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Wednesday, 27 November 1974
Page: 2868

Senator GREENWOOD (Victoria) - Mr Chairman,I rise, notwithstanding the attempted ridicule from Government senators, because there is a point of view which ought to be expressed, and I do not care whether there are some Liberals who lend themselves to the support of the Labor Party on this issue. We are debating a Bill on which every honourable senator has the opportunity to express his views if he so chooses. The Attorney-General has proposed that there should be an amendment which would add to the existing words of the clause, which are:

The parties to a marriage may bc held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence -

The Attorney-General proposes that the following words be added: or that either party has rendered some household services to the other.

I want to be perfectly reasonable about this and all I ask is that the Senate and those who may be listening to its proceedings may be informed as to why it is that those words should be added. The Committee has apparently persuaded itself in its private sessions that these words should be added. The Attorney-General is content that these words should be added, but there has been no word of justification offered by anybody as to why it is necessary to add those words to this particular clause when the whole purpose of the words in the clause is to establish what is meant by separation. Why does it add to the concept of separation of parties to a marriage to say that the separation may be said to exist whilst either party is rendering some household services to the other?

Senator Murphy - It may be said.

Senator Poyser - You have said all this.

Senator GREENWOOD - I have been trying to put a point of view tonight all the time I have been speaking and it has been jolly difficult against the incessant background of interjections throughout the Senate. It is difficult enough when one senses that one is in isolation in putting the point of view and believes that the point of view should be put. But I am asking, because I think the question of what constitutes separation is one which will have ramifications extending over the decades, and it ought to be regarded as an important matter and not one to be treated with ridicule and ignored just because some people have made up their minds about what the position should be, why it is that the rendering of household services should be sufficient? I refer again to what the standard text says on the subject. I think it is relevant because it takes into account, first of all, the High Court of Australia and then the Court of Appeal in England. It says:

The 2 words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship -

Senator Poyser - This is tedious repetition.

The CHAIRMAN - Order!

Senator GREENWOOD - I shall start again, Mr Chairman.

Senator Poyser - Please do. We are so interested.

Senator GREENWOOD - I shall start again. It says:

The 2 words "separately and apart" show that physical separation is necessary and that it is not enough that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof. In matrimonial law the expressions like "live separately", "separated" and "separation" are commonly used to indicate that the conjugal relation no longer exists between the parties to the marriage. ' Yet in the same year -

This is referring to what was said in the Hopes v. Hopes case in England-

Denning L. J. . . . said . . . 'The parties must not be "residing with" one another; they must be "living separately and apart" or "living apart" from one another: or they must not be "cohabiting" with one another. All these phrases mean the same thing to my mind. At least I can sec no sensible distinction between them. They all express the fact of separation'.

Lord Denning went on to say that what really must be looked for is whether there is one household or there are 2 households. It seems to me that what is involved in the Attorney-General's amendment is that there can be a situation in which there is one household and that will not constitute a bar to establishing that there is a separation. All I am asking- I am seeking some information and no one is prepared to be forthcoming with it- is: Why is it that that ought to be the situation in which there is in existence a separation? Why should it be in those circumstances that parties can be said to be living separately and apart when in fact they are living together? I repeat that we are making an absolute mockery of this provision in what we are doing. I can only regret that, to the discredit of the Parliament, it is being done without any attempt of justification.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 28.

A decree of dissolution of marriage may be made notwithstanding that there was in existence at any relevant time-

(a)   a separation order in relation to the parties to the marriage: or

(b)   an agreement between those parties for separation.

Amendment (by Senator Murphy) agreed to: Leave out the clause.

Clause negatived. Clause 29 agreed to. Clause 30.

An application under this Act for a decree of nullity of marriage shall be based on the ground that the marriage is void.

Amendment (by Senator Murphy) agreed to:

Add the following sub-clauses:

(2)   A marriage that takes place after the commencement of this Act is void where-

(a)   either of the parties is. at the time ofthe marriage, lawfully married to some other person;

(b)   the parties arc within a prohibited relationship;

(c)   the marriage is not a valid marriage under the law of the place where the marriage takes place, by reason of a failure to comply with the requirements of the law of that place with respect to the form of solemnization of marriages;

(d   ) the consent thereto of either ofthe parties is not a real consent because-

(   i ) it was obtained by duress or fraud;

(ii)   that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii)   that party is menially incapable of understanding the nature and effect of the marriage ceremony, or

(e   ) either of the parties is not of marriageable age. and noi otherwise. "(3) Marriages that are within a prohibited relationship are marriages-

(a)   between a person and an ancestor or descendant of the person; or

(b)   between a brother and a sister (whether of the whole blood or the half-blood ).

(4)   Any relationship specified in sub-section (3) includes a relationship traced through, or lo, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and his adoptive parent, or each of his adoptive parents, shall be deemed to bc or to have been the natural relationship of child and parent. "(5) Nothing in sub-section (4) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that sub-section had not been enacted.

(6)   For the purposes of this sectionfa) a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and

(b)   a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom he has been adopted.

(7)   Paragraph (2) (c) does not apply in relation to a marriage solemnized under Part V ofthe Marriage Act 1961 or of that Act as amended or to any other marriage recognized in Australia by virtue of that Act or regulations made under that Act. '.

Clause, as amended, agreed to.

Clauses 3 1 to 34- by leave- taken together, and agreed to.

Clause 35.

(   1 ) Where a decree nisi becomes absolute, the Registrar of the court by which the decree was made shall prepare and file a memorandum of the fact and of the date upon which the decree became absolute.

(2)   Where a decree nisi has become absolute, any person is entitled, on application to the Registrar of the court by which the decree was made, to receive a certificate signed by the Registrar that the decree nisi has become absolute.

(3)   A certificate given under sub-section (2) is, in all courts (whether exercising federal jurisdiction or not) and for all purposes, evidence of the matters specified in the certificate.

Amendment (by Senator Murphy) agreed to:

Add the following new sub-clause:-

(4)   The regulations may provide for the establishment of central records of decrees made under this Act and for the notification of decrees to the appropriate marriage registering authorities of the States and Territories. '.

Clause, as amended, agreed to.

Clause 36 agreed to.

Clauses 37 to 39- by leave- taken together, and agreed to.

Clause 40.

(   1 ) Subject to any order of a court for the time being in force, each of the parties to a marriage is a guardian of any child of the marriage who has not attained the age of 1 8 years and those parties have the joint custody ofthe child.

(2)   A party to a marriage may institute proceedings under this Act with respect to the custody or guardianship of. or access to, a child of the marriage.

(3)   An order with respect to the custody or guardianship of, or access to, a child-

(a)   shall not be made in respect of a child who has attained the age of 18 years; and

(   b ) ceases to be in force when the child attains the age of 18 years or is adopted by a person who is not a party to the marriage.

(4)   On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time ofthe application is entitled to be a party to the proceedings.

Amendments (by Senator Murphy)- by leave -taken together.

Leave out sub-clause ( 2 ),

In sub-clause (3), paragraph (a), after 'years' insert 'or is or has been married '.

In sub-clause (3), paragraph (b), leave out 'is adopted by a person who is not a party to the marriage' and insert 'marries '.

After sub-clause (3), insert the following new subclause: "(3a) Unless a court having jurisdiction under this Act otherwise orders, an order in respect of the custody or guardianship of, or access to, a child of a marriage ceases to be in force if the child is adopted by a person who is not a party to the marriage. '.

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