MATRIMONIAL CAUSES ACT 1959 [Note: This Act is "repealed" by Act No. 53 of 1975]
- Reprinted as at 19 December 1973 (HISTACT2 CHAP 170 #DATE 19:12:1973)
MATRIMONIAL CAUSES ACT 1959-1973 - TABLE OF PROVISIONS
TABLE
MATRIMONIAL CAUSES ACT 1959-1973
TABLE OF PROVISIONS
PART I-PRELIMINARY
Section
1. Short title
2. Commencement
3. (Repealed)
4. Repeal and saving
5. Interpretation
6. Certain children to be deemed to be children of the marriage
6A. Polygamous marriages
7. Extension of Act to Territories
8. Supersession of existing laws
8A. Child welfare laws not affected
PART II-MARRIAGE GUIDANCE ORGANIZATIONS
9. Grants to approved marriage guidance organizations
10. Approval of marriage guidance organizations
11. Reports, &c., by approved marriage guidance organizations
12. Admissions, &c., made to marriage guidance counsellors
13. Application of Part to certain branches and sections of voluntary
organizations
PART III-RECONCILIATION
14. Reconciliation
15. Hearing when reconciliation fails
16. Statements, &c., made in course of attempt to effect
reconciliation
17. Marriage conciliator to take oath of secrecy
PART IV-VOID AND VOIDABLE MARRIAGES
18. Void marriages
19. Prohibited degrees
20. Marriage of persons within prohibited degrees of affinity
21. Voidable marriages
22. Validity, &c., of certain marriages not affected
PART V-JURISDICTION
23. Jurisdiction in matrimonial causes
24. Special provisions as to wife's domicile
25. Law to be applied
26. Staying and transferring of proceedings
27. Courts to act in aid of each other
PART VI-MATRIMONIAL RELIEF
Division 1-Dissolution of Marriage
28. Grounds for dissolution of marriage
29. Constructive desertion
30. Refusal to resume cohabitation
31. Desertion continuing after insanity
32. Restriction on dissolution of marriage on ground of wilful
refusal
to consummate
33. Aggregation of concurrent sentences
34. Restriction on dissolution of marriage on ground of failure to
pay
maintenance
35. Restriction on dissolution of marriage on ground of insanity
36. Provisions relating to ground of separation
37. Court to refuse to make decree on ground of separation in certain
circumstances
38. Provisions relating to presumption of death
39. Condonation or connivance to be an absolute bar to relief
39A. Presumption as to condonation to be rebuttable
40. Collusion to be an absolute bar
41. Discretionary bars
41A. Effect of cohabitation with a view to reconciliation
42. Court not to make decree of dissolution where petition for decree
of
nullity
before it
43. Petition within three years of marriage
44. Claim for damages
45. Joinder of adulterer, &c.
46. Re-marriage
Division 2-Nullity of Marriage
47. Ground for decree of nullity of marriage
48. Who may institute proceedings
49. Incapacity to consummate marriage
50. Restrictions on certain grounds
51. Effect of decree of nullity of a voidable marriage
Division 3-Judicial Separation
52. Grounds for judicial separation
53. Application of provisions of Division 1
54. Effect of decree
55. Effect on rights to sue, devolution of property, &c.
56. Exercise of joint powers not affected
57. Decree of judicial separation not to bar subsequent proceedings
for
dissolution of marriage
58. Discharge of decree on resumption of cohabitation
59. Application of Division to decrees made before commencement of
this
Act
Division 4-Restitution of Conjugal Rights
60. Ground for decree of restitution of conjugal rights
61. Agreement for separation
62. Sincerity of petitioner
63. Notice as to home
64. Enforcement of decree
Division 5-Jactitation of Marriage
65. Ground for decree of jactitation of marriage
66. Decree to be in discretion of court
Division 6-General
67. Facts, &c., occurring before commencement of Act or outside
Australia
68. Institution of proceedings
69. Duty of court
70. Decree nisi in first instance
71. Decree absolute where children under sixteen years, &c.
72. When decree becomes absolute
73. Certificate as to decree absolute
74. Rescission of decree nisi where parties reconciled, &c.
75. Rescission of decree nisi on ground of miscarriage of justice
PART VII-INTERVENTION
76. Intervention by Attorney-General on request from court
77. Intervention of Attorney-General in other cases
78. Delegation by Attorney-General
79. Intervention by other persons
80. Rescission of decree nisi in consequence of intervention
81. Proceedings not to be taken to be finally disposed of before
decree
absolute
82. Procedure on intervention
PART VIII-MAINTENANCE, CUSTODY AND SETTLEMENTS
83. Definition
84. Powers of court in maintenance proceedings
85. Powers of court in custody, &c., proceedings
86. Powers of court in proceedings with respect to settlement of
property
87. General powers of court
88. Execution of deeds, &c., by order of court
89. Power of court to make orders on dismissal of petition
PART IX-APPEALS
90. No appeal after decree absolute
91. Case stated
92. Appeals from single Judges of State Supreme Court
93. Appeals to High Court
PART X-RECOGNITION OF DECREES
94. Decrees under this Act to have effect throughout the Commonwealth
and the Territories
95. Recognition of other decrees
PART XI-EVIDENCE
96. Standard of proof
97. Evidence of husbands and wives
98. Evidence of non-access
99. Evidence as to adultery
100. Proof of marriage, &c.
101. Convictions for crimes to be evidence
PART XII-ENFORCEMENT OF DECREES
102. Attachment
103. Enforcement of decrees by other Supreme Courts
104. Recovery of moneys as judgment debt
105. Summary enforcement of orders for maintenance
106. Enforcement of maintenance orders by attachment of earnings
107. Enforcement by other means
108. Enforcement of existing decrees
109. Power to make rules for purposes of this Part
PART XIII-TRANSITIONAL PROVISIONS
110. Definitions
111. Pending proceedings to be continued in accordance with this Part
112. Continuance of proceedings for dissolution or nullity of
marriage,
or judicial separation
113. Application of this Act to pending proceedings for dissolution or
nullity of marriage, or judicial separation
114. Continuance of other pending proceedings
115. Special provisions as to pending appeals or existing rights to
appeal
116. Special provisions relating to decrees of restitution of conjugal
rights under previous law
117. Special provisions relating to certain Western Australian
marriages
PART XIV-MISCELLANEOUS
118. Hearings to be in open court
119. Proceedings to be heard without jury
120. Transactions intended to defeat claims
121. (Repealed)
122. Position of clergy as to re-marriage
123. Restrictions on publication of evidence
124. Injunctions
125. Costs
126. Frivolous or vexatious proceedings
127. Rules
THE SCHEDULES
FIRST SCHEDULE
Oath or Affirmation by Marriage Guidance Counsellor or Marriage Conciliator
SECOND SCHEDULE
Prohibited Degrees of Consanguinity and Affinity
THIRD SCHEDULE
