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Tuesday, 29 October 1974
Page: 2039


Senator James McClelland (NEW SOUTH WALES) - I believe that this Bill gives the Twenty-ninth Parliament an opportunity to go down in history as the parliament which introduced into this country a matrimonial law as enlightened as any in the world. I say 'the Parliament' advisedly, because although this Bill has been introduced and re-introduced by a very dogged Attorney-General of a Labor government it will not become law unless it commands the support of some honourable senators on the other side of the chamber. A free vote is a rare phenomenon in this place. I suggest that it behoves us when we get the rare opportunity of freedom of decision to exercise it carefully and wisely. I propose to examine the Bill not in quite as much detail as Senator Missen has given to it in his very able and painstaking speech. I wish to concentrate on a few of the highlights of the specific alterations of the general philosophies of divorce law, maintenance and ancillary matters which are introduced by this Bill.

Easily the most important aspect of the Bill is the suggestion for the replacement of the grounds of fault in the present law- that is such grounds as adultery, cruelty and habitual drunkenness- with one ground of irretrievable breakdown. As Senator Missen has already pointed out, the notion of fault as the only ground for the dissolution of marriage has already been quite severely breached in the present Act, in what I might refer to as Sir Garfield Barwick 's divorce law. It introduced into this country the notion that a divorce could be obtained without any fault, merely on the ground that the parties had lived apart for S years. So that the principle that a fault is necessary before a marriage can be dissolved is a principle which has already disappeared, but the notion seems to have got around, especially during the currency of the present public debate on this Bill, that what we are suggesting stems only from the minds of permissive trendies who are attempting to undermine the institution of marriage.

I point out that although lawyers practising in matrimonial law and people whose marriages have broken down had for years discussed the notion that there should be a divorce law in which the only ground for dissolution was one of irretrievable breakdown, the real breakthrough came from what was known as the Archbishop of Canterbury's Group. It was a group of churchmen which got together and published in 1966 a pamphlet of their Endings called 'Putting Asunder' in which it recommended that this should be the sole ground. I shall quote from what has become a classic passage in the findings of this group. In giving its considered opinion about irretrievable breakdown as the sole grounds for dissolution of marriage, the Archbishop of Canterbury's Group said: we were persuaded that a divorce law founded on the doctrine of breakdown would not only accord better with social realities than the present law does, but would have the merit of showing up divorce for what in essence it is- not a reward for marital virtue on the one side and a penalty for marital delinquency on the other; not a victory for one spouse and a reverse for the other; but a defeat for both, a failure of the marital 'two-in-oneship' in which both its members, however unequal their responsibility, are inevitably involved together. J

That, I suggest, is not only a realistic but also a compassionate attitude towards what must always be a human tragedy. It takes the approach that such tragedies being inevitable, the role of the law, the role of the Government, is to make the dissolution of that dead marriage as dignified and as devoid of humiliation as it is possible for human institutions to do. After this archbishop's group published its findings, what began as a trickle of opinion in favour of this sort of reform of matrimonial law became a flood, and country after country adopted, or is about to adopt, this ground either as the main ground or the sole ground. Among the legislatures which have adopted this ground either as a sole ground or the main ground in the United States of America are the States of California, Florida, Colorado, Iowa, Nebraska, Texas, New York, Alaska and Oklahoma. Canada has adopted this ground of irretrievable breakdown to be proved by 12 months separation as an additional ground to the other grounds. In Sweden, which has always been an avant-grade country in social matters, divorce can be had as of right on a unilateral request of either party. In Britain the principle of irretrievable breakdown has been adopted, although I would argue that the British system has certain defects in that it allows the notion or fault to survive alongside irretrievable breakdown by virtue of the fact that irretrievable breakdown can be proved by establishing several matters such as adultery- the old fault grounds.

