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Tuesday, 26 November 1974
Page: 2793

Senator DURACK (Western Australia)

In sub-clause (2). leave out' 12 months', insert '2 years'.

In my speech on the second reading stage of the Bill I advanced the basic reasons which Senator Chaney and I have for suggesting that the period of separation should be 2 years instead of one year as provided in the Bill. I shall go over those reasons again. We are accepting, of course, the fact that the no-fault ground of divorce should be the one and only ground of divorce. The Committee has now rejected any suggestion of the introduction of fault, whether it be directly or indirectly. I think we are left now with the one issue of whether the sole ground of divorce should be separation for a period of separation ofone year or 2 years. Although, as I have said, I favour completely the no-fault basis of divorce, I believe that the purpose of a divorce law must be, as everybody agrees, one which will buttress marriage. I take that to mean the law will provide such impediments to easy divorce as will cause people, both before they have entered into marriage and after they have entered into it, to have very serious regard to the nature of the responsibilities they are assuming, not only to their children but also to each other and indeed to society. It is quite clear that our society, as I have said, whether it be Christian or not, still regards marriage as the basic unit of society. It still regards marriage, at least as an ideal, as a union for life of one man and one woman to the exclusion of all others.

Indeed I believe it is most significant that earlier in the Committee stage today we adopted Senator Sir Kenneth Anderson's amendment which quite clearly incorporates in this Bill that basic concept that our community has of the nature of marriage. Therefore we cannot accept a period of separation which would be so short as to amount to a complete repudiation of all those basic concepts. For arguments sake we will assume a period of separation of one month, 3 months or 6 months. I think it would be obvious that such periods of separation would be really totally contrary to those conceptions which have already been incorporated into this Bill. In my view the period of 12 months is not sufficiently long to provide that buttress for marriage which has been said to be the basis of good divorce law. Having regard to certain features of the Bill, namely, that the parties can in fact reside even in the same house and provide for each other a few household services, they could become reconciled for a period of up to 3 months and it is possible under this Bill to add together periods of separation both before and after such reconciliation. When one has regard to those factors it seems to me that 12 months is really a very short period of time. We have to be satisfied that whatever period of separation we choose it must establish clearly that the marriage has broken down. It would be very difficult to say that a period of separation of 12 months would clearly establish that fact. There seems to be a good deal of evidence from experts in this field who have found in their experience that people going through the turmoil of marriage breakdown may well be separated for a period longer than 12 months but are ultimately reconciled.

It is important in making such a very fundamental change in our marriage and divorce laws that we proceed very carefully and very cautiously and not introduce too revolutionary a change in the one step. It seems to me that to abandon as we are the fault concept and to incorporate as an alternative a non-fault ground as the sole ground for divorce, we should be particularly careful to ensure that we do not go too far. If we went overboard to the extent of making the period of separation 3 months or 6 months it would be obvious to us all that we were going too far. In my opinion, and I believe in the opinion of a large section of the community whose views I have heard or heard of, a period of 12 months is too short. That is why I have brought forward this amendment for the period of separation to be 2 years. I can conceive that maybe that is going a little too far, but I just have the feeling that 12 months is too short a period of time. It does seem to be unrealistic to talk about any period between 12 months and 2 years and that is why I have settled on 2 years.

The arguments which I have heard against this proposal have, I think, already been canvassed in this place. People say that that is too long to have to wait after a marriage breakdown and that the period should be shorter and that there should be a more immediate ground. I have already dealt with that and, as I have said, from my own experience when people separate and a marriage breaks down they are not really thinking about divorce immediately. It is only later that they think about divorce. In any event there is always a considerable period of time which elapses after separation during which court proceedings and negotiations are taking place. I do not think it would matter very much if the period of separation was extended by another 12 months. From the point of view of society's attitude towards divorce law it is most important that there should be a very substantial and realistic period of separation before it is possible to obtain a divorce.

I come back to my original argument that we must have a divorce law which does make people think before they enter into marriage. In other words, they should not, as marriage service says, enter into marriage lightly and inadvisedly with the idea that they can very easily get out of it. That of course would be bad divorce law. Furthermore, when a marriage seems to be going wrong the couple think that they will have to separate for a period of only 12 months and then they can get a divorce.

Senator Sir Kenneth Anderson - Continuous separation.

Senator DURACK - It is not a continuous period. Under the Bill 2 periods can be added together to make the 12 months.

Senator Sir Kenneth Anderson - It does not say that in clause 26.

Senator DURACK - No, but it does in another clause. If when a marriage starts to go wrong people can say, 'We do not have to put up with this, we can easily separate and get a divorce' again that divorce law is not doing its job because I think the divorce law should be such as to make people think seriously about the question of divorce. They should not believe that they can get a divorce easily. If they realise that they cannot get a divorce easily that is an important factor to weigh in their minds when considering whether they will separate and break up the marriage. I know that there are many other considerations. People do get very concerned about these things on purely personal levels. I am not saying that we have to hold something draconian over their heads. But I think there are a multitude of factors that should be brought to their attention in these circumstances, and certainly one of them is the ease or the difficulty of getting a divorce if in fact they do separate.

For all those reasons I believe that it would be too great and too rapid an advance for us to proceed to introduce as a sole ground for divorce separation for a period of 12 months. It would be much safer for us and we would be more careful in our approach as legislators to this very vital and fundamental aspect if, as I have said, we adopted as the ground a period of 2 years separation. These things are not rigid. We are going to have an opportunity of seeing how this legislation works out. We are going hopefully to have a Family Law Council which will keep these matters under close watch and advise the Parliament in regard to the way the proposed Act is operating. But for a start, and embarking upon what is a very revolutionary divorce law reform, I think we have gone far enough in abandoning the fault aspect. If we try to go too far at this stage we may be causing great harm to the community and particularly to its attitudes towards marriage. For those reasons I have moved the amendment.

The CHAIRMAN - Anybody who has been listening closely to the debate over the past days would be well aware now of the provisions relating to this amendment. It may be very convenient for the Committee to attempt to get a vote on this shortly. Do you wish to speak, Senator Davidson? I see you seeking the call.

Senator Davidson - Yes, Mr Chairman.

Senator Murphy - I think there has been an arrangement to report progress at this stage to permit some Bills to be introduced I hope that we will be able to return speedily to the Committee consideration and conclude this tonight.

Senator Sir Kenneth Anderson - Can the Attorney tell us whether we will return to this Bill tonight in time to deal with this clause?

Senator Murphy - Yes.

Consideration interrupted.

Progress reported.

Motion (by Senator Murphy) agreed to:

That further consideration in Committee be made an order ofthe day for a later hour this day.

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