Enforcement of Orders for Maintenance
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 1.
Short title.
SECT
MATRIMONIAL CAUSES ACT 1959-1973
See also the Matrimonial Causes Act 1971-1973 following.
An Act relating to Marriage and to Divorce and Matrimonial Causes and, in
relation thereto, Parental Rights and the Custody and Guardianship of
Infants.
PART I-PRELIMINARY
Short title amended; No. 32, 1918, s. 2.
1. This Act may be cited as the Matrimonial Causes Act 1959-1973.*
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 2.
Commencement.
SECT
2. This Act shall come into operation on a date to be fixed by
proclamation.*
Section 3 repealed by No. 216, 1973, s. 3.
* * * * * * * *
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 4.
Repeal and saving.
SECT
4. (1) The Matrimonial Causes Act 1945 and the Matrimonial Causes Act 1955
are repealed.
(2) Notwithstanding the repeal effected by the last preceding sub-section-
(a) the validity of a judgment, decree or order made before the
commencement of this Act by virtue of the Imperial Act entitled the
Matrimonial Causes (War Marriages) Act, 1944 or Part I of the Matrimonial
Causes (War Marriages) Act, 1947 of New Zealand and in force immediately
before the commencement of this Act shall continue to be recognized in all
courts in the Commonwealth and the Territories of the Commonwealth;
(b) a judgment, decree, order or sentence of the Supreme Court of a State
or Territory of the Commonwealth given, made or pronounced before the
commencement of this Act in the exercise of jurisdiction invested or conferred
by the Matrimonial Causes Act 1945 or that Act as amended by the Matrimonial
Causes Act 1955 and in force immediately before the commencement of this Act
shall continue to have effect throughout the Commonwealth and the Territories
of the Commonwealth; and
(c) any proceedings instituted before the commencement of this Act in the
Supreme Court of a Territory of the Commonwealth, not being a Territory to
which this Act applies, by virtue of the jurisdiction conferred by the
Matrimonial Causes Act 1945 or that Act as amended by the Matrimonial Causes
Act 1955 may be continued and dealt with, and proceedings incidental to
proceedings so instituted may be instituted, continued and dealt with, as if
this Act had not been passed.
(3) The repeal of the Matrimonial Causes Act 1945 does not affect the
operation of the amendment made by that Act to the Service and Execution of
Process Act 1901-1934 or the provision for the citation of the latter Act as
so amended.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 5.
Interpretation.
SECT
5. (1) In this Act, unless the contrary intention appears-
''adopted'', in relation to a child, means adopted under the law of any
place (whether in or out of Australia) relating to the adoption of children;
''appeal'' includes an application for a rehearing;
''approved'', in relation to a marriage guidance organization, means
approved by the Attorney-General in pursuance of section ten of this Act;
''Australia'' includes Norfolk Island;
''crime'' means an offence punishable by imprisonment;
''cross-petition'' includes an answer in which the respondent to a petition
seeks a decree or declaration of a kind referred to in paragraph (a) or (b) of
the definition of ''matrimonial cause'' in this sub-section;
''decree'' means decree, judgment or order, and includes a decree nisi and
an order dismissing a petition or application or refusing to make a decree or
order;
''imprisonment'' includes penal servitude;
''marriage conciliator'' means a person authorized by an approved marriage
guidance organization to endeavour to effect marital reconciliations or a
person nominated by a Judge, in pursuance of section fourteen of this Act, to
endeavour to effect a reconciliation;
''marriage guidance counsellor'' means a person authorized by an approved
marriage guidance organization to offer marriage guidance on behalf of the
organization;
''matrimonial cause'' means-
(a) proceedings for a decree of-
(i) dissolution of marriage;
(ii) nullity of marriage;
(iii) judicial separation;
(iv) restitution of conjugal rights; or
(v) jactitation of marriage;
(b) proceedings for a declaration of the validity of the dissolution or
annulment of a marriage by decree or otherwise or of a decree of judicial
separation, or for a declaration of the continued operation of a decree of
judicial separation, or for an order discharging a decree of judicial
separation;
(c) proceedings with respect to the maintenance of a party to the
proceedings, settlements, damages in respect of adultery, the custody or
guardianship of infant children of the marriage or the maintenance, welfare,
advancement or education of children of the marriage, being proceedings in
relation to concurrent, pending or completed proceedings of a kind referred to
in either of the last two preceding paragraphs, including proceedings of such
a kind pending at, or completed before, the commencement of this Act;
(d) any other proceedings (including proceedings with respect to the
enforcement of a decree, the service of process or costs) in relation to
concurrent, pending or completed proceedings of a kind referred to in any of
the last three preceding paragraphs, including proceedings of such a kind
pending at, or completed before, the commencement of this Act; or
(e) proceedings seeking leave to institute proceedings for a decree of
dissolution of marriage or of judicial separation, or proceedings in relation
to proceedings seeking such leave;
''petition'' includes a cross-petition;
''petitioner'' includes a cross-petitioner;
''proceedings'' includes cross-proceedings;
''respondent'' includes a petitioner against whom there is a crosspetition;
''Territory to which this Act applies'' means the Australian Capital
Territory, the Northern Territory of Australia or Norfolk Island;
''the court'', in relation to any proceedings, means the court exercising
jurisdiction in those proceedings by virtue of this Act;
'' the rules'', in relation to a court, means the rules or other provisions
in relation to the practice and procedure of that court made under, or
applicable by virtue of, this Act;
''welfare officer'' means a person authorized by the Attorney-General, by
instrument in writing, to perform duties as a welfare officer for the purposes
of this Act, being-
(a) a person who is permanently or temporarily employed in the Public
Service of the Commonwealth or of a Territory of the Commonwealth;
(b) a person who is permanently or temporarily employed in the Public
Service of a State and whose services have been made available for the
purposes of this Act in pursuance of an arrangement between the Commonwealth
and the State; or
(c) a person nominated by an organization undertaking child welfare
activities.
