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Wednesday, 18 November 1959

Mr BEAZLEY (Fremantle)

There is a real mystery about clause 20. I think that the grammatical construction at the beginning is so strange that the Attorney-General should have a look at it. The clause says that a marriage is voidable where, at the time of the marriage, either party to the marriage is incapable of consummating the marriage. All that this takes into consideration, grammatically, is a point of time. The condition laid down is that at the time of the marriage the parties were not capable of consummating the marriage. But if, subsequently, they become capable of consummating, apparently after it has become a working marriage, it is possible for either party to go back to the point of time of the marriage and say that because then the other party was not capable of consummating the marriage, therefore, it is voidable. That seems to be the strangest kind of thing. It just takes the point of time of the marriage and says that because the parties were incapable of consummating at that time, then - grammatically - they can go back and void the marriage. I cannot understand that.

The second point is that the clause, as drafted, mixes two things. It mixes factors which, I think, would render a person devoid of capacity of consent to marriage with other factors which are eugenic grounds. If a person is of an unsound mind or a mental defective it is very doubtful whether he would consent to a marriage. In clause 18 it is laid down that mental incapacity to understand the contract of marriage is one of the conditions which makes consent ineffective and therefore no marriage ever existed. If there is no consent to a marriage, clearly incapacity exists and there is no marriage. That is the position taken by the Catholic Church. It teaches that if a person is coerced into a marriage or is incapable of consent to marriage - consent between the two parties to the sacrament being necessary - then, in the absence of that consent, there is no marriage.

But then we come to this strange, covering, qualifying point that it is at the time of the marriage that everything counts. If, for example, at the time of the marriage the wife is pregnant to a person other than the husband, then the marriage can be voidable. No mention is made of whether the husband knew of his wife's condition and, knowing it, he consented to the marriage.

Sir Garfield Barwick - If the honorable member reads forward to clauses 43 onwards he will find this aspect dealt with in the nullity provisions.

Mr BEAZLEY - None of those provisions seems to me to overcome the objection that at a subsequent stage to the marriage, although all these things were known when the parties were married, one of them can turn round' and say, " At that time these things were so and no matter what has developed since, we can make that former condition a ground of voiding the marriage ".

There are two other things which seem to be not in conformity with any of these matters. One is that the marriage, although not void, is voidable. In other words, either party has to take action to make it so. For example, if there were recurring attacks of epilepsy, this could be a ground for voiding the marriage. I can think of two people, offhand, one of whom began to have epileptic fits at the age of nineteen and the other at the age of 21. If there is a eugenic ground for saying that there should be no marriage of epileptics, this clause still takes the point of time of the marriage and says, " If you ever had any epileptic attack round about that time, then the marriage is voidable ". All the eugenic objections to the marriage of epileptics apply with equal force if there is an onset of the attacks after marriage. So, again, tremendous power is given to this provision to the particular point of time.

The strangest one, I think, having regard to the curability of venereal disease, is to apply this provision so that if, at the time of marriage either party is suffering from a venereal disease in a communicable form, the marriage can be voided. There does not seem to be the clarity of drafting that would separate a ground from just pinning it on to a point of time.

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