This is from http://www.parliament.vic.gov.au/sarc/Redundant%202004/introduction.htm The Commonwealth Government opts out But while the new Commonwealth Government had won power to legislate in the family law area, (and could have enacted a uniform nation-wide Marriage Act) it chose not to. In fact, the area quickly came to be regarded as politically controversial and best left to the states. So for almost 60 years after Federation the states regulated marriage, divorce and the custody of children. That naturally gave rise to a complex, confusing set of laws which varied from state to state. One author - in 1910 - thought the laws so different that he argued it would be possible to be considered married in one state but not in another. "There is a good deal of diversity in the divorce law of the states, and it is quite possible, so long as the states remain separate law districts, that parties may be married person in the view of one state and single persons according to the law of another," he wrote. (Harrison Moore, The Constitution of the Commonwealth of Australia, second edition, 1910) The only time the Commonwealth made any foray into the family law arena was to make brief and temporary laws to deal with wartime conditions. and from http://www.aifs.gov.au/institute/seminars/finlay.html#australia In Australia, as we have seen, the expedient of parliamentary divorce, as a way of escaping from a marriage, had never existed. A 'popular' way out was bigamy based on the presumption of death. This presumption was based on a common law rule in English law 'that a person could be presumed dead, who had not been heard of for seven years by those who would be most likely to hear of them if they were alive.'40 The rule was institutionalised by legislation: As a response to social problems, the British parliament had passed a series of acts dealing with bigamy, the ending of a marriage and remarriage under certain conditions. The first as early as 1603 allowed for remarriage after a period of absence of seven years if one of the partners did not know the 'other to be living within that time'. With the expansion of the Empire, abandoned wives and their children became a more pressing problem in England. Subsequent acts made it easier for those deserted or abandoned to remarry. One in 1822, enabled men and women to remarry, provided they signed an affidavit to the effect that their spouse had died. An act in 1828 gave even greater leeway. It allowed for a remarriage if one spouse were 'continually absent . for the space of seven years . and shall not have been known . to be living within that time'. So we are back to 1603. regards Les -----Original Message----- From: Ron Phillips [mailto:ronphillips@netspace.net.au] Sent: Wednesday, 24 August 2005 10:04 PM To: AUS-VIC-GOLDFIELDS-L@rootsweb.com Subject: Fw: Strange Certificates. ----- Original Message ----- From: "Ron Phillips" <ronphillips@netspace.net.au> To: "The Gilchrists" <cocopops2004@bigpond.com>; <AUS-VIC-L@rootsweb.com> Sent: Wednesday, August 24, 2005 9:30 PM Subject: Re: Strange Certificates. > Hi Jackie - No sorry to be honest I have never had the need to look into > this in such detail. My VERY limited knowledge has simply been built on > over time when I come across a bit of info in conjunction with other > research plus my contact with the Law in my work - On the right side I > might add!!! > > I suggest that it would be difficult to find any specific date unless you > know a good historian and it would also very much depend on which Country > you were interested as the act of formalising took place at widely > different times in different Countries. Its one of those things that > started off in one place quietly gathering momentum and became just > "accepted" as a part of Common Law which as we know pre-dated Statute Law > until it was eventually ratified by an Act of Parliament mainly to > "formalise" what was already generally accepted anyway! I guess as even > today the illustrious leaders of the time aka Politicians aka "Nothing > much to do so lets dream up something" finally got to do something!! > > Jokes aside - as a start I might suggest you start looking around the > Reign of Henry the 8th in England. The Catholic Church back then I suggest > would not have entertained such a practice. Marriage before God was for > life and unless you could show the dead body of your late lamented Spouse > then you were still married and up the creek! however when good King Henry > decided 1 wife was not enough and broke with the Roman Catholic Church to > form the Church of England I would think that would probably be around the > time this stared to gain a toe hold. Part of the Reformation instigated by > Henry was a vast liberalising of the doctrine of Rome and I dare say there > were many Living in Sin because of broken or dysfunctional marriages who > wanted to re-marry but could not produce a body and I think would have put > Henry under a bit of pressure to include that in his program of reform > especially if the proponents were in high places and of use to the King!! > > On the other Listers point about the use of 7 Years as the measure I agree > this has been around since Adam - almost literally - and its origins are > lost in the mists of time but if I may advance a theory that it might be > related to the Christian belief of the formation of the world - 6 days of > labour and on the 7th rest? Its only a theory folks so please don't jump > on me! I have nothing to back it so if anyone has a better idea I am happy > to let you take the high ground!! > > So many of our beliefs and practices are a very curious mixture of > religious beliefs and worldly desires and compromises abound!! Take for > example Easter - This is a time to reflect on the death and resurrection > of Christ yet we celebrate with flaming Rabbits and Eggs which have > absolutely nothing whatsoever to do with the death and resurrection!! If > you look back in time that part of Easter is actually a Pagan Fertility > Ritual. It was introduced to placate the last of the diehard believers in > the pre-Christian era Roman Gods to shut them up so that they would stop > tossing early