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Wednesday, 30 October 1974
Page: 2168


Senator MARTIN (Queensland) - I thank you for your introduction, Mr President. I think I will have the distinction of being the only speaker to be welcomed twice as a maiden speaker in the one session. When I made my maiden speech you, Mr President, were not in the Chair for unavoidable reasons, so I was not able to pay you the courtesy of congratulating you on your election to the position of President and to say that I look forward to learning my trade as a senator under your Presidency. I feel very strongly that I should speak to the motion for the second reading of this Bill. Much debate is yet to take place at the Committee stage but there are a number of points that I would like to make generally as to how this Bill affects or will affect the women of the community. I am moved to do so particularly as statements which have been made so far do show some ignorance of the needs of the situation. I would like to say initially that I do not intend to support the amendment which has been moved by Senator Sir Kenneth Anderson. I appreciate the great sincerity with which he moved it and I appreciate his reasons. However, I think that the grounds are not substantial on this occasion to move for any sort of deferral and certainly not for the deferral that the honourable senator requested. It would mean a deferral of at least 4 months. From those who have been supporting the deferral there is an indication that they wish to see quite substantial changes to this Bill, or they believe that there are outside groups who want to see quite substantial changes made. We run the risk of an endless process so that whenever a substantial change is brought forward as a result of a proposed amendment to the Bill or a report on the Bill it will be deferred yet again.

The whole question of divorce in Australia has had quite an exhaustive public debate for some years. Certainly senators and very many members of the public know the need for change and they wish to see that change come about. I would not on this ground support a hasty move on the Bill but I think the report we have received from the Senate Standing Committee on Constitutional and Legal Affairs is excellent. It assisted me, a senator encountering the Family Law Bill for the first time, enormously in my appreciation of the problems, of the need for change, and of the potential of this Bill. I will agree that there are some things left out of it. I will agree that in some ways it cannot truly be called a Family Law Bill. However, it does make some very positive and worthwhile moves in the area of divorce law in Australia. I believe the need is so great that we should proceed with the business of passing good divorce laws.

It is a little futile to talk about the points of view of groups. The churches themselves are not unanimous. Different churches have taken different stances on different aspects of the measure. There are, of course, other pressure groups also working within the community. I am a little concerned at some of the pressure that has been put on the women of the community in relation to this Bill. I have had many approaches from women who have expressed their concern, not necessarily for their own cases, but for what they believe to be the potential of this Bill and its possible effect on women in Australian society. I believe that the people who have approached me have been grossly misinformed about the actual content and intent of the Bill but their alarm was genuine. It is necessary that we debate the measure cleanly. Not all the debate that has taken place in the public arena has been clean or fair. I think the lead-up to the Bill has been fair. I think the presentation of the Bill has been fair. I believe that we and the public are equipped to proceed with this Bill, so far as it goes.

I will address myself very briefly to the matter of grounds. I welcome the elimination of the guilt notion in divorce. There is much concentration on the fact that because we have taken away the guilt notion one partner to a marriage can unilaterally break that marriage, that that partner can take action which will end the marriage against the wishes of the other party. Many personal contracts are undertaken between individuals in our society and between men and women which are voluntarily broken. The stage before marriage is the formal engagement stage. It is a fact that individuals at that stage can break the engagement. It can be broken unilaterally very much against the wishes of the other party. The reason that that situation is different from the question of breaking or dissolving a marriage, that the latter is so much more emotional, is because there is the matter of justice in the area of property, joint property which has been earned through joint effort which must be justly and reasonably settled and because, crucially, it is highly likely that the marriage will include a giving birth to children and the welfare of the children of the marriage must be paramount. With that substantial difference those are the areas, I believe, on which we should concentrate.

I am not totally persuaded by religious argument. Speaking personally, I have had a lot of pressure put on me by religious groups with the notion that marriage once undertaken is a permanent contract. I have never yet had sufficiently explained to me the logic behind the situation when 2 parties enter into this contract and one party breaks it, or never attempts fairly to keep it according to all the conditions that they undertake when they go through a religious marriage. It is not just an agreement to live together as man and wife. It is not just an agreement to be legally in the state of marriage. It is an agreement that covers very many aspects of human conduct in marriage. I cannot understand why when one of the parties breaks those aspects of the contract the other party is obliged to maintain them unilaterally. I think that is a matter for individuals.

Nevertheless, we must respect the religious beliefs and religious scruples of very many sincere people in our community. For that reason I hope that at the Committee stage the section of the Bill which requires or appears to require a move towards actual divorce before a proper settlement can be made in the matter of support and property will be amended. It is a poor one. We should leave the way open for those who will recognise that they are living together in the state of marriage and as it is a very poor state and a sham, continuation of that state is bad for their children and bad for them as individuals. They may agree to live apart but they may have strong personal and religious reasons for not wishing to proceed to divorce. Those people should not be forced to proceed to divorce.

In the matter of guilt I think it is very important that a mutual termination of marriage with dignity be possible. I think there is a greater chance of termination with dignity if there is not a guilt basis. At present where there is a requirement to prove guilt there is an altogether unhealthy interest in the community as to the grounds on which individuals are divorced, who divorced whom, who was the defaulting party, when we all know in fact that in a very large percentage of cases the actual grounds used in the divorce court were not the cause of the breakdown of the marriage. More often they are symptoms of the breakdown of the marriage but we force members of our society to go through a wholly undignified and in many cases extremely degrading process in order to terminate a relationship which has left in it no potential for good for them, for their children or for the community.

The ground has also been used as a bargaining point by parties to marriage in the matters of maintenance, property and custody. This has been strongly to the detriment of children. Mr President, I wish to speak at quite some further length on the effects of this aspect on children and on the potential effects of this Bill on the status of women in our society, as a reflection of their status and on just how we can hope through a Bill which deals with personal relationships to come to a fair law which will enable reality to be reflected and will enable people to live believing that they have been justly treated, knowing that they have behind them what is regarded as a social failure but also knowing that they at least have an equal chance of living a decent life. However, I understand that this debate is scheduled to be adjourned at 1 1 o'clock this evening. May I proceed, Mr President?


The PRESIDENT - Yes. If you would like to discontinue you should ask for leave to continue your remarks at a later stage.


Senator MARTIN - When the debate on this Bill is resumed, presumably on the next day of sitting or soon thereafter, I hope to be able to continue my speech. In that case I do not wish to pursue this matter and thereby cause the debate in the Senate tonight to run any longer than it has to. I seek leave of the Senate to continue my remarks when the debate is resumed.

Leave granted; debate adjourned.







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