(2) A reference in this Act to a court having jurisdiction under this Act,
or exercising jurisdiction under this Act, shall be deemed not to include a
reference to a court having jurisdiction under this Act, or exercising
jurisdiction under this Act, by virtue only of section one hundred and five or
one hundred and six of this Act or the Third Schedule to this Act.
(3) For the purposes of this Act, the date of a petition shall be taken to
be the date on which the petition was filed in a court having jurisdiction
under this Act.
(4) For the purposes of this Act, a person shall be deemed to have been
convicted of an offence on indictment if he has been convicted of that offence
otherwise than by a court of summary jurisdiction or on appeal from such a
court.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 6.
Certain children to be deemed to be children of the marriage.
SECT
6. (1) For the purposes of the application of this Act in relation to a
marriage-
(a) a child adopted since the marriage by the husband and wife or by either
of them with the consent of the other;
(b) a child of the husband and wife born before the marriage, whether
legitimated by the marriage or not; and
(c) a child of either the husband or wife (including an illegitimate child
of either of them and a child adopted by either of them) if, at the relevant
time, the child was ordinarily a member of the household of the husband and
wife,
shall be deemed to be a child of the marriage, and a child of the husband and
wife (including a child born before the marriage, whether legitimated by the
marriage or not) who has been adopted by another person or other persons shall
be deemed not to be a child of the marriage.
(2) For the purposes of the last preceding sub-section, in relation to any
proceedings the relevant time is-
(a) the time immediately preceding the time when the husband and wife
ceased to live together or, if they have ceased on more than one occassion to
live together, the time immediately preceding the time when they last ceased
to live together before the institution of the proceedings; or
(b) if the husband and wife were living together at the time when the
proceedings were instituted, the time immediately preceding the institution of
the proceedings.
(3) The provisions of the last two preceding sub-sections apply in relation
to a purported marriage that is void as if the purported marriage were a
marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 6A.
Polygamous marriages.
SECT
Inserted by No. 99, 1965, s. 3.
6A. (1) Subject to this section, a union in the nature of marriage entered
into outside Australia or under Division 3 of Part IV of the Marriage Act 1961
that was, when entered into, potentially polygamous is a marriage for the
purposes of proceedings under Part VI of this Act in respect of the union, and
for the purposes of proceedings in relation to any such proceedings, where it
would have been a marriage for those purposes but for the fact that it was
potentially polygamous.
(2) This section does not apply to a union unless the law applicable to
local marriages that was in force in the country, or each of the countries, of
domicile of the parties at the time the union took place permitted polygamy on
the part of the male party.
(3) This section does not apply to a union where, at the time the union took
place, either of the parties was a party to a subsisting polygamous or
potentially polygamous union, but this section does apply to a union
notwithstanding that the male party has, during the subsistence of the union,
contracted, or purported to contract, a further union in the nature of
marriage, whether or not the further union still subsists.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 7.
Extension of Act to Territories.
SECT
7. (1) This Act extends to Norfolk Island.
Sub-section (2) omitted by No. 99, 1965, s. 4.
* * * * * * * *
(3) Section four, sub-section (1) of section twelve, section sixteen,
section ninety-four and sub-section (1) of section ninety-five of this Act
extend to all the Territories of the Commonwealth.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 8.
Supersession of existing laws.
SECT
8. (1) Subject to this section-
(a) a matrimonial cause shall not be instituted after the commencement of
this Act except under this Act; and
(b) a matrimonial cause instituted before the commencement of this Act
shall not be continued except in accordance with Part XIII of this Act.
(2) Subject to the next succeeding sub-section, where, before or after the
commencement of this Act, a matrimonial cause has been instituted, then,
whether or not that matrimonial cause has been completed, proceedings for any
relief or order of a kind that could be sought under this Act in proceedings
in relation to that matrimonial cause shall not be instituted after the
commencement of this Act except under this Act.
