The constitution provides that “every law in force in a colony which has become or becomes a State shall, unless it is by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be.”
It is also provided that “when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.”
All powers not delegated to the central or federal government are reserved to the States.
However, in spite of its resemblance to other federal systems, the principle of the responsibility of ministers to Parliament proclaims its English parentage.
The judicial power is exercised under the constitution by a federal supreme court, called the High Court of Justice, and other courts of federal jurisdiction.
It is expressly provided in the Australian constitution that the Parliament of the Commonwealth shall, subject to the constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to “divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants.”
It will be observed that Parliament is given no power under the constitution to make laws prescribing the qualifications for marriage, the impediments thereto, and regulations concerning the celebration. All such power is reserved by the respective States.
Moreover, the grant of power to Parliament to make laws with regard to “divorce and matrimonial causes” is not a power “by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State.”
Until the Parliament of the Commonwealth shall legislate on the subject, by passing enactments concerning divorce and matrimonial causes superseding the existing statutes of the several States, the laws of each State will continue in operation.
In this chapter we shall consider, first, such laws and regulations concerning marriage and divorce as are in effect throughout the entire Commonwealth, and then, under separate headings, discuss the laws and regulations of each State.