REFORMING AUSTRALIAN DIVORCE LAW

By DAVID HAMBLY*

rh8 inquiry by the Senate Standing Committee on Constitutional andL~'~~-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,,,~ .~ h particular reference to the guidance that might be gained from theD: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 inEngland which did not require proof of a matrimonial offence were:h~ incurable insanity of the respondent and presumption of death.! In1/156, all except one of the nineteen members of the Royal Conlmission

.'[1 \larriage and Divorce recommended the retention of a divorce 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 a basis for divorce.2 Much of the:"J'\oning in the Commission's report was justly subjected to devastating~r:ticism.3 A ne\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: A Divorce 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 a petition 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, "Divorceaw efonn?" (1956) 19 Mod. I Rev. 573.

59

60 Federal Law Review'! I

become in some respects analogous to a coroner's inquest, in that-~~:

object would be a judicial 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 a relationship 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 Divorce: 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 humiliiation. It does not achieve the maximum possible fairness to ~concerned, for a spouse may be branded as guilty in law thouglfnot 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 Ofmarriage, 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 a system 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 a sub1stantial period. ~,~::.....:..'----:A~'"'..:::..""-:..::.'w~.. '~,"J':"""":-'~"':::"":"-':.....-'>....::...-~"'--"-~........-_----=----,-------::-------:;:---,---------::--::---=---=------::~=~_~----=---;;

4 (1966) Cmnd 3123, cited hereafter as "Field of Choice'~.

5 Id., para. 15.6 Id., para. 28.

t;72j Reforming Divorce Law 61

111C Archbishop's group and the Law Conlnlission then held,-::,~u~sions to seek a reconciliation of their views. They published joint:'l~, \posaIs which became the basis of the Divorce Reform Act 1969.'1

I he Act came into operation on 1 January 1971. Sections 1 and 2\ In part) provide:

1. After the commencement of this Act the sole ground on\vhich a petition for divorce may be presented to the court byeither party to a marriage shall be that the marriage has brokendO\Vll irretrievably.

2.-( 1) The court hearing a petition for divorce shall not holdth~ nlarriage to have broken down irretrievably unless thepctitioner satisfies the court of one or more of the follo\ving facts,that is to say-

(a) that the respondent has committed adultery and thepetitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that thepetitioner cannot reasonably be expected to live with therespondent;

(c) that the respondent has deserted the petitioner for acontinuous period of at least t"vo years immediatelypreceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for acontinuous period of at least t\VO years immediately preced­ing the presentation of the petition and the respondentconsents to a decree being granted;

(e) that the parties to the marriage have lived apart for acontinuous period of at least five years immediatelypreceding the presentation of the petition.

(2) On a petition for divorce it shall be the duty of the courtto inquire, so far as it reasonably can, into the facts alleged bythe petitioner and into any facts alleged by the respondent.

. (3) If the court is satisfied on the evidence of any such fact asIS :nentioned in subsection (1) of this section, then, unless it is~atIsfied on all the evidence that the marriage has not broken downIrretrievably, it shall, subject to section 4 of this Act and section5(5) of the Matrimonial Causes Act 1965, grant a decree nisiof divorce.8

---------.. '\ ~'---'--~-----::-r"--'-:.~~""",_-=-:;-.=,=---_----:-_..,.,....--_----,~-----,-.------____;:__c-~_~."~"............,,,-::=;:-:",..-y~

,~Pf' III to the Law Commission's Third Annual Report (Law Com. No. 15).'~"h' (5) of the 1965 Act gives the court hearing a petition brought by leave:.....~. In ~~e first three years of marriage, power to dismiss the petition or postpone)..,:~~~~l~g of the ~~cree,absolute where it appears that leave to petition was

''"-", c y the petitioner s misrepresentation or concealment of the nature of"-' ase. Ct. s. 43(5.) of the Australian Act.

62 Federal Law Review

The Act repeals all the absolute and discretionary bars to a petiti~

for divorce.9 It introduces provisions designed to encourage attemptiat reconciliation, and to protect the interests of respondents in procee~

ings in which the petitioner relies on section 2 ( 1) (d) or (e). Some of::these provisions will be discussed later.1o However, although sectio~

2 (1) (e) and its supporting sections were the provisions \vhich arous~

the fiercest public controversy in England, it is not proposed to deak'>with them in detail, for they appear to offer no suggestions for the:.improvement of their Australian counterparts.It

The Act has been widely criticized as "an extraordinary mixture ofconflicting policies",12 "an unhappy compromise between the matri~:,

monial offence theory and the irretrievable breakdown theory whiclta­is unlikely to commend itself to the supporters of either".13 It musc~,

be conceded that the structure of sections 1 and 2 is ungainly. This is~

due, at least in part, to the background to the legislation; hence Lorcr.iReid's loaded remark that "Those ,vho believe in words and in-}~

theories have hung on to Clause 1; those who believe that the practic~side is more important than verbiage have inserted Clause 2".14 Never~

theless, much of the criticism appears to stem from the theoretic~

basis that the fault and breakdown doctrines are incompatible, an~that it is anomalous for a law of divorce to draw upon both of them. Thisfassumption underlay much of the reasoning in Putting Asunder:

In our opinion ... the principle of breakdown ought on no account(to be introduced into the existing Ia\v in the form of an additional~,

"ground". Failing the complete substitution of principle which~

we recommend, it would be better to keep the la\v based firmly:..on the matrimonial offence, and to consider how its administrationt.could be improved, than to inject into it a small but virulent dose-~

of incompatible principle.15 -

One would expect that such an abstract approach as this wouldlcarry little weight in Australia. However incompatible in theory, the:;~

98.9.10 S. 3(1) and (2) seem to be adapted from s. 14 of the Australian Act and·<c

rule 15 of our Matrimonial Causes Rules. S. 3 (3 )-(6) seek to encourage attem~~

at reconciliation in the aftermath of events which might provide a basis for a~->

petition under s. 2( 1) (a) or (b), or during a period when a state of desertion~;

or separation exists between the spouses. See infra, text to nne 89-91. The pr~

visions affecting petitions under s. 2 ( 1) (d) are discussed infra, text to n. 40 fl. 'i11 Compare ss 2( 1) (e), 4 and 6 of the English Act with ss 28(m), 36 and 31;':=.

of the Australian Act. '12 O. M. Stone, "Moral Judgements and Material Provision in Divorce" (1969)~

3 Fam. L.Q. 371. .'13 P. 11. Bromley, Family Law (4th ed., 1971) 213. See also B. Passingha!I1,,~

The Di\'orce Reform Act 1969 (1970) 2; M. D. A. Freeman, "The Search for atf.:Rational Divorce Law" (1971) 24 Current Legal Problems 178, 185; C. !vt.,~,

Butler, "A Sole Ground for Divorce" (1971) 45 A.L.J. 168, 173.14 Hansard (Lords) [hereinafter "R.L."], vol. 304 (5th series), col. 1274.15 Pages 59-60.

63Reforming Divorce Law}972]

[\\'0 doctrines nlay complement each other in practice.1s Sir GarfieldBar\vick justified the combination of grounds based on the t\VQ theories1£1 the Australian Act as a compromise which, however inappropriateIl)gically, helped to secure acceptance of the Act as a whole.17 A,irnilar compromise characterizes the divorce laws of New ZealandanJ Canada.18 Indeed, it is utterly unrealistic to talk of a matrimonialoffence theory, in the traditional sense derived from the principles~!pplied by the ecclesiastical courts, as if it could possibly be the solet~)undation of an acceptable and effective divorce la\v today. The

~ 01 infusion of other principles into Australian divorce law goes far beyondltri4 the inclusion of paragraphs (1), (m) and (n) in section 28 of thelichj \fatrimonial Causes Act. By means of a statutory fiction, section 29lusd ..:xtends the definition of desertion so as to permit divorce for "two

;.cars' separation with just cause or excuse", a ground \vhich need:1ut involve moral culpability on the part of the respondent.19 Thedecisions of the House of Lords in Golfins v. Gollins20 and Williams v.~J 'illiams21 have established that the respondent's moral culpability is not] necessary element of the matrimonial offence of cruelty, if hisconduct has in fact made the marriage unendurable for the petitioner.'rhc courts' attitude to the discretionary bars to divorce in recent yearshJS been more compatible with the breakdown theory than the fault.th~ory, which alone can justify the bars' existence.

In the day-to-day operation of the la\v, too, the theoretical basis forth~ matrimonial offences as grounds for divorce has been eroded. Ina large proportion of cases, both parties are at fault in varying degrees,and it makes no sense to regard the granting of a divorce as the\ indication of an innocent petitioner against a defaulting respondent.\fore than ninety per cent of divorce petitions are undefended. In

16 C/. the comment of M. Paulsen~ in a review of Putting Asu~d;r"in' iv~'w\/ 'ciety of 4 August 1966 (quoted in Field of Choice, para. 105):

But Why should an exclusive choice be made? One principle can servethe case of the spouse who has suffered serious offence. The other canserve those spouses in respect of \vhom no glaring misconduct can be~dentified, and those \vho seek divorce against the \vill of a relativelymn~ent partner. The legal system frequently chooses different principlesto dIspose of distinguishable situations.

