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Friday, 19 November 1965


Mr KILLEN (Moreton) . - I join with my friend, the Deputy Leader of the Opposition (Mr. Whitlam) in welcoming this legislation. If I may say so with a view to quietening his sense of disturbance from an earlier hour this day, I welcome most warmly some of the suggestions that he has made.


Mr Whitlam - Reconciliation would be the term under this Act.


Mr KILLEN - The Deputy Leader of the Opposition has an admirable choice of language. Reconciliation it is. This is the detente between us.


Mr Whitlam - Is this to be a three month trial period under the Act?


Mr KILLEN - By no means. The honorable member has made two suggestions which I hope will be earnestly examined by the Attorney-General and the Government. The first relates to the question of establishing a standing committee on law reform. As the honorable gentleman has pointed out, there are areas on which no matters of policy impinge, and in which it would be possible for views to be presented to the Government with regard to the alteration of the laws of this country. This is one such area. No person would consider for one moment that it would be possible to rouse up a thoroughgoing political argument on the question of polygamy and the recognition of foreign decrees and so forth. As the honorable gentleman has pointed out, these are essentially human problems and are becoming more complex. I will have something to say in a moment about the provisions of the Bill itself relating to polygamy, but I would like to say to the Attorney-General that I am delighted, as I know many practitioners are, to see the proposed new clause making the presumption as to condonation rebuttable. The absence of opportunity to rebut such a presumption has caused a great deal of distress to many people, and this is a most welcome provision indeed. I am sure the AttorneyGeneral is entitled to take a great deal of satisfaction, as are officers of the Department also, for having put forward this provision.

As to the question of polygamy, may I make a few fleeting references. As I understand it, the fountain of origin, as it were, was a Victorian case of a petitioner who had entered into a marriage with the respondent in Pakistan according to Moslem law. The marriage was potentially polygamous. At the time of the marriage the respondent was domiciled in Pakistan and subsequently came to Australia and acquired Australian domicile. The whole weight of authority was against a court recognising that marriage. This legislation is a most notable step forward. It is an epoch making step. There is no doubt about that. When one reflects on the celebrated cases in this field one is quite at liberty to say that this is a singular step forward in matrimonial law and I warmly congratulate the AttorneyGeneral and the Government for having taken it.

As the Deputy Leader of the Opposition pointed out in his speech, the world is becoming smaller. People are closer. There is more sense of togetherness. People are travelling. They have access to countries which was denied to them 40 or 50 years ago. This throws up the possibility of people getting themselves involved in all sorts of arrangements, domestically or conjugally, which could jeopardise their sense of wellbeing, and the fact that the AttorneyGeneral has taken this legislative step is most welcome. I congratulate him most earnestly. It is true, of course, that some of the incidents of polygamous marriages have been recognised in the past. Our Courts have always failed to assume jurisdiction at all in these matters, contending very properly that no marriage has subsisted so as to give them jurisdiction. But Mr. Justice Barnard said in the case Srini Vasan v Srini Vasan -

To deny recognition of a Hindu marriage . . . would in my opinion, be to fly in the face of common sense, good manners and the ordered system of tolerance on which the Empire is based.

Nevertheless, the simple truth is that our people - the whole of the common law world - have been bound to use the language used in relation to the famous Hyde v Hyde case -

As between each other, the parties to a polygamous marriage were not entitled to the remedies, the relief, the adjudication of the matrimonial law of England.

One has only to reflect on that to realise how dramatic is the effect of this legislation. But as the Attorney-General pointed out in his speech, relief will be granted only to the party of the first subsisting marriage. It would not, for example, cover the position reported only in July this year by the Zambia Information Service. This dealt with the case of a 60 year old African man in Lauapula Province. This man, according to the Zambia Information Service, had been divorced during the past year by nine of his fifteen wives. One might say he was, as it were, a tiger for punishment. One would not credit that anyone could become so conjugally involved. Another wife died, leaving him with only five. Four of his lady friends said they would leave him and he was reduced to a very disconsolate state and announced that he intended to marry another four women. That happened in 1965. The Bill does not apply to such a case, but I cite it to show that this circumstance has not changed very much. The Attorney-General will recall the Bethel! case in which a gentleman went to Africa and was not prepared to be married according to Church of England Christian rites and was married according to the rites of the Barralong tribe. Like the gentleman from Zambia, he got himself hopelessly involved and the Court was called upon to decide on the legitimacy of the children. The Court was thus faced with a very great problem indeed.

This legislation will not apply to such a case. It will apply only where the relevant marriage is the first subsisting marriage, and I think it is crucial that the House, and those people outside who are interested in this legislation, should note that fact. Having said that, might I say a word or two about the suggestion made by the Deputy Leader of the Opposition about having an international convention in this field. I think this is highly desirable. As time goes by, as I observed earlier, there is greater communication between people in different countries. People with Australian domicile have married in a host of countries around the world. This poses a very real problem and, subject to the patience of the House, I shall spell out something of the nature of this problem when it comes to recognition of foreign decrees of nullity. I refer to nullity only, because this is one aspect that has attracted my attention.

