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Tuesday, 17 November 1959


Mr SPEAKER - Order! The honorable member has already spoken.


Sir GARFIELD BARWICK - I will come back in a moment to deal with the problem of the guilty party. I point this out as the immediate problem that faces anybody who attempts to produce uniformity.

It has been said of me that I put all the grounds available in all the States in a hat, jumbled them up and drew them out as a clerk might. Indeed, the honorable member for Darebin (Mr. Courtnay) said that that was the only exercise that took place, to act as a clerk in putting these grounds together. Every ground in the bill was carefully considered over a lengthy period. At an earlier time, the grounds have been considered by my predecessors or by the honorable member for Balaclava (Mr. Joske), and at no time was it a mere exercise of a mechanical or mathematical kind.

Now, I want to put before the House the bases on which I suggest one should begin to choose the grounds for dissolution. I point out that this bill does not bring divorce for the first time. For more than 100 years, the secular authority, the State, has regarded marriage as dissoluble. It has asserted that it can be, and in proper cases should be, dissolved. It necessarily follows that those who believe in indissolubility must be very careful when they enter the argument, because there is a tendency for them to try to discuss clause 27 (m) on the undisclosed premise of indissolubility, whereas the premise must be dissolubility. Very often, those who say that they do not like the proposed ground are really saying that they do not like any ground and that there ought not to be any ground of divorce at all. One must be very careful. Of course, he who believes in indissolubility - and that is his personal affair in which one does not interfere at all - can, if he is careful and clever enough, put to one side his belief in indissolubility and discuss the question on the assumption that marriage is dissoluble. If he forgets all about indissolubility, he can discuss the problem on the basis of whether the ground is good for the community. It is a very hard exercise, and few can achieve success in it.

I suggest that we approach this question of choice of grounds, as a House, on the footing that marriage is dissoluble. We then consider: What is a good ground. A good ground is one that is good for the social and moral welfare of the community as a whole, with justice to the individual. I want to come to the point where, in considering this ground, one has to balance these two points. I and those who are with me have come down on one side, and as long as those who discuss it with us are informed, there is no reason whatever why we should not differ. The difficulty in these discussions arises from ill-informed criticism or criticism that has not stemmed from careful contemplation. So, I approach the question of the selection of the grounds on the basis of what is good for the community as a whole and gives justice to the individual.

At this stage, I want to interrupt myself for one moment to say that we should remember in considering this matter that it is not a question of making divorce easier or harder. In the present situation, marriages are breaking down. The divorce law does not cause them to break down; the divorce law is a remedy. It is one thing to try to get for the community the most that can be got out of family life, but when a family has broken down and ceases to have any reality, then the community must seek an arrangement that is better and sounder. It is not a question of making divorce easier or harder. It is a matter of deciding whether a marriage that has lost its reality should be dissolved, and that is very relevant to a consideration of the ground contained in clause 27 (m), which has created so much controversy.

It is easy to use the expression " making divorce easier ". I have listened to some honorable members who imagine that if fourteen grounds are included in a divorce bill, divorce has been made easier than if only twelve grounds had been included. With very great respect, that view is unwarranted. The greater number of divorces are based on the grounds of adultery and desertion. I have here the figures for 1956, those being the latest figures in the YearBook. They cover a large number of grounds. Out of a total of 6,345 divorces in that year, 3,966 were on the ground of desertion and 1,751 were on the ground of adultery. I shall read through the figures because they show that other grounds included to meet special cases and to do justice where some special circumstance exists, account for very few divorces. These figures are taken over the whole of Australia for a year and show that on the ground of bigamy there were two divorces; drunkenness, 104; failure to pay maintenance, 20; imprisonment, 23; insanity, 18; non-consummation, 3; pre-nuptial incontinence, 1; presumption of death, 3; and sodomy, 4.

To add a ground does not make divorce easier. Those who resort to these remedies mostly do so on two or three main grounds, which are common throughout the States. It is a complete fallacy to add up the number of grounds and say that divorce has been made easier. Let me, for a moment, test it on the ground of insanity. Insanity is a ground in all States except New South Wales, and in 1956 there were eighteen, divorces on that ground. The ground of insanity is a very tight one. A person who is to be divorced must be insane, must have been for five out of the preceding seven, years, I think it is, in an institution for the insane, must be incurable and must still be. in the institution at the date of the hearing. An honorable member mentioned that, medical science is getting better. So be it, and the harder it is to prove that a person, is incurably insane.


Dr Evatt - That is why there are so few cases.


Sir GARFIELD BARWICK - Yes, so very few cases. But to say that because I add insanity as a ground in New South Wales I have made divorce easier is to be foolish. 1 have not made divorce easier. I have provided for a particular and unusual case, because it is thought to be just. So, when one uses the expression " making divorce easier ", it needs some close watching.

