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Wednesday, 27 November 1974
Page: 2845


Senator DAVIDSON (South Australia) - Mr Chairman,the Committee is looking at an amendment which, I suppose, in essence argues whether the separation period should be for one year or for 2 years. Honourable senators will be aware of paragraph 55 of the report ofthe Senate Standing Committee on Constitutional and Legal Affairs in which the Committee recognised that there may well be differences of views regarding the appropriate period of separation in proving irretrievable breakdown. The report states that a majority of members of the Committee believe that the period of 12 months separation which is proposed in the Bill should be required to establish irretrievable breakdown, but 2 members of the Committee, Senator Durack and Senator Chaney, dissent from this recommendation and believe that 12 months is an inadequate period. They propose a period of 2 years. The dissent which has been referred to is the basis for the amendment which is before the Committee of the Whole this afternoon.

If we are favouring a no-fault basis for divorce, as I said during my speech at the second reading stage, this means that any divorce laws must, as far as possible and as often as possible, strengthen the institution of marriage, not allow marriage to be easily undertaken and, most of all, not allow divorce to be easily obtained. Therefore any legal processes to deal with a marriage that has broken down must be laws that influence people both before and after they enter marriage. The law that deals with a marriage that has broken down must promote a sense and an attitude of responsibility towards the whole institution and process of marriage and the establishment of marriage. Therefore in the context in which we are looking at the law now it must involve a period of time which reflects those attitudes and which provides for and encourages that degree of responsibility to which I have referred. It must also involve a period of time which on the one hand does not impose undue hardship, or what might be described as undue cruelty, but which on the other hand allows for a maximum of good factors to be undertaken and reconciliatory events to take place.

Also, if I may refer again to my second reading speech, it must provide opportunity for such things as are described in the Subordinate Standard of the Presbyterian Church of Australia, which I mentioned in that speech, where reference is made to qualities of pardon, direction, promise, repentence and forgiveness. I do not think that 12 months is long enough for all these things to take place, for all these attitudes to develop and for these senses of responsibility to be realised.

Various authorities have challenged me on this view. I have been challenged that if one persists in the view of having 2 years we will be amending the Act within a year. I have no doubt that we will be amending the Act and some people may have a revised view as to the period of time. It must be pointed out again that the Bill itself, and this clause in particular which is before the Committee, is all part of a move of vast changes in this important aspect of our national, social and community life. It is imperative, as we discuss and legislate for quite extraordinary and vast changes in an Act such as this, that we take the community with us. If it is argued that 12 months is adequate, that does not provide me with a satisfactory response because I am not satisfied that 12 months allows sufficient time to prove that a marriage has irretrievably broken down. I think we need to take sufficient time to distinguish between a simple separation on the one hand and an irretrievable breakdown on the other. If no guilt has to be proved we need to ensure that sufficient time has elapsed to prove that the breakdown has taken place and to take account of separations which may be enforced on people through circumstances beyond their control, maybe in the area of illness, maybe in the area of some kind of duty, detention or other absences, and of which, under some circumstances, maybe extreme circumstances, some improper advantage may be taken.

I am fortified in the view which I have reached in relation to sustaining this amendment which is before the Committee by the communications sent to me, as they have been sent to all other honourable senators in relation to the Bill and this clause in particular, by a variety of community groups. I select only two, and they are from South Australia whence I come. One communication from the Hindmarsh area expresses concern that the period of 12 months is an insufficient period of time. The minister concerned writes that as Christian ministers he and others endeavour to make sure that young couples they marry realise that they are entering into a life contract and that this period of 12 months separation is not sufficient. The other communication is from the Marriage Preparation Course of the Archdiocese of Adelaide over the signature of the Director, the Rev. John F. Swan. He is concerned about this matter. Having studied the Bill and the report 'of the Senate Standing Committee on Constitutional and Legal Affairs, he said that he has some doubts about the one year separation. In his view it is not long enough to establish an irretrievable breakdown. He has some doubts because it may hasten attitudinal changes regarding the permanence of marriage.

That final reference leads me to confirm my support for the amendment before the Committee because the most important reason, in my view, for sustaining the amendment is to meet the concern in the community regarding what the Director referred to in his letter as the attitude to marriage. If there is a fear that this attitude to marriage will change, a fear that the stability of marriage will be undermined, I think we have to give this far reaching and important legislation every chance not only to operate successfully and adequately but also, as I said at the beginning, the chance to take the community with it so that the community becomes persuaded as to the no-fault concept and the irretrievable breakdown concept. 1 think the 2 year period will allow all these attitudes to mature and I am certain that a 2 year period will allow the stability of marriage to be maintained. I hope the amendment is successful.







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