R17 '"Some Aspects of the Ne\v ~Iatrimonial Causes Act" (1961) 3 Syd. L.

ev, 409, 419-420.18,Matrimonial Proceedings Act 1963, as amended by the lVIatrimonial Pro­

~f~dlngS Amendment Act 1968 (N.Z.); Divorce Act 1968 (Canada). See A. C.I ~Iden, "Divorce in the Commonwealth: A Comparative Study" (1971) 20E '~,Q. 58; R. Deech, "Comparative Apprnaches to Divorce: Canada andnl~ and" <.1972) 35 l\tlod. L. Rev. 113.

J Mannzng v. Manning (1961) 2 F.L.R. 257, 261. For a recent example, seeagger V. Jagger [1971] A.L.R. 692; [1971] V.R. 589, where a petition was

"rant dt:- d(, e under s. 29, though the respondent's conduct \vas due to a mental dis..Or er.

~o [I964] A.C. 644...1 [1964] A.C. 698.

IE

64 Federal Law Review

most defended cases, any contest on the question whether there shoul~

be a divorce, and if so on what ground, is only conducted in th~

hope of gaining some tactical advantage in the real battle, which ~ i4concerned with property or maintenance or the custody of the chi1dre~

Thus, the notions of irretrievable breakdown of marriage and divorc~

by consent \vould figure more significantly than the matrimonial offen~theory in a frank description of divorce practice today, as Lord Denningjhas shown:

[I]n point of practice the judges have introduced the principle o~

the irretrievable breakdown of marriage into our law, and we an~

know that there is no real inquiry into guilt or innocence. If one.liside wants a divorce and the other does not object, you can alwaystfind the grounds. You need not go so far as adultery-crueI~

we have extended far enough--and there can be constructiv . I

desertion and the like. It can always be done when the other sid "I

does not object.22 . '.;}~

Hence, criticisms of the Divorce Reform Act 1969 (or any other divorcejlaw) should be treated with reserve if they elevate conceptual argumen " .above an assessment of its effectiveness in practice.

It is not suggested that there is some special lasting merit in­divorce law which relies on a compromise bet\veen the fault an ,breakdown doctrines. This is not so, especially when the compromis _" I

is sustained by the makeshift devices, often surreptitious and hypo-icritical, which disfigure much of Australian divorce practice. One woulckf ~

hope that the Senate Standing Committee on Constitutional and LegaliAffairs will reach the view that ultinlately, all provisions which ow~1'-­

their existence solely to the fault theory must be eradicated from theJWlaw. It is not proposed to repeat here all the objections to grounds for.'divorce based on fault; they have been stated elsewhere.23 There i ~ ...some evidence that the law of divorce, \vhether it be restrictive ori-. I

liberal, has no discernible effect on the stability of marriage, and there~

is no evidence to the contrary.24 The Standing Comnlittee may, there-.4,·,',,>i.

....... 'P .. " r\ ~ ~""+

22 H.L., vol. 303 (5th series), col. 399. :~ I

23 See e.g., Field oj Choice, paras 13-28 and passim; Putting Asunder, Ch. 4f~ ':and the Australian symposiwn, H. A. Finlay (ed.), Divorce, Society and the~:Law (1969). The contributions to this symposium by a psychiatrist, a marriag~guidance counsellor and a social worker, show that the present law does n~.fulfil the social function which they envisage for divorce. They see the parties~"

to a failed marriage as victims of social pressures and their own personality and{:if~·1

behavioural inadequacies, and the law as exacerbating their plight by adopting:fi<:a punitive attitude to divorce. '~,:;

24 Putting Asunder, para. 60, app. D, para. 13, and app. F; Field of Choice;:t·:para. 79(f); G. Rowntree, (1964) 18 Papulation Studies 147; M. G. Marwick~"'

4'The Comparative Sociology of Divorce", in H. A. Finlay (ed.), Ope cit. 105; "Volf;~~LUke and Hax, Divorce and Divorce La'rv: Basic Problems of Divorce in GermanY:$~:"

(1959), discussed by 1\'1. Rheinstein, "Divorce and the l ..aw in Germany: A~'Review" (1960) 65 American Journal of SociolooY 489. H. H. Clark, "Divorce-~.,II

Policy and Divorce Reform" (1971) 42 U. Colo. L. Rev. 403, 404 states that '-~~-i.~

t~e "technical fault" grounds are inconsistent with contemporary studies ofdIvorce vvhich indicate that divorces are not sought on the spur of themoment for single acts of cruelty, but that whatever grounds are alleged,th~ parties reach the decision to get a divorce only after considerable hesi...tabon and deliberation.

He cites J. Cuber and P. Hamoff, The Significant Americans (1956) Ch. 5,a~~ \V. Goode, Women in Divorce (1956) Ch. II.~ Ct. G. E. J. Barwick, supra ll. 17,417-418.26 Cf. J. Goldstein and J. Katz, The Family and the Law (1965) 813:

There are no meaningful substantive standards, beyond the \vish of either~po~se to be divorced, for determining \vhen the state should grant or deny~ dlV?rce. Existing grounds for divorce frequently stimulate state and private~v~s:ons of privacy and promote conduct offensive to the dignity of theIndIVIdual participants at all points of decision in the family law process.~urthermore, grounds for divorce, coupled with the concept of fault, arel~relevant to the consequences of divorce-Le., to decisions concerning mar- .nageability, finances, and children. In fact, denial of divorce means foreach SpOuse only denial of the freedom to remarry, for issues of custodyand financial status remain subject to judicial decision. ~foreover, the statedoes. not have the capacity to force individuals into meaningful interpersonalrelationships. \Vhat then must be determinative in granting a divorce is onlyw?ether one spouse, after an opportunity to consider the consequences,".vlshes to be divorced. By thus perceiving marriage as a status of mutualrespect, the state will honour rather than degrade marriage.

fure, conclude that the objectives of a good divorce la\v would bebest maintained by a law \vhich recognized that, if spouses haveseparated for a sustained period, and one (or both) of them pursueshis conviction that the marriage has broken down to the point of pre­senting a divorce petition which submits for the court's approval detailedproposals on maintenance, the sharing of property and the future careof the children, these facts themselves provide the most cogent,objective and justiciable indications that the marriage has broken downIrretrievably. Such a law would relieve the courts of the superficial,essentially irrelevant, task of determining whether one of a list of:lfbitrarily defined categories of misconduct25 had been committed, andth~ paternalistic role of determining whether a marriage, the breakdo\vnof which is manifested by the parties' presence in court, should beconceded to have broken do\vn after an investigation carried out in thename of the interest of the community. The court, the parties and theirlegal advisers would be able to concentrate their attention on ther.latters in \vhich the community has a substantial interest-the parties'tinancial and property arrangements and the welfare of their children.2~

This policy underlies California's new divorce law, the Family La\v Actof 1969,21 which came into operation on 1 January 1970.

The Law Commission was attracted to a proposal of this kind, butsaw great difficulty in fixing a suitable period of separation as theprerequisite for initiating divorce proceedings. Too short a period wouldprovide insufficient evidence of breakdown. If the period \Vere toolong) hardship would be inflicted on spouses \vho had suffered "out-

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1972} Reforming Divorce Law 65

66 Federal Law Review

rageous conduct"28 and who could get a divorce quickly under the la\V!(;as it is now. The Comnlission considered that, in order to give promp~~:

relief in such cases, no period of much nl0re than six months prior to~'

the filing of the petition would be feasible. It apprehended (no doub~~

rightly, as the parliamentary debates on the 1969 Act sho\ved) that so.~:.

short a period would be regarded as unacceptable by the legislature.~1

One would suggest, however, that Parliament could, if it wished;~

prescribe a longer period, if the courts were empowered to give mor~0

effective emergency relief, short of divorce, than they can now provide;l;

Whatever the merits of this proposal, it is realistic to doubt whethe~

the Standing Committee will be prepared to act on the view that i~~

immediate introduction would be acceptable to the Australian electorate.~_

In any event, the Comnlittee's final recommendations on the reform'ifof the grounds for divorce will not be reached without a study of somei¥.­related problems.

