CHAPTER XXXI.

COMMONWEALTH OF AUSTRALIA.

The Commonwealth of Australia, created by an act of the Imperial Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the supreme authority of the Crown of Great Britain.

This act of Parliament not only created a federal Commonwealth out of the colonies of Queensland, New South Wales, Victoria, South Australia, West Australia and Tasmania, but it also granted to the new Commonwealth a written constitution which is obviously modeled upon that of the United States of America.

The constitution provides that "every law in force in a colony which has become or becomes a State shall, unless it is by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be."

It is also provided that "when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid."

All powers not delegated to the central or federal government are reserved to the States.

However, in spite of its resemblance to other federal systems, the principle of the responsibility of ministers to Parliament proclaims its English parentage.

The judicial power is exercised under the constitution by a federal supreme court, called the High Court of Justice, and other courts of federal jurisdiction.

It is expressly provided in the Australian constitution that the Parliament of the Commonwealth shall, subject to the constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to "divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants."

It will be observed that Parliament is given no power under the constitution to make laws prescribing the qualifications for marriage, the impediments thereto, and regulations concerning the celebration. All such power is reserved by the respective States.

Moreover, the grant of power to Parliament to make laws with regard to "divorce and matrimonial causes" is not a power "by this constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State."

Until the Parliament of the Commonwealth shall legislate on the subject, by passing enactments concerning divorce and matrimonial causes superseding the existing statutes of the several States, the laws of each State will continue in operation.

In this chapter we shall consider, first, such laws and regulations concerning marriage and divorce as are in effect throughout the entire Commonwealth, and then, under separate headings, discuss the laws and regulations of each State.

MARRIAGE.--The courts of Australia, following the English courts, only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others.

The law of the place where marriage is celebrated--that is, the _lex loci celebrationis_--alone guides the court in ascertaining whether or not a marriage is regular. All the formal preliminaries, such as the publication of banns, or license, the consent of the parties entitled to give or withhold consent and the solemn declaration of the contracting parties before competent authority, according to the law of the place of celebration, must be complied with.

LEGAL AGE.--The legal age for marriage throughout the Commonwealth of Australia begins with fourteen years for a male and twelve years for a female.

PARENTAL CONSENT.--In all of the States parental consent is required for the marriage of males and females under twenty-one years of age.

BANNS OR LICENSE.--Unless a marriage license is procured banns must be published in the parish in which the parties reside, and if they live in different parishes the banns must be published in each parish.

Where a man has caused the banns to be published or has procured a license under a false name or names, or has been married under a false name or names, he will not be allowed to annul the marriage on that account. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage.

CONSANGUINITY AND AFFINITY.--The law considers it against public policy and morality, and contrary to the well-being of the parties, that persons closely related by blood or marriage should intermarry. Marriages are therefore prohibited between all ascendants and descendants, legitimate or illegitimate.

A man is also prohibited from marrying his stepmother, wife's mother, stepdaughter, daughter-in-law, son's daughter-in-law, daughter's daughter-in-law, stepson's daughter, stepdaughter's daughter, niece by blood, niece by affinity, or nephew's wife.

A woman is prohibited from marrying her uncle by blood or affinity, husband's uncle, father-in-law, stepson, son-in-law, son's son-in-law, daughter's son-in-law, stepson's son, stepdaughter's son, nephew by blood or affinity, or niece's husband.

ANNULMENT OF MARRIAGE.--A marriage may be annulled in any of the States of the Commonwealth upon competent proof showing:

1. A prior and existing marriage of one of the parties.

2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse.

3. Relationship within the prohibited degrees.

4. That the marriage was procured by fraud, violence or mistake as to identity.

5. That one of the parties was insane at the time the marriage was concluded.

6. That the marriage was celebrated without the consent of the persons by law entitled to give or withhold consent.

7. That the marriage was performed without legal license, or the publication of banns, or solemnized before a person not having authority to officiate.

A marriage will not be annulled on the last ground stated if it appears that one of the parties acted in good faith and honestly believed that the person who solemnized the marriage had the required authority.

JUDICIAL SEPARATION.--A decree of judicial separation, which is equivalent to the old form of limited divorce (_a mensa et thoro_) may be obtained in any of the States for the following causes:

1. Adultery of either husband or wife.

2. Desertion without legal cause for two years or more.

3. Cruelty or abusive treatment of one spouse by the other.

It is an absolute bar to a suit for judicial separation that the petitioner has committed adultery since the marriage.

DIVORCE.--Absolute divorces completely dissolving the marriage bond are granted by the courts of every State in Australia. As every State has its separate statutes on the subject, which set forth the legal causes for divorce, we shall consider such causes in our discussion of each State separately.

