Scrutiny of Acts and Regulations Committee

Report concerning the Maintenance Act 1965, Marriage Act 1958
and the Perpetuities and Accumulations Act 1968

The Maintenance Act 1965 and the Marriage Act 1958
Introduction

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The Maintenance Act 1965 and the Marriage Act 1958 were, at the time of their enactment, key pieces of the Australian family law rubric.

That they are now largely redundant is testament to the rapid and all but complete shift of power in this area from state legislatures to the Commonwealth Parliament.

To put these Acts in their proper perspective – and thus to understand their greatly diminished relevance today – it is important to give some historical context to the development in Australia of what we now know as family law.

Background to the development of Family Law in Australia

The First Fleet arrived in Australia in 1788, bringing not just white settlement, but British law. The legal position in the new colony was that as an outpost of the Empire, British laws and customs applied.
The first local (Australian) step in regulating the area we now see as family law came in February 1810.

Governor Macquarie, concerned at the increasing frequency of de facto relationships, issued a proclamation against cohabitation without marriage.

Thus began almost a century of Australian legislative initiative in the area of marriage and related issues – a period often marked by Australian attempts at reform and frequent English attempts to pull the distant colonies into line.

At the time of white settlement in Australia, the English approach ensured divorce was available to just a privileged few. In fact, divorce was essentially unheard of among all classes except for the exceptionally rich landed gentry. Divorce was only available by petitioning Parliament to pass an Act dissolving a marriage on the basis that one party (inevitably the husband) had been “wronged” by the adultery of the other party (inevitably the wife).

According to John Macqueen, (a 19th century legal expert and the author of the 1958 guide “A Practical Treatise on Divorce and Matrimonial Jurisdiction under the Act of 1857 and New Orders”) Parliamentary divorce was available only to the “extremely rich”. Mr Macqueen wrote that not even the “moderately opulent” would be able to afford this “luxury”.

When England finally introduced a divorce law with widespread application (the English Divorce and Matrimonial Causes Act 1857) copies were sent to the governor of each Australian colony with invitations to pass similar Acts. (Victoria, incidentally, distinguished itself by trying to pass a reformed divorce law that introduced desertion as a ground for divorce and also abolished the double standard – under the English model, men had to prove only a single case of adultery, while women had to prove repeated or aggravated adultery plus an exacerbating factor such as incest or cruelty. This Victorian attempt was disallowed by the English authorities.)

Inevitably, given the colonies’ different social conditions and a growing sense of nationhood, the young Australian jurisdictions did strike out in different directions, generally liberalising the English divorce laws.
Meanwhile, maintenance obligations were legislated for by the states during the 1840s. The legislation was, in part, a response to the gold rush and mineral boom period when many men left home, deserting wives and children.

Federation and the division of powers

At Federation in 1901, powers were divided between the new Commonwealth Government and the states. Naturally who got what was a key bone of contention and during the Constitutional Conventions of the 1890s much debate centred on which powers should be given to the Commonwealth.

In the end, the division of powers between the Commonwealth and the states was settled and enshrined in section 51 of the Australian Constitution. It includes 39 specified subject areas where the Commonwealth is given power to legislate. In other areas – or if the Commonwealth chooses not to exercise its power in one of the 39 specified areas – the states may legislate. Of course if there is any conflict between state laws and valid Commonwealth legislation, the state law is struck out.

It is this section that – in essence – handed the Commonwealth power in relation to marriages and matrimonial causes (divorce, children of marriages and other issues flowing from a marriage).

The relevant section reads as follows:

s 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:

(xxi) Marriage:

(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:

Marriage was, of course, seen as the voluntary life-long union of a man and a woman to the exclusion of all others. At the time, marriage was not taken to include de facto relationships. The definition of “divorce and matrimonial causes” is a little more difficult – but according to one definition it was intended to mean “divorce and its consequences for the children, property and finances of the former spouses”. (Constitutional Commission, Advisory Committee on the Distribution of Powers Report, Canberra, 1987)

The Commonwealth Government opts out

But while the new Commonwealth Government had won power to legislate in the family law area, (and could have enacted a uniform nation-wide Marriage Act) it chose not to. In fact, the area quickly came to be regarded as politically controversial and best left to the states. So for almost 60 years after Federation the states regulated marriage, divorce and the custody of children.

That naturally gave rise to a complex, confusing set of laws which varied from state to state. One author – in 1910 – thought the laws so different that he argued it would be possible to be considered married in one state but not in another. “There is a good deal of diversity in the divorce law of the states, and it is quite possible, so long as the states remain separate law districts, that parties may be married person in the view of one state and single persons according to the law of another,” he wrote. (Harrison Moore, The Constitution of the Commonwealth of Australia, second edition, 1910)

The only time the Commonwealth made any foray into the family law arena was to make brief and temporary laws to deal with wartime conditions.

The Commonwealth steps in

But by the 1950s there was a growing demand for a uniform, national approach to marriage and divorce law. These demands culminated in the enactment of a uniform divorce law, the Matrimonial Causes Act 1959, and two years later, a uniform marriage law, the Marriage Act 1961.

These new Commonwealth Acts superceded and replaced the state laws in the same areas. State courts were invested with federal judicial power so that state courts could exercise power under a mixture of state and Commonwealth laws.

Over the next years the Commonwealth increasingly legislated in the family law area, this intervention reaching its high point with the introduction of the Family Law Act 1975. This massive step forward towards a uniform national family law effectively ended any large-scale state involvement in the area. Since then complementary legislation, such as the Child Support legislation, has driven Australia down the road towards one national family law regime.

It is in this context – one of Commonwealth supremacy in the family law arena – that we now turn to the individual acts under consideration.