Anomalies already exist between the principles applicable in pro-~

ceedings under the Matrimonial Causes Act and proceedings in courts-~

of summary jurisdiction under the maintenance Acts of the States. The~:~ I

fault theory exerts a more pervasive and inflexible influence under the4~

States' Acts. For example, a ,vife's uncondoned matrimonial offence is a~complete bar to a maintenance order under the States' Acts, but notltf'under the Commonwealth Act.30 It is an absurd state of the law that~

might lead a wife to seek a divorce because she has no other ,yay of.~

getting a maintenance order. The anomalies ,vould be exacerbated by a~t

radical change in the divorce law, unless it were accompanied by~

consistent reforms in the law applicable in summary proceedings. The~t· ,ne,v divorce law would itself be less effective; many spouses would 1!:come to the divorce court after proceedings in the lo\ver court had-<~

engendered the very bitterness that the reformed divorce la\v would-~~

seek to avoid. Difficult constitutional questions are involved in the ~~

choice of the method by which parallel reforms of the two bodies oflaw should be accomplished. Could the Commonwealth validly legislate~~

on the matters now dealt with in the States' maintenance Acts? Ought ,-~,

the Commonwealth to do SO?31 ~"-

The Law Commission is now preparing proposals for the reform ofthe law applicable in magistrates' courts in England, in the wake of

See too, J. Goldstein and M. Gitter, "On Abolition of Grounds for Divorce: Al\.lodel Statute and Commentary" (1969) 3 Fam. L.Q. 75; H. H. Clark, op. cit.;J. Eeekelaar, Fafnily Security and Family Breakdown (1971) 233-235.-21 Cal. Civ. Code § 4506 (\Vest Supp. 1969).

28 Field 01 Choice, para. 75.29 Id.-, paras 71-76.30 See e.g., Kolliner v. Kolliner [1971] V.R. 770.31 P.... Sackville and C. Howard, '"The Con~titutional Power of the Common­

wealth to Regulate Family Relationships" (1970) 4 F.L. Rev. 30.

1972] Reforming Divorce Law 67

th~ Divorce Reform Act.3Z New Zealand's experience with its DomesticProceedings Act 1968, which introduced a non-fault ground for separa­tion orders in magistrates' courts, \vill also be instructive.33

'The gains from a reform of the grounds for divorce would be limitedIf the law encouraged parties to make charges of misconduct in disputes\)\,cr maintenance and property. The weight to be given to the parties'cunduct in assessing ancillary relief is one of the most intractableproblems in divorce law. English la\v has not yet found a satisfactoryans\vcr. Like section 84 of the Australian Act, section 5 of the Matri­fl10nial Proceedings and Property Act 1970 (Eng.) simply prescribesth~ conduct of the parties as a factor which the court must take intoaccount, and recent reported cases disclose continuing uncertainty.34

-rhe Committee will also wish to consider what kind of tribunal"htJuld deal with divorce and other family matters. A movement awayir\Hn the fault theory suggests that adversary procedures could bernoJified or abandoned, and more attention given to conciliation andth~ interests of the children. The much discussed question of establish­ing a system of family courts35 is currently being studied by the LawC'tJInmission.

Accordingly, it is suggested that there is a strong case forIInrnediate legislation to amend the Matrimonial Causes Act, even ifonly as an interim measure. There is no need for delay until theStanding Committee completes its inquiry. The proposed amendments\\'ould recognize the encroachments upon the fault doctrine in currentpractice, and abolish some of the doctrine's outmoded trappings,\vhich now serve only to impede the achievement of the objectives of

:t! O. R. 1vIcGregor, "Law and Social Chan~e" (i971) 121 Ne\~ ~ L.J~"'624: 626:~~~:rds it as a symptom of middle-class myopia that a new divorce la\v could~e Introduced to reduce the number of illicit unions and protect the children'.t. h0 w?uld otherwise be illegitimate

\Iv 1t~out any changes whatever being proposed for the summary jurisdictionWhICh, in fact, generates far more illicit unions and illegitimate childrenthan ever stemmed from the inability of a relatively small number of

, people to obtain a divorce.~~ Domestic Proceedings Act 1968, s. 19( 1) (a) (N.Z.).

F vol po~·ter v. Porter [1971] 2 All E.R. 1037; O'Brien v. O'Brien [1971] 3 All[~:. 2)4; Ackerman v. Ackerman [1971] 3 All E.R. 721, reversed on appeal,(: 72] 2 All E.R. 420; Pheasant v. Pheasant [1972] 2 W.L.R. 353, 355; S.Eretney, "The Maintenance Quagmire" (1970) 33 Mod. L. Rev. 662; T. K.I ~rnSha\v and P. J. Pace, "Conduct and Financial Provision" (1971) J21 Ne\v"-4 f" 856; J. Jackson, "The Ne\v Legislation in Practice" (1971) 68 L. Soc. Gaz.('~J: S. Cretney, "Financial Provision-The Ne\v Case Law" (1972) 122 Ne\v.. 24.

t .~5 H. A, Finlay, "Commonwealth Family Courts: Some Legal and Consti­~~"nal ~mplications" (1971) 4 F.L. Rev. 287, and H. A. Finlay, "Family Cotll"S

Imnuck or Panacea?" (1969) 43 A.L.J. 602, and articles referred to therein.

.­.­'~

.~

68 Federal Law Review [VOLUMgj._t:i~

':tn,a good divorce law. The amendments affect the grounds for divor~

the discretionary bars and the absolute bars. ,~!r-:.,

The Grounds for Divorce ...:t::t~~

It may be that anyone \vho is determined to get a divorce can ob~~'

one under the present Act, but the process is not edifying. If a husban~

and wife conclude that their marriage has broken down and agree"toi~

part, they must wait five years before seeking the right to rema~

unless one of them has already committed a matrimonial offence '110~:

commits one after they separate, in which case they may gain thatrright immediately. If an offence has been committed, the parties musb,­engage in hostile litigation. The offence will be isolated from the matri~

monial history as if it were the only reason for the failure of ther,marriage, and one party \viII be branded as guilty. If it is not clear!that either of them has COlllmitted an offence, the parties find the~!}selves in a situation which "encourages the giving of hypocritical eviden~at best and perjury at the worst".36 A voluntary separation may beJ:dressed up to look like desertion. Evidence of adultery may be suppli~by a co-operative spouse as a contribution to\vards a speedy divorce~:

Worst of all, one spouse may be led to draw up a dossier of unhapp~

incidents of great or small significance, in an effort to build a case o~~

habitual cruelty.37 Section 28(m) does not provide a real altemativet~(

The divorce statistics show that people are not prepared to wait fiVi'"years to be freed from a failed marriage, even though this entails the'submission to processes which bring the law and the administration 0

justice into disrepute.38

As a minimunl step to alleviate this situation, a new ground fo~

divorce, similar to section 2 (1 ) (d) of the new English Act, shoul~

be enacted, allowing divorce where the parties have lived apart fot:t:~

not less than two years immediately preceding the date of the petitio~and the respondent consents to a decree being granted. A simi1ar:~t

proposal was made to the Commonwealth Attorney-General in 1969~

by the Family Law Committee of the Sydney University Law Graduat~;Association.39 :~~;'

>' -~~~

36 Field oj Choice, para. 25(d). ~~37 The use of the ground of habitual cruelty varies remarkably from State to~

State. For example, in 1969, the percentage of divorces granted on this grouncL1fi,(including divorces granted on this ground and another) in each jurisdiction1:was: N.S.W., 12.1%; Vic., 2.4%; Qld, 7.4%; S.A., 15.9%; W.A., 2 ".%; Tas.;~~

3.9%; A.C.T., 19.1%; N.T., 9.1%. ::~.~

38 Field oj Choice, para. 92. ~:~~

39 Editorial, (1969) 43 A.L.J. 131; D. Hambly and J. N. Turner, Cases and,.~Materials on Australian FaJnily Law (1971) 320. See too, Matrimonial Pr~'

ceedings Act 1963 as amended by the ~Iatrimonial Proceedings Amendment Act.~!~1968, s. 21(m), (n) (N.Z.). .c~

1972] Reforming Divorce Law 69

Such a ground as this requires special provision to be made for thepn1h:ction of respondents. Under the English Act, rules of court havebeen n1ade to ensure that a respondent is informed of the consequencesnf consenting to a divorce.40 If a respondent refuses consent, or with­dla\vs consent at any time before the decree nisi is granted, procee(lingsunder the petition are stayed. A decree nisi granted on this ground mayb~ rescinded at any time before it becomes absolute if the court is~atisficd that the respondent was misled by the petitioner, intentionallyOf unintentionally, on any matter \vhich the respondent took into;i':(~)Unt in deciding to consent.41 In petitions relying on section 2 (1) (d)or (c), if the respondent asks the court to consider her financialposition after divorce, the decree may not be lllade absolute unless thel\ )urt is satisfied that the petitioner should not be required to make anytin:lnci~l provision for the respondent, or that the financial provisionWhl~h he has made is "reasonable and fair or the best that can beIilaJ~ in the circumstances".42 Ho\vever, it is hard to imagine a case~Jndcr section 2(1) Cd) in which the respondent would invoke thisprovision; if she were not satisfied \vith the proposed financial arrange­rncnts, and willing for the divorce to be delayed, she would not consentto the decree.

