REPORT FROM THE REGISTRAR-GENERAL RELATIVE TO THE WORKING OF THE MARRIAGE ACT.

Appendix to the Journals of the House of Representatives, 1858 Session I, D-04

D~No. 4

REPORT FROM THE REGISTRAR-GENERAL RELATIVE TO THE WORKING OF THE MARRIAGE ACT.

Presented to the Honourable the House of Representatives by command of His Excellency 13tk April, 1858, and ordered to be printed.

AUCKLAND: 18 5 8.

;Begistrar-General's Office, Auckland, 17th October, 1856. Sib— Referring to your letter of August 26th, in which I am requested to report, for the information of His Excellency's Government, on the practical operation of the Marriage Act, and in what respect I think it requires amendment, I have the honour to submit the following statements and suggestions :— 1. With regard to the primary purpose of ihe Act, viz. :—removing the grounds of the deep and growing dissatisfaction with which the Marriage Ordinance of 1847 was viewed by a considerable portion of the community, I think there can be no doubt that the measure has fully succeeded. Not only has the principle of Religious Equality, on. which it is based, received universal assent, but the mode of carrying out that principle has also been generally approved, so far as the leading parts of the machinery are concerned ; although, as I shall presently notice, its practical working in exceptional cases occurring in outlying Districts, has been complained of as a hardship pressing heavily on individuals. lam not aware of an intention or disposition in any quarter to disturb the existing law in its principal features ; and I believe that, on the one hand, the recognition of the right and duty of the State to guard against clandestine and irregular marriages, (as it is embodied in the requirement of a Registrar's certificate as a necessary preliminary to the solemnization of a marriage by any Minister) ; and, on the other hand, the recognition of religious liberty, and of the complete equality with regard to civil privileges of the various Religious Bodies in the Colony, (as embodied in provisions which impartially extend to all Ministers of Religion duly placed on the Registrar-General's list, equal privileges, at the same time avoiding even the semblance of State interference with anything properly religious or ecclesiastical in their respective Church systems) that these, I say, may now be viewed as settled matters ; thus limiting the scope of alterations to such improvement of the details as may render the working of the measure more smooth and satisfactory. 2. The,difficulty,of getting,,to the Registrar's Office, in.the remoter parte.of some Districts, has been strongly represented, and I have heard of cases in which Ministers feared that it had operated as a serious obstacle to their efforts to induce persons who had been living in concubinage, to enter the married state. I may observe that this difficulty as to outlying Districts was not overlooked by the original framers of the Act: on the contrary, it engaged much of their attention. But they could devise no more satisfactory mode of meeting it, without departing from the principles which were deemed essential to the measure. They felt themselves forced to the conclusion that, in the cases, (likely to be but few comparatively) of European Marriages in those thinly-peopled parts of the country, the trouble of a journey of more or less length to the Office of the Registrar of the District, must be left to be classed with the other hardships inseparable, from settlement in such localities, until the increase of population, and of facilities of intercourse should bring practically nearer to the doors of the Settlers, various advantages, of which more easy access to a Registrar's Office would be one. As respects the moral question raised, it has been argued that the desire to abandon a sinful course could not be very strong or conscientious, where such an obstacle as this would prevent its taking effect. I have carefully considered every suggestion that has reached me as, to modes of accommodating the law to these special cases ; but on close examination, the plans proposed have seemed to me either to involve what would be virtually a re-enactment of the very provision on account of which especially the Marriage Amendment Ordinance of 1851 was disallowed by the Imperial Government (as affording facilities, for clandestine and irregular marriages), or to assume the presence of Justices of the Peace or other official persons, the non-existence of whom, in the Districts referred to, constitutes the chief difficulty; for, if there, were residents, in. the several localities who might fitly be appointed Registrars, it would be easy to increase the number of the Districts. This, indeed, was the course which, in the preparation of the Bill, was contemplated as the remedy for the inconvenience, and is that which I think should, as opportunity offers, be systematically pursued. 3. This leads me to mention the first of the alterations which I would suggest in any amendment of the Marriage Act, viz., that the second clause should be so modified as to authorize Proclamations dividing, or otherwise changing, the boundaries of particular Districts, without the necessity including in such Proclamations the whole Colony, or any parts of it but those immediately concerned in the change. 4. The third clause.suggests a consideratinn of the serious inconvenience which.may arise in the Provinces at a distance from the Seat of Government, in the event of the death or incapacity of a Registrar, a warrant under the hand of the Governor being necessary to the valid appointment of a Registrar, there might be a long interval during which there could be ao legal marriage within the District. Otago, for instance, might be left for months in such circumstances. I would suggest that the Superintendent should be empowered, in such a contingency, to appoint to the office, provisionally, until the pleasure of the Governor was ascertained. . 5. The requirement that the Ages of the parties should be stated (in years) in the Notice of Marriage (clause 6), and in the Form of Registration (Schedule C), has been so frequently complained of that I should scarcely hesitate to describe this as the most unpopular provision in the whole Act. The

