Frank Bates

The Grounds for Dissolution of Marriage and the Philosophy of the Family: The Australian Experience

To some commentators, the notions of family and divorce, as dissolution of marriage is called in some jurisdictions.! are totally antithetical, and more in some jurisdictions than in others. As might have been expected, in 1986, the Roman Catholic Bishops in the Irish Republic remarked2 that it was, ... simply not true that a divorce law would affect only the small minority of marriages which break down irretrievably, leaving the happy and successful marriages untouched. Divorce introduces a quite radical change into societys legal understanding of marriage. Much, or course, will depend on what societys original legal understanding of marriage actually was and whether, indeed, any such general perception actually existed.3 Even in Eire, that situation had been adverted to by another body,4which wrote that, ... the holding of a referendum on the question of divorce is likely to be socially divisive, in that deep divisions of opinion exist in the community. Such divisions are already apparent to some extent with certain groups taking up a proand anti-divorce stance. In countries which are more diverse, both in terms of religion and culture, than is the Irish Republic, the position will be altogether more complex and the relevant arguments and attitudinal positions have been analyzed by Bodenheimer,s as long ago as 1968.This is a most valuable article and the issues raised in it remain pertinent, so that it is not necessary to rehearse them here. It might properly be inquired as to what relevance the Republic of Ireland has to a paper on the grounds for dissolution of marriages in Australia. Indeed, one might similarly ask, what global interest Australian developments, now of some thirteen years standing, might have. As regards the first question, Australian society has traditionally drawn, and

Reforming Australian Matrimonial Property Law

Section 79 of the Australian Family Law Act 1975 gave the courts very wide powers to alter the property interests of parties to a marriage. Even after its amendment in 1983, it has never been a wholly popular item of legislation. As regards its original form, the Joint Select Committee of both Houses of the Australian Parliament notedt that submissions from women and womens organizations regarded the provisionsz, which permitted considerable exercise of judicial discretion, as being denigratory of the role played by women as homemakers and parents. On the other hand, men and mens organizations have tended to regard it as an assetstripping device. More particularly, the committee were of the view3 that the existence of a discretionary power in the courts to alter property interests was insufficient and that a clear legislative declaration of the property rights of spouses both during, and at the termination of, the marriage was needed. The desirability of such a procedure emanated from the perceivedarbitrary character of the original legislation.e

The Presumption of Legitimacy: A Comparative Analysis of its Modern Operation

Likewise, in Canada, Dickson] of the Supreme Court warned, in Powellv Cockburn (1976) 22 RFL 155 at p. 161, that the presumption ought not to be given on artificial probative force. In addition to the reasons given by Heydon, for the existence. of presumptions, the presumption of marriage existed because of the possibility, in less technologically sophisticated times, that records might be lost or destroyed, a situation which occurred in the well known case of Re Taplin, Watson v Tate (1973) 3 All ER 105. The reasons for the existence of the traditionally strong presumption of legitimacy are the product of different circumstances: namely, the very serious legal disabilities under which an illegitimate person laboured. Today, the strictly legal situation is different in that New Zealand (Status of Children Act 1968), five of the six states in Australia and the province of Ontario in Canada (Family Law Reform Act 1978, s 1 (a)) have abolished the status and the disabilities tied to it. In England, the Law Commission in a recent working paper, Ill~[1,ilimacy (No.74, 1979), have also urged

Evidence of Identification: The Implications of Some Recent Australian Cases

Evidence of identification, especially in the wake of such causes celebres as Peter Hain and George Davis, has proved, and is likely to continue to prove, a thorn in the side of judges, advocates and commentators alike. It is quite clear from cases such as Wooldridge o. Sumner [1963] 2 QB, 43, that human perception is not always accurate or complete, and this is so even when there is no question but that the witnesses are seeking to tell the truth as they perceived it to be. The Criminal Law Revision Committee in its Eleventh Report 1 noted that mistaken identity was, ... by far the greatest cause of actual or possible wrong convictions. The purpose of this article is to examine recent Australian decisions on the issue of identification in order to ascertain whether any further light has been cast on the problem for the benefit of other common-law jurisdictions. The first case, R. v. Easom2 was concerned solely with eye-witness identification. The accused had been charged with armed robbery and it had been proved that three men had entered a dwelling house at night and had robbed the married couple who lived there. Some weeks later, the accused had been arrested and charged with the offence but was released on bail on the condition that he report daily at a police station. The wife took up a position where she could see people attending the police station and, when the accused came to the police station to report, she identified him as one of the men who had committed the robbery. No objection was taken at the trial to the admission of this evidence. The accused was convicted and appealed on the grounds that the evidence of identification given by the wife should not have been admitted. The Full Court of the

