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Wednesday, 27 November 1974
Page: 2850


Senator MURPHY (New South WalesAttorneyGeneral) - I suppose that whatever criterion you put in the Bill there might be some difficulty in a particular case. We will get to a border line whatever we put in. References have been made, for example, to consent. Although that might seem to be a very simple concept, in fact it has proved to be difficult in some cases in its application to ascertain whether there has been true consent. Yet one would have thought there would not have been that much difficulty over that. Of course, if it is legally ascertained that the parties have not separated, the ground is not established. Whatever the ground might be it will have to be established. It is said that there may be some people who, on a proper interpretation of 'separation', notwithstanding the extended meaning that has been given to separation' by the decisions of courts and which is applicable under this legislation, may not come within that criterion. Let us face that problem squarely. Suppose they do not. Say we have a situation where the circumstances have been very difficult and someone has had to put up with an awful lot but the parties, in contemplation of the law, simply have not separated. The ground would not be established. It is as simple as that.

There is no suggestion here that anyone who feels that he or she is entitled to a divorce can simply go along and say: 'Give me a divorce'. A 12 months separation period has to be established in its proper interpretation to the court's satisfaction. In almost all cases we imagine there would not be very much difficulty about establishing that ground. There may be some difficult cases where the parties are living in the same household. The honourable senator puts to me that there may be some cases where the party cannot establish separation for the 12 months; that is possible. But there may be a remedy in the hands of the party. The party can take certain steps. There are injunction procedures. If the marriage has irretrievably broken down the party may be able to take steps to change the circumstances.


Senator James McClelland (NEW SOUTH WALES) - Today there is difficulty in establishing adultery.


Senator MURPHY - As Senator James McClelland interposes, there may be in relation to almost any one of the grounds some cases where a party might find some difficulty in establishing the ground. That is something that is inherent in the operation of our law. No matter what ground is prescribed there might be some difficulty in establishing it. It is suggested that this could be overcome by introducing some kind of other ground. I think that the disadvantages of that would far outweigh any advantages. If a person really feels that a marriage has irretrievably broken down I think the course will be to see to it that there is a separation. I think that what is being imagined will not prove to be a real difficulty to the persons who are caught up in the situation. I must concede, and there is no escape from the fact, that whatever ground is put in some people might find, in cases with some kind of special circumstances, difficulty in establishing the ground. I do not think that there is any great problem here. In fact, I think the virtually universal opinion is that we are selecting a ground which is free of the fault concept and which is more free than any other ground would be if the difficulties envisaged occurred.

Senator Sir KENNETHANDERSON (New South Wales) (4.37)- As the Committee is aware I moved an amendment to clause 26. The amendment envisaged a separation period of 3 years. Other matters were also mentioned in my amendment. The amendment moved by Senator Durack provides for a separation period of 2 years. This is in contradistinction to the Bill which provides for a one-year period. Naturally I will cast my vote in the Committee for the 2-year period. I feel bound to say that the AttorneyGeneral in speaking this afternoon against the amendment, rather jarred my susceptibilities. He put forward argument for a one-year period. First of all, he cited the legal profession as the authority for a one-year period for separation. I feel bound to say that the testimony he brought forward was from people associated with the legalisms of the dissolution of marriage. I thought the Attorney-General made a very gratuitous criticism of the legal profession and of the judiciary, to put it in gentle terms, when he said that they acknowledged and had regard to the fact that in 99 per cent of the cases- Senator Murphy used these words- perjury was being committed.


Senator Murphy - I was thinking back to a particular ground; that of the non-compliance with the decree of restitution.


Senator Sir KENNETH ANDERSON - I know. But you brought the testimony of the legal profession in favour of the one-year separation. Then, of course, the Attorney-General referred to the American scene. Out of his own mouth he cited an example which showed that the American concept had a fault provision in it.


Senator Murphy - That is not quite right. I went on to quote the Australian Council of Marriage Guidance Organisations.


Senator Sir KENNETH ANDERSON - I know. On the one hand the Attorney-General says that the period of separation should be one year because that is what the legal people say. On the other hand he gave the legal people a very definite backhander. This will be seen from reading Hansard. The legal profession is comprised of people who are associated with the dissolution of marriage. In 1972 87.1 per cent of marriages were celebrated in religious gatherings. Senator Missen dismissed this because it related only to New South Wales. But leaders of religious organisations in New South Wales, including His Eminence the Cardinal of the Roman Catholic Church, the senior archbishop ofthe Church of England and representatives of the Methodist Church, as well as some members ofthe legal profession, say that the period should be 3 years. If Senator Murphy relies on the authority of the legal profession which is associated with the dissolution of marriage I put forward the testimony of the religious leaders of New South Wales who say the period should be not one year but 3 years.

One other aspect concerns me. I have said that I will vote for the period of 2 years separation because the amendment to make the period 3 years has been defeated. It is well to look at clause 26 (2) which states: . . iiic co url is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months -

Clause 29 states that the separation does not have to be for a continuous period of 12 months. Senator Durack, to his credit, when speaking to his amendment pointed out that there could be a break and a separation period would be only 3 months. It is not a question of the separation being continuous as is stated in clause 26. The parties, in fact, may have a break in the separation in the 12 months period as outlined in clause 29.


Senator Murphy - It has to be a total of 12 months.


Senator Sir KENNETH ANDERSON -Yes, that is right. As the proceedings of the Committee are being broadcast, as this is a very complex Bill and as about 23,000 people have asked for its deferment so that they might understand it, it is desirable to point out that the separation does not have to be for a continuous period of 12 months, as is stated in clause 26, but has to be for a total of 12 months. That surely is another reason why the period of separation should be 2 years and not 12 months. It is of no use to give examples of the American scene. The Bill does not provide for no-fault divorce at all. When we talk in terms of the people who will stand up to testify for what they want I put the leaders of the religious community of New South Wales, who favour the 2-year period, ahead of the legal people, to whom the Attorney-General referred, who favour a period of, in fact, less than 12 months.







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