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Tuesday, 17 November 1959


Mr DUTHIE (Wilmot) .- Mr. Speaker,the Matrimonial Causes Bill is unique for two reasons. This is the first time a government has had the courage to bring down and to support a uniform divorce bill in 58 years of federation. Secondly, this is the first time that such an important measure is to be voted on not on party lines but according to each honorable member's conscience.

I want to make some general comments about the bill. If this bill is passed - I prophesy that it will be - we will have one divorce law for the entire Commonwealth. In my opinion that will show that Australia has come to maturity on a very important issue. The passage of this bill will also show that the fathers of the Constitution have been listened to at last. Section 51 of the Constitution, dealing with powers of the Parliament, states -

The Parliament shall,-

That is, the Federal Parliament - subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

And placitum (xxii) states -

Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.

That is the basis of the bill that has been introduced by the Attorney-General (Sir

Garfield Barwick). The Commonwealth has the power to enact such laws, and this is the first time in 58 years that a law of this nature has been presented to the Parliament. One must admire the foresight of the fathers of our Constitution who, with multitudinous matters on their minds, thought of the need for a uniform divorce law for the Commonwealth in 1901.

The next matter to which I should like to refer in general comment is that when this bill becomes law the laws of the States will be rendered null and void. At present there are six separate sets of State laws. This causes great inconvenience, and even hardship, for some people, and a means of escape for others who move from one State to another. If and when this legislation becomes law, there will be one divorce law for the Commonwealth.

Marriage laws also should be brought up to date because marriage laws are complementary to divorce laws. In fact, in actual practice marriage laws should be considered before divorce laws. I have received an interesting letter that has been addressed to both the honorable member for Braddon (Mr. Davies) and to myself by a Mr. Gordon Dennis, who lives at Howth, in the Braddon electorate. Mr. Dennis states -

There are some points that I think should be clarified.

(1)   The relationship of marriage laws to divorce laws, which in some instances do not agree.

(2)   The words "obey" and "death " in relation to marriage. The word " obey " no doubt dates back to the days when a man owned his wife as he owned his cattle. He either took her, bought her, or she was given to him, sometimes with a dowry, property or talent. But now it is a matter of mutual consent, by choice. The word " death ", probably in ancient times meant civil death, the entire loss or forfeiture of civil rights which followed the attainture of felony or treason. Formerly a man was considered civilly dead when he retired to a monastery. Death in mythology has still another meaning. But the christian meaning is given as a release from bondage, or a change from misery to happiness which is sometimes achieved by divorce. I cannot think of anything much worse than two people having to live together when they become dead to each other, or when they agree to disagree on certain matters for as long as they both shall live.

There was the case of the man lost at sea and presumed dead. His wife married again in Melbourne, and after five years he returned from the dead and claimed her as his wife. But, she claimed, as far as their marriage was concerned he was dead.

I think the marriage and divorce laws should be considered together and amended to agree, not to make divorce easier but to make it lawful and give some people a clear conscience. I am unable to find " until death do us part " in the Bible.

I agree with him; it is not in the Bible. He goes on -

I think the age limit for marriage should not be altered because minors cannot be married without parents' or guardian's consent or the consent of a magistrate. In some cases girls are mature at a very early age. To my knowledge some have been advised by doctors to get married very young for health reasons.

That is an interesting letter which illustrates the thoughts of ordinary men about the marriage and the divorce laws.

Another matter of note is that amendment will be a relatively simple matter should weaknesses in the legislation be revealed. We in this Parliament will be able to amend the law as it applies to the entire Commonwealth. That is an important advantage. At present, any amendment to a State law affects only that State. I have not heard of an amendment of any consequence in State divorce laws for many years, but if and when this bill becomes law, it will be our bounden duty as a Parliament to correct any mistakes that have been made. That is democratic and proper.

