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Wednesday, 18 November 1959


Dr EVATT (Hunter) (Leader of the Opposition) (12:28 PM) . - I should like the Attorney-General to consider the way in which the committee, which has worked very hard for a long time, can best employ its consideration of this matter. In his speech the honorable gentleman dealt with some tremendously important matters and the question before the committee seems to to me to involve not very many of them. The theory of the breakdown of a marriage as opposed to the generally accepted principle of matrimonial offence is very interesting. The report of the royal commission in England is extremely interesting. There you see a struggle between two views - the historic one of the matrimonial offence and the new theory adopted in New Zealand and mentioned in the report. I refer to pages 26 and 27 of the report, where Mr. Justice Finlay of the New Zealand court described how that view arose in New Zealand. Perhaps I should refer to a few sentences from the evidence that he gave before the royal commission. He was asked -

Can you throw any light upon the reason for the introduction of divorce after three years' separation? - Yes. It had its basis in the exercise of what was good, sound judgment. This proceeded upon the footing that marriage should be permanent, but it then went a step further and brought into the scale the fact that marriages which were marriages in name only were cruel to the individual and against the public interest.

If a parliament, such as this Parliament, with jurisdiction over these matters, thinks that a certain thing is right, it does not have to obtain the authority of any royal commission. It simply embodies in its laws that principle which has been stated clearly by His Honour Mr. Justice Finlay, and which has been adopted in New Zealand. After all, New Zealand has complete nationhood and the power to make laws. We do not have to obtain endorsement by a United Kingdom royal commission, and neither its approval nor disapproval seems to me to be relevant. The reply to the question continued in these terms -

After, I imagine, a great deal of thought and a good deal of careful consideration, the conclusion was reached that if a marriage had failed, and the failure had endured for three years-

The period is five years in Western Australia - that was a firm assurance that it was never likely to be any use as a marriage.

That is a very popular, simple and clear way of expressing what the AttorneyGeneral expressed when he used the term, " the breakdown of a marriage " Could anything be regarded as more absurd and destructive of the institution of marriage than two people separating, not for a few months but for five years? They took the pledges of marriage and promised that each would cherish and comfort the other in sickness and in health and in all the other respects that are mentioned in the marriage ritual. Those vows can never be repeated too often because they are the essence of the marriage contract and the status of marriage results from them. The parties have been separated for five years-


Mr Thompson - They have broken their vows.


Dr EVATT - Yes, probably both parties have broken their vows and the marriage is a marriage in name only. Just imagine how unfortunate it would be if one party became ill and the other was not living in the home! The hypothesis is that they have separated. It has to be proved before a court that they are not living together. We must assume it to be true because they are completely separated. Can the community take any action which may restore the married status? Nothing in the law prevents an attempt being made at reconciliation. I do not wish to read the whole of Mr. Justice Finlay's evidence although it is a splendid statement by a very distinguished judge in New Zealand, but I shall refer to only one portion relating to this ground. He was asked -

It was said, for instance, that the legal profession in New Zealand as a whole regarded this ground as both desirable in principle and satisfactory in practice. Would you agree with that?

And he replied -

Yes; I would agree with that.

If this Parliament feels that this ground should be given a trial in the whole of Australia, as it has been tried in New Zealand and in Western Australia, there is nothing in the world to prevent it from incorporating that ground in the divorce laws of the country.

What is the case against it? This ground is a part of the law in Western Australia. Is there any serious defiance of the natural principles of life or of the tremendous importance of marriage to the community as a whole and to the persons concerned? Is it not vital to the unfortunate people that they should have the opportunity to start afresh? I agree with the judge who said to the royal commission -

After a long lifetime's experience, I am convinced that there should be divorce, and that if a marriage has failed for more than three years and the parties have been apart for so long as three years, they are never likely to come together again.

Although the parties are never likely to come together again, the possibility always remains that they will. I am not worried about what the distinguished church leaders think. They look at the matter from a slightly different angle from the way in which the Parliament looks at lt. The duty of Parliament is to provide for the peace, order and good government ot Australia in relation to this subject. Parliament is the absolute master of the situation. Why should it not adopt something that has been adopted already in Western Australia? Why all the fuss about it? 1 had expected the figures to show that in Western Australia everybody was committing adultery, judging by the absurd statements that I have heard made in this chamber, but the reverse position obtains. The figures indicate that so far from this ground being an avenue leading to breaches of the marriage vows, it seems to be perhaps the most successful and effective of all the grounds that exist in Western Australia. I am not dealing with any question of law but a question of what the Parliament should do in its supreme discretion. Why should we not adopt this ground?

Last night the Attorney-General put his case in a most brilliant manner. To-night, like the rest of us, he is fatigued by a very long day and he has dwelt on some details that do not matter. What are the facts? Paragraph (m) states -

.   . that, since the marriage, the parties to the marriage have been separated ... for a continuous period Qf not less than five years immediately preceding the date of the petition-

That must be proved when the case comes to court. The period might be ten years, but five years is the minimum. The paragraph continues - and there is no reasonable likelihood of cohabitation being resumed.

That is the basis of action by the court. The safeguards that the Attorney-General has mentioned are important. If there is proof of adultery, that is taken into account. There must be no harshness, no oppression, and other conditions must apply. I do not think that they are very important except as specifying the safeguards which will secure, so far as the law can do so, justice in the particular case.

That is my approach to this matter. 1 know that the ground in Western Australia has been criticized, but nothing positive against it seems to have been established. On the contrary, the reverse seems to be the case. This clause has been carefully and properly drafted, and it contains all the safeguards. Nothing will be done to help the person who has been guilty of adultery. If the husband or the wife has the financial resources, there will be no oppression. These are all means of achieving justice in the particular case.


The CHAIRMAN - Order! The right honorable gentleman's time has expired.


Sir Garfield Barwick - Does the right honorable gentleman want an extension of time?


Dr EVATT - No, but I should like to speak again at a later stage.







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