Christians to the Lions - no that last bit is a joke but it > was a compromise nevertheless with what are referred to as pagans. > > Disclaimer - The preceding statement is NOT intended to promote any > particular Religion or belief not is it intended to denigrate disadvantage > or isolate any particular Religious beliefs or Practices. It is intended > simply as a possible explanation for a particular event or events. So > please before non Christians or even Christians of different persuasions > start trying to ram my house with cars loaded with explosives please > don't - OK? > > Cheers > Ron Phillips > Melbourne Vic > > > > > > > > > > > > > > > > ----- Original Message ----- > From: "The Gilchrists" <cocopops2004@bigpond.com> > To: "Ron Phillips" <ronphillips@netspace.net.au>; <AUS-VIC-L@rootsweb.com> > Sent: Tuesday, August 23, 2005 11:59 PM > Subject: Re: Strange Certificates. > > >> Hi Ron >> Any idea when the PRESUMPTION OF DEATH criteria was introduced? >> >> Do you know what sort of a paper trail I'd need to follow to learn more? >> I'd >> imagine a Stat Dec would have been one requirement. >> >> TIA >> >> Jackie in Brisbane. >> >> ----- Original Message ----- >> From: "Ron Phillips" <ronphillips@netspace.net.au> >> To: <AUS-VIC-GOLDFIELDS-L@rootsweb.com> >> Sent: Tuesday, August 23, 2005 10:11 PM >> Subject: Re: Strange Certificates. >> >> >> | Err ... Folks I never said dead I said PRESUMED dead. I agree they >> didn't >> | necessarily have to actually be dead probably most weren't!! >> | >> | Those of us who have passed through the rights of a church marriage >> will >> | recall the oath "... till death do us part...". >> | >> | The Church's view was that death was the ONLY permissible reason to >> dissolve >> | a marriage and allow a person to re-marry without incurring the wrath >> of >> | God. Its transition to statute law was tempered by necessity and thus a >> | PRESUMPTION of death was introduced as a compromise between the >> Church's >> | teaching about Divorce and the recognition that life must go on. >> However >> | again the Church imposed rigid conditions on its introduction. I am >> sure >> | none of the Church Officials were fooled for a minute that the missing >> | partner was actually dead but as long as the Church could legitimately >> say >> | with hand on heart that it BELIEVED it so then a dissolution of >> marriage >> was >> | permissible. >> | >> | The Church clearly could not allow or grant a dissolution of a marriage >> | without compromising its own teachings if both the partners were >> clearly >> | still at large and visible in society or were known to be alive and >> kicking >> | be they in the Colony or overseas. To do so would then be a Divorce >> which >> | was not permitted rather then a dissolution which was. Thus by the >> partners >> | having absolutely no sight of each other or any other form of contact >> of >> any >> | kind either directly or indirectly then it was accepted that the >> missing >> | partner must be deceased otherwise why would a loving partner not make >> | contact with their spouse? Thus the 'surviving' partner was considered >> a >> | Widow or Widower and could re-marry without incurring the wrath of the >> | Church. >> | >> | I also agree the separation of water for 7 years was also grounds for a >> | dissolution but this also as with the absence clause above carried with >> it >> a >> | prerequisite of no contact of any kind whatsoever during that period >> which >> | again is another convenient way of presuming death and thus freeing the >> | partners to re-marry. >> | >> | I hope we don't get down to a discussion on the finer points of Law - >> we >> | could be here forever! One cannot be pedantic over interpretations of >> Law >> | (even today) and we must remain flexible in interpreting perhaps what >> was >> | INTENDED not necessarily what was actually stated in the statute books. >> | >> | Cheers >> | Ron Phillips >> | Melbourne Vic >> | >> | >> | >> | >> | >> | ----- Original Message ----- >> | From: "Ron Phillips" <ronphillips@netspace.net.au> >> | To: <AUS-VIC-GOLDFIELDS-L@rootsweb.com> >> | Sent: Monday, August 22, 2005 11:02 PM >> | Subject: Re: Strange Certificates. >> | >> | >> | > Sounds like the first husband shot through and after 7 years missing >> was >> | > presumed dead leaving the wife free to remarry. >> | > The JP's ruling was noted on the Records in case the first husband >> should >> | > happen to turned up again. The notation would then stop the wife from >> | > being charged with bigamy >> | > >> | > Ron Phillips >> | > Melbourne >> | > >> | > >> | > >> | > ----- Original Message ----- >> | > From: "kfarrow" <kcfarrow@bigpond.net.au> >> | > To: <AUS-VIC-GOLDFIELDS-L@rootsweb.com> >> | > Sent: Monday, August 22, 2005 6:35 PM >> | > Subject: Strange Certificates. >> | > >> | > >> | >> Dear All, I have a family from Scotland who went to Steiglitz >> goldmining, >> | >> and had several children. The woman then has children to another man >> . >> | >> Her marriage certificate said "the above Elizabeth Rankin has been >> away >> | >> from her former husband seven years and having obtained the advice >> of a >> | >> Justice of the Peace, received information tha it was lawful to >> marry >> | >> again after this period. Left her ior deceased on February 18th >> 1858. >> | >> Has anyone had this on a Marriage certificate? >> | >> Regards Chris Farrow >> | >> >> | >> >> | >> >> | >> ==== AUS-VIC-GOLDFIELDS Mailing List ==== >> | >> Victorian place names database >> | >> http://www.rootsweb.com/~auswgw/vic_place_names.htm >> | >> >> | > >> | > >> | > ==== AUS-VIC-GOLDFIELDS Mailing List ==== >> | > Support RootsWeb and help it support genealogy >> | > http://www.rootsweb.com/rootsweb/how-to-subscribe.html >> | > >> | >> | >> | ==== AUS-VIC-GOLDFIELDS Mailing List ==== >> | Threaded archives at >> http://archiver.rootsweb.com/th/index/aus-vic-goldfields >> | >> > ==== AUS-VIC-GOLDFIELDS Mailing List ==== Practice safe genealogy - don't include the personal details of the living. -- No virus found in this incoming message. Checked by AVG Anti-Virus. Version: 7.0.338 / Virus Database: 267.10.13/78 - Release Date: 19/08/2005