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Published online by Cambridge University Press: 24 January 2025
The inquiry by the Senate Standing Committee on Constitutional and Legal Affairs into “the law and administration of divorce, custody and family matters, with particular regard to oppressive costs, delays, indigates and other injustices” is to be welcomed. This article will discuss as prospects for reforming the law affecting the grounds for divorce, with particular reference to the guidance that might be gained from the Divorce Reform Act 1969 (Eng.). This Act provides support for a member of proposals to amend the Matrimonial Causes Act 1959-1966 (th) which could be implemented imrnediately. The proposed amendents raise none of the controversial issues of principle which dominated the debates on the 1959 Act in Australia and the 1969 Act in England, and their enactment would not prejudice the outcome of the Committes deliberations on the ultimate shape of Australian divorce law. Their beneficial effect on divorce practice, however, would be subnual and would help to pave the way for more fundamental reforms.
1 Cf. Matrimonial Causes Act 1959-1966 s. 28(1) (n).
2 Cmd 9678.
3 McGregor, O. R., Divorce in England (1957)Google Scholar; Kahn-Freund, O., “Divorce law reform?” (1956) 19 Mod. I Rev. 573CrossRefGoogle Scholar.
4 (1966) Cmnd 3123, cited hereafter as “Field of Choice”.
5 Id., para. 15.
6 Id., para. 28.
7 App. III to the Law Commission's Third Annual Report (Law Com. No. 15).
8 5(5) of the 1965 Act gives the court hearing a petition brought by leave within the first three years of marriage, power to dismiss the petition or postpone the making of the decree, absolute where it appears that leave to petition was obtained by the petitioners misrepresentation or concealment of the nature of the case. Cf. s. 43(5.) of the Australian Act.
9 S. 9.
10 S. 3(1) and (2) seem to be adapted from s. 14 of the Australian Act and rule 15 of our Matrimonial Causes Rules. S. 3(3)-(6) seek to encourage attempts at reconciliation in the aftermath of events which might provide a basis for a petition under s. 2(l)(a) or (b), or during a period when a state of desertion or separation exists between the spouses. See infra, text to nn. 89-91. The provisions affecting petitions under s. 2(1) (d) are discussed infra, text to n. 40 ff.
11 Compare ss 2(1)(e), 4 and 6 of the English Act with ss 28(m), 36 and 37 of the Australian Act.
12 Stone, O. M., “Moral Judgements and Material Provision in Divorce” (1969) 3 Fam. L.Q. 371 Google Scholar.
13 Bromley, P. M., Family Law (4th ed., 1971) 213Google Scholar. See also Passingham, B., The Divorce Reform Act 1969 (1970) 2Google Scholar; Freeman, M. D. A., “The Search for a Rational Divorce Law” (1971) 24 Current Legal Problems 178, 185CrossRefGoogle Scholar; Butler, C. M., “A Sole Ground for Divorce” (1971) 45 A.L.J. 168, 173Google Scholar.
14 Hansard (Lords) [hereinafter “H.L.'j, vol. 304 (5th series), col. 1274.
15 Pages 59-60.
16 Cf. the comment of M. Paulsen, in a review of Putting Asunder in New Society of 4 August 1966 (quoted in Field of Choice, para. 105):
But why should an exclusive choice be made? One principle can serve the case of the spouse who has suffered serious offence. The other can serve those spouses in respect of whom no glaring misconduct can be (dentified, and those who seek divorce against the will of a relatively mn ent partner. The legal system frequently chooses different principles to dispose of distinguishable situations.
17 'Some Aspects of the New Matrimonial Causes Act” (1961) 3 Syd. L.rev. 409, 419-420.