There are many variations in the United States, but significantly there is a body known as the National Conference of Commissioners on Uniform State Laws, approved by the council of the American Bar Association, which on 9 November 1972 proposed that the dissolution of marriage should be granted only on the one ground of irretrievable breakdown. The notion that this ground as the sole ground for divorce will promote easy divorces, or quickie divorces as they are sometimes called, is not something which will hold up. I think this is a matter which was well disposed of by Senator Missen when he pointed out that under the present law there is an opportunity for immediate divorce on one of the fault grounds and that in fact something like 43 per cent of divorces are granted on such immediate grounds, whereas under the law as it will be amended by this Bill, if passed, there will be no possibility of filing for divorce until a period of 12 months of separation has gone by. I might refer to one of the authorities on this particular question, Mr Max Rheinstein- I think this is a particularly telling point- who says:

The second point which strikes the curious observer is that in every country where divorce on any ground is recognised, spouses who are united in the desire to put an end to their marriage succeed, sooner or later, in getting their divorce. The vast majority of divorce actions are undefended- the percentage varies slightly from country to country, but in England, Germany, France, Canada, the United States and, indeed, most western countries, it is in excess of 90 per cent.

I do not know the exact figures for Australia but I would be very surprised if they are less than those mentioned here. The authority goes on to say:

And where there is no contest, there is either agreement on the termination of the bond or at least acquiescence, i.e., consent. Whether in these cases the termination of the marriage is truly justified under the rules of the books, or whether grounds are fabricated or bars to divorce are concealed, the court does not know.

As the Archbishop's group stated, every uncontested divorce is in fact a divorce by consent. So before we get carried away with the notion that this Bill, if passed, is going to open the flood gates to easy divorce or that something heinous and horrendous like divorce by consent will be introduced into our society for the first time, I suggest that those honourable senators taking part in this debate recall that in most civilised countries something like 90 per cent of divorces under the present law are in fact divorces by consent. Another point that is worth bearing in mind is that when you do have a fault system in the law the proof of fault is nearly always defective, often collusive and frequently manufactured.


Senator Poyser - In some cases, perjury is involved.


Senator James McClelland (NEW SOUTH WALES) -This is so as Senator Poyser reminds me. Those who have been interested in this subject for some years will undoubtedly have read a book which was published many years ago by A. P. Herbert called 'Holy Deadlock'. It is a very amusing book which introduced us for the first time, in English fiction at least, to the occupation of the professional co-respondent- the person, be it male or female, who was available for a fee to establish, complete with private detectives, photographs and so on, instant proof of the commission of adultery. This has been, as all lawyers know, a daily feature of divorce law in our country and in every other country. As has also been pointed out, in uncontested actions the judge, having neither the tools nor the inclination to probe the story the spouses tell him, has usually no choice but to grant a divorce on flimsy evidence or on evidence which he suspects may be collusive. Even where evidence by corroborating witnesses is required he can never be quite sure whether the matrimonial offence on which the petitioner relies was in truth committed. A professor of law at Bochum University, Germany, discussed the problems of the divorce law in Germany which I might mention is a very pressing matter at the moment. A new divorce code has been discussed for some months in the West German Republic, and all of these aspects have been considered by German lawyers, the German Parliament and the public generally. Professor Giesen points out:

The fact that 80 to 90 per cent of divorce actions that are formally brought on the ground of adultery or some other matrimonial offence are actually conducted by means of play-acting by both parties suffices to show both the urgent need felt for means of circumventing the existing law and the deep gap between law and reality.

I would like to refer to one final quotation on this matter which is from another German publication. I think it sums up the whole matter of public opinion marching ahead of the law. The quotation reads:

Life with its necessities is punishing an obsolete principle with a thousand lies.

Of course, it takes only a moment's reflection to realise that there is little to be gained by keeping a so-called guilty spouse in a marriage merely by making it difficult for him or her to be divorced. There is no way known to the law to make a reluctant spouse return to the marriage bed nor of restraining him from joining his paramour, if that is his wish. What we are doing in effect, by making divorce difficult, if you care to look at it in that way, is inviting immorality. It has been estimated, for example, that in England some 40 per cent of illegitimate children are born to stable illicit unions- that is the sort of union formed by people who for some reason or other, say a dog in the manger attitude on the part of the spouse who will not divorce, are not able to contract a second marriage.