The Changing Nature of Marriage? — The Relevance of the Australian Experience

At the very outset, it might be wondered as to why a paper on the state of modern Australian marriage law is necessary: Australia only has a population of approximately 14,000,000 people, is isolated geographically from the rest of the world and is isolated culturally from most of its nearest neighbours. Perhaps as a result, its foreign policy hitherto has beencharacterized, generally, by obvious isolationism. In addition, any contextual study of marriage law is made more difficult by the fact that the study of sociology in Australia is at an embryonic stage. For example, a Department of Sociology was created in the University of Tasmania one of Australias oldest, only in 1976. The University of Sydney, the oldest Australian University, does not have a Department of Sociology. Consequently, there is little in the way of substantial writing on the Australian family. At the same time, however, the Austranan legal, SOCIal ana political scene was notable in the earlier part of the current decade for a remarkable period of social legislation both in the family area and elsewhere I much of which was in advance of what the remainder of the common law world was able to offer. Perhaps the culmination of the many reforms effected in this period was the Commonwealth/ Family Law Act 1975. By the Australian Constitution, the federal government is empowered only to make laws relating to marriage and matrimonial causes and hence issues which do not relate directly to those issues lie within the province of the various state governments. At the federal level, marriage is regulated by the Marriage Act 1961 and divorce and ancillary matters by the Family Law Act

The Enforcement of Marriage Revisited

The import of this earlier article was that the attitude of the courts towards the marriage relationship was ou t of date and that, particularly with the likelihood of divorce law reform in Australia, Scotland and elsewhere, that attitude should be re-examined at a fundamental level. Since the original Enforcement of Marriage article was written, quite a number of developments have occurred and it is the purpose of this article to examine them and to attempt to ascertain whether, in their light, new conclusions are necessary. Some of the issues considered in 1974 have, of course, remained static: thus, the attitude of the courts towards the monogamous aspect of the marriage relationship as represented by the cases of Reynolds v. U.S., (1874) 98 U.S. 148, Late Corporation of Church of Jesus Christ of Latter Day Saints v. U.S., (1889) 136 U.S. 1 and Cleveland v. U.S. (1946) 329 U.S. 14, is unchanged. Likewise the unsatisfactory attitude of the courts towards extraneous purpose marriages (1), particularly marriages procured as the result of fraud (2) still remains, with the exception of the very recent Aus-

Identification from Photographic Evidence

In all countries, states Gross, 1. photography is employed for the identification of criminals, especially since its uses are so developed. But it is only done systematically in large towns where the police and prison administration is particularly well skilled in the method. Gross then goes on to deal then with the problems inherent in the comparison by a witness of a photograph with his remembrance of the particular criminal. His recognition Gross comments, 2. will inspire more confidence when the witness is able to pick out the person from a number of similar photographs and does not recognize him merely because he had a moustache and there is in the collection only one photograph of a person with a moustache. But the greatest precautions must be taken, for enormous difficulty is always experienced in recognizing persons from photographs, especially when the person recognizing is a simple-minded fellow who has rarely seen photographs and has never before tried to find resemblances. AIthough, today, the chances of having a witness who has rarely seen photographs are somewhat limited, difficulties relating to the use of photographs for identification purposes do exist: for instance, Nash and Irving 3. have suggested, inter alia, that there may very often be a tendency for witness shown a photograph, if there is a likeness, to substitute the image of the photograph for the vaguer image of the person sought to be identified, the latter image frequently having been obtained briefly, under stress and in poor lighting. In short, the problems involved are substantially the same as those which arise in the use of identification paradesA. Accordingly, it is the purpose of this article to analyse the attitude of the courts to evidence of identification by photograph and to consider the most effective way of organizing and regulating the use of the procedure. In England, the leading case on the use of photographs for