Another aspect is the need to limit the legal content of divorce laws and extend the human element. In my opinion, the bill which was introduced in May, 1957, by the honorable member for Balaclava (Mr. Joske) was too legalistic and lacked humanity. The bill now before us has a moral and spiritual content. We are dealing with sacred and intensely human personal relationships, and humanity should be a very important ingredient of this legislation. I congratulate the Attorney-General for not having overlooked the human aspect. This legislation is shot through and through with that element.

The United Kingdom royal commission on divorce, which operated from 1951 to 1955. heard evidence from 67 organizations and 48 individual witnesses at 102 meetings held in London and Edinburgh. One of the great features of the report of that commission was the stress that was laid on the humanities of divorce as distinct from the legalisms. I am glad that this aspect, which was overlooked in the previous bill, has been included in the one that is now before us.

I am glad that some one has had the courage to do the right thing in relation to the divorce laws, and I hope that the proposals will be implemented without procrastination. This bill has been discussed throughout the Commonwealth by all interested parties. Its faults have been noted; the churches have had their say, and we have read their comments. Now that the bill is before us we should have the courage to do the right thing for the people of Australia who are affected by the tragedy of divorce. After all, 7 per cent, of married people are involved in divorce. The remainder do not need divorce laws because they are happily married and in other cases the marriages are lasting for the reason that the parties concerned are prepared to let them last.

I hope that this bill becomes law. I do not believe that it will increase the number of divorces, because the number of grounds have been reduced from 30 to fourteen. I have studied the bill as carefully as one can study a document of this kind, and I think that it tidies up the divorce laws of the Commonwealth. Any honorable member who studies carefully the proposed grounds for divorce cannot disagree that they are just causes for separation. Only the necessary grounds have been included in the legislation. Others have been omitted.

The majority of the churches in Australia favour uniform divorce laws, irrespective of their criticism of individual clauses. I stress that majority decision. In a perfect society, conducted by perfect men and women, we would have perfect marriages, but unfortunately we have not reached that stage in human relations. We still have with us the imperfections of human nature, and we must face the grim reality of daily breakdowns in marriages. Fortunately, in Australia only about 7 per cent, of marriages end up in divorce. That is perhaps the lowest percentage of any country in the world. The total number of divorces, I think, is approximately 6,500 a year, or less than 7 per cent. That is bad enough, of course, but the fact that we have not the highest rate in the world is cause for some degree of satisfaction.

The reasons for divorce, which is the ultimate end of the tragic road of a marriage gone wrong, are many. At times, it seems incredible to us that a marriage contracted with reverence in a church in the midst of all the joy - and the tears - the happiness and the hope may end in a divorce court in five years. The majority of divorces in Australia are obtained after five years of marriage - between the fifth and the tenth years. The reasons for this disastrous ending after such an encouraging beginning are to be found in wrong motives, adolescent love, infatuation, weaknesses of character, spiritual starvation, incompatibility, sheer self-will and selfishness - in fact, blatant selfishness - of the wife or the husband or both, domination of one over the other, lack of forbearance, infidelity, the fact that both are working in order to boost the family income, emotional instability, women's new-found freedoms, addiction to drink, financial insecurity, and even wrong beginnings. These are some of the reasons why marriages go wrong, and only a change of heart - a complete change in human nature - can wipe out those causes of this tragedy. They cannot be removed by mechanical means or even by legislation. Men and women have to be changed deep down in their own personalities before these reasons for divorce can be removed.

How many couples marry in a church, however, because it is fashionable and because it is considered the right thing to do? This may " fashionalize " the "marriage, if I may use such a word, but it does not spiritualize it. The marriage vows are taken too lightly and without conviction by the group I am speaking of. True spirituality. Mr. Speaker, is not an outward cloak, but an inner condition of the heart which is apparent in dedication of motives and in character. If young people do not have these great spiritual qualities in their own hearts before they reach the altar of their own church, the recital of certain vows and prayers in a brief service will not suffice to give them what they do not have already.


Mr Chaney - Where did the honorable member get that from?


Mr DUTHIE - It comes from my own experience. I was formerly a Methodist minister, and I have conducted about 200 weddings.


