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Wednesday, 27 November 1974
Page: 2846

Senator MURPHY (New South WalesAttorneyGeneral) - Mr Chairman,the 12 months period is favoured by the majority of the Standing Committee on Constitutional and Legal Affairs and the relative committee of the Law Council of Australia. That period is favoured by the Australian Council of Marriage Guidance Organsiations, the people with the best knowledge of case histories of marriage breakdown. The latest public opinion poll shows that 60 per cent of the population favours nonfault divorce based on a separation period of 1 2 months or less.

Senator Davidsonsaid he thinks that we have to carry the community with us. If he supports the amendment he will be going against the expressed community attitude which is in line with what was expressed some 12 months ago except that I think that the number in favour of irretrievable breakdown, as evidenced by at least 12 months separation, has increased. Approximately half the divorces under the existing legislation, for adultery, cruelty and drunkenness, do not require any period of separation. It astonishes me, Mr Chairman, that some honourable senators come in here and say that 12 months separation is not sufficient yet they have raised no voice against the existing state of the law under which one can get a divorce on an isolated act of adultery. Not the slightest evidence has to be produced to the court that the marriage has broken down irretrievably. One single act of adultery is sufficient. It does not matter how much the party might express sorrow and state that he wants the marriage to go on, that it was a mistake. Those honourable senators are not concerned about this aspect. Apparently that state of the law is acceptable to some persons. I am not directing these remarks at Senator Davidson.

The provision before us is that divorce will be granted only on irretrievable breakdown and the evidence required is at least 12 months separation. There is a provision, which should not be overlooked, that if the court is satisfied that there is a reasonable likelihood of resumption of cohabitation it shall not grant the dissolution. The period of 12 months separation was selected for the United States Uniform Marriage and Divorce Act as the criterion of irretrievable breakdown. That is one ground. The other is serious marital misconduct. Approximately 90 per cent of divorces at present are undefended and this appears to indicate that even under the present law both parties want a marriage which has broken down terminated as quickly as possible.

Senator Baume - What was that figure again?

Senator MURPHY - Ninety per cent.

Senator Davidson - You are basing your argument almost on a fault concept.

Senator MURPHY -No. I am saying that when a marriage has really broken down, a period of 12 months separation and no reasonable prospect of a resumption of cohabitation is enough, in any plain person's terms, to establish irretrievable breakdown. If the honourable senator thinks that extending the period to 2 years will be advancing the matter, I think he is wrong. What it would do would be to return the law to the dreadful state in which perjury was committed daily in the courts. I think that anyone who is familiar with what happened when divorce was based on the failure to comply with a decree for restitution of conjugal rights would want to avoid a return to that state of affairs. Inevitably we would get it if the period were extended to something like 2 years. This would be just unreasonable and petitioners would be forced to perjure themselves as they did previously, and as they did to the knowledge of the legal profession and to the knowledge of the judiciary. The judges knew about it and condoned it. They knew that people had to get into the courts day after day and swear that they sincerely wanted their spouse to return, but everyone knew that in at least 90 per cent of the cases, and perhaps in 99 per cent of the cases, that was a lie; it was perjury being condoned by the legal profession and the judiciary. The same situation will arise if the period is extended to 2 years. Petitioners will be put in the position, in order to save themselves from the distress, the humiliation and the wreckage of their lives, of having to back-date periods. They will do all sorts of things which we do not want to be part of the operation of the law. The Archbishop of Canterbury 's committee -

Senator Durack - Do you have any evidence that that is happening with the 5-year ground of separation?

Senator MURPHY - No, I have not. I am assisted by one of my advisers who tells me that he had such a case in his office today. The aim should be to fix a period which is not so short that it might undermine the stability of marriage but not so long that the parties would not be prepared to wait. Professor Hahlo said that the time required must be sufficiently long to give the spouses a reasonable chance to be reconciled, but it must not be longer. If it is, the separation ground has to be supplemented with a short-cut divorce on the ground of matrimonial offence or fault. In 1967 the Scottish Law Reform Commission said that it is not practicable to make separation for a period the unique ground of divorce unless the period is a short one. To take a large slice out of a person's life by withholding a divorce from him or her after all hope of reconciliation has vanished can only be explained by a conscious or sub-conscious desire to punish the person for seeking a divorce. Marriage counsellors have said that 6 months is normally sufficient to determine whether there is any hope of reconciliation.

I referred earlier to Professor Hahlo. He said in his report on divorce reform to the Canadian Law Reform Commission in March 1974:

The only clean solution, in my view, is the one contained in the new Australian Bill, where separation Tor one year is made the only way to establish marriage breakdown- I accordingly so recommend.

I would suggest that the proposal contained in the Bill is in accordance with the wishes of the Australian people. It is a workable solution to a very difficult problem. Much as I understand the motives of those who support the longer period, I implore the Senate not to render the Bill really worse than the existing state of the law, which I believe would happen if the amendment were accepted.

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