Scrutiny of Acts and Regulations Committee

Report concerning the Maintenance Act 1965, Marriage Act 1958
and the Perpetuities and Accumulations Act 1968

The Victorian Marriage Act 1958

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When the Commonwealth Government passed the Marriage Act 1961 it rendered the pre-existing Victorian legislation (the Victorian Marriage Act 1958) largely redundant.

In the years since, the Victorian Marriage Act has been eviscerated and heavily amended to the point that the few remaining sections now bear no relation to the legality, registration or status of marriages. The Act now includes just two parts.

Guardianship and Custody of Minors

These provisions deal essentially with the appointment and removal of guardians (by a will or a court) and continue to be relevant. (This was the strong view of the Law Institute of Victoria)

However, three of the sections are no longer necessary and should be repealed.

They are section 134 (which grants mothers equal rights to fathers to apply to the court in respect of matters affecting their children), section 148 (which denies fathers the rights to the wages of children in the mother’s custody) and section 155 (2) (the forma pauperis provision).

The sections to be retained specify:

• when a court is considering property held on trust for a minor, the interests of the child shall be paramount (section 133)

• the mother or father shall be guardian of the minor on the death of the other, either alone or with a guardian appointed by the dead spouse (section 135)

• parents may appoint guardians by deed or will (section 135)

• courts may remove or appoint testamentary guardians (section 138)

• guardians are also guardians of the minor’s estate (section 139)

• the court can appoint guardians of a minor’s estate (section 139)

• the court always has the right to consult the child (section 153)

These sections should be preserved via transfer to another Act.

The question of the best home for the guardianship provisions is difficult. The Law Institute submission suggests the Community Services Act 1970. Another possibility is the Children and Young Persons Act 1989. Both of these acts have as their focus children in trouble or needing protection. Neither would be a perfect fit with the routine guardianship provisions of the Marriage Act 1958. Alternatively, the Guardianship and Administration Act 1986 (which deals with the appointment of guardians or administrators for persons with disabilities) could provide a new home for the sections.

On balance the best home for the guardianship provisions would be the Children and Young Persons Act 1989.

Provisions Relating to Property of Married Women

These sections are an echo of the 19th Century legislation - the Married Women’s Property Act 1882 (UK) and Married Women’s Property Act 1884 (Vic) - which repealed the “unity of property” principle. This principle was the (now) archaic notion that married women could not own property and that all of their property transferred to the husband upon marriage.

For example: s 156 of the Marriage Act 1958 (Vic):

156. Capacity of married women

(1) Subject to this Part a married woman shall –

(a) be capable of acquiring holding and disposing of any property whatsoever.

This sort of position is obviously dated. But whether these sections should be abolished was the subject of some dispute among those consulted. One point of view was that sections - 156, 157, 158, 159(1) – could be abolished because the world has moved on and nobody would interpret repealing the provisions as a reversion to the principle that the property of a single woman transfers to her husband upon her marriage. The other point of view was that risks should not be taken and that the safest course would be to preserve the old sections and make no assumptions about what the common law would be.

These competing points of view were enunciated by (among others) the Law Institute of Victoria in its submission.

“In theory these provisions remain in force and should be transferred to Part 2 Division 8 of the Property Law Act 1958. That division deals with other aspects of married women’s property.

“However there is a question whether the common law position would be that in the light of current community standards the provisions are redundant because the common law has evolved to recognise married women’s property rights in any event.

“The Institute’s view is that the provisions should be retained, as legislation should not be repealed on the basis of speculation as to what the common law is likely to be.”

The dilemma was also discussed in a submission from Suryan Chandrasegaran, a solicitor.

“These provisions were originally enacted to override established common law rules which had the effect of making married women a sub-set of their husbands so far as property matters were concerned. The social conditioning and thinking which gave rise to these common law rules has now all but disappeared. There may not therefore be much harm in repealing these remaining provisions on the basis that current social conditions and views would not permit a resurrection of the old common law rules.

“On the other hand, if the remaining provisions of the Act were repealed, it would allow some mischievous litigant to attempt to use the old common law rules to unnecessarily prolong litigation (for example, by alleging that a married female plaintiff could only bring a court action in her husband’s name). It could also result in some difficult circumstances if a particular rule of common law has not been subsequently abrogated by court precedent. In that case, the repeal of the Act’s provisions would effectively re-instate the old common law rule.

“On balance, therefore, I submit that it would be easier and safer to leave the current provisions in the Marriage Act.”

When deciding between these two points of view (to repeal or retain) it is important to again consider the provisions of the Interpretation of Legislation Act 1984 (Vic).

14. Provision as to effect of repeal etc. of Acts

(2) Where an Act or a provision of an Act-

(a) is repealed or amended; or

(b) expires, lapses or otherwise ceases to have effect-

the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears-

(c) revive anything not in force or existing at the time at which the repeal, amendment, expiry, lapsing or ceasing to have effect becomes operative;

As can be seen 14(c) would indicate that the repeal would not revive lapsed common law principles.

The original principle - that married women were lesser legal entities than single women, and that women had lesser property rights than men - was repealed during the 1880s. A century and quarter later it is – arguably – extremely unlikely that the repeal of the Act would revive the old common law principles.

While the merits of the case for retention are appreciated, it could be considered overly and unnecessarily cautious to retain the provisions. It would be safe to repeal the sections under discussion.

(If the conservative position were adopted, and the sections retained, they should be transferred to Part 2 Division 8 of the Property Law Act 1958 (Vic). That section of the Act deals with aspects of married women’s property).

Sections 160 and 161

Sections 160 and 161 of the Marriage Act 1958 have equivalents in the Family Law Act (s 119 and s 78) and should be repealed.

Intestacy and Divorce

S. 159(3) of the Marriage Act poses a different problem.

The section deals with the case of a spouse who dies intestate (without a will) in the midst of finalising a divorce. That is, the spouse dies between the time a decree for judicial separation (or decree nisi) is granted (after the spouses have been apart for at least 12 months) and the time the decree becomes absolute one month later.

Under this section, if the spouse dies during this period, the property shall be disposed of as if the surviving spouse had already died. That is, the divorce is effectively regarded as final with the surviving spouse having no special rights to the property of the dead intestate spouse. (The surviving spouse can apply to the Supreme Court for a share of the estate).

This attitude to a spouse’s death during the period between a divorce being granted and becoming absolute is inconsistent with the approach in the Wills Act 1997 (Vic).

S. 14 of the Wills Act specifies that a divorce revokes a disposition (in a will) to a spouse but only when the decree becomes absolute.

The effect of these provisions is that in the case of an intestate spouse, the divorce is considered effective from the time the decree nisi is granted. However, in the case of a spouse with a will, the divorce is considered effective only if the decree absolute has been granted.

The inconsistency between these two approaches is undesirable.

The question is which is the better approach? This is a matter of policy and one to be considered by Government and the Parliament. The Wills Act 1997 is the more recent legislation. It drew in part on the work of the Law Reform Committee’s investigation of wills law in Victoria.

Reforming the Law of Wills, Final Report, May 1994

S.14 – What is the effect of divorce on a will?

Recommendation 31

The Committee recommends that divorce should effect a partial revocation of a will, with dispositions to the former spouse treated as if he or she had predeceased the testator, the rest of the will to remain on foot.

It is not the role of this review to decide which approach is better – but it is strongly recommended that consistency is preferable.

Once the policy issue is decided, s.159(3) should be simplified and transferred to the Administration and Probate Act 1958 (Division 6 deals with intestacy).

Scrutiny of Acts and Regulations Committee
© Parliament of Victoria