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Thursday, 12 November 1959


Mr HOWSON (Fawkner) .- I think that nearly every honorable member in this House will agree that the bill now before us contains many good features. I agree with the honorable member for Bass (Mr. Barnard) that we welcome a measure which will provide uniform marriage laws to cover the Commonwealth. We must also congratulate the Attorney-General (Sir Garfield Barwick) for the steps that he has taken to help the work of marriage guidance councils. I also agree entirely with the honorable member for Bass about the definitions of " marriage guidance council " and of " a major proportion of the time ", I hope it will be possible to bring such great organizations as the Brotherhood of St. Lawrence and the Australian Red Cross within the definition of marriage guidance organizations. However, I expect we shall hear from the Attorney-General, in the course this debate, his views on points that I know are worrying a number of members at present.

There is one other minor suggestion that is worrying people, particularly in Victoria. That concerns the amendment that the Attorney-General is bringing in to provide that a petitioner should include in a petition as far as possible all the matrimonial proceedings desired to be taken. A court will usually determine the whole of a case, including ancillary relief, at one hearing. There is in operation in Victorian courts a system under which cases regarding ancillary relief are usually heard in chambers and not in the court, and this has certainly helped in Victoria to speed up the various procedures, and has improved the working of the divorce courts very much. I know that there are people in Victoria who would like to see a similar provision incorporated in this bill.

But these are minor issues. The major issues that confront us in this bill are the grounds for divorce, which are dealt with in clause 27. To my mind, all the other things in the bill are really mere frills. At this stage I must say that I regret that for the first time since I have been a member of this House I find myself in profound disagreement with the AttorneyGeneral. I think that he has looked at what might be called the trees and neglected the forest. He has spent his time looking at individual cases that come before divorce courts, and has omitted to see what damage this bill will do to the whole fabric of society.

Let me compare, for a moment, the two bills we have had before us - the one we had two years ago brought down by the honorable member for Balaclava (Mr. Joske), and the present bill. There is a distinct difference between the two bills. The first bill provided what might be called the highest common factor between the various grounds for divorce, which might be considered as representing the general viewpoint of all the States. This bill, however, might be considered to provide the lowest common multiple. The point is not only what are the actual facts and the grounds on which one can get a divorce; there is also what is the main impression that has been created in the community as a whole as a result of this bill. I think that the general impression among people who do not know much about the legal framework is that divorce is going to be made easier by this bill. That, I think, is the damage that is now being done, even if it may not be a fact that the bill will make divorce easier. The Attorney-General has told us that we are not substantially increasing the grounds for divorce, but the general impression in the community is that the grounds are to be extended. As a result, I believe, there will be a general lightening of the whole fabric of society and of the general attitude towards this, very important question of divorce.

If we were able in the previous bill,, brought down by the honorable member for Balaclava, to find the highest common multiple in a measure that was generally acceptable to the majority of the members of this House, why have we suddenly got to extend the grounds? There has been, an extension particularly under two subclauses of clause 27 - 27 (k) and 27 (m).

I think that there are various reasons - although I do not entirely agree with them. - under which the ground for dissolution of marriage provided for in sub-clause- 27 (k), as the Attorney-General proposes to amend it, could be accepted. But that, cannot be said for sub-clause 27 (m). Subclause 27 (m) gives the following grounds for basing a petition for dissolution of a marriage - that the parries to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed.

One interprets that provision to mean that a spouse can have an argument with his wife, leave home, live apart from her for five years and, at the end of that time if there is no proved offence against him, and if he has made proper provision for his wife and children, he may obtain a divorce unless the judge finds that a divorce would be harsh and oppressive to the wife and children. But the onus is on the innocent party to prove that a divorce would be harsh and oppressive.

Here is a completely new concept. So far in divorce laws in Australia the principle has been that the law is there to right a wrong that has been done. Why, now, have we to introduce a contentious new principle? Why have we to experiment with a new ground for divorce which has operated in only one State? If we are going to introduce a completely new concept there should be wide and compelling reasons, and overwhelming public support for it. They do not exist at present.

