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Tuesday, 26 November 1974
Page: 2785

Senator MISSEN (Victoria) -This amendment stems from an unanimous recommendation of the Senate Standing Committee on Constitutional and Legal Affairs. Members of the Committee felt that whatever period might be determined as the period of separation it ought to be one that had been created and was already in existence before divorce proceedings started. I say this mainly on the basis that people should not be encouraged to leave premises, start proceedings for divorce and then not be willing to pull back from those proceedings when they later changed their mind. The Standing Committee felt that there ought to be a clear period. That period would be applicable to whatever period the Committee of the Whole finally decides on. I commend the amendment.

Amendment agreed to.

Senator Sir KENNETHANDERSON (New South Wales) (8.49)-I move:

Leave out the clause, insert the following new clause:

26.   ( I ) An application under this Act by a party to a marriage for a decree of dissolution of the marriage shall be based on the fact that the marriage has broken down irretrievably.

(2)   In a proceeding instituted by such an application, the fact that the marriage has broken down irretrievably shall be held to have been established if. and only if, it is proved to the reasonable satisfaction of the court that

(   a ) the other party to the marriage has behaved in such a way that the applicant cannot reasonably be expected to live with that party, or

(b)   the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than three (3) years immediately preceding the date of the application and there is no reasonable likelihood of cohabitation being resumed, and provided that the Court is satisfied that, in all the circumstances, it is not harsh and oppressive to either party or contrary to public policy to grant the relief sought.

(3)   The Court, upon being satisfied of the existence of the fact that the marriage has irretrievably broken down, shall make the appropriate decree.

This issue was canvassed fully in the second reading debate and I do not propose to speak on it at any great length. All honourable senators would be aware of the diametrically opposed points of view held by some honourable senators in relation to this Bill. It has euphemistically been called a Bill for the no fault dissolution of marriage.

My amendment seeks to put the onus of responsibility on the court to show that a marriage has irretrievably broken down and cannot be repaired and that the parties cannot be brought together again. My amendment proposes that the court should have regard to all the circumstances which have brought about the failure of the marriage, such as the conditions of the marriage and the grounds for divorce which are inherent in the present Matrimonial Causes Act. The court must look at all those things before it implements the provisions of the Family Law Bill in relation to the dissolution of marriage.

In my speech in the second reading debate I referred to a statement made by a number of people in high office in the community- I do not propose to mention their names again- people from religious groups in the community, notably in New South Wales, at least one Queen's Counsel in New South Wales and a number of other members of the legal profession. They have said that clause 26 of the Bill is objectionable because its effect is to permit divorce at the will of one party, without any objective test that the marriage has in fact irretrievably broken down. They have also suggested that adultery should be included as a separate ground. I have not included that suggestion in my amendment because 1 believe that the court would have to look at that condition as well as at other conditions of a marriage to be satisfied that it has inevitably and irretrievably broken down. I am not a lawyer but 1 understand that there are about 14 conditions including desertion, brutality and bestiality. I made my point in relation to those grounds when I spoke in the second reading debate.

This Bill provides that one party to the marriage can say that there is to be a separation. This could happen within a period of days of the marriage being carried out either through church procedures or by civil registration. One party can say, without any ground except incompatibility, that he or she will separate from the other party. Under the amendment of the Attorney-General (Senator Murphy), which has now been agreed to, a period of 12 months separation can provide the ground for the dissolution of the marriage. Without going through all the argument again I suggest that the judgment that honourable senators have to make- and, when the Bill is disposed of here, that members of the other place will have to make- is whether that in itself is a complete and absolute ground for dissolution of marriage, which marriage has been carried out in good faith between one woman and one man on the basis of a contract for life. That is the concept of marriage in the law as it stands, and was the concept even before the operation of the present Matrimonial Causes Act. But in this Bill we are departing from that concept in its entirety. We are simply saying that there does not have to be any proof of grounds or any justification.

Simply because one of the parties, who have married and have taken the solemn vows, decides that he or she does not want to go on with it and wants a separation, under this provision of the Bill he or she will have the right to the dissolution of the marriage and to all that stems from it, such as maintenance and custody of the children of the union. Those matters will be dealt with later on. I will not canvass them now. I will come to the question of whether the period of separation should be 1 year, 2 years, or 3 years. That is only a subsidiary part of the amendment.

What the amendment purports to do is to say that the court must be satisfied that there are grounds by which the procedures of this Bill can operate. Inherent in that would be the grounds that the court has to be satisfied -

Senator Poyser - You would be bringing in fault?

Senator Sir KENNETH ANDERSON - It is bringing in fault. Senator Poyser says that there should not be fault. He should not try to interrupt me when I am making my speech. He is capable of putting his own point of view when he is ready. As I said at the start- perhaps the honourable senator was not listening- this is the very essence of the difference of the views as put by the Attorney-General and by the hierarchy of almost every church organisation in Australia. Thousands of people hold the view that I am putting in the amendment, that marriage entered into in good faith is a contract and should not be allowed to be dissolved in the fashion proposed by this Bill. If one enters into a civil contract- say, for buying stock or doing anything by contractthe law says that there has to be some basis for breaking the contract. The situation we have here is that one of the parties can say: 'I do not like the other party to the contract, therefore I intend to separate. Because I do not like the colour of the hair of my husband or something or other we are going to have a dissolution. ' To me and to an overwhelming number of people in the community that is an objectionable provision. There is no point in going on because we have already voted, I think, on this question of fault and non-fault.

The ultimate purpose of the amendment is that it brings in a period of not less than 3 years. Other amendments have been circulated which refer to a 2-year period and others which refer to a 1-year period. I think that we can dispose of my amendment on the basis of the fundamental principle. If my amendment is not agreed to then we can discuss the other variations. An amendment will be moved by Senator Laucke which I think has real merit in its application and, indeed, an amendment will be moved by Senator Baume which also has application to this question of the period of time. The real thrust of this amendment is that there should be grounds for divorce and the court has to be satisfied that there is grounds for divorce. The marriage should not be allowed to be dissolved on the basis of a decision of one of the parties without there being some grounds which the court is satisfied are bona fide.

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