If the policy of a matrimonial law should be to protect the institution of marriage, surely one of the strongest arguments against making it difficult for marriages which have foundered to be sundered is that we are inviting people who cannot be freed of a union with which they no longer wish to be encumbered with to free themselves and to undertake a second union. As I think Senator Missen pointed out very cogently, even though it is a fact that more and more people are being divorced it certainly cannot be said that marriage is becoming unpopular. More people are marrying today, perhaps for the second or even third time. But the fact of the matter is that even though a great number of people are being divorced a greater number of people are being married than ever before.

It has been suggested that to allow one party, in effect, to bring a marriage to an end- it is freely conceded that that is the effect of this legislation- is in some way a retrograde step because there should be a consent of both parties. This is the notion of the contract which has been voiced in the course of this discussion. I think that this also is a proposition which will not stand a real examination. It is a matter which was adverted to by the Archbishop's group in the pamphlet 'Putting Asunder' to which I have referred. This matter was dealt with in these words:

The fatal defect of the concensual principle is not that it requires both parties to agree in wanting divorce (that spouse do agree on this not infrequently is a fact that a realistic law needs to be taken into account) . . .

That is the point which I have just been talking about. It states further: but that it subjects marriage absolutely to the joint will of the parties, so making it in essence a private contract. Since it gives the court, as representing the community, no effectual part in divorce, it virtually repudiates the community's interests in the stability of marriage.

In other words, there is no role for the States or for the courts to intervene to bring a marriage to an end which, for all practical purposes, is dead and which surely, if only in the interests of the children, should be decently buried. I will not refer at length to the point which was made, I think, adequately by Senator Missen that the grounds on which divorces are granted in Australia at the present time are very largely immediate grounds. On the figures for 1973, at least 43 per cent of divorces were obtained on grounds which enabled people to obtain a divorce more quickly than they would under this Bill.

I should like to turn briefly to the question of the period of separation provided by sub-clause (2) of clause 26 of the Bill which states:

(2)   Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the commencement of the hearing of the application.

As Senator Missen pointed out, our Committee took the view that this was a clause which could stand some improvement. We have recommended, in accordance with the proposal from the Anglican Diocese of Melbourne which was read to the Senate by Senator Missen, that the grounds should be altered so that proceedings cannot be commenced until after a period of 12 months separation has elapsed. As will be clear from the words that I have read from clause 26 of the Bill, if it were not amended it would be possible for parties to a marriage who believe that the marriage had foundered to commence proceedings almost immediately after they were married. Of course, they would not be entitled to a dissolution of marriage until after 12 months separation had elapsed. To that extent the idea of married couples separating after a trifling tiff would not get any momentum even from the Bill as it is because people who did separate after some trifling disagreement and filed an application for a dissolution would have to wait 12 months and, of course, would have every opportunity for reconciliation within that period.

The Committee believed and recommendedI understand that the Attorney-General will accept this recommendation- that subclause (2) of clause 26 of the Bill should be amended so as to provide that the proceedings cannot be commenced until a period of 12 months' separation had elapsed. I take it that this will raise one of the vexed matters of discussion in this chamber. That is: Is 12 months a sufficient period to determine that a marriage has in fact irretrievably broken down? As can be imagined, the various bodies such as the Archbishop's group which have considered this question gave a lot of thought to this matter. Some, of course, have suggested that this period was really too long. Some people have suggested, especially in the case of an application for dissolution being unopposed, that a period of 6 months would be enough. Others have suggested, as indeed a couple of the members of the Senate Standing Committee on Constitutional and Legal Affairs has suggested, that 12 months is too short and that we should opt for 2 years.

I would like to quote something which supports the proposition that 12 months separation is really, on balance, the ideal period to establish that a marriage has in fact broken down. It is generally accepted by the authorities that after a year of separation- I think Senator Missen said that his own experience as a practitioner confirmed this- all prospects of reconciliation have in the vast majority of cases evaporated. It is no accident that countries which have adopted separation for a specific period as the test of whether a marriage has irretrievably broken down have in no cases by subsequent amendment lengthened the period but several, by subsequent amendment, have substantially shortened the period. As was put by the Scottish Law Commission:

The time required must be sufficiently long to give the spouse a reasonable chance to be reconciled, but it must not be longer. If it is, the separation ground has to be supplemented with a 'short-road' divorce on the ground of matrimonial offence, and the fault principle, with all its defects, has to be perpetuated.