This particular provision, or one similar to it, was examined by a royal commission in the United Kingdom from 1951 to 1955 and while, according to the Attorney-General, the distribution of the votes for and against it among the commission's members can be interpreted one way or the other, I believe that at least half of the members of that commission found compelling reasons to reject this ground.

In examining clause 27 (m) I should like to tell honorable members of my own experience, and how I have reached my views on the matter. Divorce is a specialized field for lawyers. We had in this House an instance of the lawyers having a Roman holiday of mutual backslapping, congratulating one another on the points of view that they expressed. It was only when I saw the other side of the picture not put to us by the lawyers in this House that I began to realize some of the dangers, and I hope that other honorable members will also begin to see some of the dangers in this bill.

Let us look at some of the main objections that were raised before the royal commission in the United Kingdom. Basically, the Attorney-General has had his mind on individual cases of hardship. The main objection is that he fails to look at the well-being of the community. The new principle contained in sub-clause 27 (m) is a recognition of what some people call divorce by consent. Even more important is the fact that it will be divorce against the will of a spouse who will be virtually unprotected, even if he or she wishes to protect himself or herself and the status of the children of the marriage. The second point is that it provides an easy way out of a marriage. It undermines the whole concept of lifelong marriage. Let us consider what might happen. A married couple may have a series of general arguments, and finally one walks out of the home. Let us assume that it is the husband who walks out. One of two things can happen. Either he may say to himself, "Well, I have taken on this marriage for good or ill for the whole of my life and I have to go back to try to make it work ", which, generally speaking, is what he would have to do under the existing law; or he can say to himself, "Why bother to try?

All I have to do is walk out, live apart for five years, and then get a divorce ", which is what could happen under this bill.

I think it is the undermining of this concept of lifelong marriage that is important. After all, the whole of our social order, the whole of the fabric of the Australian community, is based on the family concept of lifelong marriage. That is important for the State itself, because this is not a matter that affects the individual alone.

There is one other point I would like to mention. It has been said by some of the lawyers here that it is better for children to be brought up in the house of one of the divorced parents than it is to live with both parents at loggerheads; but all the evidence that was available to the British royal commission showed that children are better brought up in a home in which there is friction than in a home that is completely broken. I know that the honorable member for Balaclava is completely expert on this subject because, as a lawyer, he has specialized in it in the courts for years and years. But it is written in the United Kingdom royal commission report. The honorable member will have his chance later and will probably disagree with me.

The argument was also put up by the Attorney-General that this provides a dignified and honorable means of release. This is a really insidious argument. The function of the law, to my mind, is to give relief when a wrong has been done, but to go beyond this actively assists a socially calamitous act. People would enter into marriage knowing that they could always get free and no married person would ever be sure that he would not be divorced. It removes the sense of security which I think is so important in marriage. Let us see how the United Kingdom royal commission summed up this section. The report reads -

We believe that it is fundamentally incompatible with the concept of marriage as a union for life for the parties to be free to put an end to it by agreement. It seems to us self-evident that a marriage cannot be the concern only of the partners to it. If there are children, their interests must be considered. But whether there are children or not, the State must be concerned in the maintenance of a marriage and in its dissolution, because the State has an overriding responsibility to ensure, in the interests of the community that the institution of marriage is upheld. For marriage is not merely a civil contract between the parties to it. It is a status arising out of that contract and as a status it concerns the community as well as the parties.

If husband and wife were free to terminate their marriage at pleasure, then marriage would become a purely contractual relationship and the interests of the community would receive no recognition.

As we have pointed out, to give people a right to divorce themselves would be to foster a change in the attitude to marriage which would be disastrous for the nation. People would tend to enter marriage more lightly, and with the reservation that, if it were not a success, they could always agree to put an end to it. And when great difficulties arose in married life (as happens in most marriages), there would be much less incentive to overcome them. Husband and wife would be tempted to say to each other, " Let us have a divorce and start again ". Thus, divorce would increasingly be sought in circumstances where, if a little effort were made, husband and wife could adjust their differences. Such an attitude would be fatal to stability and security in marriage which in the end would come to be regarded as a temporary relationship, with divorce as a normal incident in life.

