Reforming Australian Divorce Law
| Date | 01 March 1972 |
| Published date | 01 March 1972 |
| DOI | 10.1177/0067205X7200500104 |
| Author | David Hambly |
| Subject Matter | Article |
REFORMING AUSTRALIAN DIVORCE LAW
By
DAVID
HAMBL
Y*
rh8 inquiry by
the
Senate Standing Committee
on
Constitutional
and
L~'~~-d
f\ffairs into
"the
law
and administration
of
divorce, custody
and
:
~r:lil)
matters, \vith
particular
regard
to
oppressive costs, delays, indig-
~~:t~L:S
and
other
injustices" is
to
be
welcomed.
This
article will discuss
~
~.
prospects for reforming
the
law
affecting
the
grounds
for divorce,
,,~
.
~
hparticular reference
to
the
guidance
that
might
be
gained
from
the
D:H)fCe
Reform
Act
1969
(Eng.).
This
Act
provides
support
for
a
':'-.:~lb~r
of proposals
to
amend
the
Matrimonial
Causes
Act
1959-1966
('th)
\vhich could
be
implemented
imrnediately.
The
proposed
amend-
"
I.:nts
raise
none
of
the controversial issues
of
principle which
dominated
',:,.:
d\2bates
on
the
1959
Act
in
Australia
and
the
1969
Act
in
England,
.n-J
their
enactment
would
not
prejudice
the
outcome
of
the
Commit-
::.:\
deliberations
on
the
ultimate
shape
of
Australian
divorce law.
I
:1I.:ir
beneficial effect
on
divorce practice, however, would
be
sub-
-.:
:ntlal and \vould
help
to
pave
the
,yay
for
more
fundamental-reforms.
It
n1ay
be
useful first
to
recall
the
background
to
the
Divorce
Reform
.\,,'t 1969. Before its enactment,
the
only
grounds
for
divorce
in
England which did
not
require
proof
of
a
matrimonial
offence
were
:h~
incurable insanity
of
the
respondent
and
presumption
of
death.!
In
1/
156,
all except
one
of
the
nineteen
members
of
the
Royal
Conlmission
.'[1
\larriage
and
Divorce
recommended
the
retention
of
adivorce
law
~",!~-:d
on the
matrimonial
offence doctrine,
and
nine
of
them
opposed
'h,-,
introduction,
in
any
form,
of
the
doctrine
that
the
irretrievable
:'~L:akdo\vn
of a
marriage
should
be
abasis
for
divorce.2
Much
of
the
:"J'\oning
in
the
Commission's
report
was justly subjected
to
devastating
~r:ticism.3
Ane\v
impetus
to
reform
was
provided
in
1966
by
a
group
~;';){)inted
by
the
Archbishop
of
Canterbury
to
review
the
law
of
,:.\ drcc.
In
its report, Putting Asunder: ADivorce
Law
jar Contenl-
;~'
Irary Society, the
group
expressed vie\vs \vhich differed radically
from
:::'
}~~
\vhich
had
been
put
to
the
Royal
Commission
by
representatives
\
'r
Uh~
Church.
It
recommended
that
the
irretrievable breakdo\vn
of
':Ltrriage should be substituted
for
the
matrimonial
offences as
the
sole
~r,,)unLl
for divorce,
and
that
the trial
of
apetition
for
divorce
should
~-l---~--------~---------==------;:-'
-----;-,
---:::-;-,
.-;:-==-~:-;:-
•
..,;-:-:;;::,~=
.~
I
,_L:B.
(Hon~)
(Mel?),
~L.~.
(~arv.);
Barrister
and
Solicitor
(Vic.);
Reader
J
~~\\,
Austrahan
NatLonal UnIverSIty.
")
~f.
~latrimonial
Causes
Act
1959-1966,
s.
28(1),
(n).
;md 9678.
lOR'
R.
McGregor,
Divorce in England
(1957);
O.
Kahn-Freund,
"Divorce
aw
efonn?"
(1956)
19
Mod.
IRev. 573.
59
60 Federal
Law
Review
'!
I
become
in
some
respects
analogous
to a
coroner's
inquest,
in
that-~~:
object
would
be
ajudicial
inquiry
into
all
the
relevant
facts
in
the
histoi1~:
of
a
matrimonial
relationship
which was alleged to
have
"died".
Tht:.,
court would grant a
divorce
only if,
having
regard to
the
interes~;~,
society as well
as
those
immediately
affected
by
its decision,
it
jud~'
it
wrong
to
maintain
the
legal existence
of
arelationship
that
was
beyo~,'
all probability of existing
again
in fact.
~f~~,i
The
Lord
Chancellor
referred
Putting Asunder to
the
Law
Com~:
sion
for
its advice.
In
its
report,
Reform
of
the Grounds
of
Di
vorce:
I
The
Field
of
Choice,4 the
Law
Commission
set
forth
the
objectives
~;
a
good
divorce law:
'-~::
(i)
To
buttress,
rather
than
to
undermine,
the
stability
of
ma~:
riage·~d
~
,
;-'
(ii)
When, regrettably, a
marriage
has
irretrievably
broken
do~,
to
enable
the
empty
legal shell to be destroyed with the
m~
mum
fairness,
and
the
minimum
bitterness, distress
and
hu~
ation.s
J¥;
The
Commission
said
that
English
law
did
not
adequately
achieve
the~~
objectives:
-1
It
does not do all
it
might to
aid
the
stability
of
marriage,
btl!
tends
rather
to discourage
attempts
at
reconciliation.
It
does
not'
enable
all
dead
marriages
to
be
buried,
and
those
that
it
buri~
are
not
always
interred
with
the
minimum
of
distress
and
humilii
ation.
It
does
not
achieve the
maximum
possible fairness to
~
concerned, for aspouse may
be
branded
as
guilty
in
law
thouglf
not
the
more
blameworthy
in
fact.
The
insistence
on
guilt
~
innocence
tends
to
embitter
relationships,
with
particularly
dama~
ing
results
to
the
children,
rather
than
to
promote
future
harmon"
Its principles
are
widely
regarded
as hypocritica1.6.,
.~~
While ackno\vledging
the
attractions
of
the
concept
of
breakdown
Of
marriage,
the
Law
Commission
felt
unable
to
support
the
proposal
~I
require
proof
of
breakdown
by
inquest.
Apart
from
doubts
as
to
tb~1
desirability
of
asystem which required
in
every
case
the
publi,!'
ventilation
of
the
matrimonial
history
and
the
application
of
a
vagu~
and
unpredictable
criterion, the
Commission
thought
it
not
feasible
tci'
undertake
an
inquest
in
every
case
because
of
the
time
it
would
ta.k~
and
the
costs involved.
The
Commission
accordingly
analysed
other:
proposals which would afford a
place
in
the
law
for
the
breakdo~
doctrine,
making
it
clear
that
its
preference
was
for
the
addition
to
tb~
existing
grounds
for
divorce
of
new
grounds
where
the
breakdown
o~
the marriage
Wa~
demonstrated
by
the
parties'
separation
for
asub1
stantial period.
~,~
::.....:..'----:A~'
"'..:::..""-:..::.'
w~
..
'~,"J':"""":-
'~"':::"":"-
':.....-'
>....::...
-~"'--"-~........-_----=----,-------::-------:;:---,---------::--::---=---=------::~=~_~----=---;;
4
(1966)
Cmnd
3123, cited hereafter as
"Field
of
Choice'~.
5Id., para. 15.
6Id., para. 28.
To continue reading
Request your trial