Whilst I respect the opinion of those who feel some misgivings about the period, I suggest that if we are to eliminate fault as a ground for divorce and are to opt for one ground only- that is, irretrievable breakdown- we are logically committed to a period of 12 months. I suggest that extending the period would not really work a great improvement in the present law. Of course, there are many intolerable situations in marriage which make it undesirable that a shattered marriage should survive for any longer than is socially desirable. If we are to abolish the instant grounds- the abolition of fault does involve the abolition of the instant grounds- we cannot make the period of separation so long that people wishing to dissolve their marriage are no better off- indeed, are slightly worse off than they would be under the existing law. For that reason, I am convinced, as was the majority of our Committee, that the ideal period required to establish that a marriage has broken down irretrievably is 12 months.

As Senator Missen has pointed out, the reconciliation provisions in the Bill give some reality to the notion of reconciliation. Anybody who has practised in this field will be able to tell you that reconciliation under the existing Act is more or less a hollow farce. It is one of the forms through which parties to a marriage wishing to dissolve their marriage have to go. They have to sign certain forms. They have to go through the act of pretending that they made a serious effort to be reconciled when, in fact, they had come to the lawyers and started their proceedings for divorce long after any hope of reconciliation had vanished. I will not bother to go into the details of the reconciliation provisions because I believe that they have been canvassed sufficiently by Senator Missen. But I would like to draw attention to the fact that in clause 26 of the Bill- that is the clause which establishes the ground of irretrievable breakdown based on 12 months separation- sub-clause (3) states:

A degree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

In other words, the court- in a moment I will come to the notion of a new court which the Committee has adopted- would have to persuade itself, with all the aids that we propose that such a court would have in the way of welfare officers, counsellors and marriage guidance people, that, in fact, there was no prospect of cohabitation being resumed. I commend to the Senate the reconciliation provisions which are spelt out in clauses 14 and 15 of the Bill. I commend these clauses as providing a realistic and sincere effort to make available to parties to a marriage which is in danger intelligent, dedicated and well-trained counsellors and welfare officers to help the marriage to survive if, in fact, there is any chance that it will survive.

The other matter which, in my view, will make this divorce law an enlightened, humane and dignified proceeding is found in the suggestion that has come from our Committee for the institution of a Family Court. The original Bill brought before the Senate by the AttorneyGeneral (Senator Murphy) contained the suggestion that the jurisdiction in matrimonial matters should be exercised by a section of a proposed Superior Court. I am pleased that the Attorney-General has been persuaded that the suggestion that has come from the Committee for the institution of an entirely separate Family Court of Australia is a good one. The notion of a Family Court is well established in some parts of the world. It has taken root particularly in Japan and California and, as Senator Missen pointed out, in South Australia. We had the benefit of some evidence from a judge of the South Australian Family Court. As Senator Missen pointed out, the Court has limited jurisdiction. It does not have the right to grant principal relief, but we believe that it is a trail blazing institution that points the way to what we should have here.

One of the most humiliating and distressing aspects of marital upset in this country is that much of the jurisdiction in what are known to lawyers as ancillary matters- maintenance, custody applications and the like- is exercised by magistrates who are exercising a generalised jurisdiction in criminal matters. So the wife, who is already in the distressed condition which normally accompanies the breakdown of marriage, has to take her place in the queue with prostitutes, pickpockets and the general criminal element of society, waiting her turn in the rather sleezy atmosphere of the magistrates courts, especially in the big cities. We say that that is something to which parties to a breakdown of marriage should not be submitted. We suggest that a court should be set up which deals with nothing but family matters. I commend to honourable senators the passage on page 1 7 of the Committee's report which points out that what we have in mind is:

The assimilation of all family matters into one court, with active pre-divorce and post-divorce counselling not merely to assist reconciliation but also to provide for the reduction of bitterness and distress and in alleviating on-going postdivorce problems.

Of course, the human problems do not cease with the mere dissolution of the marriage. Custody problems and access problems are a continuing feature of the lives of persons whose marriage has gone on the rocks. Our Committee formed the view that the civilised way to handle all these matters is to have them concentrated in one court- a specialist court- with judges selected not only for their knowledge of the law but also for their general humanitarian approach to these matters. Our view was that gradually the role of magistrates in matrimonial matters should be phased out.

