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Wednesday, 18 November 1959

Mr FREETH (Forrest) (Minister for the Interior and Minister for Works) (1:53 AM) . - I rise to speak to the clause as proposed to be amended. To-night we have heard a great deal of discussion about guilt or innocence in connexion with a broken marriage. To my mind, most of the grounds for dissolution of marriage which we have been discussing to-night themselves serve as evidence that a marriage has been broken beyond hope of repair. I make that statement fully aware that the honorable member for Fremantle (Mr. Beazley) asked, " Why don't you reverse the initiative in respect of other grounds? " Of course, it is quite obvious that a man who commits adultery does not thereby utterly break his marriage if the innocent spouse is willing to forgive him. It is the repugnance of the offence to the innocent spouse that is evidence that the marriage has broken down.

I think that if the parties agree after five years that their marriage has utterly broken down, that could be accepted by the court as the fact that it is. Therefore, I take no great exception to the element of consent that is implicit in this ground for divorce after a separation of five years. But the consent does not commence at the beginning of the five-year period, because it can be withdrawn at any time. The consent must be operative for the whole of the five-year period, and must be continuing when the matter comes before the court if it is to be a divorce by consent. Therefore, there is a thorough testing, and nobody could say that in such circumstances the marriage had not in fact broken down. It is in the interests of the community, in such a case, to grant relief.

I am particularly impressed by the argument of the Attorney-General who says that people do not go into the divorce courts just to get decrees to paste up on the wall. They usually go through a rather unpleasant ordeal, because they have in mind the contraction of a valid marriage. That, of course, to some extent deals with the argument that the profligate man - the man who likes to form illicit unions - is the man who is going to gain by the inclusion of this ground for divorce. That is not so. He may have sinned once, but it is the man who wishes to form a valid union and who has five years in which to make up his mind on that ground, who may be technically the guilty party.

I accept the fact that there is a certain social stigma attached to people who do not make a success of marriage, and in that sense an innocent woman might be said to suffer. But I ask honorable members what great Christian virtue there is to hanging on to the last shred of respectability when the marriage has gone irretrievably, and that shred of respectability stands in the way of the happiness of other people. Is that a great Christian virtue? Is that the kind of respectability that this Parliament ought to encourage? I do not think so.

I like to look at this ground in conformity with the pattern which has been laid down in the other grounds included in the measure. Each month the divorce lists contain a great number of undefended suits. Would anybody try to tell me seriously that there is not an element of consent, which technically falls short of collusion, in that long list of undefended divorces each month? I would be very surprised if there was not.

Mr Whitlam - Most divorces are undefended.

Mr FREETH - That is so, and mostly there is an element of consent between the parties which is technically short of collusion. We have heard a lot about the qualifying periods of two years and three years and so on in respect of some grounds included in the measure. In these undefended divorces, where persons are anxious to get a divorce quickly, I do not think that this five years separation ground will be used. I think it will be used in the genuine cases by consent, where there is complete incompatibility, and when neither party is willing to have the stigma of committing a technical offence. But where there is any great sense of urgency, where people have no great moral scruples, you will find that, as the position is at present, one party will be willing to give the other party ground for divorce. In that sense it may be said that it had been decided mutually that the divorce shall go through undefended. I do not think that there is any great immorality in that. I think it is far better that people who are incompatible should not be driven to these pretexts.

Finally, there is the other extreme about which everybody has become so agitated - the possibility that completely innocent persons will have their marriages dissolved against their wishes because, in accordance with this provision, the court regards it as in the public interest that the marriage be dissolved.

I think there is a great gap in this legislation. We have tried to cover most cases of hardship where a marriage is, in fact, a true marriage. But there are many cases which I think will be known to honorable members where a man or a woman so conducts himself or herself that technically there is no matrimonial offence. He or she may not be guilty of adultery, but there are other crimes and sins in the calendar. What view do honorable members take of the case of a man who commits adultery once and is never forgiven but is nagged by his vindictive, selfish and cruel wife, who keeps harping on his act and drives him just about out of his wits? Is that the kind of break-up of marriage where the technically innocent party should be protected forever?

Mr Killen - He could proceed on the ground of cruelty.

Mr FREETH - There are many aspects of human conduct which technically fall far short of cruelty acceptable to the courts. There are many cases which technically fall far short of constructive desertion, as suggested by the honorable member for Fremantle (Mr. Beazley), and it is such a case which is not covered if this ground does not go into the bill. I suggest that five years gives an additional length of time to prevent abuses under this ground. Where the parties are determined that the marriage shall break up quickly, it should be broken up quickly. I suggest that where marriage has been broken up irretrievably and it has been proved there is no hope of it ever becoming a good marriage again, there is no great virtue in clinging to the last shred of respectability in spite of the cruelty that may be imposed on the other party. I do not think that is the kind of virtue this Parliament ought to encourage.

Finally, I say that in Western Australia since this ground has been in force only slightly more than 20 per cent, of the marriages that have been dissolved in that period have been dissolved under this ground. What does that mean? It means that the rate of divorce is not appreciably higher in Western Australia than it is in other States. It simply means that the parties have been separated for at least five years, whereas in other States they may or may not have been separated for that period. They may have been separated for a lesser period. I believe that that indicates that there is a very great need for this ground to complete what I believe is a good pattern of grounds of divorce to cover most cases of hardship while retaining respect for the institution of marriage.

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