18 Matrimonial Proceedings Act 1963, as amended by the Matrimonial Proceedings Amendment Act 1968 (N.Z.); Divorce Act 1968 (Canada). See Holden, A. C., “Divorce in the Commonwealth: A Comparative Study” (1971) 201 C.L.Q. 58Google Scholar; Deech, R., “Comparative Apprnaches to Divorce: Canada and England” (1972) 35 Mod. L. Rev. 113CrossRefGoogle Scholar.
19 Manning v. Manning (1961) 2 F.L.R. 257, 261. For a recent example, see Jagger v. Jagger [1971] A.L.R. 692; [1971] V.R. 589, where a petition was granted under s. 29, though the respondent's conduct was due to a mental disorder.
20 [1964] A.C. 644.
21 [1964] A.C. 698.
22 H.L., vol. 303 (5th series), col. 399.
23 See e.g., Field of Choice, paras 13-28 and passim; Putting Asunder, Ch. 4. and the Australian symposium, Finlay, H. A. (ed.), Divorce, Society and the Law (1969)Google Scholar. 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• ' behavioural inadequacies, and the law as exacerbating their plight by adopting a punitive attitude to divorce.
24 Putting Asunder, para. 60, app. D, para. 13, and app. F; Field of Choice para. 79(f); G. Rowntree, (1964) 18 Population Studies 147; Marwick, M. G. “The Comparative Sociology of Divorce”, in Finlay, H. A. (ed.), op. cit. 105Google Scholar; Wolf Lüke and Hax, Divorce and Divorce Law: Basic Problems of Divorce in Germany (1959), discussed by Rheinstein, M., “Dirnrce and the Law in Germany: A Review” (1960) 65 American Journal of Sociology 489CrossRefGoogle Scholar. Clark, H. H., “Divorce Policy and Divorce Reform” (1971) 42 U. Colo. L. Rev. 403, 404Google Scholar states that the “technical fault” grounds are inconsistent with contemporary studies of divorce which indicate that divorces are not sought on the spur of the moment for single acts of cruelty, but that whatever grounds are alleged, th parties reach the decision to get a divorce only after considerable hesitation and deliberation.
He cites J. Cuber and P. Harnoff, The Significant Americans (1956) Ch. 5, and W. Goode, Women in Divorce (1956) Ch. 11.
25 Cf. G. E. J. Barwick, supra n. 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 wish of either spouse to be divorced, for determining when the state should grant or deny divorce. Existing grounds for divorce frequently stimulate state and private vas1ons of privacy and promote conduct offensive to the dignity of the mdividual participants at all points of decision in the family law process. urthermore, grounds for divorce, coupled with the concept of fault, are irrelevant to the consequences of divorce—i.e., to decisions concerning marriageability, finances, and children. In fact, denial of divorce means for each spouse only denial of the freedom to remarry, for issues of custody and financial status remain subject to judicial decision. Moreover, the state does. not have the capacity to force individuals into meaningful interpersonal relat10nships. What then must be determinative in granting a divorce is only w?ether one spouse, after an opportunity to consider the consequences, 'fishes to be divorced. By thus perceiving marriage as a status of mutual respect, the state will honour rather than degrade marriage.
See too, Goldstein, J. and Gitter, M., “On Abolition of Grounds for Divorce: A Model Statute and Commentary” (1969) 3 Fam. L.Q. 75Google Scholar; H. H. Clark, op. cit.: Eeekelaar, J., Family Security and Family Breakdown (1971) 233-235.Google Scholar
27 Cal. Civ. Code § 4506 (West Supp. 1969).
28 Field of Choice, para. 75.
29 Id., paras 71-76.
30 See e.g., Kolliner v. Kolliner [1971] V.R. 770.
31 Sackville, R. and Howard, C., “The Comtitutional Power of the Commonwealth to Regulate Family Relationships” (1970) 4 F.L. Rev. 30Google Scholar.
