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Thursday, 19 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I had not intended to intervene again, but I should like to point out to the committee precisely whence the amendment would lead. The amendment is that, if one party defends the suit, there can be no decree.


Dr Evatt - That is the first amendment.


Sir GARFIELD BARWICK - That is the one I am talking to. This amendment would give to one party the initiative in divorce, because the party has only to say, " I will defend ", and that is the end of this ground. Honorable members will recall that one of the purposes of the ground in clause 27 (m) was to avoid just that situation. I will show what it means in a moment. We have had our eyes on guilt and innocence, but let me put a case, which frequently occurs, to show how this amendment would work. Two young people marry in the best of good faith and with every good intention. Suppose they try for a couple of years, and at the end of that time realize that they cannot make a go of it. Neither of them has committed an offence and very often - this pattern will be recognized - the girl goes home to her mother. The parents of the girl often say to the man: " Sign a separation agreement for a year. Leave her at home for a year and perhaps she will settle down. You can then try again." Being a sensible fellow and having no legal advice, he says, " Certainly; let us see whether she can settle down ". Neither party can ever get a divorce under the existing law, unless they resort to perjury or malpractice. The proposal is that, after any number of years - maybe fifteen or twenty - if one party goes to the court, the other can say, " No ".

Only yesterday I received a letter, as did the honorable member for Moreton (Mr. Killen), citing a case exactly similar to the one I have given. A young girl of good family had been married to a man apparently of good family. After about eighteen months, the girl returned to her parents' home and said, " I cannot really do it; I cannot go on with it ". She went away. She became a trained nurse of some sort and then, seven or eight years later, found somebody with whom she fell in love. She wrote to her father and said: " Will you see my husband and ask him to release me? " but her husband said: "No, never". The amendment proposed by the honorable member for Mackellar (Mr. Wentworth) will take all the virtue out of what we did last night. We debated the case of two innocents. We have our eyes too much on guilt in this matter. Last night we dealt with the people who had not done anything to one another. If I may refer to what the Leader of the Opposition (Dr. Evatt) read out, when that comes before the committee I would point out that it has the same vice. It will prevent-


Mr Thompson - Decent people.


Sir GARFIELD BARWICK - Yes, who have not committed an offence against one another but who have simply parted - he saying that he will not desert her nor she him - from obtaining a release. Under the existing law they have no remedy ever. This clause is in part designed in my mind, and I thought it was in the minds of members of this committee, to cover those cases of young people who marry without much experience. After all, it is remarkable that so many marriages between the young last as well as they do. That is a great credit to our people, but many of them, with no real knowledge of the opposite party, find that they are ill-suited. Neither will commit sin against the other and they say that they will either have a cooling-off period, as I mentioned in my first illustration, or that they will simply part, thinking at that time that there will never be anybody else. But somebody else comes along and the community is deprived of the chance of a first-class marriage.

I do not know whether the honorable member for Mackellar has thought out his proposition carefully] but he must say that he is in favour, where two young people part with no bad conduct on the part of either one, of permitting one party to forbid the other ever to obtain a divorce. He must also say that it covers this case. But suppose the innocent one of a match, where an offence has been committed, says that he wants to use this ground. The honorable member for Mackellar will give the guilty one a veto. The honorable member must stand up to both those cases if he wants to persuade this committee.

I did not want to intervene in this argument, because I thought we had been through this mill so thoroughly yesterday. Like the honorable member for Chisholm (Sir Wilfrid Kent Hughes), I thought it was a good debate. I am not able to say whether there has been a better one - I am too inexperienced for that - but I did think that honorable members last night were speaking with a great deal of honesty of purpose and a great deal of skill. Many of them, such as the honorable member for Lang (Mr. Stewart), had gone to unending pains to read a very difficult document and to attempt to master it. I think that the committee having come to such a firm decision as it did last night, it is asking a lot of honorable members to go through it again.







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