There were other points also raised by this royal commission. One was the financial angle. I know that this bill provides that it has to be made certain that the judge sees that fair and reasonable provision is made for the wife and children. In these days can any man really afford to have two wives and families?


Mr Wheeler - No.


Mr HOWSON - Can we be certain that it is possible to make fair provision? I know how difficult it is myself to afford just one wife and family. I am reminded, in this connexion, of a popular song of 30 years ago, sung by Eddie Cantor -

He doesn't get much money,

Five thousand dollars per;

Some judge who thinks he's funny

Says, " You'll give six to her.

You'd better keep her,

You will find it cheaper

Than making whoopee! "

How are we going to ensure, under this measure, that the wife who is divorced and her children who are left behind without any chance of really doing anything about it, can be really properly provided for. It has been said, also, that this particular clause gives encouragement to the seducer. In fact, when a similar provision was being mooted in England it was known as " the seducer's charter." It has been said, too, that this new concept will act as a deterrent to illicit unions. To my mind it works in exactly the opposite direction. There is no certainty, at present, that if a man goes off with a woman he will be able to legitimize his children. But under this provision incentive will be given to a man to go off, knowing that after a period of five years there is a chance of his getting rid of his original wife and family and acquiring a new legitimate wife and children.

Summing up, the greatest point about this new clause is that it should be proposed only if there was a widespread desire for such a change. These laws are made in response to public opinion, but for just a few deserving cases, according to the Attorney-General, we are going to widen the grounds of divorce. What will happen then? At the same time that we have a few deserving cases, a number of undeserving cases will slip through the net and people will come to adopt a lighter attitude toward divorce. Then, once again, this whole process will be repeated.

This is not a quick process. We are not legislating just for this year or next year; we are legislating for something that will develop over a long period of years. Therefore we cannot estimate merely by a series of statistics such as has been given to us on what has happened in Western Australia during the last ten years. This is something which is rather like the process of evolution. Over a number of years small changes make for major alterations when we continue them as an historical process.

I believe that we cannot really go ahead of public opinion. As members of a Commonwealth Parliament I feel that in this matter we must follow well behind public opinion and not be well out in front, if we are to put the high value on family life and responsibility that I believe is so important to us. To my mind, the Minister is trying to lead public opinion and is not being led by it. In effect, he says to those people who are concerned with public opinion, and particularly with regard to the leaders of the three major churches in this country, " You do not know as much about public opinion as I do. I know what Australia needs in this matter, and that is the law which Australia is going to have."

If this clause is so good why has there not been some evidence of support for it outside of Western Australia? It is only since it has been included in this bill that any notice has been taken of it.No one in the eastern States campaigned for it and no effective body outside Western Australia really campaigned for it at any time when

Parliament was considering the bill brought down by the honorable member for Balaclava.

I believe that the general public reaction to this bill is that it will make divorce easier. If there is any doubt at all about it, why persevere with this obnoxious clause? This bill is exceptionally good without this clause. It does everything that was originally anticipated at the time the bill of the honorable member for Balaclava was discussed. I think that each member of this House must look at its whole effect on society and not at its effect on a few individuals. The State must be concerned about the maintenance of marriage and must ensure that the institution of marriage is upheld. Marriage is not only a civil contract; it also provides a status in the community. It is the whole fabric on which our society stands. Therefore I say that this bill concerns the whole of the community, and we must ensure, above all things, that the interests of the community are recognized.

We will have to bear the responsibility if the attitude of this nation towards divorce becomes less rigid. It is a tremendous responsibility that we have to shoulder. I believe that sub-section (m) of proposed section 27 will, in a small way at first, but increasing as the yeaTS go by, endanger our whole attitude to this vexed question of divorce. Therefore, as I think the interests of the State and the community override the interests of a few possibly unfortunate individuals, each member of this House should look very carefully at the case against this proposed sub-section, .as well as the case that has been put for it by the Attorney-General. I think that when honorable members have done so a large number of them will follow the lead that has been so ably given by the honorable member for Moreton (Mr. Killen), and will do all they can to remove this iniquitous provision from the bill.







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