Psychiatric Evidence of Character

In the case of R. v, Rowton(I), the accused, a schoolmaster, had been charged with indecent assault on a 14 year old boy. He had called witnesses who had known him at various periods of his life and who gave evidence to the effect that he was of excellent moral character. In an attempt to contradict this evidence, the prosecution called a witness who was asked about the accuseds character and replied, I know nothing about the neighbourhoods opinion because I was only a boy at school when I knew him, but JOY own opinion, and the opinion of my brothers who were also pupils of his, is that his character is that of a man capable of the grossest indecency and the most flagrant immorality. The Court of Crown Cases Reserved refused to admit the evidence on the grounds that it did not refer to the accuseds reputation, a matter of which the witness had admitted he knew nothing. In the words of Cockburn, C.].,(2) What you want to get at is the tendency and disposition of the mans mind towards committing or abstaining from committing the class of crime with which he stands charged; but no one has ever heard the question what is the tendency and disposition of the prisoners mind? put directly. The only way of getting at it is by giving evidence of his general character founded on his general reputation in the neighbourhood in which he lives. Despite trenchant criticism by Stephen(3) to the effect that reputation may well be based on good fortune rather than good character, in R. v, Butterwasser(4) Lord Goddard, C.]., was of the view that courts would do well to pay stricter attention to the principle laid down in Rowton. Yet times change and it is clear that personal observation by trained observers(5) may

Limited and Extraneous Purpose Marriages—A Problem of Definition and Policy in the Law of Nullity

With one striking exception, the law of nullity has not generally posed many problems of real difficulty or interest in recent years. However, it is suggested, there is much that can be learned regarding the legal nature of the marriage relationship from cases on the law of nullity. The legal basis of the marriage relationship has been described by Lord Penzance in the leading case of Hyde v. Hyde, who said, I conceive that marriage as understood in Christendom may ... be defined as the voluntary union for life of one man and one woman to the exclusion of all others. The courts have generally avoided making definitive statements regarding the precise concomitants of that relationship but it is clear that, in Dr. Rosens words, it ••• involves living together in the same house as man and wife, which usually included sleeping and eating together, and the usual close association of man and wife. Although most marriages conform to the pattern described by Dr. Rosen, it is clear that some do not: some only involve a part of the usual relationship and some are entered into for purposes unconnected with the relationship itself. It is the aim of this article, accordingly, to examine the attitude of the law to such relationships in various jurisdictions and to show that both the categorization adopted by the courts and the attitude displayed by them to the marriage relationship generally is artificial and unsatisfactory. First of all, it is clear that as a general principle the courts will regard any agreement to limit or obviate the incidents of the marriage relationship as void as being contrary to public policy and it is suggested that they are quite correct in so doing. In Brodie v, Brodie: the wife petitioned for a decree of restitution of conjugal rights and, in defence, the husband pleaded an agreement between the parties that thy should live apart. Horridge, J., granted the decree holding that the agreement was void as being contrary to public policy. His Lordship relied on dicta in three cases to support his decision: Cocksedge v.

The Enforcement of Marriage

I conceive that marriage, said Lord Penzance in formulating the basic common law definition of marriage in the case of Hyde v, Hyde as understood in Christendom may ... be defined as the voluntary union for life of one man and one woman to the exclusion of all others. Although considerable inroads have been made into the strict operation of this definition it still remains, in more than one sense, the foundation upon which the laws relating to marriage and divorce have been built in the common law world. The Christian idea of marriage has, as Lord Devlin has said, become the basis of family life and so part of the structure of society. It is not there, he goes on to say, because it is Christian. It has got there because it is Christian, but it remains there because it is built into the house in which we live and could not be removed without bringing it down. This statement of principle demonstrates clearly the importance of the Christian based notion of marriage for our family law and it is the purpose of this article to examine how far, and in what manner, this strict concept is being enforced by the law today and how far the law should be justified in so enforcing it. At the outset, it is suggested that the reasons for the existence of marriage by early Christian writers which have been adopted into religious dogma can scarcely be regarded as being of great relevance to society today. The essentially negative attitude towards marriage expressed by S1. Paul in his First Epistle to the Corinthians is unlikely to find many adherents today: I. Now concerning the things whereof you wrote unto me: It is good for a man not to touch a woman. 2. Nevertheless, to avoid fornication, let every man have his own wife, and let every woman have her own husband. It is significant that the Anglican Marriage Service places the procreation of children as the primary object of marriage, the avoidance of fornication the second, and, ... the mutual society, help, and comfort that the one ought to have of the other, both in prosperity and adversity