(3) Subject to the succeeding provisions of this section-
(a) the jurisdiction of a court of summary jurisdiction of a State or of a
Territory to which this Act applies, or of a court on appeal from such a
court, under the law of that State or Territory, to make-
(i) orders with respect to the maintenance of wives or children or the
custody of or access to children; or
(ii) separation orders or other orders having the effect of relieving a
party to a marriage from any obligation to cohabit with the other party,
is not affected by this Act or any proceedings under this Act; and
(b) proceedings for or in respect of such an order, or for the enforcement
of such an order, may be continued or instituted as if this Act had not been
passed.
Amended by No. 99, 1965, s. 5.
(4) Where a decree of dissolution of a marriage or nullity of a voidable
marriage made under this Act becomes absolute or a decree of nullity of a void
marriage is made under this Act-
(a) any jurisdiction of a court of summary jurisdiction, or of a court on
appeal from such a court, to make orders of the kind specified in paragraph
(a) of the last preceding sub-section shall, by force of this sub-section,
cease to be applicable in relation to the parties to the marriage or the
children of the marriage; and
(b) any order of that kind made by such a court in relation to those
parties or children shall, subject to sub-section (6) of this section, cease
to have effect.
Inserted by No. 99, 1965, s. 5.
(4A) The last preceding sub-section does not-
(a) affect the jurisdiction of a court to make an order in respect of the
maintenance of a child of the marriage against a person other than a party to
the marriage; or
(b) cause such an order to cease to have effect.
(5) A court exercising jurisdiction under this Act may at any time order
that an order of the kind specified in paragraph (a) of sub-section (3) of
this section made by a court of summary jurisdiction, or by a court on appeal
from such a court, shall cease to have effect, and that order shall, subject
to the next succeeding sub-section, cease to have effect accordingly.
(6) Where, by virtue of this section, an order with respect to the
maintenance of a wife or of children ceases to have effect, nothing in this
Act shall be deemed to prevent the enforcement, as if this Act had not been
passed, of that order so far as it relates to any period before it so ceased
to have effect.
(7) In this section, ''court of summary jurisdiction of a State or of a
Territory to which this Act applies'' includes a magistrate or a justice or
justices of the peace exercising jurisdiction under the law of a State or of a
Territory to which this Act applies.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 8A.
Child welfare laws not affected.
SECT
Inserted by No. 99, 1965, s. 6.
8A. (1) A court shall not make an order under Part VIII for the maintenance,
custody or guardianship of a child who is, under the law of a State, a ward of
the State or a State child or a child who has a similar status under a law of
a Territory of the Commonwealth.
(2) Nothing in this Act, and no order under this Act, affects-
(a) the jurisdiction of a court, or the power of an authority, under a law
of a State to make an order, or take any other action, whereby a child becomes
a ward of the State or a State child, or any similar jurisdiction or power
under a law of a Territory of the Commonwealth;
(b) any such order made, or action taken, or the operation, in respect of a
child in relation to whom any such order has been made or action taken, of the
law under which the order was made or action taken;
(c) the jurisdiction of a court under a law of a State or Territory of the
Commonwealth to make an order in respect of the maintenance of a child
referred to in the last preceding sub-section in favour of an officer or
authority of the State or Territory performing functions in relation to the
welfare of children; or
(d) an order of a kind referred to in the last preceding paragraph made by
a court.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 9.
Grants to approved marriage guidance organizations.
SECT
PART II-MARRIAGE GUIDANCE ORGANIZATIONS
9. The Attorney-General may, from time to time, out of moneys appropriated
by the Parliament for the purposes of this Part, grant to an approved marriage
guidance organization, upon such conditions as he thinks fit, such sums by way
of financial assistance as he determines.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 10.
Approval of marriage guidance organizations.
SECT
10. (1) A voluntary organization may apply to the Attorney-General for
approval under this Part as a marriage guidance organization.
(2) The Attorney-General may approve any such organization as a marriage
guidance organization where he is satisfied that-
(a) the organization is willing and able to engage in marriage guidance;
and
(b) marriage guidance constitutes or will constitute the whole or the major
part of its activities.
(3) The approval of an organization under this section may be given subject
to such conditions as the Attorney-General determines.
(4) Where the approval of an organization has been given subject to
conditions, the Attorney-General may, from time to time, revoke or vary all or
any of those conditions or add further conditions.
(5) The Attorney-General may, at any time, revoke the approval of an
organization where-
(a) the organization has not complied with a condition of the approval of
the organization;
(b) the organization has not furnished, in accordance with the next
succeeding section, a statement or report that the organization was required
by that section to furnish; or
(c) the Attorney-General is satisfied that the organization is not
adequately carrying out marriage guidance.
(6) Notice of the approval of an organization under this section, and of the
revocation of such an approval, shall be published in the Gazette.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 11.
Reports, &c., by approved marriage guidance organizations.
SECT
11. (1) An approved marriage guidance organization shall, not later than the
thirty-first day of December in each year, furnish to the Attorney-General, in
respect of the year that ended on the last preceding thirtieth day of June-
(a) an audited financial statement of the receipts and expenditure of the
organization, in which receipts and expenditure in respect of its marriage
guidance activities are shown separately from other receipts and expenditure;
and
(b) a report on its marriage guidance activities, including information as
to the number of cases dealt with by the organization during the year.
(2) Where the Attorney-General is satisfied that it would be impracticable
for an organization to comply with the requirements of the last preceding
sub-section or that the application of those requirements to an organization
would be unduly onerous, he may, by writing under his hand, exempt the
organization, wholly or in part, from those requirements.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 12.
Admissions, &c., made to marriage guidance counsellors.
SECT
12. (1) A marriage guidance counsellor is not competent or compellable, in
any proceedings before a court (whether exercising federal jurisdiction or
not) or before a person authorized by a law of the Commonwealth or of a State
or Territory of the Commonwealth, or by consent of parties, to hear, receive
and examine evidence, to disclose any admission or communication made to him
in his capacity as a marriage guidance counsellor.