--rhe answer to those who would oppose a proposal that smacks ofdivorce by consent is that this ground candidly recognizes the realitiesof current practice, stripped of its propensity for subterfuge andranCOUf. Unlike Lord Denning, Lord Reid had little sympathy for theirretrievable breakdown principle; in the House of Lords debate, hevigorously opposed the inclusion of section 2 ( 1) (e) . Nevertheless, heT;J.·cf corned section 2 ( 1) (d) :

[F]undamentally it is divorce by consent. ... It looks new to havedivorce by consent, but it is not; ... if the two agree and are bothequipped with an elastic conscience, they get the divorce today.[T]he shorter the period could be, the more the reform \vouldIt is only the scrupulous people \vho fail, and that seems to me~o be highly unsatisfactory.... I welcome paragraph (d) becauseIt regularises what is, to my mind, a discreditable position, andI consider that paragraph (d) alone is worth having for its Q\vnsake.43

~~r V A- _ "~, •• , _ w.~ ~.",~

.~ 0 S. 2(6), and 11atrimonial Causes Rules 1968, Form 3 (as amended). Cj.~'~ ~submission by the Family Law Committee of the Sydney University Lawr.~' 3.j uates Association, which proposed that a decree should be made on this~; OUnd only if the respondent appears before the court in person and consents~'~ ~e making of the decree t)f has signed and executed in the presence of the~g ~tra~, Deputy Registrar or other person appointed by the Rules, a declaration

1;1 ~r~")cnbed form consenting to the decree being made.. 5.

uS.6.43 H.L., vol. 303 (5th series), col. 351.

70 Federal Law Review

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This argument was also put by the Archbishop of Canterbury an¢:Viscount Dilhorne.4-! It gains support from the first year's operati~~

of the new Act. The increase from the previous year in the number ofk~

petitions filed in the Principal Registry of the Family Division durin~

1971 corresponded almost exactly with the number of petitions relying o~.'

section 2 ( 1) (e), the ne\v ground of five years' separation. One mightti;infer that very few petitioners who chose to rely on section 2 ( 1) (d~in 1971 would have refrained from instituting proceedings if th~!

ground had not become available, and that, \vhen the backlog of cases{under section 2 (1) (e) has been dealt with, the English divorce rate will~:not have changed drastically.45 , :q

,:.;J

The new ground had a cool reception from some English com~~

mentators. They predicted that the prospect of a divorce by consent\;~

after two years' separation would not dissuade parties from resorting!~'

to "the old charade of 'clandestine consent' under covert of matriiimonial offence".46 The former President of the Probate, Divorce an~:

Admiralty Division put this view in extreme terms. He feared a re-~~,

surgence of rigged adultery cases, in which the parties, taking advantag~'~

of the abolition of the bar of connivance, \vould agree not only to ~~~,

divorce but also that one of them should commit adultery, thus enablini~~~them to get an immediate divorce by consent under section 2(1) (a).~~:;It was said that great caution should be exercised by a lawye~when advising a couple who proposed to separate by consent and:!'seek a divorce after t\VO years under section 2 ( 1) (d). Unless the partie~f

enter into a "Rose v. Rose" agreement;18 there would be nothing to:~

prevent either of them from changing his mind and petitioning, before¢:the two years had run, on any ground that was available to hinl at·~-:

the time of the separation. And what of adultery committed after they~c

separate? It has been suggested that parties who wish to do so may~­

anticipate the problem by entering into an agreement that neither sh~institute divorce proceedings for a period of t\VO years. Now that the;~­

English Act has abolished the bars to divorce, such an agreement migbt~:

44ld., cols 340, 366. :,.45 See the comments of the President of the Family Division, Sir George Baker~;

in "The View from the Family Division", The Lalv Society's Gazette, 19 January~~1972, 5, and the editorial, "Divorce under the New Law" (1971) 121 New LJ'-~t-853. >:

46M. D. A. Freeman, ''The Search for a Rational Divorce Law" (1971) 24<.~­Current Legal Problems 178, 194; D. Morris, The End oj /ttlarriage (1971) 15~:'~s155; R. L. Waters, "The Divorce Reform Act 1969H

, (1970) 114 Sol. J. 726,'?;'728. ~ ,""

41 Sir Jocelyn Simon~ "Recent Developments in the Matrimonial Law", th~fRiddell Lecture 1970, reprinted in Rayden on Divorce (11th ed., 1971) 3227i~~"3234. It may be doubted whether a petition based on these facts would succeed~:see P. M. Bromley, Fafllil) La}v (4th ed., 1971) 209-210. -~~},

48 (1883) 8 P.o. 98. ":_}'

',-~ held not to violate public policy, even though it contemplates the..:( lf1ll11ission of adultery and forgives it in advance.49 Even if theseJ:Il1~ulties are overcome, the chance of a divorce by consent under'«lion 2( 1) (d) might be lost if, at the end of the two years, the parties:Jnnot agree on financial terms.50

rhe fact that such criticisms can be made is part of the price to",~ paid for a provision which epitomizes the Act's cOlnpromise bet\veen,::tI~ring policies. Some of the criticisms simply demonstrate a lack of'I:. :11 pathy with the manifest aim of section 2 ( 1) (d). The extent to.\~lch they will be borne out in practice will depend heavily on the::!itudc adopted by legal practitioners in advising their clients. At·.... Jst the new ground offers a means of obtaining a divorce with dignity,:!ld it is to be hoped that people \vishing to use it will not be dissuaded

'"':. objections which may have little weight in their particular case. From\~l\crsations with a number of English solicitors, one gains the

:~1 f'! cssion that a substantial number of their clients (especially'. 'unger clients) welcome the opportunity to use this ground, even at the

l,t of \vaiting two years, in order to avoid the matrimonial offencen.Jrome. This is verified by reference to New Zealand's long ex­

"-:n..:nce with a similar ground, which is invoked in about half of the~~,:r~cs granted in that country.51

T'he prospect of being able to use this ground if agreement can be:c~lchcd on ancillary relief has been found to promote a restrained,:t)nstructive atmosphere in negotiations, if neither party is hindered by1 legal adviser \vho cannot break free from the attitudes of the;J\, ..:rsary system. If an agreement has been negotiated in a mild:~h)tional climate, the prospect for its conscientious observance is~";hanced. This is a matter of particular importance for the welfare of•>h: children.

1-h~ Law Commission gave the following reason for its recom-.:ndation that the required period of separation should be two years:

accomplish. The aim should be to fix a period which is not soshort that it might undermine the stability of marriage but not solong that parties \vho had grounds for petitioning on the basis of an1atrimonial offence would not be prepared to wait. If both partiesare anxious to end their marriage without rancour and \vithoutseeking to secure a public finding of guilt or innocence, they may

~~~'f J. Jackson, HThe Ne\v Legislation in Practice~' (1971) 68 L. Soc. ~Gaz'. 341'~

~) D. ~forris loc cit:'1 \. . ~ • •

_~ _'\ .tatnmonlal Proceedings Act 1963 as amended by the l\latrimonial Proceed-... ~~ .\mendment Act 1968, s. 21(m) (N.Z.). In 1969, 2,996 decrees absoluteJ..;~l~~t.-.granted; 1,537 were on this ground. The next most frequent grounds \vere~ l-~"'ry (653 decrees) and living apart for four years (450 decrees): J.\-Jonthly

}.ract of Statistics (N.Z.), March 1970,5.

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t..~72 Federal Law Review [VOLUMRii

,~-*be prepared to wait, it seems to us, as long as two years. If, ther~fore, that period of separation \vere required by the law in these::cases, there might be an appreciable diminution in the number ~petitions based on cruelty or adultery and a big drop in th~

based on desertion.52 .:~~~

The question, it is submitted, is not how long the parties may ~;~prepared to wait, but how long does the public interest (as perceived:tby Parliament) require that they should wait. One should have thought<:that one year's separation, together with the consent of both parties ~.

the divorce, would suffice to show that the marriage had irretrievably',broken down. The shorter period would, of course, provide a stronge~~

incentive to use this ground instead of one of the matrimonial offences~.

However, the length of the period of separation to be required is '~tmatter of political judgment, and one would not \vish to delay th~

introduction of this principle into the Matrimonial Causes Act bi"~prolonging debate on this question.

If Australia is to adopt a provision similar to section 2 ( 1) (d), th~~

draftsman will need to consider some questions affecting its scope m.:.which it might be desired to depart from the English model.

Section 2 ( 1) (d) refers to parties who "have lived apart for"~:

continuous period of at least t\VO years immediately preceding th~

presentation of the petition". Section 2 (5) provides: ~~;~

For the purposes of this Act a husband and wife shall be treated.1:as living apart unless they are living with each other in the sam~l~

household. ",

Section 2(5) has been interpreted as an endorsement of the "tw~households" test which had been developed by the English courts ~:

dealing with cases of alleged desertion \vhere the spouses had lived unde,"~.

the same roof.53 The leading statement of this test is that of Denning;;L. J. in Hopes v. Hopes:

It is most important to draw a clear line between desertion, \vhic~'is a ground for divorce, and gross neglect or chronic discord,;:which is not. That line is dra\vn at the point where the parties ar~

living separately and apart. In cases where they are living unde~t

the same roof, that point is reached when they cease to be on~~'household and become t\VO households; or, in other words, whe~they are no longer residing with one another or cohabiting wit!l#'one another.54

li2 Field of Choice, para. 93. P. M. Bromley, o~. cIt. 213, referring=;~:s. 2( 1) (d) and (e), suggests that "it is arguable that the separation either indicates.~,

that the marriage has broken down or it does not and the respondent's consent;;.should not therefore affect the length of time it has to run". In Field oj ChoiceA:;:it was thought that public opinion would demand an appreciably longer peri~~.in cases where one party objects to a divorce (para. 94). ' '

53 Santos v. Santos [1972] 2 W.L.R. 889 (C.A.). .M [1949] P. 227, 235-236.

1972] Reforming Divorce Law 73

"fhe first reported case to present this problem under the 1969 Act',ras Afollncer v. lvlouncer.55 The husband petitioned under section2( 1) (d), and the wife consented to the grant of a decree. For eighteen:nonths of the period of two years which was relied on, the husbandh.HJ continued to live in the matrimonial home. He did so only be­cau-;e he wished to live with the children and to help look after them.\\"ranghanl J. accepted that there \vas no affection or physical relation­\hip between the spouses during this period, and said that there wasfh) reason to suppose that the marriage had not broken do\vn irre­~rI~vably. I-Ie said it \vas admirable that the husband had refrained: II )111 leaving because of his concern for the children, but, applying the1/. '!h'S test, he felt obliged to hold that the husband and wife had beenL\ Ing with each other in the same household. Accordingly, he couldnnt grant a decree. The case serves as a reminder that harsh consequences:,t:1 ensue from an insistence upon two years7 separation even whereth~ rnarriage has manifestly broken down and both parties want adtvorce.

The weight of Australian authority is against the two householdstt?st. Our courts approach these cases by seeking to determine, as in allca.:;es \vhere desertion or separation is alleged, whether it has beenproved that there \vas a substantial abandonment of the matrimonialrelationship.56 This test is inevitably difficult to apply \vhen the partiesar~ living under the same roof, and one can only speculate whether it',vuuld have produced a different result in a case like Mouncer v.\founcer; but it avoids the inflexibility of the Hopes test. An abandon- \nlent of the matrimonial relationship may be established even if the~~lrtles continue to perform some services for each other.67 The:\ustralian approach permits a court to take a realistic view in caseswhere the parties live in luodest accommodation in which two separateh()Ll~eholdswould be a practical impossibility.58

The other question concerns the nature of the separation that is~o be required. If the new ground were to be modelled on section 28(m),:tS envisaged by the Family La\v Committee of the Sydney UniversityLa\v Graduates Association, it \vould provide:

that the parties have separated and have lived separately andapart for not less than t\VO years immediately preceding the date

~72) 1 W;L.R. 321; [1972] 1 All E.R. 289. " .C l E.g., J-Vatklns Y. Watkins (1952) 86 C.L.R. 161; Potter v. Potter (1954) 90f: L·R. 391; Johnson v. Johnson [1964J Y.R. 604; Crabtree v. Crabtree (1963) 5:\ C·RI· 307. See J. N. Turner, "Separate Lives and Section 28(m)n (1970) 2

.....R. 2.s~

.:;~ Johnson v..~o~nson [1964] V.R. 604.~... ~Cj. the cntlclsm of the English Act's requirement of two years' separationh:l! 1. D. A. Freeman, Ope cit., 195-196: "The Act aSSUffiCS a comfortable bank~;: a~ce. and a plenitude of housing accommodation. Is this naivety or just class~cnmlnation?'~

74 Federal Law Review [VOLUME4<l~i't-

of the petition and the respondent consents to the marriage beintdissolved upon this ground. '-1

It is clear from the judicial interpretation of section 28 (m) that me~physical separation of the parties is no t of itself sufficient to establi~that "the parties have separated and have lived separately and apa~

It would be necessary to prove that the matrimonial relationship h~been abandoned throughout the two years.59 f~

There has been some doubt whether the English Act, \vith its uJ,of the expression "living apart" as defined in section 2 (5), bears th~

same meaning, or \vhether a physical separation suffices for the purpo~ i

of section 2 ( 1) (d) and (e). The problem can arise \vhere, for exampl~one of the parties is imprisoned, or confined to hospital or sent ove -~seas on military service. The parliamentary debates provide a strong;{indication that the departure from the 'Nords of the Australian A~was deliberate, and that the proponents of the English Act intend•.that it should only be necessary to prove a physical separation.60 ~:will come as no surprise to hardened students of la\v reform that the;Court of Appeal has held that there is no material distinction betweentthe English and Australian provisions, that "living apart" commenconly when one party fornls the intention that he will no longer recognilJthe matrimonial relationship as subsisting, and that any contrary inter,,:pretation would lead to injustice and absurdity. lbis intention nee4i~

.~

not be communicated to the other party in order to commence a sta~

of living apart; if communication were required, the separation groun~

would be equated \vith desertion, except in cases \vhere the petitione,consented to the separation.61 ,,:;$:

,~.

Opinions may differ on the merits of the Court of Appeal's in~terpretation of the English Act,62 but there is much to be said for th~

view that, if the proposed ground is introduced in Australia, it shou1~, A ~ ~

59Macrae v. Macrae (1964) 6 F.L.R. 224 (first instance), (1967) 9 F.~441 (on appeal); Collins v. Collins (1961) 3 F.L.R. 17. ,,~~

60 H.L., vol. 303 (5th series), col. 1334 ff.; vol. 304 (5th series» col. 1082 'qr;­61 Santos v. Santos [1972] 2 W.L.R. 889. The Court referred to Main v. !v[a~­

(1949) 78 C.L.R. 636; Tulk v. Tulk [1907] V.L.R. 64, 65; Collins v. Collinif(1961) 3 F.L.R. 17, as well as Canadian and Ne\v Zealand decisions. -~~:

62 Before Santos v. Santos was decided, Tolstoy on Divorce (7th ed., 1971J~'98-100 and Rayden on Divorce (11th ed., 1971) 273, had reached the same coa~

elusion as the Court of Appeal. S. Cretney, "When Does 'Liviag Apart' Start~(1971) 115 SoL J. 295, took the opposing vie\v. It can be strongly argued th~"­the Court of Appeal took too narrow a vie\v of s. 2 (5). The Court said tha;!?,the gene:al objective of s. 2(5) was not pla~u, but concluded that it was merelJ;~~ t

to establIsh the t\VO households test. But, as Cretney observes, '~~1:: ihowever happily married the \vife of a soldier serving overseas may be,-~: I

