Concept: Marriage and Divorce


Modern marriage in the western world was governed by laws common to Christian countries. Marriage was a voluntary contract, regulated by the state. A prime concern was the protection of minors, ensuring that the parties had legal capacity to marry, knew what they were doing, and were doing so voluntarily. Marriage also protected property and maintenance rights, as married women were originally unable to own property. Once entered into, the contract could not be abandoned, unless it was flawed, or by divorce. Advance notice of intent to marry had to be given, with adequate publicity. The presence of two witnesses ensured that consent was freely given. The parties' legal capacity was determined by their age. In Tasmania this was normally 21 years until 1961, when it was lowered to 18 under the Commonwealth Marriage Act.

In the early years, very few convicts' wives were able to follow their husbands to the colonies. Convicts who arrived without their spouses often entered into bigamous marriages in the absence of adequate records. In other cases they simply cohabited without formal marriage. There was also a general, if erroneous, belief in England and the colonies that if one party were transported, both parties were released from their marriage and free to marry again.

Divorce was not generally available in England before 1857, except by Act of Parliament. It was rarely available to women, being intended to safeguard a man's lands and titles for the heirs of his body, and to guard against a wife 'introducing spurious offspring' into her husband's family. This double standard made divorce available to a husband if his wife had committed one single act of adultery, but to a wife only for her husband's adultery with aggravating circumstances such as cruelty, desertion, bigamy or incest, sodomy or bestiality.

After the enactment of the English Divorce Act (1857), the colonies were invited to pass similar legislation. A Divorce Act was introduced in the Tasmanian Legislative Council in 1858, but strongly opposed, in case it opened the floodgates to immorality. There was also a feeling against dictation by the mother country. A second attempt, two years later, was successful, the focus having shifted to the protection of wives and children where the husband had deserted, for example, to one of the gold rushes.

During the following years, several changes took place. One revolutionary attempt in 1924 by the Attorney-General, Albert Ogilvie, amounted almost to divorce by consent. Where there was a decree for judicial separation, a separation order or a separation by mutual consent, it would have enabled the Court to grant a divorce, unless opposed by the respondent because of the wrongful conduct of the petitioner. The Bill was passed by the Legislative Council, but defeated in the Assembly.

Changes were also made to the marriage laws. A Bill sponsored in the Assembly in 1940 to make contraceptives available to married women recognised the right of married couples to decide the size of their family. It was opposed because 'birth control was the devil's doctrine practised by lazy women who would not accept responsibility'. The recent war and the issuing of contraceptives to soldiers, however, had made contraception acceptable and the Bill was passed. Significantly, both world wars facilitated relaxations in the marriage and divorce laws.

In 1901, the commonwealth constitution gave power over marriage and divorce to the Commonwealth, but these powers were not exercised for about sixty years, despite repeated demands by the states. Senator Henry Dobson, a former Tasmanian premier, actually proposed a Commonwealth Matrimonial Causes Act in 1901, but withdrew it a year later in the face of numerous anti-divorce petitions from Christian churches and the Woman's Christian Temperance Union. State jurisdiction over marriage and divorce came to an end when the Commonwealth Marriage Act (1961) and the Matrimonial Causes Act (1959) came into force. Since then, marriage and divorce have been under federal jurisdiction.

Attitudes to marriage and divorce have continued to change. The traditional view of marriage as a union for life is still an ideal, but observed almost as much in the breach as in the observance. Society has abandoned the stigma against divorce, de facto marriage, ex-nuptial children and one-parent families. Same-sex marriages are widely accepted. Parties to new or less traditional forms of cohabitation are now being accorded very much the same kind of treatment in Australia as was formerly reserved for parties to legal marriages.

Henry Finlay

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