(2) A marriage guidance counsellor shall, before entering upon the
performance of his functions as such a counsellor, make and subscribe, before
a person authorized under the law of the Commonwealth or of a State or a
Territory to which this Act applies to take affidavits, an oath or affirmation
of secrecy in accordance with the form in the First Schedule to this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 13.
Application of Part to certain branches and sections of voluntary
organizations.
SECT
13. A reference in this Part to a voluntary organization shall be deemed to
include a reference to a branch or section of such an organization, being a
branch or section identified by a distinct name and in respect of which
separate financial accounts are maintained.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 14.
Reconciliation.
SECT
PART III-RECONCILIATION
14. (1) It is the duty of the court in which a matrimonial cause has been
instituted to give consideration, from time to time, to the possibility of a
reconciliation of the parties to the marriage (unless the proceedings are of
such a nature that it would not be appropriate to do so), and if at any time
it appears to the Judge constituting the court, either from the nature of the
case, the evidence in the proceedings or the attitude of those parties, or of
either of them, or of counsel, that there is a reasonable possibility of such
a reconciliation, the Judge may do all or any of the following:-
(a) adjourn the proceedings to afford those parties an opportunity of
becoming reconciled or to enable anything to be done in accordance with either
of the next two succeeding paragraphs;
(b) with the consent of those parties, interview them in chambers, with or
without counsel, as the Judge thinks proper, with a view to effecting a
reconciliation;
(c) nominate-
(i) an approved marriage guidance organization or a person with
experience or training in marriage conciliation; or
(ii) in special circumstances, some other suitable person,
to endeavour, with the consent of those parties, to effect a
reconciliation.
(2) If, not less than fourteen days after an adjournment under the last
preceding sub-section has taken place, either of the parties to the marriage
requests that the hearing be proceeded with, the Judge shall resume the
hearing, or arrangements shall be made for the proceedings to be dealt with by
another Judge, as the case requires, as soon as practicable.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 15.
Hearing when reconciliation fails.
SECT
15. Where a Judge has acted as conciliator under paragraph (b) of
sub-section (1) of the last preceding section but the attempt to effect a
reconciliation has failed, the Judge shall not, except at the request of the
parties to the proceedings, continue to hear the proceedings, or determine the
proceedings, and, in the absence of such a request, arrangements shall be made
for the proceedings to be dealt with by another Judge.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 16.
Statements, &c., made in course of attempt to effect reconciliation.
SECT
16. Evidence of anything said or of any admission made in the course of an
endeavour to effect a reconciliation under this Part is not admissible in any
court (whether exercising federal jurisdiction or not) or in proceedings
before a person authorized by a law of the Commonwealth or of a State or
Territory of the Commonwealth, or by consent of parties, to hear, receive and
examine evidence.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 17.
Marriage conciliator to take oath of secrecy.
SECT
17. A marriage conciliator shall, before entering upon the performance of
his functions as such a conciliator, make and subscribe, before a person
authorized under the law of the Commonwealth or of a State or a Territory to
which this Act applies to take affidavits, an oath or affirmation of secrecy
in accordance with the form in the First Schedule to this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 18.
Void marriages.
SECT
PART IV-VOID AND VOIDABLE MARRIAGES
18.* (1) Subject to the next succeeding sub-section and to section twenty of
this Act, a marriage that takes place after the commencement of this Act is
void where-
(a) either of the parties is, at the time of the marriage, lawfully married
to some other person;
(b) the parties are within the prohibited degrees of consanguinity or
affinity;
(c) the marriage is not a valid marriage under the law of the place where
the marriage takes place, by reason of a failure to comply with the
requirements of the law of that place with respect to the form of
solemnization of marriages;
(d) the consent of either of the parties is not a real consent because-
(i) it was obtained by duress or fraud;
(ii) that party is mistaken as to the identity of the other party, or as
to the nature of the ceremony performed; or
(iii) that party is mentally incapable of understanding the nature of
the marriage contract; or
(e) either of the parties is not of marriageable age,
and not otherwise.
Substituted by No. 99, 1965, s. 7.
(2) Paragraph (c) of the last preceding sub-section does not apply in
relation to-
(a) a marriage solemnized under the Marriage (Overseas) Act 1955, or that
Act as amended, including a marriage to which section twenty-four of that Act
applied, or solemnized under Part V of the Marriage Act 1961; or
(b) any other marriage recognized in Australia by virtue of the Marriage
Act 1961 or regulations made under that Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 19.
Prohibited degrees.
SECT
19.* (1) After the commencement of this Act, the prohibited degrees of
consanguinity and affinity respectively are those set out in the Second
Schedule to this Act and none other.
(2) A marriage solemnized before the commencement of this Act is not
voidable on the ground of consanguinity or affinity of the parties unless the
parties were, at the time of the marriage, within one of the degrees of
consanguinity or affinity set out in the Second Schedule to this Act.
(3) The last preceding sub-section does not make voidable a marriage that
would not, apart from that sub-section, be voidable.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 20.
Marriage of persons within prohibited degrees of affinity.
SECT
20.* (1) Where two persons who are within the prohibited degrees of affinity
wish to marry one another, they may apply, in writing, to a Judge for
permission to do so.
(2) If the Judge is satisfied that the circumstances of the particular case
are so exceptional as to justify the granting of the permission sought, he
may, by order, permit the applicants to marry one another.
(3) Where persons marry in pursuance of permission granted under this
section, the validity of their marriage is not affected by the fact that they
are within the prohibited degrees of affinity.