seems a misuse of \vards to say that she is 'living with her husband in th~~ ,same household' while he is overseas. It is tnle that she i'i not in ordinary,~

language 'living apart' from him, but the statute specifically directs that she:<~'shall be treated as if she \vere unless she is living \vith him. ,

Reforming Divorce Law 75

;''; ')u drafted as to make it clear that t\VO years' physical separationh ~dl that needs to be proved. The Court of Appeal's objection to Li.is'. ie's \vas that a couple separated because of work or illness for tw'o:,.: .trs \vould be able to petition under section 2 (1 ) (d), even though~h~y had been on excellent terms until the last moment before the t\VO

:.~·Jrs expired. It was said that such a result would be absurd. The Act~~ lel not intended to permit divorce by consent simpliciter; the tenor of,~~tion 2(1)(c), (d) and (e) was to ensure that a breakdov,-n should'> It be held to be irretrievable unless and until a sufficiently long;).t\~agc of time had shown this to be so. The Court recognized the~~ tiiculty facing a judge who was called on to determine the time at., hich the wife of a hospital patient or prisoner changed from a \vife·d.~nding by her husband and keeping the marriage alive, to one \vho~:",di7Cd the end of the marriage had come but visited the husband-::,:fcly from a sense of duty arising from the past. Their Lordships.. \\tlld only say that cases under section 2 ( 1 ) (d) and (e) may often'1(\.'U careful examination and special caution. vVhere the wife's conduct"\:h consistent with a continuing recognition of the subsistence of·;1: marriage, the automatic acceptance of her uncorroborated evidence,':lconsistent with such conduct, \vould not be desirable.

:\ustralian legislators might well conclude that contingencies of the~JnJ envisaged by the Court of Appeal in its hypothetical example

~ insufficient justification for requiring an inquiry into fluctuations1:1 the parties' states of mind in every case under the new ground. In:n,iny cases, there would be considerable uncertainty as to the time at\\ hich the ground would become available, and legal advisers couldt1nly guess at the construction a court \vould put upon the evidence.i he result of an incorrect prediction would be the refusal of a decree,.l, ith consequent expense and delay, to parties who have consented to.1, Jivorce and have in fact not lived together for the stipulated period.£- urthcr, the English provision, as interpreted by the Court of Appeal,-:In.s counter to the expressed aim of the English and Australian Acts:1,) tacilitate reconciliation in matrimonial causes. It encourages a spouse··.. husc marriage is \vavering to record an intention to terminate the~;.1rriage) so that time can start running towards a ground for divorce..63

. {)iffcrent considerations arise under the ground of five years' separa­,11.)11, \vhere a party can be divorced against his \vill. It may be thought\>Y'[ong that time should automatically run against a person who is~,:.:parated from his spouse for reasons not of his own making, and,nat the law should require the formation by one of the spouses of anlnt~ntion to regard the marriage as no longer subsisting.--f;3 C ---- ~ "'" '" ~.~

/ ontrast the position of the unfortunate loyal \vife in Collins v. Collins1961) 3 F.L.R. 17.

76 Federal Law Review [VOLU~I

The other innovations in sections 1 and 2 of the Divorce ReformiAct are of more debatable merit. One would not press for tb~~immediate enactment as amendments to the Matrimonial Causes A~However, they shed some light on questions of policy and dra~\vhich would arise if it were decided that a compromise of the kinctiembodied in the English Act represents the best divorce law that emfbe achieved in the current state of Australian public opinion. .~~:

~'"".

The significance of section 1 has been a ITlatter of dispute. Despi :its assertion that the sole ground for divorce shall be that the marria~,has broken do\vn irretrievably, it might be said that the practical effeC€of sections 1 and 2 is to establish five grounds for divorce, with tb~qualification imposed by section 2 (3) that, if the court is satisfied o!,all the evidence that the marriage has not broken down irretrievablj\it will not grant a decree. This led Sir Jocelyn Sirrlon to say tha!Jt'section 1 had no real legal significance;G-J: but at least it renounces thjfault theory and openly recognizes the breakdo\vn principle as the bastSifor divorce. This serves an educational purpose in guiding the legaJ{«_profession and the public away from former habits of thought. It maitake some of the sting from petitions under section 2 ( 1) (b). It rna.also help to moderate the law's traditional obsession with adultery :';,~s

a matrimonial offence of unique gravity, by elnphasizing that it is not~adultery but the state of the matrimonial relationship which is thCfcrucial factor in determining whether there should be a divorce. It.~

unfortunate that, despite section 1, English courts in two recent cas~'

thought it necessary to stress the special social stigma attaching ~~adultery; these dicta were pronounced in such a context that the~$

amounted to an encouragement to parties to indulge in cross-petitions~ I

solely in order that their spouse should share the stigma with them.65~

During the debate on the Bill in the House of Lords, an unsuccess~:attempt was made to amend section 2(3) so that the petitioner \vouldibear the burden of proving, not only one of the facts prescribed 'it!'section 2 (1 ), but also that the marriage had broken down irretrievab11~~

It was acknowledged that this would give greater consistency to theglegislation, but the view prevailed that there were strong practic >,~ ..

arguments against it. In a defended case, it was said, the incidence o~~ 1

the burden of proof was rarely decisive. In undefended cases, th --Iiproposed amendment would introduce an inquisitorial element of un:i;:~_ I

certain scope: how far beyond the petitioner's assertion should th~ Icourt go before declaring itself satisfied that the marriage had brokelh~ :down irretrievably? It was said that petitioners in undefended case~'

:=.....,..~~__~~.-...........__-....,...-....--r"""...-------;------::;-~:-:----==:--==-_~---~~_-:.~:

64 URecent Developments in Matrimonial' Law", reprinted in Rayden ori:~:Divorce (11th ed., 1971) 3227, 3232. '~:-.;-

6:) :luxford v. Huxford [1972] 1 W.L.R. 210; Collins v. Collins [1972] 1~~"V.L.R. 689, 692..693 (C.A.). The dicta are reminiscent of Iverson v. Iverson::.~:

1972] Reforming Divorce Law 77

\\'nuld be outraged if, having satisfied section 2 (1), they were refused.1 decree because the court remained doubtful whether the marriage hadIrretrievably broken do\vn.66

Paragraphs (a) and (b) of section 2 ( 1) were presumably intendedtl) provide for those spouses who need relief before they have under­glJnc a period of separation. The La\v Commission, it will be re­n1t~rnbered, had expressed particular concern for them.61

There was opposition to the inclusion of paragraph (a). It wasargued that it \vould perpetuate the \vorst features of matrimonialoff\?nces, and that acts of adultery should fall for consideration inpt2titions under paragrapll (b), in which the court \vould determine\vhether, because of the respondent's adultery and any other relevantblhaviour, the petitioner could not reasonably be expected to live withhin1. The prevailing view was that adultery was a common and easilyIJcntit1able symptom of marital breakdown. Section 2 (1) (a) 's ne\vr~quirelnent that "the petitioner finds it intolerable to live \vith thercspondentn showed that an isolated act of adultery was no longer anautonlatic ground for divorce, and reinforced the policy that thebreakdo\vn of the marriage, not the adultery, was the ground~ Morelnlportant, it was feared that the merging of paragraphs (a) and (b)would promote uncertainty. luere could be differences of approachbet\veen the judges in assessing the significance of an act of adulteryunder paragraph (b). It would be intolerable if one judge said thata single act of adultery justified divorce under paragraph (b ) , and:tnother judge took a contrary view. Further, in a case under paragraph(b) in which a petitioner complained of adultery, the judge might haveto undertake "a most invidious and unseemly inquiry"68 to determinethe circumstances which made the adultery conduct \vhich the petitionercould not reasonably be expected to endure.t1~

~ In almost all cases, of course, the question whether the petitionerflnus it intolerable to live \vith the adulterous respondent will have!ittk' significance, at least by the time the case reaches the COllrt. Thet~st is subjective, and the petitioner's presence in court speaks for itself.It has been held that the two elements of paragraph (a) are disjunctive:the petitioner may find it intolerable to live with the respondent forreasons independent from the adultery.70 One question a\vaiting clarifica-.r---=-----~-~-----.,,....--------c-:------;----:;-------::::---:-:--_===_=________O_~___.,..,,..____r_T""'C~E~:7] P. 134, 145-146, d~cided under th~ ol'd l;w. Cf~ ~\Tast V. N~t [1972] 1 AllI ~2 "NI171 (C.A.) and the editorial, "Social Attitudes and Points of Lawt

, (1972)I.. 1 e\v LJ. 255.

~ fs-~·L.J vol. 303 (5th series), col. 1314 ff.f!1i lipra text to n. 28.69 ~L", vol. 303 (5th series), col. 1225 per Lord Stow Hill.;0 ,", co~. 1221 ff. per Viscount Dilhorne.

'~d ~oodnch v. Goodrich [1971] 1 'V.L.R. 1142, criticized by 1\1. D. A. Freeman,. u tery and Intolerability" (1972) 35 ~1od. L. Rev. 98.

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tion is whether a court may disapprove of the petitioner's reasons fciifinding it intolerable to live with the respondent, and refuse a decree::To take an extreme example, if a promiscuous husband connived athis wife's only act of adultery, is the court obliged to grant him' 'I;­