Mr Chaney - How many of those marriages have ended in divorce?


Mr DUTHIE - I am happy to say that I have not heard of any. The seeds of betrayal and disaster are so often sown before the wedding day and are merely pushed out of sight for the time being in the emotional experiences of marriage in its early years. The Church is ever seeking to prevent these characteristics from showing themselves and to impress upon young people that their use of the church for their wedding should not be just for show or because church weddings are the fashion. How often has the church been used in this way through the years? Proof of what I say comes, first, from my eight years' experience as a Methodist clergyman, secondly, from my experience in conducting nearly 200 weddings, and, thirdly from the fact that the disaster of a divorce rarely is seen in a true Christian marriage of young folk dedicated to God and therefore to each other. That is proof of what I have said about starting right - building on the right foundation. You hardly ever hear of true Christian marriages ending in the divorce court, Mr. Deputy Speaker. The people who make a show of the church and use it for their own purposes are mainly the ones whose marriages break down.

Divorce is abhorrent to all of us, especially when one thinks that the children are usually the worst sufferers. But, granted that, in extreme cases, divorce is necessary, the task of every one - the Parliament, the courts and the churches - is to see that justice and humanity are done to the real victims of this- human tragedy. Those who believe that divorce is not right in any circumstances will vote against this bill, and they have a perfect right to do so. In the face of this great tragedy of divorce, what is the Parliament's responsibility? The Parliament has a responsibility to make divorce laws uniform. This measure will do that. We have to continue only those grounds for divorce that experience has shown are necessary and just. We must humanize the divorce laws as much as possible and safeguard the innocent - especially the children - by providing means for reconciliation. This bill will do that. The Parliament cannot take the place of the churches, but the Parliament can so humanize the laws governing this tragedy in our national life as to make it easier for the churches to help those people who are stricken.

What is the responsibility of the church in this matter? In my opinion, Mr. Deputy Speaker, the church is a factory which produces Christians. That is the main purpose. It is a factory for producing Christian wives, husbands, leaders, businessmen, unionists, teachers, doctors and parliamentarians who will give guidance to young people before and after marriage, who will give Christian fellowship and a sense of community to young married people and who will stress the sanctity and the sacredness of marriage.

What is the responsibility of the courts?

It is the responsibility of the courts, Mr. Deputy Speaker, to interpret the law humanely, to create a climate of understanding, to provide every chance of reconciliation and to protect the children of broken marriages. In this bill, all those facets of the courts' work have been emphasized, and they will become a feature of the work of the courts when this measure becomes law.

The main features of this bill that impress me are, briefly: First, the provision for the work of marriage guidance councils, and the Government's recognition of their work of reconciliation, even to the extending of financial help. On 22nd May, 1957, I spoke during the second-reading debate on the Matrimonial Bill 1957, which had been introduced by the honorable member for Balaclava. Referring to marriage guidance councils and those who participate in their work, I made this comment -

They are a self-sacrificing group of people, interested in bringing together the broken threads of marriage and human life. I believe that the Government should assist these councils, financially, because if we are humanitarians and Christians, reconciliation must be our first consideration - how we can unite a broken home; how we can bring the husband and wife together again.

The point that I wish to stress is that I felt at that time that the Government should financially assist marriage guidance councils, and this bill will provide for that very thing, lt is a long step forward in the fight by marriage guidance counsellors to mend broken marriages and prevent them from going to the divorce courts. That is the purpose of marriage guidance. I have not time to emphasize this point any further. I commend these people and organizations for their great and self-sacrificing work in improving human relations and helping young people to solve the problems that sometimes break a marriage. If the right people can get the young marriage partners together at the right time the marriage can probably be continued on a happy basis.

