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Wednesday, 27 November 1974
Page: 2856

Senator BAUME (New South Wales) - The next amendment with which the

Committee is about to deal is the last one proposed to clause 26. The amendment I wish to move is different from the one circulated in that I am not going to move paragraph (c) of the circulated amendment immediately. I move:

Leave out sub-clause (2), insert:

(2)   Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall bc held to have been established, and a decree of dissolution shall be made, if, and only if, the court is satisfied that-

(a)   the parties have separated and thereafter lived separately and apart for a continuous period of not less than 2 years immediately preceding the date of the filing of the application for dissolution of marriage; or

(   b ) the parties have separated and thereafter lived separately and apart for a continuous period or not less than 12 months immediately preceding the date of the filing ofthe application for dissolution ofthe marriage and neither party opposes the dissolution of the marriage.

As was the case with the amendment moved by Senators Durack and Chaney, I hope that we will be able to get a vote on this amendment, which in my opinion will be of benefit to the Bill. I will proceed with sub-paragraph (c) of the circulated amendment only if I am successful in getting sub-paragraphs (a) and (b) accepted; otherwise there is no point in including it. What we are discussing here is the means by which we are establishing the existence of an irretrievable breakdown of marriage. What I have proposed is an alternative means of going about this kind of proof.

The Attorney-General (Senator Murphy) has proposed one ground, which is that of irretrievable breakdown, and one means only of establishing that this has occurred. It is simple to put up a single ground, but it lacks any logic. I have no argument with the central idea that we are seeking to establish the existence of irretrievable breakdown. In fact I support this idea. Throughout the debate we have all supported the idea that irretrievable breakdown is what we are talking about. There is considerable concern about the means of establishing the existence of this ground. We have already heard in discussion ofthe last amendment that there could be cases in which the proposition which is in the Bill at present could be disadvantageous to certain people. There are reasons for saying that the existence of a single method of proof does have its disadvantages. It is simple, and its simplicity is attractive. It is not necessarily the fairest method. Until we have settled the best means of establishing irretrievable breakdown we cannot necessarily say that the single ground which is proposed by the Attorney-General is necessarily the best one.

I believe it is too simple to think that 12 months separation should be the only way of establishing breakdown of marriage. What has been put forward is that after 1 2 months separation most people want a divorce. 1 accept that. What 1 am proposing in this amendment is that if there has been separation for 12 months and both parties want a divorce, they should be able to obtain dissolution of the marriage. I am saying in paragraph (b) that 12 months should be an adequate period of time if both parties consent. It was suggested that if both parties crosspetitioned this would in itself be a demonstration that they consented to 12 months as the period. All we have done is to separate out the group of people who may disagree about 12 months being an adequate period. Let me be quite clear about this. Where breakdown is clear and all that is left is the shell of a marriage, under my amendment one would be able to obtain a dissolution at the end of 12 months. In circumstances in which there is some doubt we are proposing that the period should be 2 years.

I suppose that what I am doing is trying to take the best of the arguments that Senator Chaney and Senator Durack put to the Committee of the Whole, combining them with the argument that the Attorney-General has put and trying to come up with a composite ground which will cover both kinds of situation. We could have a situation in which the existence of irretrievable breakdown is not clear at the end of 12 months and in which one of the 2 parties to the marriage is not satisfied that the marriage is irretrievably lost. Senator Everett referred to clause 26 (3), but I understand that if one party to the marriage went to court and said: 'I do not care what the other party says. I believe the marriage has broken down forever and I wish to have no further part in it', the judge, in interpreting subclause (3), would probably not withhold an order for dissolution under the Bill as it stands at present.

Senator Everett - Each case would depend on its merits.

Senator BAUME - Senator Everettsays that each case would depend on its merits, but it is possible that the judge might decide that the opinion of one party alone is sufficient to establish irretrievable breakdown. My concern is that there will be a small number of people who wish to have a longer period. Let us be quite clear. Most people who seek dissolution of marriage and use the amendment which I am proposing would clearly use the 12-month period. It would meet their needs. It would be simple. It would have all the advantages of the ground which the Attorney-General has already put into the Bill. To provide protection for those people who want a longer time we would say that the period should be 2 years when consent from both parties could not be obtained. If 90 per cent of divorces at present are undefended- this is the figure that I heard mentioned today- it indicates that 90 per cent of cases probably would be dissolved at the end of 12 months, under my amendment. There would be a very small number of cases in which one of the parties would have an objection to dissolution at the end of 12 months. I am not worried about adding an extra ground if we make the Bill fairer and if we take into account the needs of everyone who must be looked after. As someone said, we need a period which is not so short as to prevent reconciliation and not so long as to prolong the agony unduly. I was told during the debate this afternoon that 60 per cent of people wanted one year but a very small percentage wanted a longer period. I believe it is possible for this kind of amendment to achieve both those aims.

Senator Button - What about those who want a shorter period?

Senator BAUME - That is another question. I believe 12 months is a short enough period. I believe 12 months gives justice in terms of not being too long. If Senator Button is suggesting an even shorter period he should propose an amendment to that effect.

Senator Button - I am not; I am just querying your argument.

Senator BAUME - Fine. I believe we have a duty to examine what will happen to all the parties to all marriages and to try to avoid injustices. We have already established that certain people in society probably will be locked into marriage and will not be able to establish separation at all. Even if they can obtain an injunction under clause 90, that injunction does not entitle them to a dissolution of marriage. I remind Senator Everett that when he was answering my earlier question about people who cannot establish seperation, he made the point that people can get an injunction and that should protect them. It does not get them to the stage of dissolution of marriage.

Senator Everett - Neither does your current amendment go anywhere near that.

Senator BAUME - If my current amendment is agreed to I would suggest to the Committee further consideration of sub-clause (3) which I have not yet put to the Committee.

Senator Everett - In other words this is a precursor to the rein troduction of fault. On your admission, it is.

Senator BAUME - The vote will be taken separately on both parts so that the Committee can clearly decide between them. I believe there is considerable merit in making the period 12 months only if both parties consent, otherwise 2 years. I hope that the Committee will consider the amendment favourably.

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