(4) The Governor-General may arrange with the Governor of a State for the
performance by Judges of the Supreme Court of that State of functions under
this section.
(5) In this section, ''Judge'' means-
(a) a Judge in respect of whom an arrangement made under the last preceding
sub-section is applicable; or
(b) a Judge of the Supreme Court of a Territory to which this Act applies.
Amended by No. 99, 1965, s. 8.
(6) The Governor-General may make regulations making provision for or in
relation to the practice and procedure in and in connexion with applications
under this section, including provision for or in relation to the summoning of
witnesses, the production of documents, the taking of evidence on oath or
affirmation and the payment of fees and allowances to witnesses.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 21.
Voidable marriages.
SECT
21. (1) Subject to this Act, a marriage that takes place after the
commencement of this Act, not being a marriage that is void, is voidable,
where, at the time of the marriage-
(a) either party to the marriage is incapable of consummating the
marriage;
(b) either party to the marriage is-
(i) of unsound mind; or
(ii) a mental defective;
(c) either party to the marriage is suffering from a venereal disease in a
communicable form; or
(d) the wife is pregnant by a person other than the husband,
and not otherwise.
(2) For the purposes of this section, ''mental defective'' means a person
who, owing to an arrested or incomplete development of mind, whether arising
from inherent causes or induced by disease or injury, requires oversight, care
or control for his own protection or for the protection of others and is, by
reason of that fact, unfitted for the responsibilities of marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 22.
Validity &c., of certain marriages not affected.
SECT
22. (1) Except as expressly provided in this Part, nothing in this Part
affects the validity or invalidity of a marriage that took place before the
commencement of this Act.
(2) A provision of this Act does not affect the validity or invalidity of a
marriage where it would not be in accordance with the common law rules of
private international law to apply that provision in relation to that
marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 23.
Jurisdiction in matrimonial causes.
SECT
PART V-JURISDICTION
23. (1) Subject to this Act, a person may institute a matrimonial cause
under this Act in the Supreme Court of a State or of a Territory to which this
Act applies.
(2) Subject to the succeeding provisions of this section, the Supreme Court
of each State is invested with federal jurisdiction, and jurisdiction is
conferred on the Supreme Court of each Territory to which this Act applies, to
hear and determine-
(a) matrimonial causes instituted under this Act; and
(b) matrimonial causes (not being matrimonial causes to which section one
hundred and fifteen of this Act applies) continued in accordance with Part
XIII of this Act.
(3) The jurisdiction with which the Supreme Court of a State is invested by
this section is subject to the conditions and restrictions specified in
sub-section (2) of section thirty-nine of the Judiciary Act 1903-1959 so far
as they are applicable.
(4) Proceedings for a decree of dissolution of marriage or for a decree of
nullity of a voidable marriage shall not be instituted under this Act except
by a person domiciled in Australia.
(5) Proceedings for a decree of nullity of a void marriage or for a decree
of judicial separation, restitution of conjugal rights or jactitation of
marriage shall not be instituted under this Act except by a person domiciled
or resident in Australia.
(6) Where, in proceedings for a decree of dissolution or nullity of
marriage, the court finds that the parties to the marriage were, or one of
those parties was, at the time when the proceedings were instituted,
domiciled, according to the principles of the common law, in Australia, it
shall include in the decree a statement to that effect.
(7) Without prejudice to the application of sub-sections (4) and (5) of this
section in relation to proceedings in the Supreme Court of a Territory to
which this Act applies, jurisdiction under this Act in a matrimonial cause
instituted under this Act is not conferred on the Supreme Court of such a
Territory unless at least one of the parties to the proceedings-
(a) is, at the date of the institution of the proceedings, ordinarily
resident in the Territory; or
(b) has been resident in the Territory for a period of not less than six
months immediately preceding that date.
(8) Jurisdiction under this Act in a matrimonial cause of the kind referred
to in paragraph (b) of sub-section (2) of this section is not conferred on a
court other than the court in which the cause was instituted.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 24.
Special provisions as to wife's domicile.
SECT
24. (1) For the purposes of this Act, a deserted wife who was domiciled in
Australia either immediately before her marriage or immediately before the
desertion shall be deemed to be domiciled in Australia.
(2) For the purposes of this Act, a wife who is resident in Australia at the
date of instituting proceedings under this Act and has been so resident for
the period of three years immediately preceding that date shall be deemed to
be domiciled in Australia at that date.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 25.
Law to be applied.
SECT
25. (1) The jurisdiction conferred on a court, or with which a court is
invested, by this Act shall be exercised in accordance with this Act.
(2) Subject to this Act, a court exercising jurisdiction under this Act in
proceedings for a decree of nullity of marriage, judicial separation,
restitution of conjugal rights or jactitation of marriage shall proceed and
act and give relief as nearly as may be in conformity with the principles and
rules applied in the ecclesiastical courts in England immediately before the
commencement of the Imperial Act known as The Matrimonial Causes Act 1857.
(3) Where it would be in accordance with the common law rules of private
international law to apply the laws of any country or place (including a State
or Territory of the Commonwealth), the court shall apply the laws of that
country or place.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 26.
Staying and transferring of proceedings.
SECT
26. (1) Where it appears to a court in which a matrimonial cause has been
instituted under this Act that a matrimonial cause between the parties to the
marriage or purported marriage has been instituted in another court having
jurisdiction under this Act, the court may, in its discretion stay the cause
for such time as it thinks fit.
(2) Where it appears to a court in which a matrimonial cause has been
instituted under this Act (including a matrimonial cause in relation to which
the last preceding sub-section applies) that it is in the interests of justice
that the cause be dealt with in another court having jurisdiction to hear and
determine that cause, the court may transfer the cause to the other court.