DEFENCES.--In all the States condonation of a matrimonial offence, which is a legal cause for divorce, is a good defence to the petition.

It is also a sufficient defence for the respondent to show that the offence complained of was committed by the connivance or active consent of the petitioner.

Connivance in adultery as a bar to divorce is founded on the doctrine _volenti non fit injuria_, the consent consisting in acquiescence, active or passive, in the adulterous intercourse. Passive acquiescence is a sufficient bar, provided it was carried out with the intention that the husband or wife would be guilty; but it must be something more than mere inattention, indifference or dulness of apprehension. The presumption, where the facts are equivocal, is in favour of absence of intention.

One spouse must not invite the other to commit adultery; but he or she may permit the licentiousness of the other spouse to have its full scope without being guilty of connivance.

It is not connivance to watch for the purpose of discovering a suspected fact so as to make conviction certain.

COLLUSION.--An illegal agreement and co-operation between a petitioner and a respondent in a divorce action to enable the petitioner to obtain a judicial dissolution is a fraud upon the court. Upon such collusion appearing the court, at its own instance, will dismiss the petition.

DESERTION.--The High Court of Justice of the Commonwealth has defined desertion, which in several of the States is a legal cause for absolute divorce, as follows: "Desertion involves an actual and wilful bringing to an end of an existing state of cohabitation by one party without the consent of the other. Such 'consent' must be shown by something more than a mere mute acquiescence in an existing state of separation or non-resistance to abandonment. What is necessary is some communication of the intended acquiescence or non-resistance to the other by express words or by conduct."

FORM OF DIVORCE DECREE.--A decree of divorce in any of the States is granted _nisi_, or provisionally, and cannot be made absolute until three months have elapsed after the decree _nisi_ is entered.

A judicial separation may be granted, even if the suit is for an absolute divorce, if the court deems such a decree better meets the law and facts of the case.

VICTORIA.--The Marriage Act of 1890 (54 Victoria, No. 1166), entitled "An act to consolidate the laws relating to marriage and to the custody of children and to deserted wives and children and to divorce and matrimonial causes," is practically a short code on the subject of marriage and divorce.

CELEBRATION OF MARRIAGE.--The following persons, and none other, may celebrate marriages:

1. A minister of religion ordinarily officiating as such, whose name, designation and usual place of residence, together with the church, chapel or other place of worship in which he officiates, is at the time of the celebration of the marriage duly registered according to law in the office of the Registrar-General.

2. A minister of religion being the recognized head of a religious denomination.

3. A minister of religion holding a registered certificate that he is a duly authorized minister, priest or deacon from the head of the religious denomination to which he belongs, or, if there be no such religious head, from two or more officiating ministers of places of worship duly registered according to law.

4. The Registrar-General or other officer appointed for that purpose.

JEWS AND QUAKERS.--The law permits Jews and Quakers to be married by such persons and in such manner as is considered regular and lawful according to their respective beliefs and usages.

FORMALITIES.--A marriage must be preceded by a license or the publication of banns.

A marriage celebration requires the attendance of two witnesses of full age.

DIVORCE.--A domicile of two years or more is a condition precedent to bringing a suit for divorce.

The following are legal grounds for a divorce or dissolution of the marriage bond:

1. Adultery on part of the wife.

2. Adultery on part of the husband if committed in the conjugal residence or if it is coupled with circumstances or conduct of aggravation or of a repeated act of adultery.

3. Desertion without just cause continued for three years or more.

4. The habitual drunkenness of a husband for three years, if the husband has habitually left his wife without support, or has habitually been guilty of cruelty to her.

5. Habitual drunkenness of a wife for three years, if the wife has habitually neglected her domestic duties, or rendered herself unfit to discharge them.

6. Imprisonment of either spouse for not less than three years, and being still in prison under a commuted sentence for a capital crime, or under sentence to penal servitude for seven years or more.

7. If the husband has within five years undergone frequent convictions for crime and has been sentenced in the aggregate to imprisonment for three years or more, leaving his wife habitually without means of support.

8. That within a year previously the respondent has been convicted of having attempted to murder the petitioner, or of having assaulted him or her with intent to inflict grievous bodily harm, or that repeatedly during that period the respondent has assaulted and cruelly beaten the petitioner.

FORM OF DECREE.--Divorce decrees are entered, in the first instance, _nisi_, or provisionally, and cannot be made absolute until after the expiration of three months following the decree _nisi_.

IN FORMA PAUPERIS.--Special provision is made enabling poor persons to prosecute suits for divorce by an interlocutory order in _forma pauperis_, which relieves the person in whose favour it is granted from certain charges and expenses, but does not furnish him or her with the free services of a solicitor or barrister.