The Attorney-General will be aware that English courts have no jurisdiction to annul a voidable marriage on the ground that England was the forum of celebration. The contrary is the case if the marriage is void. If it is a void marriage and the parties were seemingly married within the forum, the Courts can assume jurisdiction. When it comes to the question of recognising a foreign decree of nullity of a voidable marriage, on the basis that it was pronounced by the forum of marriage., in my view, under section 95 (5.) of the Matrimonial Causes Act it cannot be recognised, as it is not a common law rule of private international law. This becomes a little involved. One goes on to find that jurisdiction recognition has been given to foreign decrees where jurisdiction has been assumed on (1) the basis of the last common residence of the spouse; (2) the acquisition of a separate domicile by the wife; and (3) the last common residence of the wife. When we come to the recognition of the decree of nullity of a voidable marriage we enter into a field of, in my view, grave doubt and the possibility of imposing grave hardship upon the people concerned. When the Minister introduced this legislation he pointed to the fact that not many people are involved as a rule in these matters. But where they are involved, it is a matter of incredible hardship to them. Merely because but a few are involved is no reason why the members of the Parliament should be hesitant in moving in to legislate in these fields. I join with the Deputy Leader of the Opposition in suggesting that at all times we should have a sense of preparedness to keep our minds flexible in the matter of domestic and matrimonial law. But to continue spelling out the difficulty of recognising a foreign degree of nullity of a voidable marriage, here in Australia, as I see it at the moment: Under section 95 (2.) (b) of the Matrimonial Causes Act, recognition of the decree of nullity can be made if either party was domiciled in the foreign country. If the wife was resident in the country where the decree was given for three years she acquires as it were a deemed domicile or a sort of fixed domicile, which enables appropriate recognition to be given. Then we come to sub-section (4.). When I speak of a decree of nullity of a voidable marriage I suppose I should interrupt myself to say that here I am thinking of a decree given on the basis that jurisdiction was assumed on the basis of residence of, say, two years. If two people are residing in the United Kingdom and there has been a voidable marriage and the court has assumed jurisdiction and has pronounced a decree of nullity of that marriage, we have the problem of recognising that decree here is Australia. We are thrust back onto subsection (5.) of section 95 of the Matrimonial Causes Act which makes common law savings.

We come then to the crucial part of my argument which is whether or not the common law savings are sufficient to enable this recognition to be made here in Australia. Honorable members will note that under section 24 (2.) of the Matrimonial Causes Act " for the purposes of this Act " a wife may get a deemed domicile. On the face of that it would seem that this would include the question of recognising a decree of nullity of a voidable marriage given on the basis of jurisdiction assumed after the parties had been resident for two years. Continuing, the only possibility that seems open to me is the doctrine, which the Attorney-General will know, of Travers v. Holly, under which the courts can assume jurisdiction where there is a substantial similarity. The point I put to my honorable and learned friend is this: In accordance with this doctrine could it be argued that there would be a substantial similarity in giving a decree of nullity of a voidable marriage on the basis of residence after two years or, to sharpen it further, on the basis of residence after one year? In Australia we assume jurisdiction for the purposes of giving a woman matrimonial relief in a voidable marriage if she has been resident for three years. We have to consider whether or not it would be open to the courts to say: "Well, applying the Travers v. Holly doctrine we believe that there is a substantial similarity". One can go a little further with the argument and can pose the question: Is it residence as residence that constitutes substantial similarity or is it a question of time; or, further, is it a combination of the two?

In my view this is a very difficult field. It is a rather unexplored field. Possibly the likelihood of it concerning people is not tremendously real today, but it is probable. As I have argued, and as the Deputy Leader of the Opposition has argued, as people move around the world and enter into marriages in various countries this problem does assume greater significance. In talking of the need for an international convention in this field one has only to hearken to a realisation of the fact that the forum of celebration - the place where a marriage has been celebrated - is rejected in common law countries for the purpose of assuming jurisdiction, but there are other non common law countries where a decree of nullity of a voidable marriage will be given on the basis that the people were married within the jurisdiction. I thought it was an admirable suggestion by the Deputy Leader of the Opposition and I know that the Attorney-General will be prepared to consider its significance. It has been raised at international conferences from time to time but, unfortunately, it has never got off the ground. This is no reason why one should desist in trying to get this convention established and to have it operating because, after all, we are dealing with human beings and even though some people get themselves hopelessly involved and hopelessly entangled it should still rest as a charge upon those required to administer the affairs of men to endeavour to give them what assistance they can. I conclude as I began, by saying how welcome this legislation is and how much I welcome the two suggestions made by the Deputy Leader of the Opposition.







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