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Tuesday, 26 November 1974
Page: 2791


Senator LAUCKE (South Australia) - I move:

In sub-clause (2), leave out all words after 'not less than', insert 'three years immediately preceding the date of the commencement of the hearing of the application, or 12 months if either-

(a)   there are no children of the marriage who have not attained the age of 18 at the date of the application, and the respondent consents; or

(b)   the respondent has been found by the court to have committed one or more of the offences stated in the Matrimonial Causes Act 1959-1971 as grounds for the dissolution of marriage '.

In this amendment I have set out clearly the grounds of fault. I will read the clause as it would appear with the inclusion of the words I propose to add and the deletion of the words I propose to delete. It would read:

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

That sub-clause remains. Then it would read:

(2)   subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than -

At this point the remaining words of this subclause are deleted and I propose to insert: three years immediately preceding the date of the commencement of the hearing of the application, or 12 months if either-

(a)   there are no children of the marriage who have not attained the age of 18 at the date of the application, and the respondent consents; or

(b)   the respondent has been found by the court to have committed one or more of the offences stated in the Matrimonial Causes Act 1959-1971 as grounds for the dissolution of marriage.

The amendment provides that the period shall be 12 months if the children are above the age of 18 years and 3 years if the children are under the age of 18 years unless one of the fault grounds which now appear in the Matrimonial Causes Act- and there are 14 of them defined in it clearly- is proved against the respondent. There is no indecision or difficulty in determining what the grounds of fault are. They are specifically set out in the Matrimonial Causes Act. I have no need at this stage to list them. I point out that in Canada there is a fault ground, in California there is a fault ground, and in the English legislation passed in January 1971 there is only one ground for divorce, and that is that the marriage has broken down irretrievably, but that English law requires that the breakdown be established by the proof of one of 5 stipulated sets of facts which must be proved to the court. So the English law of 1 97 1- that is the most recent legislation- clearly sets out 5 fault grounds.

This legislation that we have before us, and this provision particularly, would be the most advanced, if I can refer to it in that way, in the western world in terms of easy divorce, as far as I can determine. 1 believe that there should be at base the requirement for a court in the light of certain actions or situations to determine whether a divorce should or should not be granted under certain conditions. The fault grounds in the English law are these: That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; that the respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition; that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition. This English legislation is said to be among the most advanced legislation in the world and has been found to be acceptable with these fault grounds incorporated in it. My amendment provides for the retention of the grounds in' our Matrimonial Causes Act in certain conditions. 1 feel that this is clear cut, it is direct, it is definite, and it is protective of the institution of marriage as we have known it through many years, ft does not debar divorce as it provides for rather prompt divorce in certain situations. I regard the amendment as quite a reasonable proposition to put before the Senate for its consideration. I believe it is an improvement on the one ground that was proposed initially- the acceptance of 12 months separation as irretrievable breakdown of marriage. If that ground exists people can obtain a divorce. So I have pleasure in moving my amendment.







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