The next good feature of the bill is its emphasis on reconciliation, in Part III. A little more than one page of the measure is taken up in stating the provisions for reconciliation. At the court level, particularly, this bill will perhaps create a new race of judges - men with a complete new outlook on this vital matter, men who will find themselves acting as conciliators and not just giving judgments, because they will be getting couples together in their own chambers, prior to or at any stage of proceedings right up to the final stage, in order to prevent marriages from going on the rocks. These men will need to be of a special type. They will need to be humanitarians and I think that they should be Christians as well because this legislation will place on their shoulders a great responsibility.

The provision for the securing of maintenance money by a deserted wife and children is a splendid feature of the bill. As members of Parliament, we all know of many cases in which a deserted wife, who is supporting two, three, or more children, cannot get money from the deserting husband even after a court maintenance order has been made. He goes to another State and the position is hopeless. He runs out on her and the children. This bill will enable the wife to garnishee the wages paid to the husband by the employer. The money will be paid to the court and, from the court, to the wife and children who have been deserted. I only hope that the employers will carry out the spirit of this legislation as the Minister intends it to be carried out. If the employers do not do that, the purpose of the legislation will be defeated. This is an excellent provision.

The bill further provides that the welfare of the children shall be safeguarded. Children are the real and innocent victims of broken marriages. The husband and wife may be in middle life, perhaps in their thirties or forties. The children are the innocent victims of the crack-up and they need to be looked after. This bill does everything that is possible by legislative action to see that a judge can make sure that the children are looked after by way of maintenance, court orders and the like.

I also support the restriction which is placed on press publicity. I feel that the press has sensationalized the serious tragedy of broken marriages and has caused a lot of heartburning to relatives as well as to the parties concerned.

I should like to make three or four comments concerning clause 27 (m). The experience in Western Australia in this respect was dealt with on Thursday night by the honorable member for Moore (Mr. Halbert). He said -

For example, in 1947, there were 814 divorces in Western Australia - one for every 625 of the population. In 1958 there were 536 divorces - one for every 1,316 of the population. And these are the figures for a State in which divorce is said to be easy! It is really laughable. Since 1950 - after the effects of the war period had subsided - the drop in divorces in Western Australia had been 8 per cent, greater than in any other State of the Commonwealth. Further to confuse the critics, the total numer of defended cases on the grounds of the five years' separation in the last two years has been twelve - an average of six per year, or less than 5 per cent. This proves that this provision is seldom used by one party to force an unwanted divorce on the other.

Those words are very impressive, to my mind. Clause 93 provides for "the enforcement of maintenance orders. The provision for the attachment of both earnings and property of a husband or wife will be one of the greatest deterrents to the abuse of divorce laws ever put on a statute book. This means that a judge will be able to make an order against a husband to give his wife his house and property and so much maintenance per week, should he proceed with a divorce at the end of the five-year period. A divorce is not granted automatically at the end of five years. It is only granted under certain conditions which arc laid down in the bill. These safeguards cover the whole aspect of divorce under clause 27.

Finally. I would like to say this: This bill does not make divorce easier. I know from my own experience and study of the matter over many years, working as a member of Parliament and as a minister of religion, that this bill will not make divorce easier.

It will regularize divorce proceedings. It will give justice where now there is no justice. It will protect the stricken family. It will ensure further amendments to a uniform law, as experience of its workings indicate the need; The bill presupposes that when human nature defaults and a marriage is wrecked, a chance to start again will be given under an acceptable law and with due regard, to humanity. It stresses the overriding importance of happy family life as the bulwark of our nation. The AttorneyGeneral has said that over and over again. Those who say that this bill will wreck the family do not know what they are talking about. The- Attorney-General has stressed time and time again that the family is the basis of our democratic way of life and that the happy family is the bulwark of any nation. Finally, this bill vividly illustrates the moral disaster that threatens the nation by the break-up of marriages and families.

No one who reads this legislation or the Minister's second-reading speech can say that it must be a great thing to go through a divorce. On the contrary, a study of the legislation will only emphasize the disaster which comes to a community, a country and a nation, through the smash-up of married life. For these reasons, and after careful consideration, I propose to vote for this bill as the best piece of legislation on this subject that has been put before this Parliament in 58 years.







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