(3) The court may exercise its powers under this section at any time and at
any stage, and either with or without application by any of the parties.
(4) Where a matrimonial cause is transferred from a court in pursuance of
this section-
(a) all documents filed of record in that court shall be transmitted by the
Registrar or other proper officer of that court to the Registrar or other
proper officer of the court to which the cause is transferred; and
(b) the court to which the cause is transferred shall proceed as if the
cause had been originally instituted in that court and as if the same
proceedings had been taken in that court as had been taken in the court from
which the cause was transferred, but all subsequent proceedings shall be in
accordance with the practice and procedure of the court to which the cause is
transferred.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 27.
Courts to act in aid of each other.
SECT
27. All courts having jurisdiction under this Act shall severally act in aid
of and be auxiliary to each other in all matters under this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 28.
Grounds for dissolution of marriage.
SECT
PART VI-MATRIMONIAL RELIEF
Division 1-Dissolution of Marriage
28. Subject to this Division, a petition under this Act by a party to a
marriage for a decree of dissolution of the marriage may be based on one or
more of the following grounds:-
(a) that, since the marriage, the other party to the marriage has committed
adultery;
(b) that, since the marriage, the other party to the marriage has, without
just cause or excuse, wilfully deserted the petitioner for a period of not
less than two years;
(c) that the other party to the marriage has wilfully and persistently
refused to consummate the marriage;
(d) that, since the marriage, the other party to the marriage has, during a
period of not less than one year, habitually been guilty of cruelty to the
petitioner;
(e) that, since the marriage, the other party to the marriage has committed
rape, sodomy or bestiality;
(f) that, since the marriage, the other party to the marriage has, for a
period of not less than two years-
(i) been a habitual drunkard; or
(ii) habitually been intoxicated by reason of taking or using to excess
any sedative, narcotic or stimulating drug or preparation,
or has, for a part or parts of such a period, been a habitual drunkard and
has, for the other part or parts of the period, habitually been so
intoxicated;
(g) that, since the marriage, the petitioner's husband has, within a period
not exceeding five years-
(i) suffered frequent convictions for crime in respect of which he has
been sentenced in the aggregate to imprisonment for not less than three years;
and
(ii) habitually left the petitioner without reasonable means of
support;
(h) that, since the marriage, the other party to the marriage has been in
prison for a period of not less than three years after conviction for an
offence punishable by death or imprisonment for life or for a period of five
years or more, and is still in prison at the date of the petition;
(i) that, since the marriage and within a period of one year immediately
preceding the date of the petition, the other party to the marriage has been
convicted, on indictment, of-
(i) having attempted to murder or unlawfully to kill the petitioner;
or
(ii) having committed an offence involving the intentional infliction of
grievous bodily harm on the petitioner or the intent to inflict grievous
bodily harm on the petitioner;
(j) that the other party to the marriage has habitually and wilfully
failed, throughout the period of two years immediately preceding the date of
the petition, to pay maintenance for the petitioner-
(i) ordered to be paid under an order of, or an order registered in, a
court in the Commonwealth or a Territory of the Commonwealth; or
(ii) agreed to be paid under an agreement between the parties to the
marriage providing for their separation;
(k) that the other party to the marriage has, for a period of not less than
one year, failed to comply with a decree of restitution of conjugal rights
made under this Act;
(l) that the other party to the marriage-
(i) is, at the date of the petition, of unsound mind and unlikely to
recover; and
(ii) since the marriage and within the period of six years immediately
preceding the date of the petition, has been confined for a period of, or for
periods aggregating, not less than five years in an institution where persons
may be confined for unsoundness of mind in accordance with law, or in more
than one such institution;
(m) that the parties to the marriage have separated and thereafter have
lived separately and apart for a continuous period of not less than five years
immediately preceding the date of the petition, and there is no reasonable
likelihood of cohabitation being resumed;
(n) that the other party to the marriage has been absent from the
petitioner for such time and in such circumstances as to provide reasonable
grounds for presuming that he or she is dead.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 29.
Constructive desertion.
SECT
29. A married person whose conduct constitutes just cause or excuse for the
other party to the marriage to live separately or apart, and occasions that
other party to live separately or apart, shall be deemed to have wilfully
deserted that other party without just cause or excuse, notwithstanding that
that person may not in fact have intended the conduct to occasion that other
party to live separately or apart.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 30.
Refusal to resume cohabitation.
SECT
30. (1) Where husband and wife are parties to an agreement for separation,
whether oral, in writing or constituted by conduct, the refusal by one of
them, without reasonable justification, to comply with the other's bona fide
request to resume cohabitation constitutes, as from the date of the refusal,
wilful desertion without just cause or excuse on the part of the party so
refusing.
(2) For the purposes of the last preceding sub-section, ''reasonable
justification'' means reasonable justification in all the circumstances,
including the conduct of the other party to the marriage since the marriage,
whether that conduct took place before or after the agreement for separation.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 31.
Desertion continuing after insanity.
SECT
31. Where a party to a marriage has been wilfully deserted by the other
party, the desertion shall not be deemed to have been terminated by reason
only that the deserting party has become incapable of forming or having an
intention to continue the desertion, if it appears to the court that the
desertion would probably have continued if the deserting party had not become
so incapable.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 32.
Restriction on dissolution of marriage on ground of wilful refusal to
SECT
consummate.
32. A decree of dissolution of marriage shall not be made upon the ground
specified in paragraph (c) of section twenty-eight of this Act unless the
court is satisfied that, as at the commencement of the hearing of the
petition, the marriage had not been consummated.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 33.
Aggregation of concurrent sentences.
