the law should reflect the values of the society in which it operates and so if a significant number of young people are contravening this section of the Marriage Act, then, it has been argued, the Act should be changed.
Finally, it has been claimed that the Act as it now stands inflicts unnecessary distress on young people and their families. Numbers of young people who wish to marry may be prevented from doing so by the current law. Also numbers of young people who believe they are legally married may discover that this is not the case because one of the partners was under-age and had not been granted the special permission of a judge or magistrate in order to marry.
It has been claimed that this was the position of Rachel Whiteside, who wed in 1996, only to have her marriage later annulled because she had been under 18 and had wed without the permission of a magistrate or judge.
Further implications
It seems likely that some formal change will now be made to the provisions of the Marriage Act as they affect those under 18. The lawyer for the young couple at the centre of the current controversy, Mr Martin Bennett, has suggested that the recent Supreme Court ruling in favour of the couple and the subsequent magistrate's ruling in their favour have set a precedent.
There have been calls from a number of politicians to have the relevant provisions of the Marriage Act reviewed. It has also been suggested that at the very least the discretion of magistrates in this matter should be limited so that greater weight is given to the wishes of parents and the young people concerned.
Perhaps the simplest change that might be made is that rather than having to demonstrate `exceptional and unusual' circumstances that would justify their marriage, all a young couple might be required to do would be to demonstrate that they were sufficiently responsible and independent to marry.
Sources
The Age
25/1/97 page 10 news item by Duncan Graham, `Young couple finally get OK to marry'
The Australian
21/1/97 page 5 news item by Penelope Green, `Pregnant teen too young to marry'
22/1/97 page 5 news item by Penelope Green, `Marriage ban couple fight on'
23/1/97 page 10 editorial, `Marriage more than the law allows'
25/1/97 page 5 news item by Penelope Green, `Court grants pregnant teen a wedding gift'
29/1/97 page 13 analysis by Diana Thorp and Penelope Green, `The honeymoon is over'
The Herald Sun
21/1/97 page 4 news item by Mark Russell, `Teen's wedding bid fails'
22/1/97 page 13 news item by Mark Russell, `Young lovers to fight on'
23/1/97 page 18 comments from Carmel Geurra and Don Burnard, `Should 17-year-olds be allowed to get married?'
27/1/97 page 18 editorial, `Congratulations to all'
24/1/97 page 15 news item by Mark Russell, `Ruling favours young lovers'
28/1/97 page 11 news item, `Marriage Act in doubt'
The Internet
In this issue outline we have used the Internet to find information on the age at which marriage can legally occur in a number of other countries.
The site at which we located British information is http://www.weddingguide.co.uk./LegalMinimumAge.html ... or click here
The site at which we located Canadian information is http://www.islandnet.com/~wwlia/ca-marri.htm ... or click here
The site at which we located American information is http://www.divorcenet.com./il/ilfaq-01.html ... or click here
We also found the full relevant provisions of the Commonwealth Marriage Act 1961 at http://www.austlii.edu.au/cgi-bin/...6185/s13.html ... or click here
You can go to each of these sites either by entering these Internet addresses or can click through by going to this issue outline on The Echo home page.
The Sydney Morning Herald
22/1/97 page 2 news item, `Pregnant would-be bride, 17, wins second chance to marry'
24/1/97 page 14 editorial, `Marriage age'
25/1/97 page 9 news item, `Pregnant Amie, 17, gets go-ahead to marry'