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Tuesday, 17 November 1959


Mr CLEAVER (Swan) .- My voice is raised in this important debate,, not as a member of the legal profession,, but rather as a layman of the community, of the church and of this Parliament. The merits of this bill have been undoubtedly clouded by the emphasis which has been placed upon its divorce provisions. In my opinion the bill is primarily designed to protect and preserve marriage. In this connexion I refer to an editorial published on 28th September, which, I think, states the position very soundly -

Although one of its purposes is to make Australia's divorce laws uniform, the Matrimonial Causes Bill is aimed, first of all, at keeping as many people as possible happily married. An untangling of the crazy quilt of conflicting State divorce laws is, of course, desirable and necessary, but, as Sir Garfield Barwick has explained to the Marriage Guidance Council, the bill is concerned just as vitally with the much more important problem of keeping married people away from the divorce courts.

We should, I think, underline the many provisions designed to preserve marriage in this piece of legislation, and put the matter of divorce into its correct perspective. If this is not done, we, as members of this honorable House, shall be guilty of robbing our people of an admirable piece of social legislation, which has already received a vast amount of praise throughout the nation.

It is fortunate, of course, that we are not here to debate whether divorce is right or wrong. But to clarify our path of responsibility, to try to see just where we are heading, it is essential, in my opinion, to make certain observations. I believe, as I hope does every other honorable member of this House, that it is the intention of God that marriage should be permanent. "Whom therefore God hath joined let not man put asunder." Is it not true, Mr. Deputy Speaker, that when this statement in the marriage service is read, many a presiding minister in a church, and many a thoughtful witness observing the ceremony, asks himself the question, " Is this really a

God-blessed marriage "? People may be legally and ecclesiastically married, but not, of course, joined together by God. A -couple are not necessarily joined by God, though the ceremony be celebrated in a church, or by a Christian Minister. A union which is based on mere physical -attraction, or convenience, or money, cannot be sanctified, of course, by place or priest. I noted with interest some years ago a statement by a prominent Australian theologian, to this effect -

No marriage is valid before God which is not entered into with the right motives and intention. -Many a speaker in this debate has already directed attention to the fact that most people enter into the matrimonial contract with the firm belief that their marriage will be permanent. If we wish to bring our Christian convictions into consideration of this vital matter - and, naturally, I believe that we should - then we must either be literalists, abiding by the printed word of the Scriptures, in which case while we might concede the right to separate we could not agree to the dissolution of marriage or the remarriage of separated people, or we must be guided by the spirit rather than the letter of the biblical law. Personally - and I believe that we must all speak personally on this matter - I am of opinion that we are not bound to a literal interpretation of the references to marriage in the gospels of the New Testament. I was impressed some few weeks ago when my honorable friend opposite, the honorable member for Port Adelaide (Mr. Thompson), when making his contribution in this debate, expressed his belief that there are circumstances in which it is less Christian to keep people together than to permit them to part - and far more injurious, of course, to soul and body. Unless marriage be a union of body, mind and spirit, of the physical, the ethical and the spiritual, of man. woman and God - for God is in this contract if we put it at it highest level - then it surely cannot be said to be a relationship blessed of God, nor can it make any real claim to permanence.

It is quite absurd to speak of people as joined together by God when their marriage has never had these qualities and has never had any real moral or spiritual significance. I believe that, as we seek to determine the correct Christian attitude to marriage and to divorce, it is well that we consider what we prize as the scriptures of God. But let us ever remember the value of the injunction, " The letter killeth but the spirit giveth life ".

The important task for us and for those who are the leaders of our Churches is to put a fence at the top of the cliff rather than an ambulance at the bottom. Is it not true, Mr. Deputy Speaker, that divorce is a symptom? My friend, a city minister, to whom I am indebted for this reference, wisely points out that we need to get at the root of the disease, to provide better preparation for Christian marriage and so minimize the prospect of divorce. The minister of a prominent city church, popular for weddings, said to an acquaintance, " I shall never marry a divorced person ". " How many weddings did you have over Easter? " came the question to him. He answered, " Thirty ". " Did you have a heart-to-heart talk with each of the couples in preparation for marriage? " he was asked, and his reply was, " No; how could I with that number? " His friend then said, " No wonder we have so many divorces ". The responsibility is on the Church, of course, to see that young people are prepared for the important contract of a Christian marriage. The Church and its teachings should be the fence at the top of the cliff, but often it is the ambulance placed below.