32 McGregor, O. R., “Law and Social Change” (1971) 121 New L.J. 624, 626Google Scholar regards it as a symptom of middle-class myopia that a new divorce law could be introduced to reduce the number of illicit unions and protect the children who would otherwise be illegitimate
without any changes whatever being proposed for the summary jurisdiction which, in fact, generates far more illicit unions and illegitimate children than ever stemmed from the inability of a relatively small number of people to obtain a divorce.
33 Domestic Proceedings Act 1968, s. 19(1)(a) (N.Z.).
34 Porter v. Porter [1971] 2 All E,R. 1037; O'Brien v. O'Brien [1971] 3 All E R. 254; Ackerman v. Ackerman [1971) 3 All E.R. 721, reversed on appeal, [1972] 2 All E.R. 420; Pheasant v. Pheasant [1972] 2 W.L.R. 353, 355; Cretney, S., “The Maintenance Quagmire” (1970) 33 Mod. L. Rev. 662CrossRefGoogle Scholar; Earnsaw, T. K. and Pace, P. J., “Conduct and Financial Provision” (1971) 121 New L J. 856Google Scholar; Jackson, J., “The New Legislation in Practice” (1971) 68 L. Soc. Gaz. 341Google Scholar; Cretney, S., “Financial Provision-The New Case Law” (1972) 122 New L. J 24Google Scholar.
35 Finlay, H. A., “Commonwealth Family Courts: Some Legal and Constitutional Implications” (1971) 4 F.L. Rev. 287Google Scholar, and Finlay, H. A., “Family Courts—ck or Panacea?” (1969) 43 A.L.J. 602Google Scholar, and articles referred to therein.
36 Field of 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 groun (including divorces granted on this ground and another) in each jurisdictio was: N.S.W., 12.1%; Vic., 2.4%; Qld, 7.4%; S.A., 15.9%; W.A., 2.2%; Tas.,;.3.9%; A.C.T., 19.1%; N.T., 9.1%
38 Field of Choice, para. 92.
39 Editorial, (1969) 43 A.L.J. 13l; Hambly, D. and Turner, J. N., Cases and Materials on Australian Family Law (1971) 320Google Scholar. See too, Matrimonial Proceedings Act 1963 as amended by the Matrimonial Proceedings Amendment Act. 1968, s. 2l(m), (n) (N.Z.).
40 S. 2(6), and Matrimonial Causes Rules 1968, Form 3 (as amended). Cf. the submission by the Family Law Committee of the Sydney University Law Graduates Association, which proposed that a decree should be made on this ground only if the respondent appears before the court in person and consents to the making of the decree or has signed and executed in the presence of the Registrar, Deputy Registrar or other person appointed by the Rules, a declaration in prescribed form consentmg to the decree being made.
41 S. 5.
42 S. 6.
43 H.L., vol. 303 (5th series), col. 351.
44 Id., 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 Law Society's Gazette, 19 January 1972, 5Google Scholar, and the editorial, “Divorce under the New Law” (1971) 121 New LJ. 853.
46 Freeman, M. D. A., “The Search for a Rational Divorce Law” (1971) 24 Current Legal Problems 178, 194CrossRefGoogle Scholar; Morris, D., The End of Marriage (1971) 154-155Google Scholar; Waters, R. L., “The Divorce Reform Act 1969”, (1970) 114 Sol. J. 726 728Google Scholar.
47 Sir Jocelyn, Simon, “Recent Developments in the Matrimonial Law”, the Riddell Lecture 1970, reprinted in Rayden on Divorce (11th ed., 1971) 3227, 3234Google Scholar. It may be doubted whether a petition based on these facts would succeed; see Bromley, P. M., Family Law (4th ed., 1971) 209-210Google Scholar.
48 (1883) 8 P.D. 98.
49 Jackson, J., “The New Legislation in Practice” (1971) 68 L. Soc. Gaz. 341, 344Google Scholar
50 D. Morris, loc. cit.
51 Matrimonial Proceedings Act 1963 as amended by the Matrimonial Proceeding Amendment Act 1968, s. 2l(m) (N.Z.). In 1969, 2,996 decrees absolute were granted; 1,537 were on this ground. The next most frequent grounds were adultery (653 decrees) and living apart for four years (450 decrees): Monthly abstract of Statistics (N.Z.), March 1970, 5.
