Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 17 November 1959


Mr CLAREY (Bendigo) .- Like the honorable member for Swan (Mr. Cleaver), I agree that this is a controversial measure. Like the honorable member, I feel that much of the criticism that has been levelled at this bill is unjustified when the bill is properly examined. Incidentally, although this bill is an exceedingly controversial one, I am happy that it is being dealt with on non-party lines. Speaking with experience of twelve years in a State Parliament and ten years in this Federal Parliament, this is the first occasion that I have been able to participate in a debate on a measure that is regarded as a non-party measure on which every honorable member is free to vote as he pleases. That is something novel to all of us, accustomed as we are to the hurlyburly of politics. It is not very often that we are able to say exactly what we feel about a bill.

This measure marks the commencement of an important epoch in the parliamentary legislation of the Commonwealth because it is a genuine and earnest attempt to give the people of Australia a uniform law on a very controversial subject. In effect, one law will take the place of seven, some of which contain the same provisions, and some of which contain provisions that are not contained in others. This bill, if it becomes law, will mean that the existing divorce laws will be placed on a uniform basis, and a national standard on a very important matter which affects the home life of the people will be achieved.

I think that what is being done by this bill might well be done in respect of a number of other powers that the Commonwealth possesses. For instance, if a uniform divorce law is good, a uniform company law would also be good for Australia. Therefore, as a consequence of our journey into the realm of national law on divorce, I hope that other laws which have general application also will be made uniform. We have reached the stage in the national life of the Commonwealth at which it is desirable to have national standards so that the people, irrespective of where they may be living, will be in exactly the same position. It is most undesirable in a federation that laws should vary to such an extent that the legal concept in one State differs from the legal concept in another. Like the honorable member for Swan, I have received from organizations and from individuals communications in relation to this measure, which indicate that the feeling in the community is extremely mixed. On one hand, the Business and Professional Women's Club has written to me asking that I do all that I can to expedite the passage of this legislation. On the other hand, I have received letters from organizations which condemn the bill and ask that I vote against it. The discussion that has taken place in the community indicates that there is a great volume of public opinion about this bill, but the opinions that have been expressed are so varied that it is extremely difficult to find anything that will give a lead to a member of Parliament as to how he should vote on it. Each honorable member has to examine the measure from every possible angle and then decide what he believes to be best in the interests of the community.

The claim that this legislation will make divorce easy is not well founded. If one examines the measure carefully, one comes up against the inevitable problem that arises in any attempt to replace seven laws by one. Some form of averaging must take place. In some respects it may appear that divorce will be easier, but in others it is certain that it will be harder. For instance, the bill provides that divorce cannot be sought until three years after the marriage. None of the existing State laws contains such a provision. There is no restriction on the time at which an action for divorce may be commenced. That illustrates the fact that some of the criticism that has been levelled at the measure is not well founded.

This legislation appeals to me most because, for the first time in the history of matrimonial causes, an attempt has been made to deal with a very difficult social problem in a just and humane way. As far as I know, there is no provision in the existing State laws which gives married couples any assistance to overcome the difficulties that beset them. The existing legislation is legal and cold. If a matrimonial offence has been committed, the aggrieved party is entitled to seek relief and he or she may obtain a divorce. But the solution of the problems that beset people who have entered upon married life have been ignored. Everybody knows how difficult it is for people to live together even in a community. Inevitably, whether one likes it or not, there are differences of opinion, clashes of personality and other difficulties that make living together in a community very difficult. However, that difficulty becomes much more acute in married life. There, the very intimate relationship that exists between man and woman, the differences of opinion, the clashes of personality and the 101 problems that arise in married life mean that the partners to the marriage must undergo a period of adjustment which, in many cases, is a very difficult period indeed.

Unfortunately, until recent years there has been no provision in law for people who are experiencing domestic difficulties to secure advice, assistance or guidance from any person or organization. As a result, instead of some solution being found to the problems of people who are having an unhappy married life, the unfortunate people have had to battle it out for them- selves and in the end exasperation or frus- tration have taken control, the marriage has broken up and the children have suffered most. Desertion was the only way out for people in those difficulties. Because this measure makes a humane approach to the problems of married people, its proposals in -relation to reconciliation of estranged couples might well receive the support of honorable members.