What is the position when the Church has done its very best and is yet faced with marital failures? To be realistic, must we not, as members of this House who will shortly come to a distinct vote one way or the other on the merits of the bill, accept the fact that in a society which at best is only theoretically Christian, the dissolution of marriage in certain circumstances is inevitable? We must recognize that secular society, and Federal and State governments, take the prospect of divorce for granted. The existing legislation and the bill before us do not pretend to meet the Christian point of view, in whatever way we may like to express it. This, I believe, is legislation based upon expediency, and with this 1 can find no fault, for divorce in our community is taken as a social expedient.

The bill presents one uniform matrimonial causes law in place of the chaos of diverse State legislation, with all its disadvantages to the individual, particularly when movement from State to State is involved. After the most careful analysis, I am satisfied that the bill in its present form is justified and, well knowing what I do, I propose to vote for it without further amendment. In my opinion, the major achievements of the bill are these: First, support for marriage guidance organizations by recognition and by financial grants; secondly, provision for a three-year period of marriage before divorce proceedings may be commenced - an admirable provision which will become more positive with experience; thirdly, in clause 14. provision that a duty of a court dealing with a matrimonial cause is to consider from time to time the possibility of a reconciliation of the parties; fourthly, the stipulation that no decree absolute shall be granted until the court is satisfied that proper arrangements have been made for the children of the marriage; fifthly, provision for Australian domicile for the parties to divorce proceedings in this country; and. sixthly, the dispensing with the wide disparity between the residents of the States when they are forced to turn to the available grounds for divorce.

As previous speakers have pointed out, fourteen grounds for divorce are set out in clause 27. However, to interpret correctly these divorce grounds, we must take into account the qualifying provisions of clauses 31 to 38. These are positive achievements in this field. After we have been ploughing around in the wilderness for so many years without a uniform matrimonial causes act, this surely is what we need. Some people are quite appalled when they realize the scope of the legislation that the Parliament has now to consider, and the long period that has elapsed without action having been taken. These, then, are achievements that we must accept. The people need this, measure, and I counsel the House not to lose this splendid piece of legislation by pulling it apart. Some honorable members already have said that they will vote against the bill unless one amendment is made. There is a distinct danger, as we try to take the bill apart in that way, that we will lose the whole of it.

The bill has had its isolated critics, and in my opinion they are isolated critics. But, of course, we must examine their complaints as best we can. I believe that this, legislation has been handled by the Government very fairly indeed. It has been before honorable members and the public for many months.


Mr Beazley - And you have resented every criticism of it.


Mr CLEAVER - I do not think that is. fair comment. As the honorable member knows, the Attorney-General (Sir Garfield: Barwick), presenting the legislation on. behalf of the Government, has already written in a large number of amendments. No one, during the period that this legislation has been open to discussion and tc» criticism, could have done more than I have to ascertain the true public reaction. Copies of the bill and of the explanatory notes were forwarded by me to a wide cross-section of the public. I was glad to accept every opportunity to speak to groups of people, and I make these observations as a result. Up to this date, I have not received any protests of any kind from residents of Western Australia, the State from which I come, but I have received from variousorganizations of women letters commending the bill because it protects the interests of women and children, and asking me, as a member from Western Australia, to vote for the measure. If Western Australia's experience of divorce, particularly of the separation clause, were as bad as suggested by the honorable member for Fremantle (Mr. Beazley), for whom I have a high regard, why is it that the women of that State have not risen in strong protest instead of commending the legislation to us as local members? The same honorable member has referred to the Attorney-General's Bill as spineless. He praised nothing in the bill and will condemn it in toto if his view about the five-year-separation clause is not adopted. Yet his criticisms were in general1 terms. In not supporting the opinions expressed in his earnest speech with more details and facts, I believe that he did himself and this Parliament a disservice.