52 Field of Choice, para. 93. P. M. Bromley, op. cit. 213, referring to 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 of Choice, it was thought that public opinion would demand an appreciably longer period in cases where one party objects to a divorce (para. 94).
53 Santos v. Santos [1972] 2 W.L.R. 889 (C.A.).
54 [1949] P. 227, 235-236.
55 [1972] 1 W:L.R. 321; (1972] 1 All E.R. 289.
56 E.g., Watkins v. Watkins (1952) 86 C.L.R. 161; Potter v. Potter (1954) 90 C.L.R. 391; Johnson v. Johnson [1964] V.R. 604; Crabtree v. Crabtree (1963) 5 F L. R. 307. See Turner, J. N., “Separate Lives and Section 28(m)” (1970) 2 A C.L.R. 2Google Scholar.
57 Johnson v. Johnson [1964] V.R. 604.
58 Cf. the criticism of the English Act's requirement of two years' separation by M. D. A. Freeman, op. cit., 195-196: “The Act assurr,cs a comfortable bank balance and a plenitude of housing accommodation. Is this naivety or just class discrimination?”
59 Macrae v. Macrae (1964) 6 F.L.R. 224 (first instance), (1967) 9 F.L.R. 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. 10821ft.
61 Santos v. Santos [1972] 2 W.L.R. 889. The Court referred to Main v. Main, (1949) 78 C.L.R. 636; Tulk v. Tulk [1907] V.L.R. 64, 65; Collins v. Collins, (1961) 3 F.L.R. 17, as well as Canadian and New Zealand decisions.
62 Before Santos v. Santos was decided, Tolstoy on Divorce (7th ed., 197l)' 98-100 and Rayden on Divorce (11th ed., 1971) 273, had reached the same Conclusion as the Court of Appeal. Cretney, S., “When Does 'Liviag Apart' Start?” (1971) 115 Sol. J. 295Google Scholar, took the opposing view. It can be strongly argued that the Court of Appeal took too narrow a view of s. 2(5). The Court said that the general objective of s. 2(5) was not plain, but concluded that it was merelf} to establish the two households test. But, as Cretney observes,
however happily married the wife of a soldier serving overseas may be, . seems a misuse of words to say that she is 'living with her husband in theJ same household' while he is overseas. It is true that she i not in ordinar}"f language 'living apart' from him, but the statute specifically directs that shifi shall be treated as if she were unless she is Jiving with him.
63 Contrast the position. of the unfortunate loyal wife in Collins v. Collins (1961) 3 F.L.R. 17.
64 “Recent Developments in Matrimonial Law”, reprinted in Rayden on Divorce (11th ed., 1971) 3227, 3232.
65 Huxford v. Huxford [1972] 1 W.L.R. 210; Collins v. Collins [1972) 1 W.L.R. 689, 692-693 (C.A.). The dicta are reminiscent of Iverson v. Iverson [1967] P. 134, 145-146, decided under the old law. Cf. Nast v. Nast [1972] 1 All E. R. 1171 (C.A.) and the editorial, “Social Attitudes and Points of Law” (1972) 122 New L.J. 255.
66 H. L., vol. 303 (5th series), col. 1314 ff.
67 Supra text to n. 28.
68 H. L., vol. 303 (5th series), col. 1225 per Lord Stow Hill.
69 Id., col . 1221 ff. per Viscount Dilborne.
70 Goodrich V. Goodrich [1971] 1 W.L.R. 1142, criticized by Freeman, M. D. A., “Adultery and Intolerability” (1972) 35 Mod. L. Rev. 98Google Scholar.
