Rights, religion and entitlements to law

The Australian government’s responsibility is to ensure that everyone living in the country or seeking to do so knows that under the law, women and men have equal rights in marriage and, amongst other matters, polygamy is antithetical to this. The signing and ratification by the Australian government of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) makes this clear, as does the UN Declaration on the Elimination of Violence Against Women, to which Australia also subscribes. Article 4 of the latter and Article 5 of the former are salutary in their recognition that religion and/or culture cannot stand in the way of equal rights, cannot be employed as ‘excuses’ or in support of women’s rights denial, and are no basis for supporting inequality for women in marriage or any other relationship.

CEDAW Article 5 provides: ‘State Parties shall take all appropriate measures:  (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Article 4 of the Declaration on the Elimination of Violence against Women states: ‘States should condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.’

Some reports assert that Muslim women ‘accept’ sharia law and wish to live under its strictures, even in Australia. These reports are themselves disturbing, for there is evidence that ‘not all Muslims [are] registering their marriages and some [are] relying on religious ceremonies to validate unions that [are] in breach of the Marriage Act’. The alleged breaches go so far as to including ‘polygamist marriages or where one member [is] under the legal age’.

Ms El Matrah is right. Consistent with its position as the government charged with responsibility vis-à-vis marriage and family law, steps must be taken beyond the Attorneys-General statements. Any religious official who has standing as a marriage celebrant under Australian law, along with civil marriage celebrants, must be obligated to ensure that, before any marriage goes ahead, the parties are fully aware of their rights. This must be effected not by ‘instruction’ from celebrants of whatever standing, but through information provided by the Family Court of Australia. Rather than simply an institution providing for marriage breakdown and its legal consequences, the Family Court needs to be reconstituted as a place where putative marriage partners obtain information as to their rights in marriage and how marriage with alter their legal status, property and income rights, their responsibilities vis-à-vis children born to them or coming into the marriage, and the general appurtenances of marriage-at-law: Australian law.

Providing this information in written form is insufficient. Parties should be required to speak in a formal setting with a Registrar tasked with the responsibility for advising them. Not only would this mean that no one would marry without an awareness of Australian marriage law and what it means for them, but it would ensure that they know where to go to seek help and advice should it be necessary to do so.

Many marriages do not end in divorce. Yet marriages would be more stable if the parties are made aware, beforehand, as to their rights and obligations as they truly exist in law. To be advised by religious ‘leaders’ as is now the case where religious celebrants consecrate marriages is clearly misdirected. No longer does religion govern marriage, just as it does not govern divorce, property distribution or children’s rights to parenting. In the interests of ensuring that marriage is recognised by the parties as an egalitarian relationship rather than a patriarchal one, explicit steps need to be taken by government to ensure that no religious ‘standards’ are allowed to replace secular marriage law by stealth.