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Wednesday, 18 November 1959


Mr TURNER (Bradfield) (2:39 AM) .I can well understand the inclination of honorable members who have already addressed themselves to this measure - Some of them on a number of occasions - not to desire to listen to somebody who at this stage wishes to address himself to it. Nevertheless, I have always taken the view that whatever may be the hour of the night or morning, it is the duty of honorable members to address themselves to matters with the same assiduity as at any other time. It is true that all honorable members have made up their minds as to how they will vote, but does that conclude the matter? It is of some importance that the electors who have sent us to this Parliament should know that we make up our own minds and are not content merely to follow the leader. For that reason, having given very earnest thought to this matter - more earnest thought than I have ever had to give to any issue that has come before any Parliament that I have sat in during the last 20 years. - I have risen in my place at this hour of the morning.

I want to summarize very briefly considerations that have led me to support this clause. I shall state quite plainly the conditions that the clause seeks to remedy, and then I proposed to deal very briefly, very succinctly and, I hope, very clearly with the two principal arguments that have been advanced against it. The AttorneyGeneral was not able to find better words than those contained in the report of the Morton commission to describe the state of affairs that this clause seeks to remedy. A fortiori, I cannot find better words, and though the hour be late I remind the committee that the commission reported in these terms -

We see no benefit to society, to the individual or to the State in maintaining marriages in name which are no longer, and on all foreseeable estimates will never be, marriages in fact and which secure few or none of the purposes for which marriage was designed. There are many persons living together in illicit unions, which have all the potentialities of happy, permanent marriage, who are unable to marry because of a pre-existing marriage which has completely broken down, and because the " innocent " spouse from spite, religious scruple or some other reason, is not prepared to take proceedings for divorce. We see in many of these illicit unions, which may have endured for years, all those elements of love, comradeship and happiness in children that make the cohesive qualities of a happy marriage.

That is the case for this clause. What is the case against it ? I said that I would deal with only the two principal arguments. In the first place, it has been stated that unworthy individuals may receive relief; that, in any case, this provision may be unjust to an innocent party. But the clause contains very well-thought-out safeguards. It provides that where it would be harsh or oppressive to the respondent, the court may not grant relief. It provides that where the granting of relief would be contrary to the public interest, it should not be given. It provides also that the court, as a matter of discretion may refuse a decree if the petitioner has committed adultery. On this aspect the Attorney-General, in his secondreading speech, said this- -

At one end of the scale, a court might not refuse a decree when no more than a single act of adultery has taken place, perhaps in circumstances of opportunity or inclination to which the separation itself or its circumstances has or have at least contributed. At the other end of the scale a deliberate course of adultery, particularly one which brought about the definitive separation, might very properly lead a court to refuse a decree. . . .

This, of course, is quite independent of the other factors that might lead a court to regard the granting of a decree as harsh or oppressive to the respondent, or contrary to the public interest. It has been argued that many things which a court might not regard as harsh or oppressive to the respondent could be so in fact. This is the kind of argument that has been advanced by the honorable member for Moreton (Mr. Killen).

What are the motives that might lead a man or a woman to resist a decree? The first motive, and perhaps the most common, is vindictiveness. I think that this must be dismissed as an unworthy motive. The second is religious conviction, a matter that has been raised by the honorable member for Macquarie (Mr. Luchetti). If the respondent, for reasons that must be respected, regards the marriage as indissoluble in the sight of God, he or she will not marry again and his or her conscience need not be offended. Sin, if sin there is, will lie at the door of the other party.

The third reason that has been advanced is the loss of status, say, of the woman. What is the status of marriage for a woman? I think it can be roughly summed up in this way: The right to be known by the community as the man's wife; the right to have her children by the marriage accepted as legitimate; the right to share her husband's home and companionship - bed and board; and, finally, certain rights in relation to his property both during his life and upon his death. If the marriage has irretrievably broken down and the parties are living apart, what remains? The woman's children are still legitimate; her property rights are safeguarded under this clause and other clauses of the bill; the companionship of her husband has gone, and no court and no power on earth can restore it. She is, in short, a wife in name only. She is not a divorced woman. As one honorable member has said, the fact that she is not a divorced woman has some value. I do not deny that, but I must put it in the balance against the advantage to the community to which I referred in my opening remarks. When I put these two factors in the balance, the scale is weighed down in favour of those great advantages that are mentioned in the extract that I have read from the report of the Morton commission.

Let us now consider sentiment. A man and a woman, upon marriage, enter upon a life partnership - for better or for worse, for richer or for poorer, in sickness and in health. Why should one who has done no wrong be divorced by the other? One can only have the profoundest respect for this sentiment. Even if the marriage has in reality broken down utterly, at least the man or the woman may say, "We are still married in the eyes of God, and in the eyes of the law ". The man may still love the woman who has deserted him, or the woman may still love the man. So there is sentiment, which is a very real thing. Yet, without discounting the value of this sentiment in the slightest, when one puts it in the balance as against the lives, including the lives of innocent children, that otherwise inevitably will be ruined, warped and twisted by it, one finds that the scales weigh down in favour of the other factors that 1 have mentioned.

The second broad objection is that in an insidious fashion this provision will tend to loosen the whole fabric of the institution of marriage. It has been said that people may enter upon marriage lightly. I do not believe that to be true. I do not believe that either young people or older people enter marriage lightly. It has been said that because they feel that there is an easy way out of their difficulties a couple may not try as hard as they otherwise would to adjust their difficulties and therefore the marriage is likely to break down. It has been said that although there may be other real grounds for a breakdown of a marriage - grounds that may be pursued in the courts - the parties nevertheless will choose this ground as a respectable way out. I believe that couples will be able to solve their difficulties more from a better appreciation of the moral and religious obligations of marriage than from external compulsions.


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







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