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Thursday, 19 November 1959

Mr WENTWORTH (Mackellar) . - I move -

After clause 33, insert the following new clause: - " 33a. A decree of dissolution of marriage shall not be pronounced upon the ground specified in paragraph (m) of section twenty-seven of this act in a defended suit unless the petitioner has satisfied the court that the separation was in part due to unreasonable conduct of the other spouse.".

I think that this proposed amendment will commend itself to the committee, and may even commend itself to the AttorneyGeneral because it only clarifies and, I think, makes more certain the justice of the provision which has now been inserted into clause 33. The Attorney-General has said that a divorce shall not be granted where it would be harsh and oppressive to the respondent or contrary to the public interest. My proposed amendment, which simply redefines the Attorney-General's provision, is in conformity with the views that were expressed by honorable members on both sides of the chamber during the secondreading debate.

May I once again refer to the Morton report in relation to this particular amendment. I remind honorable members that there were nineteen signatories to the report, one of whom thought that there should not be divorce on the ground of separation unless the whole concept of matrimonial offence were abandoned; nine of whom thought that there should not be divorce on the ground of separation; five of whom thought that there should be divorce on the ground of separation provided only that in an undefended suit the other spouse did not object; and the remaining four of whom thought that there should be divorce only on the ground that I have included in my proposed amendment. Page 25 of the report is in these terms -

Our proposal is: An application for dissolution of marriage may be made to the court by either spouse on the ground that the spouses have lived separately for a period of not less than seven years immediately preceding the application, and the court shall pronounce a decree dissolving the marriage where this ground is established, provided that, if the other spouse objects to the dissolution, the applicant must first satisfy the court that the separation was in part due to unreasonable conduct of the other spouse.

My amendment has been lifted verbatim from that recommendation of the Morton commission. In effect, according to the printed word, the nineteen reporting members of the commission would have supported my proposal because it is exactly what they have said. I agree that the Morton report is not binding upon us, but I put to honorable members that the unanimous verdict of a royal commission in the United Kingdom should at least carry very great weight.

During the course of the debate honorable members have directed attention to the various kinds of hardship that may be experienced, and the difficulty of finding out where the guilt lies, in a broken marriage. That is always something for the court to decide. My proposed amendment is not restrictive in any sense. It states that the applicant for a divorce must first satisfy the court that the separation was in part due to the unreasonable conduct of the other spouse. Surely if a man or a woman seeks a divorce against the wishes of the other party, he or she at least must be in a position to prove some circumstances which, in part only, represent fault on the part of the other partner. We do not want to have the position where a man can say, " I can prove nothing against my wife and she will not give me a divorce, but I want to get rid of her ". We cannot have the position where the court can pronounce a decree against a man or a woman who does not want the marriage broken up and his or her marital status changed completely when nothing can be proved against that party. All the instances of hardship which have been advanced by honorable members still would be covered by the amendment that I have proposed. In effect, the amendment provides that the petitioner shall prove in part, something against the respondent in the case where the respondent does not want a divorce.

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