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Thursday, 28 February 1985
Page: 360


Senator CHANEY (Leader of the Opposition)(5.47) —I make a brief entry into this debate to raise a couple of matters which are somewhat akin to the matters which have been raised by Senator Watson. Unlike him, however, I welcome some parts of the Marriage Amendment Bill. I think the Opposition generally, as indicated by Senator Durack, welcomes the widening of the concept of pre-marital education to encompass a wider concept of marriage education. Indeed, it is in that area that I want to make some comments. When I first came into the Senate we spent a great deal of time looking at the Family Law Act. I sat on a Senate committee which very seriously considered what the state of family law, as it was called, should be. We then had a debate in the Parliament which I think was the longest in my experience. The debate on the Family Law Act ran over something like six weeks. A great deal of parliamentary time and effort was involved. Of course, there was no party discipline; it was a free vote. I think that was a genuine attempt by honourable senators, and indeed by members of the other place, to come to grips with what were thought to be very important social issues.

I think there was a genuine concern then to remove what were seen as some of the abuses of the old system of divorce law, a system which I think anyone who had experience of it certainly found had some very distasteful aspects. It is a pity, perhaps, that we have spent so much time on the divorce law in this country and so little time on the law of marriage. I think, therefore, we should welcome this debate as at least providing some brief focus on the point of entry to rather than the point of exit from that institution.

I share Senator Watson's concern about some of the difficulties we face with marriages breaking up, with children being severely disadvantaged as a result and with many cases of injustice to individual parties within marriage. I share with Senator Watson the concern that some of that occurs because people enter marriage without due consideration. I differ from him in that I hope people will always enter marriage, in a sense, light heartedly. I think that one ought to be very light hearted when one is getting married. It should be an occasion on which one feels extremely cheerful. However, I share with Senator Watson completely the view that one should not enter marriage without due consideration of what one is taking on.

I must say that over the last 10 years I have had many constituents in my electorate office who have convinced me, as indeed did some clients before I entered Parliament, that they had really given very little thought to what marriage entailed. I think that that is one aspect to which we ought be prepared to give further consideration. We ought to be looking for some procedural means of focusing people's attention on the serious obligations they are undertaking when they enter into marriage. I do not believe that any person in the Senate is entitled to impose his or her unbridled views on what other individuals should do in this area. But there is a social interest in the stability of marriage. I think there is a very strong social interest in the care and nurture of children. The sorts of statistics which have been mentioned in this place already in this session about the number of marriage breakdowns, the number of children affected and so on are statistics which give us all cause for pause.

I think the position of people entering marriage today is made more difficult by the fact that there have been significant social changes which impact on the way people live. I do not quarrel with many of those changes. I do not quarrel, for example, with the fact that many women see it as their entitlement to have not only a marriage but also a career. That is an option which should be open to them; it is an option which an increasing number of Australian women choose. I think it goes without saying that if both parties to a marriage have a career each of them will have to make arrangements different from those which are made if only one party devotes full time to the domestic affairs of the marriage. That is not a bad thing as long as in both cases the parties have thought through what they want and are proceeding in the marriage in a way which is mutually acceptable and which is compatible with the values and advantages of marriage for both the husband and the wife and for any children who may be born of the marriage.

I think it is time that the Government and, indeed, the Parliament gave some further consideration to the views which were put forward by a senator who has left this place, Senator John Martyr, in his dissenting report to the Joint Select Committee on the Family Law Act which was brought down in 1980. Having recently reread the dissenting report of Senator Martyr, I think it interesting to find that in observing marriage he suggested rules which would not impose on the community the strict adherence to rules with respect to marriage that he might think desirable. Rather, he put forward a framework which would require people entering marriage to focus on the issues which will face them and the decisions that they will have to take prior to their actually becoming married. I think there is a great deal to be said for people, before entering into a formal marriage, giving very careful consideration to the sorts of factors to which Senator Martyr drew attention in his dissenting report.

I must say that I accept a number of propositions which are basic to the approach which Senator Martyr adopted. Senator Martyr said, for example, in paragraph 81 of his dissenting report that the basic freedom is the 'freedom of the subject to arrange his own affairs'. I mention that quotation because this report was not put forward by Senator Martyr on the basis of laying down a set of rules which must be followed by everybody. He acknowledged that there needs to be that basic freedom to arrange one's own affairs. He went on to say:

But that freedom cannot be exercised in disregard for the just expectations of another, especially of expectations which have been induced by the subject's voluntary assumption of obligations, and in consideration of which the other has entered into a certain course of conduct at the request of the subject.

