Opinion Number. 391

Subject

NATURALIZATION STATUS OF WOMAN. BORN A BRITISH SUBJECT. UPON MARRIAGE TO ALIEN : WHETHER STATUS MAY BE CHANGED DURING MARRIAGE

Key Legislation

THE NATURALIZATION ACT 1870 (IMP.), s. 10

Date
Client
The Minister for External Affairs

The Minister for External Affairs has submitted the following memorandum to me for advice:

With reference to the opinions given by: Mr Attorney-General Isaacs on 29 March 1906(1); yourself on 2 June 1909(2); and Mr Attorney-General Hughes on 7 [September 1910](3) on the subject of the applicability of the Imperial Naturalization Act of 1870 to the Commonwealth. I am directed to ask that the Attorney-General should advise on the point whether a woman British by birth, who has married an alien, is entitled to apply for a certificate of naturalization. That involves the question whether she is a British subject, as only persons who are not British subjects are eligible. It is necessary for the Department to be satisfied on this point before dealing with applications.

(2) If, as would appear from the opinions referred to, there is some doubt, the Minister proposes to take advantage of an early opportunity to ask Parliament to declare the law to be that a woman of British nationality residing in the Commonwealth, and married to an alien, should be deemed for all purposes to be a British subject. He would be obliged if a clause to that effect can be drafted.

In my opinion of 7 September 1910 I referred to the previous opinions, and expressed the view that it was not necessary then to decide the question whether section 10 of the Imperial Naturalization Act 1870, which provides that a married woman shall be deemed to be a subject of the State of which her husband is for the time being a subject, extends to the Commonwealth, but I saw no reason to doubt that it does, and, assuming that it does, that I did not think it necessarily prevented the issue of a certificate of naturalization to a woman who is the wife of an alien, as it is capable of being construed as merely laying down the rule for ascertaining the status of a married woman, not as limiting the right of altering that status by the issue of a certificate of naturalization to her.

I also expressed the opinion that there was no objection to a married woman of alien nationality applying for and being granted a certificate of naturalization.

On the question now submitted it is necessary to express a definite opinion on the question whether section 10 does extend to the Commonwealth, and I now advise that, in my opinion, it does so extend, and that consequently a woman British by birth who marries an alien is, in the Commonwealth, to be deemed an alien.

But as in my opinion section 10 is not to be construed as limiting the right of altering the status of a married woman by the issue of a certificate of naturalization to her, I am of opinion that a British woman who has married an alien is entitled to apply for, and can be granted, a certificate of naturalization, notwithstanding that her husband is alive at the time.

As I have no doubt on the main question submitted, I have not thought it necessary to draft a clause as suggested in paragraph 2 of the memorandum.

[Vol. 8, p. 158]

(1) Opinion not published [Vol. 5, p. 214].

(2) Opinion (by Mr Garran, Secretary, Attorney-General