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addition to statistical knowledge which can be derived from ascertaining whether persons of full age are a few years older or younger when they marry, is deemed by many rather inquisitorial than useful; and, however this may be, the information is perhaps, purchased too dearly at the expense of the annoyance which the requirement often seems to produce. The matter assumes a more serious aspect, if, as I have been assured, it sometimes operates as a temptation to mis-statement on the subject. Indeed, I have in several instances observed discrepancies between the ages as entered in the Notice and in the Minister's Return. On the whole, I think it would be expedient to admit " Full Age" as sufficient in the Notice, when the person is 21 or upwards ; although in the case of a minor, it may be well still to require,.that the precise age should be specified. In the Form of Registration by the Officiating Minister there seems even no necessity for retaining even this latter requirement, "Full Age" or "•Minor" would appear to be quite enough. 6. Schedule C has been complained of also as requiring needless, and under the circumstances in which the entry is made, vexatious repetitions. There certainly appears no sufficient reason why the persons married should be required to write their names twice, and the Officiating Minister to write his three]]times. The form was in this part taken from that required under the Ordinance of 1847 ; I believe without any particular examination into its fitness. I think/ it would be well to abridge it by the omission of all that is not legally necessary. 7. The wording of clause 10, which provides that, in order to the issue of an immediate certificate, the consent of the parent or guardian must " appear upon the, Notice," —seems to require that the consent must be on the same paper with the Notice ; and, thus interpreted, it occasionally proves a source of considerable inconvenience to persons residing at a distance from the Registrar's Office. The real object might be equally secured by admitting a consent (signed before a Justice of the Peace, or a Solicitor of the Supreme Court as is now required) on a separate paper, and in any form of words that will clearly express the fact of consent being given. 8. Schedule D (containing the enumeration of Religious Bodies with reference to the formation of the List of Officiating Ministers), may admit of some improvement and enlargement. For instance, the addition of " The Protestant Reformed Church of Germany" would meet the strongly expressed wish of a number of Settlers in an outlying tract of country in the Province of New Plymouth, as well as be in accordance with the comprehensive and inclusive spirit in which the Schedule was framed. There may also be possibly one or two modifications of the designations of Bodies which would give satisfaction. But this is a matter which should be touched with great caution, inasmuch as the pacific and harmonising effect of the Act might here be seriously, though inadvertently interfered with, by changes which would appear of little or no importance to persons unacquainted with the ecclesiastical views and organizations of the different Bodies. I would recommend that in any outline of an amended Act which may be contemplated at present, no allusion be made to any such changes ; leaving them to come, if strongly desired, as suggestions from the parties concerned. To the addition 1 have mentioned, there would not, I apprehend, be any objection from any quarter. 9. Besides the amendments to which I have now specially alluded, various verbal alterations may probably be found desirable with the view of simplifying the language of the Act, and rendering its meaning as easily intelligible as possible ; an object of no small importance in a Law iv which every family in the country may be said to have a domestic interest, and the administration of which must practically devolve upon so many persons—Registrars and Officiating Mmisters—several of whom may be unpractised in the interpretation of technicalities and formal terms, and live in places where they can have no advice to guide them in any case of uncertainty. The attainment of this end, would, I submit, be worth the exercise of any amount of legal ability and Care which its accomplishment may require. The suggestions of the class referred to which 1 could myself offer, would swell this communication to an immoderate extent, and moreover could be best explained in conversation at the time when the amended Bill may be in actual preparation. It is obviously most desirable that the next amendments of the Act should be so well-considered as to be, as far as practicable, final; the very name of alterations in a Law which after years of anxious discussion was regarded as substantially settled, being calculated to excite uneasy apprehensions in the minds of persons imperfectly aware of the limited nature of the changes really proposed. 10. It may perhaps be proper that, before concluding, I should refer to one or two alterations in the Law, which have been repeatedly spoken of, although I should not feel justified in. taking upon myself the responsibility of recommending them :— (I.) It has been urged that the period of minority, in which the consent of parents or guardians is required, should terminate before the age of 21, —some think at 16, some at 18, —especially in the case of a Female. I feel bound respectfully but decidedly to state as my own opinion, fortified by the opinions of some whose judgments on the point I think entitled to attentive consideration, that it would not be advisable to adopt such a change. The existing law makes provision not only for the large class of Minors whose friends Consent, but also for the other large class who have no friends (authorized to give legal consent) residing in the Colony. There only remains the comparatively small, and—generally speaking—not very deserving class of young persons who have parents or guardians in the Colony, but who desire to marry against their wishes; or, to take the most favourable instances, without their concurrence. I am aware that individual cases of considerable hardship may occur ; but what is true of other Laws is perhaps eminently true of a Marriage Law ; to be efficient, it must impose restrictions for the general good, which, in the special circumstances of a few particular cases, press with a severity that cannot be avoided, however much it may be regretted.