I am not sure why Senator Martyr used such legal and complicated language, but I think the meaning is clear. What he was saying is: 'It is very proper if you want to exercise your freedom to arrange your own affairs but you cannot simply go on exercising that freedom after other people have entered into arrangements with you and altered their position in the expectation that you will keep to your commitments'. I think that is a reasonable proposition and a proposition which is rooted in simple justice. In paragraph 84 Senator Martyr set out the aims of the draft model legislation, the second of which states:

To attempt to ensure that couples give adequate consideration to the mutual rights and obligations involved in marriage, by signing a contract setting out the rights and obligations of the parties, and the conditions under which the marriage may be dissolved.

Mr Acting Deputy President, I think if you cast your eye over the draft of marriage contract which Senator Martyr included as an appendix to his dissenting report, you will find a very up to date list of the issues which I think a modern couple entering into a marriage face. It is interesting, for example, to look at clause 4 of the mandatory provisions of the draft marriage contract, under which the parties can covenant that they will:

Nurture, discipline, nourish, rear, foster, train and educate the children of the marriage so as best to develop their talents and fit them for the society of their fellow man and to collaborate with the other therein.

or

Use his or her best endeavours to keep the marriage childless.

Quite frankly, I think that is a civilised set of alternatives which is offered to people who decide that they are going to enter a marriage. They have the choice of having children or not having children. But if they have children, there is no choice. If they have children, there is a clear obligation-this is even recognised by the United Nations Declaration on the Rights of the Child-to nurture, discipline, nourish, rear, foster, train and educate the children of their marriage. In my view, there is no reasonable way of escaping that obligation. It is an obligation which I think needs to be brought forcefully to the minds of those who choose to marry and who have to contemplate those alternatives.

It is also important to note Senator Martyr's suggestion in his draft marriage contract that there should be a decision as to where the obligations to provide income should be. I think that that again is a clear issue that a modern couple facing marriage ought to be considering prior to marriage. They should be considering what is expected of the husband and what is expected of the wife with respect to career and earnings; what is expected of them if one discontinues employment and devotes full time to the marriage and the other goes on earning income and accruing property. My simple proposition is that I think most people, if faced with those issues before entering marriage, would agree to arrangements which were fair to the parties, given the circumstances that they wanted to apply.

At the moment we have a matrimonial law system which, in my view, gives no guarantee of fairness to the parties of a marriage. Let me take a simple example. I will not detain the Senate long because if I do obviously I will prevent the Bill from being dealt with tonight. In any event, I am sure that no one would wish me to prolong the debate. Take the example of a man and woman who marry and have the common intention that the wife should not work but should bear and rear their children. It seems to me that 20 years down the track in that marriage there can be very little justice in a situation where the wife is then left with the children and without skills to maintain herself. I, for one, doubt that the existing matrimonial law provisions in many cases do substantial justice to women who have in good faith entered into that arrangement and who, perhaps 15 or 20 years down the track, lose their husbands for one reason or another.

I suppose one could go on giving examples of the sorts of people who come to one's office, and tell of their circumstances and whose stories raise what Cahn called a sense of injustice. The fact of the matter is that if there were a preconsideration of the expectations of the parties-what the parties expected of each other and what the remedies should be if there was default on those expectations-I think the parties would be likely to agree to terms and conditions which would be fairer than we have by the simple application of the no-fault provisions of the Family Law Act.

I believe it is quite important that we get a greater element of fairness into marriage. I believe the horrible problems which have afflicted the administration of the Family Law Act, the very massive security problems and the acts of violence which have occurred are often related to a strong and burning sense of injustice which can occur when people feel that their rights have been trampled on and they have not had, in the old Australian term, a fair deal. I think that in terms of inducing people to consider the circumstances of marriage and to think ahead, the proposition of marriage contracts has more to recommend it than any simple educational scheme, because I do not believe any simple educational scheme is likely to become widely used and utilised. With the best intentions in the world, I am very doubtful that pre-marital education will be utilised by enough people. I suspect that it will be utilised by those people who need it least.

I join with those honourable senators who have expressed the view that there is a public interest in the proper working of the institution of marriage. That public interest is tied up, in particular, with the proper care, nurture and upbringing of children, but I believe it is also a public interest to see that justice is done to individual citizens. I think it is absolutely clear that the changed social circumstances in Australia, which are rooted in the rights of individual men and women to order their affairs as they please, will not change back. I believe that if we are to get a more satisfactory success rate in marriages we have to do a lot more than is proposed in the Bill about the front end of marriage. Perhaps we also need to do something about the ejection proceedings under the Family Law Act.

I say to the Minister for Resources and Energy, Senator Gareth Evans, who is at the table, that I hope the Attorney-General's Department will maintain an ongoing brief to look at this serious matter. There is probably a much more serious obligation on us in the Parliament than there is on any government department or single Minister to consider these matters. I know that the Family Law Council and other bodies report in a theoretical way. I express my concern that I do not believe we are giving the institution of marriage and the legal framework of marriage adequate attention, given the social changes which have occurred, the evident high rate of failure of marriage and the serious social consequences which often flow from it.