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Wednesday, 27 November 1974
Page: 2855


Senator DURACK (Western Australia) - There does not appear to be any other speaker to my amendment and, although I do not want to delay the vote, 1 should like to say a few words in answer to some of the arguments that have been advanced. First of all, Senator Murphy strongly opposed the proposition that the period of separation should be 2 years instead of one year, suggesting that the change would encourage fraud on the part of many parties. In other words, people who had not been separated for 2 years but who badly wanted a divorce and who did not wish to wait for that period of 2 years would put up a fraudulent case by stating that they had been separated for 2 years, backdating the time when the separation began. I asked Senator Murphy whether he had any evidence of that occurring in relation to the present 5 year separation period, because I should have thought that under our present law parties might have been much more tempted to put forward a fraudulent case if they had to wait for 5 years instead of for only 2 years. He hesitated considerably, because he obviously did not have any evidence himself of that, but then he said that one of his legal advisers had said that he had one case.


Senator Murphy - No, he had had one today.


Senator DURACK - That must be about the first one that has occurred, and the Act has been in operation since 1960. He is an adviser who has had very great experience in this matter over many years and I should have thought that if there had been many of them he would have said more than one. However, the fact of the matter is that we have not heard of this type of thing happening extensively under the present law. Admittedly, in the situation Senator Murphy mentioned of the old application for restitution of conjugal rights which seemed to be a feature of the New South Wales law for many years- in the more enlightened States it had been abandoned long before the Matrimonial Causes Act 1959- that law recognised that that did happen. But we are talking about a completely different situation and I have never heard it said that there has been any extensive misuse of the ground of 5 years separation by parties claiming fraudulent periods of separation. Certainly in my own experience where parties were going ahead on that ground it was necessary to deal with the circumstances of the separation. There was very often an order of the court which established the commencement of the period of the separation or there was a separation deed. In cases of separation there is very often clear objective proof of when the separation period began. I should think that there is really very little likelihood of parties being able to abuse this provision and put up a fraudulent case. Of course, there are always going to be some such cases, whatever the law happens to be. I imagine that there would be some even if the ground of separation were one year. There would be some parties who would act in a fraudulent manner and sometimes they would get away with it. These are just things that have got to be accepted, but I think it is a weak argument to say that there is more likelihood of fraud if the ground is 2 years separation than there is if it is one year.

The only other argument that has been advanced against my proposition with which I want to deal relates to the opinion polls about which some honourable senators have spoken. The Morgan gallup poll I think has been referred to and some doubt has been thrown by Senator Chaney on the value of the question asked. I do not want to argue whether the question was right or wrong but 1 do question whether it is of any relevance or whether we in this Senate should place any weight on what some opinion polls say on a matter such as this where we are exercising our own responsibility and our own judgment. I hope that no honourable senator in this chamber is going to be influenced on such a fundamentally important issue as this by something he has read in the newspaper about a gallup poll result.

To sum up briefly my own view in relation to this amendment, I do not want to argue particularly whether separation of one year is enough to prove that a marriage has broken down. In many cases it may well be enough, but I have some doubt of whether that is so in all cases. Therefore, acting on the basis of caution, I should prefer to see a longer period. Provision is made in the Bill for very much more adequate counselling services. In fact, the Bill provides for not just more adequate counselling services but for an entirely new concept of counselling for parties whose marriages have broken down. It is a really new and most exciting concept and, in my judgment, it is the greatest aspect of this Bill. I believe that we might see some" very major changes resulting in relation to marriage breakdown. We might well find that there will be very much more success in effecting reconciliations than we have known in the past, and therefore it might well be that people will be able to be reconciled over longer periods of time. Therefore, as I said, it might well be that 12 months will not be sufficient. 1 come back to my major point and my major argument in relation to this amendment. We have said- everybody says- that the purpose of a good divorce law is to buttress a marriage. I believe that we have to have a divorce law which does not make it easy to get a divorce. Nobody believes in divorce by consent. Nobody believes in divorce after 3 months or some unrealistic period of separation. We have to have a divorce law which makes people think both before they enter into a marriage and, probably more importantly, before the marriage into which they have entered and which is perhaps starting to come apart has broken down. When he gave evidence -some time ago now- Mr Justice Selby, who was the first witness to appear before the Senate Standing Committee on Constitutional and Legal Affairs, stressed the point that people really must be encouraged to work at their marriages. I do not believe that there is any man in Australia who has had more experience than he in administering the law on this subject. The point he stressed is the whole reason why we have a divorce law which places impediments upon people getting an easy divorce. It is on that basis- not that basis alone, but that basis is certainly my major argument in support of my amendment- that I have proposed that the period of separation should be 2 years instead of one year.

Question put:

Thai the amendment (Senator Durack's) be agreed to.







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