Let me take another illustration. The period for desertion has been three years in all States except Tasmania in the case of, I think, a woman. This bill proposes that the period shall be two years. Somebody has said that that makes divorce easier. I would claim that that is a misconception because I think it is a fair conclusion that a person who will seek for a divorce after two years' desertion would seek one after three years' desertion. There may be a very odd case where the parties make up in the third year, but I imagine that is pretty rare, because the two years' desertion must have been preceded in the majority of cases by a substantial period of progressive breakdown before the final step is taken. So, to reduce the period from three years to two years does not add a single customer to the divorce courts, lt simply allows the customer to come sooner, and when 1 state that the average age of divorced people is about 30, it will be recognized that that year of life is extremely important to them. Unless there is a very good reason for denying it to these people, for my part I am all for them having it. But it is wrong to say that to reduce the period from three years to two years makes divorce easier. That has been the catchcry, and I ask honorable members to make up their own minds on this matter.

Having said that I think the basis for choice of a ground is the moral and social welfare of the community, as a whole, remembering justice to the individual, I for my part think that the community is extremely interested in sound marriage. So, my first endeavour in this bill as was said when I introduced it and as many people have said with some generous remarks about the way I have done it, my first step was to try to prevent the final breakdown and to keep the existing marriage sound. There are mechanisms in this bill for that purpose which I do not want to enumerate, because honorable members are all familiar with them. But having failed to prevent the breakdown having found that the marriage is irretrievably lost, I for my part and, I think, many honorable members will agree with me do not regard two people who have not seen each other for many years, who have come almost to hate each other, between whom there is enormous bitterness and who are not to live together again, as soundly married in any language. If that is right, the community has a very great interest in enabling some other sound marriage to replace the one that is no longer sound.

I see no benefit in allowing one of the parties to maintain the tattered shred of the status of marriage when all reality is gone. I see no sense in that from the point of view of the community. May I just quote from the Morton report. This report, may I say, needs very careful handling because it is very hard to tell where the majority is and where the minority is. I say this without any criticism, but the letter that came to me from the bishops cited the minority report and gave no indication at all to people that the quotations were nor out of what the commission as a whole thought but were out of what only nine members thought. Ten members thought the opposite. So, it is a very dangerous document to take up.


Dr Evatt - The majority took the opposite view.


Sir GARFIELD BARWICK - Yes. There were ten members of the Morton commission who in one form or another thought that a principle of breakdown of marriage should be introduced into divorce law. Nine members thought otherwise, and the bishops quoted the opinions of those nine.


Mr Stewart - The numbers were nine each.


Sir GARFIELD BARWICK - That is the trouble. The honorable member should read the report very carefully, it is not easy to read. There were ten on one side and nine on the other.


Mr Stewart - According to my information there were nine on each side.


Sir GARFIELD BARWICK - Not at all. What I was saying was that there is no profit to society in a marriage that is irretrievably lost. May I read what is said by four members of the Morton commission, and I read this not for the authority they have but for the way in which they state their views.


Dr Evatt - Which four are these?


Sir GARFIELD BARWICK - They were four of the nine who favoured including a ground similar to that in clause 27 (m) as well as the traditional grounds. The tenth member of the commission he was a Scotsman thought that the ground similar to that contained in our clause 27 (m) should be the only ground, but the other nine thought that they should have the traditional grounds plus a prototype of clause 27 (m). Let me read what they said for the manner of the saying -

We see no benefit to society, to the individual or to the State in maintaining marriages in name which are no longer, and on all foreseeable estimates will never be, marriages in fact and which secure few or none of the purposes for which marriage was designed. There are many persons living together in illicit unions, which have all the potentialities of happy, permanent marriage, who are unable to marry because of a preexisting marriage which has completely broken down, and because the " innocent " spouse from spite, religious scruple or some other reason, is not prepared to take proceedings for divorce. We see in many of these illicit unions, which may have endured for years, all those elementsof love, comradeship and happiness in children that make the cohesive qualities of a happy marriage.

Nor is that all. The frustration caused in such cases can lead to consequences detrimental to the individual and, we think, also to the State. We have in mind not only the stigma of illegitimacy that attaches to the children of such unions, with the psychological consequences resulting therefrom, but the effects on the parties directly concerned. First, they are living in an atmosphere of deception, and, if there are children living in the house, that means that sooner or later the children feel that there is something being concealed. Secondly, they are living in fear, and there is nothing more warping to people's lives or development than that they should live in fear, and nothing more injurious to children than they should grow up with the atmosphere of fear around them. Thirdly, there are many such people who long to have children to complete their Union, but who refrain from doing so because they do not think it right to bring up children in an atmosphere of lying and fear arising from the fact that their parents cannot be legally married. Fourthly, such people do not feel free to enter into the fullest activities of a citizen; they are unlikely to take part in social work, political work and other ordinary activities. In particular, many of them are religious people, but it may be doubted whether there is any church in the country where two people living in adultery would feel at home, and they will probably fall away from any religious body to which they would like to be attached, and will give little if any religious upbringing to any children they may have in their home. [Extension of time granted.]