Certain clauses of the bill are open to justifiable criticism. I refer to the clause which provides for a reduction in the period of desertion from three years to two years, and to that very controversial clause 27 (m). It seems to me that the Minister, in drafting these clauses, has overlooked the three years' period that seems to run through the measure. For instance, the bill provides that an action for divorce cannot be commenced until the marriage has been in existence for three years, which indicates that the Minister and those who drew up the bill have considered that married people should have at least three years in which to adjust themselves to the new circumstances of married life. If the period of waiting fails to effect a reconciliation, steps can be taken at the end of three years to make the marriage void. In clause 23, the period of three years is specified in relation to domicile. So three years seems to be important in the minds of those who framed the bill as a significant period which should be allowed to elapse before certain things are done. In view of these two provisions, it is strange that the measure does not provide for desertion for three years as a ground for divorce, as this is at present a uniform provision in the laws of all the States but one.

It seems to me that it is much more desirable that a period of three years should elapse before a divorce can be obtained on the ground of desertion than that two years should be sufficient. Two years is a comparatively short period, and I doubt whether people could determine within that period whether desertion would or would not be permanent. If, in spite of efforts at reconciliation by those who will have power under the terms of this bill to try to effect reconciliation, desertion still continues after three years have elapsed, sufficient time will have passed, I think, for a divorce to be sought. For these reasons, I feel that I cannot support the provision which makes. desertion for two years a ground for divorce, and, at the committee stage, I shall support any amendment designed to increase the period to three years.

I turn now to the second matter - separation for five years as a ground for divorce. I admit that very strong cases can be put "both for and against this. After having given the matter very long and earnest consideration, I feel that I cannot at present support clause 27 (m), which makes this provision, and I certainly will support, at the committee stage, any amendment which will delete it.

I commend the Government on the reconciliation provisions of this measure. They, quite apart from anything else in the bill, justify its introduction and its receiving the support of the House. As I stated previously, I feel that the manner in which matrimonial causes generally, and difficulties between husbands and wives, have been dealt with "in the past does not reflect any credit upon the community. But a new vision is now appearing and people are beginning to realize that the community has a responsibility to those of its citizens who meet with domestic trouble. So, in recent years, organizations have been formed to work in -the field of domestic relations. They have done good work and have greatly helped many people in their difficulties. This measure provides that such organizations shall receive legal recognition as part of the Commonwealth scheme in respect of matrimonial causes, and will enable them to function with an authority and a surety that did not exist before.

In addition, this measure will safeguard the rights of children. We know that those who have suffered most from divorce in the past, and who will suffer most in the future, are the children of broken marriages. Their security is destroyed and home life suddenly ceases for them. They experience all the difficulties that arise when parents are separated. Children in these circumstances become emotionally disturbed, and, as a result, whoever is in charge of them has great difficulty in controlling them and seeing to their welfare. This emotional disturbance of children is one of the worst tragedies that result from domestic unhappiness. It is a responsibility of the com munity, and it is certainly a responsibility of the Parliament, to endeavour to prevent this kind of tragedy.

This measure attempts to deal with these two very important matters. First, it provides for efforts to reconcile marriage partners who are in difficulties and who are disputing with one another - who are, as it is generally termed, at loggerheads. Secondly, it provides that, if these efforts fail, the interests and the welfare of the children must be protected before matrimonial relief is given. In my opinion, the bill puts these matters on a proper basis which provides for the consideration and protection of the human interests of those who. unfortunately, because of their age. are not able to protect themselves. From that stand-point, therefore, the bill is, in my view, an exceedingly good one.

I sincerely hope that the provisions relating to reconciliation will prove successful, although I think it would be unwise of us to expect spectacular results once the measure becomes law and these provisions come into operation. Such results are achieved only very slowly. People have to get to know the institutions that exist. Those who work in the organizations involved have to become skilled and experienced in giving advice discreetly and tactfully. They must learn to win the confidence of the people who are in dispute and, as a consequence of winning their confidence, to give sound guidance. So I feel that this work of conciliation and reconciliation will take time, but I believe that, once it becomes established, it will achieve lasting good for the community.

I believe that the structure of this bill is sound, Mr. Deputy Speaker, that it will make provision that is sadly lacking at present for the satisfaction of a want in the community, and that it will bring humanity and justice to the solution of a social problem which is causing the Australian people a great deal of difficulty. Therefore, I shall support the bill on the motion for the second reading, and I reserve my right to vote as I think necessary on any amendments proposed at the committee stage.







Suggest corrections