The Development of Divorce Law in Australia
| Date | 01 September 1966 |
| Published date | 01 September 1966 |
| Author | D. M. Selby |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02255.x |
THE
MODERN LAW REVIEW
Volume
29
September
1966
No.
5
THE
DEVELOPMRNT
OF
DIVORCE LAW
IN
AUSTRALIA
NOT enough attention has been paid in this country to the important recent
development of matrimonial law in Australia. Since
1950
marriage failure
evidenced by flve years’ separation has been
a
ground for divorce throughout
the Commonwealth. That
a
common law system is perfectly capable of
accommodating legislation for divorce without proof of fault” had pre-
viously been demonstrated in New Zealand and,
as
the present article shows,
has now been confirmed by the Australian experience. We
are
honoured
and gratified to print this artlcle from the pen of
Mr.
Justice Selby of the
Supreme Court of New South Wales who has had much experience in
applying the new legi‘elation.
He
shows the difnculties encountered in practice
as
well
as
the methods by which they were overcome. Those concerned with
the overdue reform of
our
own divorce law will read this article with intense
interest.-Editor.
UNTIL
February
1, 1061,
the day upon which the Commonwealth
Matrimonial Causes Act
1950
came into operation, each state of
the Commonwealth of Australia had
its
own matrimonial causes
legislation. The differences between the states were marked. The
relevant laws differed
as
regards procedure, available grounds for
divorce and what has been described as the philosophy of the
various Acts.
Procedural differences were not significant,
for
the divorce
procedure of each state was, as might
be
expected, geared to some
extent
to
the procedure of the Supreme Court of that state.
There was a wide diversity of available
grounds
for divorce,
ranging from the few niggardly grounds available in Queensland
(a result, probably, of the strong Roman Catholic influence in that
state) to the liberal array of grounds available
in
South Australia
and Western Australia. New
South
Wales, the most populous, and
the most litigious, state, occupied a position between the two
extremes. The divergencies were hard to justi@,
or
explain,
in
a
country whose population was markedly homogeneous and whose
social pattern varied little across the breadth of the continent.
Victoria, appropriately,
it
might seem, clung to the Victorian
tradition
of
one law for the husband, another law for the
wife.
One
VOL
29
17
478
474
THE MODERN LAW REVIEW
VOL.
29
act of adultery on
a
wife’s part was sufficient to found
a
husband’s
petition for dissolution, but
a
wife could only petition
on
adultery
in
certain circumstances of aggravation. New South Wales alone
allowed what was usually referred to
as
the short cut to divorce.
Immediately
a
respondent had disobeyed
a
decree of restitution of
conjugal rights he was deemed to be guilty
of
desertion and
a
petition for dissolution could be filed forthwith. This provision
was frequently abused, being regarded
as
a
pleasant way of getting
a
“
nice, clean
”
divorce.
It
was not uncommon to brief counsel
to draft the letter which the petitioner was obliged to write, asking
the other party to return. This was some guarantee that
it
would
sound sincere when read in‘court. The petitioner was obliged to
swear, at the hearing, that he
or
she sincerely wanted the other
spouse to return when, in many cases,
a
return in obedience to the
court’s order would have been regarded with horror and dismay.
As regards the philosophy of the Act, most states adhered to
the principle that marriage could only be dissolved on proof of
the commission of
a
matrimonial offence. Only in Western
Australia and South Australia was the complete breakdown of
marriage, evidenced by five years’ separation, regarded
as
a
ground
for
divorce, although
in
South Australia, the separation, to consti-
tute
a
ground for divorce, had to be consequent
upon
an
order
of
a
court. This statement is subject to the qualification that every
state except New South Wales allowed divorce, in various restricted
circumstances,
on
the ground of insanity. New South Wales clung
obstinatcly to the view that nothing short of
a
matrimonial offence
justi5ed the granting of
a
divorce. ‘In
1982
a
member of the
Legislative Assembly of New South Wales was granted permission
to bring
in
a
Bill
as
a
private member. The Bill
was
to
am&d the
state Matrimonial Causes Act by adding,
as
grounds for divorce,
separation for seven years and incurable insanity. After lengthy
and heated debate, the Bill was put to the vote
as
a
non-party
measure
in
October
1988.
It
was defeated by fifty votes to eight.
It
is
a
feature of the Commonwealth Act that the traditional
view of
“
No matrimonial off ence-no divorce
”
has been aban-
doned. Of the fourteen grounds for dissolution which
it
provides,
three contain
no
clement of matrimonial offence. They are, putting
them in very general terms, insanity,’ five years’ separation
a
and
absence of the respondent in circumstances providing reasonable
grounds for presumption of death.3 Under the heading
“
Fault
or
Failure” the arguments for either view
can
go
on
indefinitely.
The reason for the attitude of the Commonwealth Parliament could
not be better
put
than in the words of Herron
C.J.
in
McDonald
v.
McDonald
‘
:
1
n.
28
(I).
2
n.
28
(m).
3
n.
28
(n).
4
(1964) 64
S.R.(N.S.W.)
485
at
p.
443.
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