Some prominent churchmen believe that the bill will make divorce easier. Yet thelearned Leader of the Opposition (Dr. Evatt) in his speech in support of the bill expressed not only his conviction that clause 27 (m) was justified, but also the view that by extending the period of 21 days to twelve months relating to the restitution of conjugal rights under the existing New South Wales law, this bill would certainly not make divorce easier. I have looked carefully at the Western Australian experience of the five-year-separation provision and I believe that the House should take note that for those impatient to end a marriage, the acceptance of a voluntary two-year extension of waiting time is a remarkable thing. The longer the wait, of course, the greater the opportunity for reconciliation in which all of us are interested. But what of the detailed experience in Western Australia? Of the total number of divorces in recent years, the proportion of divorces under this provision of five years' separation has been as follows: - In 1955, 26.1 per cent.; in 1956, 24.4 per cent.; in 1957, 24.8 per cent, and in 1958 the figure fell to 20.1 per cent.

May I refer to the most recent notes issued by the Attorney-General. He states that Western Australia has had fourteen years' experience of a ground similar to but more liberal than clause 27 (m). Western Australia's experience in relation to divorce ran parallel to that of the eastern States and was not deflected by the introduction of this five-year-separation provision in 1945. Western Australia's divorce rate dropped after 1947, as did the rates in the other States, but it dropped faster. The Attorney-General states that there is nothing in the actual experience of Western Australia over this substantial period of fourteen years which lends any countenance whatever to the claim that the presence of clause 27 (m) will increase the divorce Tate or lead to any irresponsibility in entering marriage.

I do not know that any other speaker in the debate has referred to the experience in New Zealand, where the period of separation is seven years. It is interesting to note that in New Zealand - no doubt because of the longer period, seven years instead of five years - the percentage of divorces on this ground is lower than the percentage in Western Australia. The percentage ranges over the years 1955 to 1957 in a slightly ascending scale from 5 per cent, to 7 per cent. only. Other critics have claimed that the additional grounds beyond those in the existing State acts will vastly simplify divorce. But is it not true that these grounds do not represent, as it were, new areas that will result in a new crop of divorce actions? Are they not rather alternative grounds, permitting a more humane approach in many cases to divorce? Sometimes they involve personal sacrifice from the time viewpoint by those seeking to use them. An alternative ground so often will be recognized as the means whereby domestic affairs need not be opened up to the curious and often cruel community investigation.

I should like to pay tribute to some very valuable contributions made to this debate. The honorable member for Blaxland (Mr. E. James Harrison) made a splendid and logical defence of the separation clause about which I have been speaking. He expressed confidence that this legislation will result in a falling off in the divorce rate rather than a fear that it will have the opposite effect. I must, however, correct him in one aspect. He said that Western Australia had no marriage guidance council. I assure him and the House that for a number of years we have had a most active marriage guidance council, performing splendid work. The honorable member may be interested to know that a former president of the Western Australian branch of the Marriage Guidance Council is now president of the federal body of the organization. My friend and colleague, the honorable member for Fawkner (Mr. Howson) also made an earnest speech not in agreement with the view that I have expressed. He was afraid of the influence of the legislation, particularly this separation clause - clause 27 (m). I can only wish that the honorable member might have analysed the New Zealand experience rather than depend solely, as he did, on a reference to the Western Australian experience.

Finally, I am impressed by the lengths to which the bill goes to safeguard marriages, by the responsibility placed upon the courts to protect wives and children and by the recent amendments proposed by the AttorneyGeneral to safeguard several of the divorce grounds against abuse. It is specifically provided that dissolution will be refused where conduct offends the public interest. We should praise the AttorneyGeneral for his very fair attitude in presenting this bill. I have already emphasized that he has been prepared to listen to criticism. He has been prepared to introduce amendments, and I believe that where a just case can be presented without injuring the whole fabric of the bill, he will give it a fair hearing. This legislation will be regularly and critically reviewed. It will be a piece of Commonwealth legislation. Any legislation that is on the statute-book is open to review. Nobody in this House can say that once this bill becomes law that is the be all and end all of the matter. I believe that the Attorney-General himself will be the first to move to correct any anomaly or undesirable trend.

Fortunately this is a non-party measure. Each member is free to follow his personal conviction. I hope that each of us, in our approach to the vote on this measure, will realize the seriousness of the subject. But at the same time I trust that we will take into account the deep research that has been undertaken by the Attorney-General and those who have been associated with the formulation of these ideas, so expertly presented in this piece of legislation which, I again remind the House, has earned the praise of legal experts and those who are closely associated with the problems of marriage and divorce not only in this country but elsewhere in the world.







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