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Wednesday, 18 November 1959


Sir GARFIELD BARWICK - Before the suspension of the sitting I said that a number of conditions would be imposed upon a court in granting a decree on the ground contained in paragraph (m) of clause 27. I pointed out the difference between this ground and the provision in Western Australia. The first difference to which I directed attention was this: In Western Australia adultery within the five years - that is to say after the separation - is an absolute bar; under this bill, adultery before or after the separation is a discretionary bar. I should point out, further, that it has been customary, at least in some of the States, where there is a discretion in the court to overlook adultery, to require a petitioner to file what has come to be called a discretion statement. He is required to file at the opening of the suit an admission of his adultery, if it be the fact that he has committed adultery, and an explanation of it. If the petitioner does not do so, and it subsequently turns out that he had committed adultery, he then has great difficulty indeed in persuading a court to overlook the adultery. I would propose, in the rules to be laid down under this legislation, that a discretion statement, that is to say, a statement conceding adultery and giving the circumstances of it, be required in the case of a petition on this ground.

I have mentioned these various safeguards in order to point out that the grant of a decree on this ground is anything but automatic. I have provided that the whole of the conduct of the petitioner, whether before or after the event, shall be thrown open to the gaze of the court, and I have required that the court must be satisfied about these matters. I have provided that a court cannot grant a decree if it is satisfied that it would be harsh or oppressive or against the public interest. I have required the court to ensure that there is financial justice, and I have said that adultery is a discretionary bar, depending on the circumstances in which it has taken place.


Mr Duthie - Why did you not take the provisions straight out of the Western Australian legislation?


Sir GARFIELD BARWICK - Because I felt that, in the first place, to be unable to consider adultery before the separation was not good enough, because it may be that that is the most significant adultery. It may have caused the break-down, and a court having considered it might say, " We are not going to allow you to have the benefit of this provision ".

There is one other provision that I should mention. It is contained in sub-clause (3.) of clause 33, which provides that it" a respondent to a petition for divorce on the ground contained in paragraph (m) of clause 27 himself presents a petition on some ground of matrimonial offence, then the court is bound to grant the decree to the respondent, if it is satisfied with his petition, and not to the petitioner under clause 27 (m). In every-day language, this means that if the respondent does not want to be the divorced party, but prefers to be the divorcing party, and if he has a ground for divorce other than that provided in clause 27 (m), he can bring his crosspetition and be awarded the decree. This provision enables people who, until the petitioner has started a suit on this ground, have been reluctant or unwilling to bring a suit, to come in at the last moment and become the divorcing party rather than the divorced party.


Mr Jeff Bate - To turn the tables, as it were.


Sir GARFIELD BARWICK - Yes, to turn the tables. I think I indicated last evening that when you have provided for personal justice to be done, when you have ensured that no harsh and oppressive results can flow, when you have seen that financial justice is done, that the public interest is not prejudiced, and that there has been no adultery that is significant, there are not very many grounds left upon which a respondent could say, " I still stand out ". He cannot say, " I stand out because I do not want to be the divorced party ", because he can bring his own suit there and then and have priority. He may say, " I have some religious or sentimental reason for not wanting to be divorced ". In speaking on this matter last night my proposition was that the interests of the community in ensuring that the other party to the marriage did not form an illicit union and was able to form a sound union would overbear those sentimental or religious scruples on the part of the respondent.

I have taken a little care to explain these grounds, because I thought I ought to. I have been reluctant, up to this point, to refer to the memorandum circulated by the Anglican bishops, and to which reference has been made by honorable members, but 1 think I ought to do so. I want to make it perfectly clear that in no sense am 1 criticizing a churchman for expressing his point of view on a matter of social and moral concern to the community, lt is his right and duty to do so, and I have not been in the least bit restive about any criticism from churchmen. I have been at some pains to see them and talk to them. I know their points of view with regard to many matters, and I respect those points of view. The only small complaint I have is this: If there is to be widely circulated public criticism it should be accurate. I ask for no more than accuracy.