We faced quite realistically the fact that that is not something that it would be possible to do over-night, primarily because of the geographical complications of a country like Australia. After all, a woman living in Bourke may have to make an immediate application- a custody application or a maintenance application. In the present circumstances it is unreasonable that she should have to wait until a circuit Family Court visited Bourke or some neighbouring large town, or that she should have to go to Sydney or even to Dubbo or some place like that. This is what we have in mind as a development of this Family Court. We see it as a 2-tier Court with judges of Supreme Court status handling large mattersmatters of principal relief- and judges of perhaps district court or county court status handling the ancillary matters which presently are handled by magistrates. We imagine this Court being a court which goes to the people, which travels around the country and, indeed, which travels to places like Bourke and not at long intervals, so that the atmosphere of the family court which we regard as so important will be available not only to dwellers in the big metropolitan centres but also to people in far-flung, small towns and isolated localities throughout the country. As I say, this will take some time to build up. But we believe that a start should be made and made as soon as possible.

We believe in a combination of this humanitarian ground of irretrievable breakdown provable by 12 months separation and a Family Court- an exclusive, specialist Family Courtstaffed by carefully selected judges and assisted by experts such as welfare officers, counsellors, psychologists, accountants and other people such as accountants who might advise those whose marriage is in difficulty primarily because they cannot handle their finances on how to get their affairs in order. In other words it would be, as the Committee says in its report, a genuine helping court. We believe that this, allied to the humanitarian ground we suggest, would for the first time in this country produce a genuinely civilised code of matrimonial affairs.


Senator Baume - Would it take over such matters as delinquency?


Senator James McClelland (NEW SOUTH WALES) -There are some constitutional difficulties there. The power to set up this court and the power in respect of matrimonial matters generally rests on 2 placita in section 5 1 of the Constitution.


Senator Baume - They are 2 1 and 22, 1 think.


Senator James McClelland (NEW SOUTH WALES) -Yes, which we might as well look at The Parliament of Australia is given power to make laws under placitum 21 in respect of marriage and under placitum 22 in respect of divorce and matrimonial causes and, in relation thereto, parental rights and the custody and guardianship of infants. It is doubtful whether these 2 placita confer the power on the Australian Parliament to make laws with respect to affiliationparenthood claims, or matters of delinquency. But logically they belong in the sort of court I am talking about. The Committee hopes, especially if this court gets off the ground and shows itself to be a social advance and a success that it would be possible to persuade the States to confer power on the Australian Government to make laws in respect of those matters also. But in reply to Senator Baume 's question, there must be grave doubt at this time whether this sort of thing could be taken within the purview of the family court.

I turn briefly to a matter that has also been covered by Senator Missen at considerable length, the matter of maintenance. The Committee believes that the provisions in this Bill with respect to maintenance represent a considerable advance on the thinking and philosophy which have informed such provisions in the past. In an era when women are asserting more and more successfully and more justifiably their equality before the law and in all respects with men, I suggest it is not appropriate that marriage should be regarded as constituting a right to permanent support no matter what the circumstances and no matter whether or not a woman is capable of taking her place in the work force. The provisions for maintenance, commencing with clause 50 of the Bill, establish a new code based primarily on the matter of need. Clause 5 1 says:

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for gainful employment or for any other adequate reason.

Later clauses spell out the detail of the criteria which should be taken into account by the court first of all in deciding whether maintenance should be paid and then in fixing the amount. In examining these clauses, as Senator Missen pointed out, the Committee came to the conclusion that the Bill had not paid quite enough regard to the situation of a woman, say, in middle life who may never have entered the work force or may have been in the work force so long ago that she would find it inordinantly difficult, if not impossible, to enter or re-enter the work force or be trained for some sort of work but who may have made a career of being a housewife and a mother. This is not a dishonourable calling, not matter how unfashionable it may be with the more militantly liberationist of modern woman- and I do not say that as any reflection on them but neither do I consider it to be any reflection on a woman to have chosen to live her life that way. The Committee has proposed amendments which it believes will rectify what it regards as shortcomings in the Bill on this matter and allow greater judicial discretion to take account of all the circumstances, such as the one I have mentioned.

