Sir Garfiled Barwick’s Conjugal Rights Problem and other comments on the Matrimonial Causes Act of 1959

“The procedure for an order for restitution of conjugal rights is an ecclesiastical procedure designed to protect marriage and to secure reconciliation of estranged parties. Indeed, according to ecclesiastical rules it was enforceable by attachment of the disobedient respondent. When the possibility of dissolution for disobedience was substituted for other means of enforcement of an order for restitution of conjugal rights, the way was opened, and in many cases taken, to an early, and in the minds of some a too easy, dissolution of marriage.” (Sir Garfield Barwick, speech made to the house of representatives 14 May 1959)

This is one of the many problems that Sir Garfield Barwick sought to resolve through his matrimonial causes bill of 1959. Rather than requiring ‘attachment of the disobedient respondant’ he sought to require one years disobedience of an order for the ‘restitution of conjugal rights. This new method would prevent couples deciding to get and then disobey such an order as an easy way to get a divorce.
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Chasing the Marriage Certificate: Running the Right Way?

The campaign for the legal recognition of the marriages of queer couples has entered a strange place since the inequalities in Australian relationship laws between same-sex and heterosexual couples were largely removed by the federal government in legislation that came into full effect in June 2009. The campaign is now entirely centred upon the marriage certificate, the one legal benefit given to heterosexuals but not queers. But that certificate will entail no new rights for its queer bearers beyond the possession of that piece of paper.
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