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(2.) The limitation of the Hours within which marriages may be solemnized, (from 8 a.m., to 4 p.m.), has been complained of, especially by persons who have emigrated from Scotland, where they were accustomed to the frequent celebration of marriages in the evening. Assuming that the guards against clandestine marriages contained in the Act operate effectively, it does not appear to me that there would be anything very objectionable in altogether expunging the provision relating to hours ; but as I have reason to know that there are decided differences of opinion on the point; and even that some would prefer a still further limitation of the hours ; I think that this matter also should be left to be brought into prominence by those who wish for a change. 11. I would, finally, take this opportunity of inviting special attention to the necessity for a new Registration Act, in place of the Ordinance of 1847, (Session 8, No. 9). Up to the year 1854 the Marriage Law of the Colony was contained in two Ordinances, viz., that just referred to, and the Marriage Ordinance, (Sess. 8, No. 7,) By the Act of 1854 the latter Ordinance was repealed, but the former was left untouched, except in so far as the provisions of the Marriage Act practically over-ride its provisions. The result is that part of the Registration Ordinance operates as law, and part does not. : state of things, anomalous in itself, and not unlikely, if continued, to lead to confusion and perplexity, evidently calls for such a remedy as would be afforded by a Registration Act which, (in addition to the introduction of any improvements that may be judged advisable in the system of Registration of Births and Deaths,) would fulfil the necessary condition of being in harmony with the Marriage Act in all its parts. I have the honor to be, Sir, your obedient humble servant, John B. Bennett, Registrar-General. PS. —I shall have the honor of addressing to you a separate communication on the second subject mentioned in your letter, —via. : irregularities in proceedings under the Marriage Act. J. B. B. To the Honourable the Colonial Secretary.