decree, though he finds the marriage intolerable only because he~

wishes to marry someone else?

Under section 2 (1) (b), a petitioner may establish that the marriage'has irretrievably broken down by proving that "the respondent hasbehaved in such a way that the petitioner cannot reasonably beexpected to live" with him. This provision appears to be derived fromGollins v. Gollins and Williams v. Willial11s.71 If introduced in Australia;'it \vould supersede the ground of habitual cruelty (section 28 (d) ),:.removing the need to prove that the respondent's conduct had caused­actual or apprehended injury to the petitioner's health, and that it had:been endured for at least a year. It \vould also replace the extensiolt~

to the ground of desertion effected by section 29; it would no longer:~

be necessary to sho\v that the respondent's conduct had caused the-,petitioner to live separately or apart for two years.

The ethical judgement which a court must make under sectioII~,

2{ 1) (b) has been likened to the application of the "grave and weight1t~_

yardstick in cases where cruelty or desertion is alleged.72 It seems to::~

provide as much scope for divergence of judicial opinion. In Pheasanti",v. Pheasant, Ormrod J. said he had to consider:

whether it is reasonable to expect this petitioner to put up witb,~­

the behaviour of this respondent, bearing in nlind the characters:­and the difficulties of each of them, trying to be fair to both oil:..them, and expecting neither heroic virtue nor selfless abnegatio~,

from either. It \vould be consistent with the spirit of this neW~c

legislation if this problem were now to be approached more fr0Ill1::the point of view of breach of obligation than in terms of th~:;'

now out-moded idea of the matrimonial offence. It must also be:borne in mind that the petitioner is still free to make his own·'decision whether to live \vith his \vife or other\vise. The co~~'

is only concerned with the next stage, i.e. whether he is entitledf:::to have his marriage dissolved.73

With this may be compared the rather disturbing exposition by~·

Bagnall J. in Ash v. Ash: 74

----=-.,'.,,~

71 Supra nn. 20, 21.72 P. M. Bromley, Family Lalv (4th ed., 1971) 210; B. Passingham, The Divorce.,J

Reform Act 1969 (1970) 9-10; J. Levin, "The Divorce Reform Act 1969'~\~(1970) 33 Mod. IJ. Rev. 632, 635. ~'

73 [1972] 2 W.IJ.R. 353, 357-358.14 [1972] 2 \V.L.R. 347, 351.

1972] Reforming Divorce Law 79

The general question may be expanded thus: can this petitioner,\vith his or her character and personality, with his or her faultsand other attributes, good and bad, and having regard to his orher behaviour during the marriage, reasonably be expected tolive with this respondent? It follows that if a respondent is seek­ing to resist a petition ... , he must in his answer plead and in hisevidence establish the characteristics, faults, personality attributesand behaviour on the part of the petitioner upon which he relies.Then, if I may give a few examples, it seems to me that a violentpetitioner can reasonably be expected to live \vith a violent re­spondent; a petitioner who is addicted to drink can reasonablybe expected to live with a respondent similarly addicted; ataciturn and morose spouse can reasonably be expected to live\vith a taciturn and morose partner; a flirtatious husband canreasonably be expected to live with a wife \vho is equallysusceptible to the attractions of the other sex; and if each is equallybad, at any rate in similar respects, each can reasonably be expectedto live with the other. This conclusion seems to me to be con­sonant with what have been said to be the objects of the 1969legislation, which are not, in my view, simply to make divorce easier,but . . . [his Lordship quoted the La\v Commission's statementof the objectives of a good divorce la\v].75

Is not this a return to the superficiality of the matrimonial offenceJoctrine, with its preoccupation with guilt and innocence and its useof the refusal of a decree as a punishment for misbehaviour? "If eachis equally bad, at any rate in similar respects, each can reasonably beexpected to live \vith the other." One is reminded of the justification()f the old doctrine of recrimination by the eighteenth century judge\~ ho thought it proper that relief should be refused where both spouseshad committed offences, in order that "the parties may live together,~lnd find Sources of mutual forgiveness in the humiliation of mutual~uilf'.76 One ,vonders what a psychiatrist would make of the argumentthat spouses, both of \vhom \vere violent, or alcoholic, or depressive,!'[ pron1iscuous, could reasonably be expected (because of theirCon1illon interests?) to maintain a matrimonial relationship. In manycases such conduct would be a blatant symptom of marital breakdown.Surely section 2 (1 ) (b) can be applied in a manner which is nlorec,onsistent with the objectives of the Act than this. It appears that intoe general run of undefended cases, it is so applied. The test which itprescribes may be vague (though no more so than its counterpart inth~ offences of cruelty ancl desertion), but its flexibility permits courts totake account of section 1 when applying section 2 ( 1) (b) in a case

--::----- ~~. c~,.' A' J

:: Supra text to ll. 5.\V.'II,Beeby v. Beeby (1799) 1 Hagg. Eee. 789, 790; 162 E.R. 755, 756 per Sir

1 lam Scott.

80 Federal Law Reviewf'_

[VOLUMBf'

where the marriage has clearly come to an end. A County Court JUdJihas commented: . '.~~:,­

[Ilt is abundantly clear from the type of cases no\v going throu~

the courts that "unreasonable conduct" covers a much wider ran~- i

of behaviour than cruel conduct. Previously it was extremelYi" Idifficult to obtain a decree when the only cruelty was mentai: '1:1

1

,1:

cruelty and when there was no immediate injury to health. No~,\:

these cases are becoming more frequent and have every prospe~of success.77 1::

The Discretionary Bars .~ II

II

I

The proposed Act to amend the Matrimonial Causes Act shoul~c

abolish all the discretionary bars to divorce by repealing sections 41;t.:and 37(3.) and the related provisions of the Matrimonial Causes Ru1es~~

This would confer on Australia one of the most notable advances1 Iachieved by the Divorce Reform Act. ::-

The discretionary bar which arises where a petitioner has committe4adultery, supported as it is by the obligation upon the petitioner ~~disclose his adultery to the court in a discretion statement, is a majot::~ ,source of the humiliation, bitterness, hypocrisy and perjury in currentlf·divorce practice. Yet it serves no sound purpose. In Pertoldi v. Pertoldt~

(No. 2),78 Fox J. made an unans\verable case for its abolition. His~

Honour described how the petitioner's compulsory confession of~adultery, which may have been unknown to the respondent and in~1~~~

significant in its impact on the marriage, can lead to unproductive~.

tactical manoeuvres, expense and uncertainty, all of which provide ~­

strong tempation to deceive the court. When one considers the distress:t7involved in preparing these documents, the exposure to the family of.~"

the concealed misdemeanours of the parents, and the danger that d~"closures in discretion statements could lead to the disruption of otheri':marriages, one can agree with Lord Reid that "discretion statements~

are an abomination and ought to have been got rid of long ago."79

The existence of this bar adds an element of strain to the relationshipv~~;

bet\veen every petitioner and his solicitor, for the solicitor must~;

repeatedly question his client about his sexual activities.80 Yet, sinc~~~.Blunt v. Blunts! and Henderson v. Henderson,82 the discretion has bee~~::"-

7'1 D. Rowland, "Matrimonial Law in England Today" (1971) ~ 57 A.B.A.J~~~~981 983. ~7

78 (1969) 14 F.L.R. 176. The views of Fox J. are supported in a note, (1970) ~~,,,44 A.L.J. 33 and kA~ editorial, "Dissatisfaction with Discretion Statements':~~:;(1970) 44 A.L.J. 4. See also H. A. Finlay, "Discretion Statements: An OId"'~~;'Fashioned Melodrama" (1969) 1 A,C.L.R. 35.

79 H.L., vol. 303 (5th series), col. 349.80 Pearson v. Pearson [1969] 3 \V.L.R. 722.81 [1943] A.C. 517.82 (1948) 76 C.L.R. 529.

]972] Reforming Divorce Law 81

::x~rcised adversely to the petitioner only in very rare cases.83 In thoseCdS~S, the reason for refusal of a decree has been either that thepr~itioner's conduct showed an utter disregard for the institution ofr~1arriage,84 or that he failed to disclose his adultery with completefrankness. 85 Parliament might prefer to act on the view that an insistencethJt an irresponsible petitioner remain tied to a lifeless marriage isn,~lt likely to nurture in him (or in anybody else) a respect for theinstitution of marriage. As to deceitful petitioners, the occasion forJc:ceit \vould disappear if the bar \vere abolished. In any event, there:ir~ more appropriate punishments for deceiving a court tt,an to.nsist that a petitioner remain married.

The discretionary bars of desertion, cruelty and conduct conducing~o the respondent's offence, are very rarely considered. They arecx:casionally invoked (as is the bar of adultery) as a means of giving~rrcct to the court's view as to which of the two erring spouses shouldg2t the decree.86 This is, or ought to be, an empty exercise. If bothhave established a ground, why should not both get a decree? Any'~\~Jghing of their relative merits is more appropriate to the determinationof questions of ancillary relief.

(', )fulonation