This memorandum that was circulated by the bishops is based, so far as it refers to the ground contained in clause 27 (m), entirely on quotations from the Morton report. It offers no independent reasons of the bishops themselves. They have picked up the quotations and cited them as authoritative, and any one reading this document would certainly imagine that the quotations were from at least a majority viewpoint, or that they represented the firm view of the commission. As I was saying to the honorable member for Lang (Mr. Stewart) last evening, the Morton commission debated the question whether or not it should recommend abandoning the theory of matrimonial offence as providing ground for divorce, and adopt, instead, the principle of break-down of marriage. The members of the commission divided on this point. Nine members, from whose sayings or writings the bishops quoted, were in favour of maintaining the principle of matrimonial offence and against the adoption of the principle of break-down of marriage. Nine other members were in favour of adding to the existing grounds based on matrimonial offence a ground founded on the principle of break-down of marriage. But there was a tenth member, who expressly said in his separate reasons, " I am for abandoning the principle of matrimonial offence and for including a clause which will follow the principle of break-down of marriage ". That is to say, it was ten to nine, in actual counting.

It was said that there was another member of this commission who died before it reached its conclusions and who, therefore, did not join in the report. It was said that this member was in favour of retaining the principle of matrimonial offence and nothing more. If I add that opinion, there is still a draw - ten to ten. Reading this document of the bishops, however, one would never suspect that opinion was equally divided. They have taken these quotations from what in very truth was a minority report. The next thing that they have done is this - and this is very important in the hands of people who want to criticize publicly on a basis of wide circulation and influence public opinion: They have cited these passages which were applicable to an exemplification of this principle of breakdown of marriage, which is quite different from clause 27 (m). I had read this report with care before I set about drafting clause 27 (m) and I set out to make good all those deficiencies which some people had thought were inherent in the forms which were discussed in the Morton report. The several forms of clauses considered by the Morton committee were not qualified as clause 27 (m) is. The nine members wrote this about these clauses -

That would introduce into the law a principle which would have even more damaging consequences for the institution of marriage than divorce by consent, since it would mean tha: either spouse would be free to terminate the marriage at pleasure.

If there is one thing that cannot be said about clause 27 (m), read with these other clauses, it is that it allows the termination of marriage at pleasure. I have made certain of that in the draft.


Dr Evatt - At what page does that passage appear?


Sir GARFIELD BARWICK - It is section 69, clause (xiii), page 17. The ground that we are debating is nothing like the ground that the Morton report was discussing. The bishops' circular goes on to say -

Not only would this clause make possible divorce by consent; it would make possible the grave injustice of vesting "in a husband or wife the right to divorce a spouse who, ex hypothesi, had committed no recognized matrimonial offence, and who did not want a divorce ".

That cannot be said, with truth, about this bill, unless clauses 31 and 33 are removed. If the ground is stripped of all the safeguards that I have endeavoured to put into the bill, one may be able to say what is said in this passage, but, with very great respect to these learned gentlemen, it just cannot be said with truth about this ground. These criticisms have been circulated to all honorable members and have been widely published in the press. The next statement of the bishops is - and this is quoted from the Morton report -

In other words, people would enter marriage knowing that no matter what they did or how their partners felt, they could always get free.


Dr Evatt - Do they mean at the beginning of the five years?


Sir GARFIELD BARWICK - No, when they enter it, at the beginning.


Dr Evatt - Before the separation?


Sir GARFIELD BARWICK - When they are first married. What is said is that people would enter into marriage knowing that no matter what they did or how their partners felt, they could always get free. This is on the theory that the existence of any divorce law makes people irresponsible when they enter into marriage. I want to say something about that, because after all most people marry when they are young. With very great respect to the bishops, I think it is most cynical to say that when two youngsters are in love with each other the girl will quietly say to herself, before the marriage ceremony, " I may love Joe, but it is so much better that there is clause 27 (m) ". It is just too fanciful and two cynical, because I do not believe that people enter into marriage in that fashion. The next thing that the bishops say is -

The acceptance of this ground would further undermine the sanctity of marriage in that far from discouraging illicit unions, it would encourage them, since those who enter into them would be " secure in the knowledge that, after the required number of years had passed, they would be free to marry ".

I want honorable members to understand what is being said. It is that a man or woman would leave the lawful spouse and deliberately begin a de facto or illicit relationship on this footing, " Well, it is all right; at the end of five years of this illicit intercourse, I will be able to get a divorce ". If there is one thing that is not true of this bill, it is just that. For this statement to be circulated in this uncritical fashion, I think merits the criticism that I have offered. If that sort of wanton conduct were presented to a court, I would expect the court to say that it was not in the public interest and that it was against the public morals.


