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Tuesday, 26 November 1974
Page: 2792


Senator MISSEN (Victoria) -I am afraid that I find this amendment more difficult even than the last because there are various things in it which are different and which, I think, would make for a very unreasonable law. This is a provision that the period of separation shall be 3 years. It would be longer, of course, than the present requirement of 2 years which, although we call it desertion, really is separation in the way in which the courts interpret it. So, the amendment will involve a longer period of separation. I point out that the period is 3 years, or 12 months in other circumstances, immediately preceding the date ofthe commencement of the hearing and that is the amendment we have just thrown out. I would think that is probably just a matter of a discrepancy.

I draw the attention of the Committee to 2 things. In the first place the period will be 3 years or, if there are no children and there is consent, 12 months. I strongly urge the Committee not to introduce the idea of consent into our divorce legislation. This would be highly unwise in any event and it provides an excellent blackmailing means for a party to a marriage. If a wife can say to her husband that he has to wait 3 years for a divorce, but if she consents he can get a divorce in 12 months, there is something there that will be worth a lot of money. There is a bargaining factor. There is an opportunity for the parties then to make decisions based upon the amount of money the husband, or the wife, will pay to get an earlier divorce. I urge the Committee not to put into the grounds for divorce any aspect of consent.

The second ground is curious as well. It would reintroduce the 14 grounds that have been attacked up and down the Committee and up and down the country for years. It would introduce adultery, desertion and so forth. What is more, if people read the Family Law Bill they will not find the grounds within it. They would have to turn to a repealed Act before they could find the grounds. They would have to look at all the ancient law which has developed under these grounds to determine what their rights will be. I suggest that this would introduce all the elements of fault back into the law and it would provide, as I have already said, these 2 very different periods. The English law has been quoted. The English Act, on the view of most observers, is a disaster. It did not provide for irretrievable breakdown. It resurrected and created some 5 new grounds comprising a mixture of fault, consent and various other things. I think the last thing we should do is to try to imitate the English law. I oppose the amendment.







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