To give an example, take the case of a couple who married comparatively young and the male partner undertook, say, a medical course and, in order to make it possible for him to study fulltime, his wife went out to work and, in effect, kept him for a few years. Then the marriage went on the rocks. Clause 54 (2) (f) states in respect of the matters the court shall take into account in fixing the amount of maintenance:

Where the parties have separated or the marriage has been dissolved, the standard of living of the parties before the breakdown of the marriage . . .

The Committee suggested an alteration to that which would give the judge deciding this sort of matter the right to take other things into account, including the circumstances I have just mentioned. It might be argued that a woman who has made such sacrifices as I have just suggested in the interests of the marriage would be entitled to a level of maintenance that would take into account not merely the standard of living which the couple enjoyed at the time the marriage broke down but also the fact that the efforts of such a woman have made it possible for such a man to enjoy a standard of life considerably higher than they had during the marriage. The Committee considered that that should be taken into account. This is the sort of improvement which I believe the Committee has injected into this Bill.

On this question which is embedded in the modern debate on the relationships between men and women, on authority- Professor L. Neville Brown- had this to say on the general philosophical question of maintenance: . . the private law of maintenance will tend to wither away and its place be assumed by social security legislation. In other words, by the year 2000 the law will have abandoned as socially undesirable, frequently ineffectual and wholly uneconomic the hounding of spouses through the courts for non-support of their families. Non-support by spouses or parent will be ranged alongside those other vicissitudes of life- unemployment, sickness, industrial injury, child birth, death itself- for which social insurance should make provision.

Of course, the framers of this Bill and, also the Committee accept the fact that at the present stage of human development and at the present stage of our social institutions there can be no question of doing away with maintenence. In his report to the Swedish Government one of its Ministers, in talking about the overhaul of legislation on family matters in 1969, put it in this way:

Within the growing up generation it is natural for girls to seek equally good vocational education as boys, and the girls who are now leaving school are probably in general prepared to have gainful employment during the major part of their adult lives. However, many families in the now grownup generations have adapted themselves to the system where the wife exclusively devotes her labour to her household. In certain parts of the country opportunities for work are too few and industry too one-sided to enable employment to be provided for all the women who want to undertake gainful employment. A family's options are also frequently limited by a lack of child day-care centres and nursery schools.

In other words, whilst I think we can look forward to a social consciousness developing which will eliminate the notion of maintenance altogether, at the present stage of the development of our institutions, having regard to the fact that there is still a large generation of women who have undertaken as their sole life work the upkeep of a home and the nurture of their children, account has to be taken of these people with these attitudes and in this situation in life. Our Committee was very conscious of the situation of such women. The members believe that we have strengthered the Bill by making more adequate provision for people in that situation without derogating from the general philosophical basis of maintenance which is contained in clause 5 1 of this Bill.

Senator Missenhas already referred to the question of the privacy of proceedings connected with matrimonial breakdown. I do not think I need labour this point because surely there would be a consensus among all honourable senators that proceedings between husband and wife in a dissolution of marriage or proceedings involving children in matters of maintenance and custody are really their concern alone. There should not be from such proceedings an opportunity for newspapers or anybody else to sell their wares. There has been a quite distressing example of that sort of thing in recent months when a few celebrities have had themselves paraded through the newspapers in matters which obviously were of no concern to anybody but themselves and to the authority- that is, the court- which has to arbitrate in these matters and see that justice is done. So we have suggested a strengthening of the provisions designed to ensure privacy in a way which will become clear in the Committee stage of the debate.

Another matter was adverted to by Senator Missen in what was so comprehensive a speech that it is hard for me to find anything else to say about the matter. He referred to the fact that in matrimonial matters there has been traditionally a great deal of class distinction. It is no secret that for a great part of human history dissolution of marriage has really been something that could be afforded only by the well-off. There is no doubt that a great number of poorer people have put up with intolerable marriages primarily because they could not afford either to go to court to have them dissolved or to have 2 separate establishments. Willy nilly, they were joined together in misery. This is one of the reasons why we have suggested- it is implicit in the whole of the approach of the Attorney-General in this as in other spheres- that there should be a system of legal aid and that no person need be prevented from obtaining matrimonial relief merely because he or she has not the means to hire a lawyer.

