Certainty generally is illusion, Holmes once said, and repose is not the destiny of man. Mr Coper vividly illustrates this in relation to the High Court’s exposition of the meaning of “duty of excise” under section 90 of the Constitution, and argues that the Court’s failure to achieve certainty in this area has not been due to a Barwick-led departure from a so-called settled formula, as alleged by some critics, but has rather been the consequence of the inherent limitations of any legalistic approach. Mr Coper then looks to the purposes of section 90 for guidance, but finds a surprising degree of ambiguity surrounding them. The High Court has also referred to the purposes of section 90, but in attempting to achieve certainty without entirely losing sight of those perceived purposes, it has, Mr Coper argues, compromised both objectives. The author concludes by considering how the Court might escape from the present impasse.

It has long been a general rule of common law that a marriage is valid only if formalized in a manner recognised by the law of the place of celebration. This rule is continued in Australian law by explicit statutory provision.

In this Article Mr Fine suggests that in Australian Law the category of exceptions to the lex loci celebrationis requirement is significantly wider than in the common law of England. He also finds that in situations outside the scope of the requirement, Australian courts should apply the parties’ domiciliary law to decide formal validity—not the law of the forum, though the latter is used in English courts as the law of second resort.