Throughout the Western world marriage is understood as the voluntary union for life of one man and one woman for purposes variously stated, but which would be agreed to include mutual aid and comfort and the procreation and education of children. The existence of facilities for divorce in most countries is not inconsistent with this concept.
British sovereignty brought with it to New Zealand the marriage law of England. Although with slight modifications it was suitable for the white settlers, it was in many ways inappropriate for the Maoris at the time. An 1842 Ordinance seems to have assumed that the marriages of Maoris according to their customs were unaffected by the imported law. In 1888, however, the Supreme Court, in a decision which was doubtful legally and deplorable socially, held that the ordinary marriage law applied to Maoris; and that the children of Maori customary marriages were illegitimate. Such marriages, however, continued to be recognised for the purpose of succession to Maori land until 1951. Since then, all marriages in New Zealand have been governed by the same law.
Most marriages in New Zealand are church weddings and these have full legal effect, the officiating minister registering the marriage for State as well as church purposes. The system is an adaptation of the English system to a country with no established church. Purely civil marriages are also provided for, slightly less than one marriage in five being so celebrated. Exceptionally, where one party is a serviceman unable to return to New Zealand, marriage by proxy is permitted.
The minimum age of marriage is 16 for both parties. Marriages of persons under 16 were made void in 1933, but the law was altered in 1939 and they are now valid although unlawful. Generally the consent of both parents if living is needed to the marriage of anyone under 21, but absence of consent does not invalidate the marriage. Consent is required to protect minors from imprudent marriages rather than to vindicate parental rights. If no parent or guardian is living, the consent of a Magistrate is needed, and a Magistrate may over-ride a refusal of consent by a parent or guardian. As elsewhere, the proportion of minors marrying is increasing. In 1961 about two brides in five and one bridegroom in 10 were under 21.
The modern concept of marriage as a partnership, while increasing the possibilities for happiness, can make unions less stable. The number of broken marriages is a matter of deep concern to many today. To make divorce appreciably harder is, in New Zealand circumstances, no solution. Better education for marriage, and assistance to married people in overcoming their problems, promise more. Appreciation of this has caused a growing interest in marriage guidance organisations along British and Australian lines, with the State encouraging, providing facilities, and training counsellors.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.
- New Zealand, the Development of its Laws and Constitution, ed. Robson, J. L. (1954)
- Family Law, Inglis, B. D. (1960).