On this matter I would like to grasp a nettle about which many lawyers feel somewhat chary. That is the attitude, which has been spread, largely by an organisation calling itself the Divorce Law Reform Association, that somehow or other the lawyer can be totally eliminated from proceedings involving the breakdown of marriage. I submit that if we simplify the grounds in the way that this Bill proposes- that is, if it is merely a matter of establishing that the parties have separated for 12 months for them to be entitled to a decree for dissolution- obviously the role of a lawyer in that process reaches vanishing point in most cases. There will not be a contest in more than an infinitesimal number of cases about that issue. The long, hard fought out contests about whether in fact a divorce should occur will largely disappear. But I would suggest with respect to these zealots of the Divorce Law Reform Association, who have become well known for their suggestion of do-it-yourself kits, that they are going to lead people into more trouble than they are going to save them if they suggest that in all cases there is no need for a lawyer,

The healthier a society is, I suppose one would agree, the less need there is for lawyers in all sorts of fields. But let us face the fact that we still live in an imperfect society and there is no arena of human conflict or endeavour in which lawyers are, unfortunately, less dispensable than in matters of thrashing out who is entitled to property, what maintenance should be paid or vexed contested matters of custody. The solution at this stage of human development, I suggest with respect to the Divorce Law Reform Association, is not the total elimination of lawyers and not the attempt to do it all yourself with divorce kits but for the State to shoulder its responsibility in this as in other fields and to provide a reasonable level of legal aid to enable people who find themselves in these distressing circumstances to be adequately and properly represented. I say that not by any means in support of the notion that divorce and its attendant problems should provide a field day for the lawyers but as a matter of reality, knowing how bitter and how complex contests between persons in this situation can become.

Finally I would like to say just this, that the illusion that tightening up divorce laws is the best way to counter the disintegration of the family is something that we have to face squarely. We have to face the fact that it is an illusion. For example, in countries where there is no divorce law at all- a spectacular example, of course, is Italy until recently- can it be suggested that there are no broken marriages, no immorality and no illegitimacy? Anybody who is any sort of student of the Italian scene will tell you that quite the contrary is the case. When we look to the causes of the disintegration of marriage I think we have to say quite honestly that none of those causes has anything to do with the divorce law of a country. The real causes of the disintegration of marriage, I suggest, are to be found in such things as increasing urbanisation, increasing industrialisation, greater social mobility, the emancipation of women, the weakening of religious sanctions and, I suppose we could say, the increased all-round prosperity. It is just a fact that we have to face, that more people today are able to get divorced and to go on having a resonable standard of life than was the case in the past. In a period of 2 -income families, the woman who just has to grit her teeth and bear an intolerable marriage is, I am glad to say, disappearing. There are still plenty of them around, but the social tendency is for bad marriages no longer to be prisons from which the spouses cannot escape.

We are looking in the wrong direction if we are suggesting that by making divorce more humane, simple and less expensive we are fostering the breakdown of marriage. It is part of the human condition and part of the developments which I have just listed that marriage is less stable today than it was in the past, just as many institutions are less stable. But, as has been pointed out by Senator Missen, this does not mean that marriage is disappearing. It does not mean that people no longer want to marry. On the contrary, all the evidence seems to point to the fact that marriage is here for a long while yet. It behoves us, then, to know that the real causes of the disintegration of marriage are not to be found in permissive or easier divorce laws. On this point I conclude by quoting Professor Kahn.Freund. I think this is a point which honourable members should contemplate. It is an original and very thought-provoking contribution to this debate. The professor stated:

Is not the rising divorce rate very largely a reflection of increasing social equality; what was yesterday the habit of the privileged few is today the right of the many? How far, again, does the growing number of divorces indicate a more widespread inclination to prefer marriage to factual union? Is it not true that not so long ago masses of people never bothered to get married at all, and that consequently the dissolution of their unions did not appear in the divorce statistics? And does it perhaps indicate an enhanced rather than a diminished respect for marriage as an institution if people insist on having a marriage dissolved and on getting married again rather than having a mistress or a lover?







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