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Thursday, 19 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I move -

At the end of the clause, add the following sub-clause: - " (2.) A decree of nullity of marriage shall not be made on the ground that the marriage is voidable by virtue of paragraph (a) of sub-section (1.) of section twenty of this Act where the court is of opinion that -

(a)   by reason of -

(i)   the petitioner's knowledge of the incapacity at the time of the marriage;

(ii)   the conduct of the petitioner since the marriage; or

(iii)   the lapse of time; or

(b)   for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, to make a decree.".

The purpose of this amendment is to give to the court an additional discretion in the case of a suit for nullity so that the court may refuse a decree because of knowledge of the incapacity of the respondent at the time of the marriage, the conduct of the petitioner since the marriage - that is to say, the marriage may have been affirmed and allowed to go on, perhaps, with knowledge of incapacity - or the lapse of time, or for any other reason which, in the particular circumstances of the case, would make it harsh and oppressive to the respondent, or contrary to the public interest, to make a decree. In the notes incorporated in the list of amendments which I circulated originally in October, the committee will find a reference to two cases in which the divorce courts in England developed for themselves a doctrine of public interest. They said, although everything that entitled the parties to a decree of nullity had been proved, that the conduct of the petitioner, in the circumstances, was such as to make it contrary to public policy, or inequitable, to grant the decree. I have simply carried that distinction into this clause.

Amendment agreed to.

Clause, as amended, agreed to.

Clauses 46 and 47 - by leave - taken together, and agreed to.

Clauses 48 to 55 - by leave - taken together, and agreed to.

Clause 56 (Ground for decree of restitution of conjugal rights).







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