Mr Howson - How are you going to get into the bedroom to find out?


Sir GARFIELD BARWICK - There is no need, because, according to the bishops' statement, there is no anxiety in these people and no need to be clandestine about it; they believe that it is all right. That is what the bishops say in their document.


Mr Howson - The wife has to prove it.


Sir GARFIELD BARWICK - The wife is free to prove it. Any one would imagine that women in this country are unable to look after themselves under a divorce law that requires their husbands to provide the costs of their defence, and provide it in advance from the very moment that they start proceedings. I hear an interjection from the honorable member for Chisholm (Sir Wilfrid Kent Hughes). Last night, I cited something from this report. I said then that I did not cite it for its authority, but I cited it for the manner of its expression. I did not found anything on this report.


Sir Wilfrid Kent Hughes - It was not in the report. You said it was very difficult to get into the bedroom to find out.


Sir GARFIELD BARWICK - Of course it is. The bishops say finally -

Legislation should uphold the cause of law and order, but the passing of this clause would undermine them. "It would be primarily those husbands and wives who took their marriages more lightly, and those persons who sought to break up a home . . . who would benefit."

This is written, of course, on the theory that the only way marriages are broken is by some wanton conduct on the part of one of the spouses. I would not deny for a moment that on occasions there is wantonness and one member of the partnership breaks away without any care at all for right or wrong. But I would deny that that is the normal conduct. I would deny that that is so in the majority of cases. In literally thousands of cases the marriage has broken down not from any wantonness but after a great deal of effort by the parties to preserve it, but has just not worked. One party has, perhaps, committed the offence of deserting and the other party, sometimes out of spite and sometimes out of stubborness, just refuses to exert the initiative which the principle of matrimonial offence gives to him or her.

They are the only reasons that are offered in this document that is widely circulated. Do let me repeat that I do not criticize the clergymen for expressing an opinion; they ought to do so. I say only: Let us be accurate and let us be informed, particularly when we put pen to paper and circulate our views amongst many people who perhaps, if I had not risen here and said what the facts are, would never have known that these quotations were a minority point of view written about clauses which differed radically from the clause in this bill. This clause has been drawn in an endeavour to make certain that the abuses do not arise. But there is one other thing I want to say about the Morton report. I have had its transcript searched. The commission had no evidence whatever before it of the experience of this ground in Western Australia. It had no material whatever before it to show what had been the effect of the introduction of this ground into the law of Western Australia.


Dr Evatt - The commission did not refer to Western Australia, and it is clear that it had knowledge of this ground only with respect to New Zealand.


Sir GARFIELD BARWICK - You might perhaps pardon these folks. They were at a different task from the task on which we are engaged. They were thinking whether they would introduce a ground that had not been current in any part of England. We are considering whether we will maintain a ground that has been current in Australia and made available to Australians. That is very different proposition. The United Kingdom commission had no practical experience of how this ground had worked out. Well, we have, and we have had it over a very significant span of years.

I asked my department to construct a graph for the benefit of honorable members showing the experience in Western Australia compared with that of the other States. With the concurrence of honorable members, and assuming there are no printing difficulties, I will have the graph incorporated in " Hansard ". The graph has been circulated, and if honorable members will look at it they will see that when this law was introduced in Western Australia in 1946 it did not deviate the line of the graph at all. Honorable members will find on the graph a break to indicate where the law came in, but if one lays a straight edge along the red line one will see it carried on in exactly the same trend. Not only that, but when divorce began to fall in the rest of Australia - you can see the peaks in the other States - it began to fall in Western Australia. In other words, this statute did not deflect the Australian experience at all. But honorable members will also see that the divorce rate fell faster, and it has continued to fall faster than in any other State. It has continued to fall, yet in some of the other States it has risen. There is nothing so demonstrative of what this ground will or can do than that experience of fourteen years.

I can understand people who have had no experience of this ground perhaps using a priori reasoning to say that this provision will increase the divorce rate and make people irresponsible in entering into marriage. But that cannot be said when one looks at the experience shown in this graph. Honorable members will notice that the people of Western Australia were more prone to divorce before this ground became available, and, strangely enough, they appear to be less prone relatively following the introduction of the ground.

Those are very strong pieces of evidence. As far as I know the bishops did not have any material before them on this point.







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