The la\v of condonation inhibits attempts at reconciliation. If aclient has a ground for divorce, his solicitor must warn him that anattcnlpt to become reconciled with his spouse could prejudice his chancesof obtaining Inatrimonial relief. If such an attempt is construed inrt:trospect by a court as having achieved a reconciliation (an extremelyVague term), even if only fleetingly, it \vill constitute condonation. Thegf('und for divorce \vill have been lost, even though the attempt to'a\e the marriage has in fact served only to confirm that it had:rr~trievably broken down. An escape is often provided by the rule\vhich allows a condoned offence to be revived by subsequent misconduct,and many lawyers seem not to regard condonation as a serious sourceo~ trouble in everyday practice. However, the doctrine typifies somenr t'

lne \Vorst features of the fault theory, and such effect as it has uponparties to troubled marriages offends against the first of the objectives~=~~.---~,-"""7'",---:;:~ _ _ _, ~.. "" ,

Pertoldl v. Pertold; (No.2) (1969) 14 F.L.R. 176, 177 per Fox J.:FrOm ~nquiries made at my request, I understand that in New South \Valesand VIctoria no case can be found of any refusal of relief in the last twoor three years on the discretionary ground referred to, and no one is able

~i to recall any [in the A.C.T.].7M \/J" Davenport v. Davenport [1960] S.A.S.R. 115; Tapp v. Tapp (1960)

N .... (N.S.w.) 122; Williams v. Williams [1966] P. 97.v G ~.g., l!ull v. Bull [1968] P. 618; ROlvley v. Rowley [1965] P. 178; Goldsmith

~6o dsmlth [1965J P. 188; ct. Reid v. Reid [1970] S.A.S.R. 151.274. AGJauger V. Mauger [1967] Qd. R. 62; ~Vhite v. JVhite [1967] 2 N.S.W.R.

e arbuu v. Garbutt [1969] 2 N.S.W.R. 108.

..

"

82 Federal Law Review

of a good divorce law. Furthermore, it has become encrusted with~

legalistic obscurities, far removed from the realities of life. That the-i!~

dissolution of even a few marriages should turn on remote theorizing~

is itself an argument for reform.87 .

A related problem arises when a state of desertion or separation is:~1

in existence, but has not lasted long enough to provide a ground for~~-"

divorce. If an attempt at reconciliation has a similar result to thatdescribed above, the time which had previously elapsed would be lost,,~'t:

and the dissolution of the marriage delayed.

The situation was not alleviated by the enactment in 1965 of section·-%41A of the Matrimonial Causes Act. This section was modelled onsection 2 of the Matrimonial Causes Act 1963 (Eng.), the proponents.:iof which sought to give spouses a probationary period of three months:~>­

in which to restore their marriage, before their cohabitation could be'~'\

regarded as condonation of a ground for divorce. Unfortunately, thispurpose was not achieved. The section is hedged about with qualifica-,,~\~

tions, and ambiguities in it have been interpreted in such an un-,",~,

enlightened restrictive way that it now has little utility.88

The Divorce Reform Act abolishes condonation, and replaces it with-~

a new series of provisions. Where a petitioner- alleges adultery, anyperiod or periods in which the parties lived together after the respondent's:-~

adultery became known to the petitioner are to be disregarded in deter-;;~,

mining whether the petitioner finds it intolerable to live with the respon-~­

dent, if the total length of the periods \vas six months or less. If it ex- ¥'

ceeded six months, that adultery cannot be the basis for a petition under"section 2 ( 1) (a) .89 In a petition under section 2 ( 1) (b), the court must. -..::.disregard any period or periods totalling not more than six months in :;~~

which the parties lived together after the final incident relied on as _evidence that the petitioner cannot reasonably be expected to live withthe respondent. There is no bar to reliance on the incident if they live ::~~;

together for more than six months.90 Periods of living together totallingnot more than six months are not to be regarded as breaking the con-~~~(

tinuity of a period of desertion or living apart for the purposes ot<_

87 See e.g., Schumann v. Schumann (No.2) (1961) 106 C.L.R. 566; Ives v.Ives [1968] P. 375; Hearn v. Hearn [1969] 1 W.L.R. 1832; Tynan v. Tynan'[1969] 3 All E.R. 14i2; Hyam v. Hyam [1969] 2 N.S.W.R. 513; and the cases cited;"~'

in the next note.88 Brown v. Brown [1967J P. 105; Herridge v. Herridge [1965] 1 'V.L.R. 1506;

Quinn v. Quinn [1969] 1 'V.L.R. 1394; Helnzer v. Hebner (1969) 14 F.L.R.390; N. IvIichaels, "The Kiss and Make Up Clause" (1965) 28 lViod. L. Rev. 101;A. A. Nt.. Irvine, "The Concept of 'H.econciliation' and the Matrimonial Causes·­Act 1963" (1966) 82 L.Q.R. 525.

89 S. 3(3).90 S. 3(4).

1972] Reforming Divorce Law 83

paragraphs (C), (d) or (e) of section 2 (1), but such periods do notcount as part of the period of desertion or living apart.91

~rhere seems to be no reason why the sections relating to condonationin the Australian Act92 should not be repealed immediately, and replacedoy provisions adapted from those in the Divorce Reform Act. Thiscould be done without adopting the English Act's reformulation of thegrounds for divorce. These provisions \vould sufficiently fulfil the basicpurpose of the bar of condonation, while breaking free from its legalis­tic trappings. They can be easily understood. Their application involvesHI) judicial investigation of elusive factual issues, such as fluctuationsin the intentions of the parties, which complicate the law of condonation.-rhere may be rare cases where relief would be denied under thenc\v provisions, but available under the old ones. For example, ifparties live together for more than six months after the discovery of..1£1 act of adultery, that ground for divorce is lost, whereas in somecircumstances the offence might not be held to have been condoned.93

In England, the adultery, and any other conduct of the respondent,could still be relied on in a petition under section 2 ( 1) (b), even afterthe parties had lived together for more than six months. In Australia,the adultery may still be a relevant particular in a petition on theground of habitual cruelty.94

Mr Joseph Jackson Q.C. regards it as intolerable that, under the newprovisions, a respondent's misconduct can be relied upon as a ground forJivorce, despite the parties' continuation or resumption of cohabitation,even if it is the petitioner who decides within six months, no matterho\v arbitrarily, to end the marriage.95 The answer is that the ne\vEnglish Act is not concerned to prevent divorce if a marriage hasbroken down and this is established by proof of one of the prescribednluttcrs (subject only to the special safeguards for respondents wherethe petition relies on a period of separation). It might be claimed thatthis, too, is the practical effect, though not yet the stated policy, of Aus­tralian divorce law. As suggested earlier, if anything is to be gained froma weighing of the relative merits of the parties' conduct, the appropriateContext is in deciding disputes over ancillary relief.

COtlclusions

It has been submitted that the most rational law of divorce wouldprescribe as its sole ground a period of separation sufficiently sus­tained to corroborate the petitioner's allegation that the marriage had

--~jl S. 3(5).!;:! Ss 39, 39A 41A.U3 'E.g., Ford v. Ford [1970] 3 All E.R. 188.9t Chalcroft v. Ciza/croft [1969J 3 All E.R. 1172.9:; "The New l\latrirnonial Law" (1971) 1 Farnily Law 59, 00.

[VOLUM ~Federal Law Review84

00 See the comments of Sir George Baker, "The View from theDivision", The Law Society's Gazette 19 January 1972, 5..

97 Matrimonial Causes Act 1959-1966, s. 44. The argument for repeal isout in the Law Commission's Report on Financial Provision in Matrimonial Pro­ceedings (Law Com. No. 25) paras 99-102; app. II, paras 128-142. The repealin England was effected by the Law Reform (Miscellaneous Provisions) Act'1970,8.4.

98 ~fatrimonial Causes Act 1959-1966, ss 60-64. For the argument for repeal,see the Law Commission's Proposal for AbolitifJn of the Matrimonial Remedyof Restitution of Conjugal Rights (Law Com. N!' 23). The repeal in Englandwas effected by the h-fatrimonial Proceedings and Property Act 1970, s. 20.

Pending the announcement of the Standing Committee's recommedations and the public debate which will ensue before any comprhensive legislation is introduced, some of the most irnportant reformachieved by the Divorce Reform Act could be introduced immediateas amendments to the Matrimonial Causes Act. These amendmenwould allow two years' living apart as a ground for divorce if tIl _respondent consents; abolish the discretionary bars; and recast the la~of condonation. If parliamentary time can be found for an amendin 'Act, the occasion could also be used to effect two other reforms recent!achieved in England: the repeal of the provision allowing a petition'to claim damages from a co-respondent,91 and the provisions allowin'a petition for a decree of restitution of conjugal rights.98

The enactment of these amendments would do much to alleviate the~objectionable features of the law affecting the grounds for divorc~I~Jl:~,They would also provide the public and the legal profession with atransitional period in which to become accustomed to the changinemphasis in policy that would be continued in any comprehensiv'::, :­change in tlle law which might be recommended. As recent English~experience shows, those closest to the administration of Lie law ot~1divorce are not al\vays quick to adapt to changing policies. The soonerh~'

the period of adjustment begins, the better.

irretrievably broken down. Ho\vever, the Standing Committee mit!conclude that political considerations preclude the introduction of suea law, and that any reform must attempt to achieve a satisfactory c,? ,promise between this proposal and other views which commandfmeasure of public support. III this event, the Divorce Reform A/ .2"~'1969 will be found to provide valuable guidance. Drafting deficienci~~ ~and theoretical inconsistencies notwithstanding, the Act seenlS alread'¥~': 1

to have had a substantial beneficial impact on the practice of divor', 'law in England. Defended cases on the issue of principal relief flre no~

very rare; the c0ntests that remain are concerned solely with ancillrelief.96