Such views were expressed to us in evidence and we think that they are sound. What is the balance that you will need to find here? If it be right to say that the state has no profit from a marriage irretrievably lost, by the application of the existing and traditional principle of matrimonial offence one of those two parties has the initiative and the other has not. I know that people will say that the guilty one should not have any initiative, but to all who say that let me put the question, "Who is the guilty one? " This is one of the hardest things to determine and, for my part, courts of law are very ill-equipped to find out where true guilt or innocence lies between warring spouses. You just cannot get into the house, and you cannot get into the bedroom. If a lawyer persisted in all the detail into which he should go to try to elucidate who was truly right and who was truly wrong, he would eat up his client's funds in great style.

It is not easy to fasten guilt or innocence. In consequence, if you follow the traditional ground of a matrimonial offence you leave the initiative with one party. If that initiative is not taken, then the other is under a life sentence. I do not know whether we very readily accept the position that adultery - taking the worst of the matrimonial crimes - is to be visited with a life sentence on the so-called guilty party. If he stole your car or if he did many other things, I suppose he could get a bond. But on the traditional view adultery results in a life sentence, and the community is deprived of the possibility that the guilty may form a new sound union and have a new and sound family. For my part, I feel that the community owes it to itself to enable either of the parties to have the initiative. Clause 27 (m) is designed to that effect.

Of course, there needed to be safeguards. When we are dealing with this matter in committee I shall answer the honorable member for Kingston who asked for some details, but it is inappropriate to do so now. By clause 27 (m) I have tried to provide that there shall be no injustice to the individual. I have said to the courts, "You must not give the guilty party a divorce in circumstances which would be harsh and oppressive ". I could not express the idea of justice better. I have said to the courts, " You shall not give the guilty party a divorce in circumstances where it is against the public interest and where it is offensive to public morals ". The divorce courts know what that means. They have developed doctrines on that basis before to-day. I have said to the courts, "You shall not give the guilty party a divorce until financial justice has been done to the other party ". Having provided for personal justice, that there shall be nothing offensive to public morals, and for financial justice, what is left?

Let us suppose that the party who has the initiative will not take it, that there is nothing personally harsh and oppressive, that there is nothing against the public interest, and that there is no financial injustice. There may be spite left. We know that that happens. Of course, there may be religious scruple or sentiment. I quite understand those who have said to me, " But you ought not to overbear the religious scruple of the one who does not want divorce. You ought not to overbear the sentimentalist who wants to maintain the sentiment of marriage when all the reality is gone ". In balancing the benefit to the community of a new marriage that has a chance of being sound, against the marriage that is completely lost, I come down in this bill on the side of the community and I say, " I think that the persons who are only hanging on to the thread of the status of marriage for a religious scruple or for sentiment - all honour to them for that; that is their business will have to give way in favour of the community ", having secured personal and financial justice for them. That is the crux of clause 27 (m) of this bill. From the very beginning, I have been quite frank in saying that 1 have added this basis, this concept of divorce new in some of the States in Australia, to the traditional grounds in order that the community might benefit.


Dr Evatt - What about the new safeguards?


Sir GARFIELD BARWICK - I have added the new safeguards. I have left the traditional grounds so that the legally innocent party may obtain a dissolution of the marriage earlier than he or she otherwise would. Let me take desertion as an illustration. A person who is deserted and who wishes to take the initiative for divorce can bring suit after two years, but the party who is the deserter must wait for five years before taking any action. I have kept the traditional grounds so that the advantage of the legally innocent party will be preserved. However, I commend this to the House: At the end of the clause I have said, in effect, " When the marriage has no reality whatever and when bitterness and ill will have taken the place of affection, then it is only right, in the interests of the community, that the other party should have the initiative as well, provided that there are the safeguards that I have provided ". These I shall refer to during the debate at the committee stage.


Mr J R FRASER - There may be bitterness on one side and goodwill on the other.


Sir GARFIELD BARWICK - Of course there could be. This, after all, is the secondreading debate. I have gone into this ground because it was debated at such length by honorable members. I should have thought that this House had expressed itself during this secondreading debate, with very little dissent, in favour of the principle of the bill, namely, uniformity, a single domicile for Australia, and the same kind of law in this area of family life for all Australians.

Question put -

That the words proposed to be omitted (Mr.

Luchetti's amendment) stand part of the question.







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