71 Supra nn. 20, 21.
72 Bromley, P. M., Family Law (4th ed., 1971) 210Google Scholar; Passingham, B., The Divorce Reform Act 1969 (1970) 9-10Google Scholar; Levin, J., “The Divorce Reform Act 1969” (1970) 33 Mod. L. Rev. 632, 635CrossRefGoogle Scholar.
73 [1972] 2 W.L.R. 353, 357-358.
74 [1972] 2 W.L.R. 347, 351.
75 Supra text to n. 5.
76 Beeby v. Beeby (1799) 1 Hagg. Ecc. 789, 790; 162 E.R. 755, 756 per Sir William Scott.
77 Rowland, D., “Matrimonial Law in England Today” (1971). 57 AB.A.JS 981, 983Google Scholar.
78 (1969) 14 F.L.R. 176. The views of Fox J. are supported in a note, (1970) 44 A.L.J. 33 and an editorial, “Dissatisfaction with Discretion Statements' (1970) 44 A.L.J. 4. See also Finlay, H. A., “Discretion Statements: An Old Fashioned Melodrama” (1969) 1 A.C.L.R. 35Google Scholar.
79 H.L., vol. 303 (5th series), col. 349.
80 Pearson v. Pearson [1969] 3 W.L.R. 722.
81 [1943] A.C. 517.
82 (1948) 76 C.L.R. 529.
83 Pertoldi v. Pertoldi (No. 2) (1969) 14 F.L.R. 176, 177 per Fox J.:
From inquiries made at my request, I understand that in New South Wales and Victoria no case can be found of any refusal of relief in the last two or three years on the discretionary ground referred to, and no one is able to recall any [in the A.C.T.].
84 E.g. Davenport v. Davenport [1960] S.A.S.R. 115; Tapp v. Tapp (1960) 78 W.N. (N.S.W.) 122; Williams v. Williams [1966] P. 97.
85 E.g. Bull v. Bull [1968] P. 618; Rowley v. Rowley [1965] P. 178; Goldsmith v Goldsmith [1965] P. 188; cf. Reid v. Reid [1970] S.A.S.R. 151.
86 Mauger v. Mauger [1967] Qd. R. 62; White v. White [1967) 2 N.S.W.R. Garbutt v. Garbutt [1969] 2 N.S.W.R. 108.
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. 1472; Byam v. Byam [1969] 2 N.S.W.R. 513; and the cases cited, in the next note.
88 Brown v. Brown [1967] P. 105; Herridge v. Herridge [1965] 1 W.L.R. 1506; Quinn v. Quinn [1969] 1 W.L.R. 1394; Helmer v. Helmer (1969) 14 F.L.R. 390; Michaels, N., “The Kiss and Make Up Clause” (1965) 28 Mod. L. Rev. 101Google Scholar; Irvine, A. A. M., “The Concept of “Reconciliation' and the Matrimonial Causes Act 1963” (1966) 82 L.Q.R. 525Google Scholar.
89 s. 3(3).
90 s. 3(4).
91 S. 3 (5).
92 Ss 39, 39A 41A.
93 E.g., Ford v. Ford [1970] 3 All E.R. 188.
94 Chalcroft v. Chalcraft [1969] 3 All E.R. 1172.
95 'The New Matrimonial Law” (1971) 1 Family Law 59, 6O.
96 See the comments of Sir George, Baker, “The View from the Family Division”, The Law Society's Gazette 19 January 1972, 5Google Scholar.
97 Matrimonial Causes Act 1959-1966, s. 44. The argument for repeal is set out 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 repeal in England was effected by the Law Reform (Miscellaneous Provisions) Act· 1970, s. 4.
98 Matrimonial Causes Act 1959-1966, ss 60-64. For the argument for repeal. see the Law Commission's Proposal for Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights (Law Com. N” 23). The repeal in England was effected by the Matrimonial Proceedings and Property Act 1970, s. 20.