RECENT DECISIONS.--An important divorce decision holds that visits to brothels by a petitioner who seeks a divorce on the ground of his wife's adultery constitute misconduct conducing to the adultery of the wife and bars the petitioner from a decree, without entering into the question of whether or not adultery was committed by the petitioner in the course of such visits.

However, the fact that a husband has conduced to an act of adultery by his wife is not a bar to him obtaining a divorce based on subsequent acts of adultery.

NEW SOUTH WALES.--The requirements as to age, consent of parents, or of persons standing in _loco parentis_ are the same in this State as throughout the rest of the Commonwealth and have been set forth in the first part of this chapter.

No marriage can be celebrated except by a minister of religion ordinarily officiating as such, whose name, designation and usual residence have been and continue registered in the office of the Registrar-General for Marriages in Sydney or by a district registrar.

Parental consent is not required of persons who have previously been lawfully married and whose former marriage has been dissolved by death or divorce.

A marriage must be attended by two adult witnesses.

By the Matrimonial Causes Act of 1899 jurisdiction in respect of divorces _a mensa et thoro_ (judicial separations), suits for nullity of marriage, suits for dissolution of marriage (absolute divorce), suits for restitution of conjugal rights, suits for jactitation of marriage, and all causes, suits and matters matrimonial are vested in the Supreme Court of the State.

CAUSES FOR ABSOLUTE DIVORCE.--A husband who has been domiciled for three years or more in the State may petition for a dissolution of the marriage on the following grounds:

A. That the wife has committed adultery.

B. That the wife has, without just cause or excuse, wilfully deserted the petitioner and without any such cause or excuse left him so deserted for three years or more.

C. That the wife has, during three years and upwards, been an habitual drunkard and habitually neglected her domestic duties or rendered herself unfit to discharge them.

D. That within one year the wife has been imprisoned for a period of not less than three years and is still in prison under a commuted sentence for a capital crime, or under sentence to penal servitude for seven years or more.

E. That within one year the wife has been convicted of having attempted to murder her husband, or having assaulted him with intent to inflict grievous bodily harm.

F. That during one year previously the wife has assaulted and cruelly beaten her husband.

A wife may obtain an absolute divorce from her husband by proving:

A. That her husband has committed incestuous adultery.

B. That the husband has committed bigamy with adultery.

C. That the husband has committed rape, sodomy or bestiality.

D. That the husband has committed adultery coupled with such cruelty as without adultery would have entitled the wife to a divorce _a mensa et thoro_ (divorce from bed and board) under the laws of England as existing before the enactment of the Imperial Act 20 and 21, Vict. c. 85.

E. Adultery of the husband coupled with desertion without reasonable excuse for two years or upwards.

JUDICIAL SEPARATION.--A judicial separation may be granted on the ground of adultery, cruelty or desertion without legal cause or excuse continued for two years and upwards.

QUEENSLAND.--In this State marriage may be celebrated by any regular officiating minister of religion, or by any district registrar, or by specially authorized justices of the peace.

CAUSES FOR ABSOLUTE DIVORCE.--A husband is entitled to an absolute divorce if his wife has committed adultery, but a wife is not so entitled unless her husband has committed incestuous adultery, bigamy, rape, sodomy, bestiality, adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse for two years or more.

Incestuous adultery is adultery with a woman within the prohibited degrees.

JUDICIAL SEPARATION.--A limited divorce or judicial separation can be obtained by either spouse on the following grounds:

1. Adultery.

2. Cruelty.

3. Desertion without legal cause for two years.

LEGITIMACY.--Illegitimate children are legitimatized by the subsequent marriage of their parents.

WEST AUSTRALIA.--The Marriage Act of 1894 is virtually an acceptance by this State, so far as practicable, of the English Divorce Act of 1857.

The causes for absolute divorce or for a judicial separation are the same as those given above for the State of Queensland.

SOUTH AUSTRALIA AND TASMANIA.--In these two States, by legislative enactments, the causes for absolute divorce and judicial separation are the same as those given on opposite page for Queensland, West Australia and South Australia.

The exercise of appellate jurisdiction by the High Court of Justice of the Commonwealth in matrimonial causes has the beneficial effect of making the several States more and more uniform in their local legislation and judicial interpretation.

The federal Parliament has express authority under the constitution to enact a federal code of marriage and divorce which will operate throughout the entire Commonwealth, and such a code in one form or another is inevitable.

The Commonwealth of Australia is not yet a dozen years old, but the need of superseding six separate systems of law respecting marriage and divorce by a national law on the subject is already apparent and under constructive discussion.

Of all the federative dependencies of the British Crown Australia is perhaps the most homogenous in race, religion and traditions, and it will probably be the first to adopt a federal law of marriage and divorce.