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Wednesday, 18 November 1959

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - These provisions as to void and voidable marriages specify the conditions under which marriages are voidable and of necessity they must deal with the point of time when the marriage took place. To cover the possibility of subsequent events, Division 2 of Part VI. of the bill, dealing with nullity and affording a means of voiding a marriage by suit, lays down a number of specifications. Clauses 44 and 45 are very much in point. Clause 45 provides -

A decree of nullity of marriage shall not be made on the ground that the marriage is voidable by virtue of paragranh (a) of sub-section (1.) of section twenty of this Act unless the court is satisfied that the incapacity to consummate the marriage also existed at the time when the hearing of the petition commenced and that -

(a)   the incapacity is not curable;

(b)   the respondent refuses to submit to such medical examination as the court considers necessary for the purpose of determining whether the incapacity is curable; or

(c)   the respondent refuses to submit to proper treatment for the purpose of curing the incapacity.

Dr Evatt - This gets over the question of time.

Sir GARFIELD BARWICK - That is so. Honorable members will notice that there is an amendment in which I suggest that even in those circumstances it may be against the public interest to allow a person, who has approbated, a marriage of this sort. For example, a young woman may marry a very old man knowing he is incapable of consummating the marriage. She has some financial reason, and after some time wants to void the marriage. I have made provision in amendment No. 18 that the court may say, " No, it is against public interest, we will not have it ".

Mr Beazley - Will the Minister answer the point I raised regarding epilepsy?

Sir GARFIELD BARWICK - In the case of epilepsy in one party to the marriage, that is thought to be a circumstance

Which will entitle the marriage to be voided, if the person who married the epileptic was unaware of the affliction at the time of the marriage. If the honorable member will look at clause 46 he will see that the petitioner must satisfy the court that at the time of the marriage he or she was ignorant of the facts constituting the ground, that the petition was filed not later than twelve months after the date of the marriage, and that marital intercourse had not taken place with the consent of the petitioner since the petitioner discovered the existence of the fact constituting the ground. Now, as to supervening epilepsy, there has never been a suggestion that supervening epilepsy should be a ground for the dissolution of a good marriage.

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