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Wednesday, 18 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I should like to say, first, in answer to the honorable member for Chisholm (Sir Wilfrid Kent Hughes), that I do not approach any part of this bill on the basis that I have the numbers. It is quite untrue to suggest that the Government has in any respect deviated from its statement that this is a completely nonparty measure and that every man is free to follow his own bent. As far as I am concerned, I have done nothing, nor do I know of anything done by any other member of the Government, to alter that situation. This matter may be approached by honorable members according to what they think after having heard the debate.

Let me put to the committee the reasons why I think two years is preferable to three years. First, the honorable member for Moreton (Mr. Killen) endeavoured to draw an analogy between this ground and the Western Australian ground as a result of what I said last night. I am not striking out a ground, but the ground of desertion is included; but this bill is a balanced bill. I have had to deal with many more problems than just taking one ground by itself. For example, there is a ground for dissolution for failure to support a wife for two years in disobedience of an order or in breach of an agreement. Does the honorable member for Moreton say that a woman should wait three years without any support from her husband, or does he agree with me that it is enough for her to wait two years without any support? When she finds a man who is willing to support her honorably after two years, should she not be free to say that she will divorce he delinquent husband and marry this man who wants to support her and perhaps the children of the former marriage? If the honorable member for Moreton wants to make the period three years in one case, he will have to make it three years in the other. He could not leave this bill in the position that there could be failure to support for two years but that there must be desertion for three years. Indeed, in many States at present failure to support is deemed to be desertion. I have included that ground in the bill because it is not so regarded in all the States, and because I thought it very right and proper that if a woman were left by a man high and dry for two years, and if she found somebody able and willing to support her, she should be free to marry him honorably.

There is another balance in this bill. I have kept in the measure the ground of restitution of conjugal rights because I have been convinced, by those who have practised more widely in this sphere than I have, that in a considerable number of cases reconciliation has resulted from the commencement of a suit for restitution of conjugal rights. If the percentage of reconciliations is anything like as high as I have been told it is - the figure of 8 per cent, has been quoted to me - the retention of this ground as part of the mechanism of this bill is well worth while. But if I had to allow two years for compliance with a restitution order, I might as well tear up the provision. The very longest time that I could allow for obedience to an order for restitution, and expect the provision to have any effect in relation to reconciliation, is twelve months. If I extend the desertion period to three years and leave a ground of failure to comply within one year with an order to return home, I will simply be providing a short cut to divorce in the way in which the New South Wales provision is constantly used now.

In weighing up the grounds, I have come to the conclusion that the people of Australia will not accept the New South Wales provision as it is currently used. Consequently, I have had to endeavour to balance this bill. To provide for desertion for two years really makes it useless for anyone to attempt to use the restitution procedure as a short cut because, if you will only do a little arithmetic you will realize that a petitioner must bring one suit for restitution, wait a year, bring another suit, and then get a divorce. A petitioner might as well wait two years and sue for divorce on the ground of desertion and save himself or herself the cost of one suit. The period of two years is important in the general balance of this bill which is not just a series of unconnected grounds.

Above that, and perhaps more important than that, are the merits of the provision. Why do we specify a term of years for desertion? Those who were responsible for determining what were matrimonial offences for the purposes of our present laws, considered apparently that a man who deserted his wife and stayed away for three years committed an offence of sufficient gravity to warrant her suing for divorce. But does not the man who deserts his wife finally and stays away for two years commit a matrimonial offence? Is the matrimonial offence so much different at two years from what it is at three years? If you look at this question of divorce in the way in which I have looked at it, you will ask yourselves whether a marriage has irretrievably broken down when there has been desertion for two years and the husband has not come home when the suit has started - do not forget that under this bill he can always offer to effect a reconciliation. This bill gives him the chance to come home if he wants to. So the hypothesis is this: The husband has been away for two years and, although the suit has commenced, he has made no endeavour to effect a reconciliation. Can we say that that marriage has not broken down finally and that we ought to wait another year to see whether it has finally finished? I am sorry to say that I cannot see any reason why a person should wait for that additional year.

As I said last night, when you realize that the preponderance of divorces take place between people aged between 30 and 40, a year of life is terribly significant. Let us remember too that a divorce is not sought until the petitioner wants to make a new life with somebody. After all, people do not get divorce decrees just to paste them on the wall. They get them because they want to marry again. If there has been desertion for two years and no offer of reconciliation, who will say that a man should be able to stand out another year before his wife, who has found another mate, can marry? This matter has been looked at on the broad, human basis. I am quite sure that the answer must be that two years is sufficient. Some period must be allowed in order to demonstrate that a marriage is irretrievably lost, and it is a matter of judgment as to whether it is two years or three years. Somebody has interjected and asked why not four years or five years.


Mr Stewart - Why not one year?


Sir GARFIELD BARWICK - I am not talking about one year, I am talking about two years. In the judgment of this committee, is not two years sufficient? It is nothing to the point that a group of State parliaments, which would not touch divorce with a 40-ft. pole as a political problem, have left the period at three years. That is not the answer for this Parliament which is making an Australia-wide law. I hope that the committee will approach this matter, as I have done, with the idea of finding what is good and sound for the community on a humane basis. On that footing, I ask the committee to accept two years as being a sensible period.

As a side remark, let me say that this period of two years was a recommendation of the Law Council of Australia which looked at this matter as a group of practising men, not merely as lawyers but as people who have had experience of human suffering in the cases that they have had to handle. They came forward with the unanimous recommendation that two years was proper.

The honorable member for Chisholm has implored me to treat this as something other than a secular matter. Truly, we are here to deal with a code of divorce as legislators. We cannot sit here as clerics because if we do I suppose a great number of us would say, as I indicated last night, that marriage is indissoluble and that there can be no divorce. We cannot look at it in that way. For 100 years we have not looked at it in that way. We must ask ourselves whether, in our own honest opinion, we will tlo any damage to this community by reducing the period from three years to two years. Conversely, we must ask ourselves whether we will do anything useful, just and humane by reducing the period from three years to two years. I am quite content to leave the question to this committee as a broad human problem.

The honorable member for Fremantle (Mr. Beazley) has said that by reducing the period from three years to two years we will promote collusion. The force of that argument rather escapes me. There is a provision in this bill against collusion. But let me remind honorable members of something that is very basic, something that we sometimes forget. Always parties can finish the reality of marriage by consent. There is no law, human or divine, that prevents a man from walking out on his wife or agreeing to leave her, saying that the marriage is over so far as all the realities are concerned. There is nothing to prevent him saying, " No longer will I cohabit; no longer will I love; no longer will I afford companionship ". He can do that always, and when he has done that - and nothing can stop him - no absence of divorce laws prevents him from breaking up the marriage. When he has broken the marriage the question, from the community's point of view, is whether the one who has been deserted can, after a proper interval of time, start afresh. I press on the committee that two years is adequate.







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