SECT
33. Where-
(a) a person has been sentenced to imprisonment in respect of each of two or
more crimes that, in the opinion of the court hearing the petition, arose
substantially out of the same acts or omissions; and
(b) the sentences were ordered to be served, in whole or in part,
concurrently,
then, in reckoning for the purposes of paragraph (g) of section twenty-eight
of this Act the period for which that person has been sentenced in the
aggregate, any period during which two or more of those sentences were to be
served concurrently shall be taken into account once only.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 34.
Restriction on dissolution of marriage on ground of failure to pay
maintenance.
SECT
34. A decree of dissolution of marriage shall not be made upon the ground
specified in paragraph (j) of section twenty-eight of this Act unless the
court is satisfied that reasonable attempts have been made by the petitioner
to enforce the order or agreement under which the maintenance was ordered or
agreed to be paid.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 35.
Restriction on dissolution of marriage on ground of insanity.
SECT
35. A decree of dissolution of marriage shall not be made upon the ground
specified in paragraph (l) of section twenty-eight of this Act unless the
court is satisfied that, at the commencement of the hearing of the petition,
the respondent was still confined in an institution referred to in that
paragraph and was unlikely to recover.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 36.
Provisions relating to ground of separation.
SECT
36. (1) For the purposes of paragraph (m) of section twenty-eight of this
Act, the parties to a marriage may be taken to have separated notwithstanding
that the cohabitation was brought to an end by the action or conduct of one
only of the parties, whether constituting desertion or not.
(2) A decree of dissolution of marriage may be made upon the ground
specified in paragraph (m) of section twenty-eight of this Act notwithstanding
that there was in existence at any relevant time-
(a) a decree of a court suspending the obligation of the parties to the
marriage to cohabit; or
(b) an agreement between those parties for separation.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 37.
Court to refuse to make decree on ground of separation in certain
circumstances.
SECT
37. (1) Where, on the hearing of a petition for a decree of dissolution of
mariage on the ground specified in paragraph (m) of section twenty-eight of
this Act (in this section referred to as ''the ground of separation''), the
court is satisfied that, by reason of the conduct of the petitioner, whether
before or after the separation commenced, or for any other reason, it would,
in the particular circumstances of the case, be harsh and oppressive to the
respondent, or contrary to the public interest, to grant a decree on that
ground on the petition of the petitioner, the court shall refuse to make the
decree sought.
(2) Where, in proceedings for a decree of dissolution of marriage on the
ground of separation, the court is of opinion that it is just and proper in
the circumstances of the case that the petitioner should make provision for
the maintenance of the respondent or should make any other provision for the
benefit of the respondent, whether by way of settlement of property or
otherwise, the court shall not make a decree on that ground in favour of the
petitioner until the petitioner has made arrangements to the satisfaction of
the court to provide the maintenance or other benefits upon the decree
becoming absolute.
(3) The court may, in its discretion, refuse to make a decree of dissolution
of marriage on the ground of separation if the petitioner has, whether before
or after the separation commenced, committed adultery that has not been
condoned by the respondent or, having been so condoned, has been revived.
(4) Where petitions by both parties to a marriage for the dissolution of the
marriage are before a court, the court shall not, upon either of the
petitions, make a decree on the ground of separation if it is able properly to
make a decree upon the other petition on any other ground.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 38.
Provisions relating to presumption of death.
SECT
38. (1) Where proceedings are brought upon the ground specified in paragraph
(n) of section twenty-eight of this Act, proof that, for a period of seven
years immediately preceding the date of the petition, the other party to the
marriage was continually absent from the petitioner and that the petitioner
has no reason to believe that the other party was alive at any time within
that period is sufficient to establish the ground of the petition unless it is
shown that the other party to the marriage was alive at a time within that
period.
(2) A decree upon the ground specified in paragraph (n) of section
twenty-eight of this Act shall be in the form of a decree of dissolution of
marriage by reason of presumption of death.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 39.
Condonation or connivance to be an absolute bar to relief.
SECT
Substituted by No. 99, 1965, s. 9.
39. A decree of dissolution of marriage shall not be made upon a ground
specified in any of paragraphs (a) to (k), inclusive, of section twenty-eight
of this Act if-
(a) the petitioner has condoned the ground and the ground has not been
revived; or
(b) the petitioner has connived at the ground.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 39A.
Presumption as to condonation to be rebuttable.
SECT
Inserted by No. 99, 1965, s. 9.
39A. For the purposes of any provision of this Part referring to
condonation, any presumption of condonation that arises from the continuance
or resumption of sexual intercourse may be rebutted on the part of a husband,
as well as on the part of a wife, by evidence sufficient to negative intent to
condone.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 40.
Collusion to be an absolute bar.
SECT
40. A decree of dissolution of marriage shall not be made if the petitioner,
in bringing or prosecuting the proceedings, has been guilty of collusion with
intent to cause a perversion of justice.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 41.
Discretionary bars.
SECT
41. The court may, in its discretion, refuse to make a decree of dissolution
of marriage upon a ground specified in any of paragraphs (a) to (l),
inclusive, of section twenty-eight of this Act, if, since the marriage-
(a) the petitioner has committed adultery that has not been condoned by the
respondent or, having been so condoned, has been revived;
(b) the petitioner has been guilty of cruelty to the respondent;
(c) the petitioner has wilfully deserted the respondent before the
happening of the matters constituting the ground relied upon by the petitioner
or, where that ground involves matters occurring during, or extending over, a
period, before the expiration of that period; or
(d) the habits of the petitioner have, or the conduct of the petitioner
has, conduced or contributed to the existence of the ground relied upon by the
petitioner.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 41A.
Effect of cohabitation with a view to reconciliation.
SECT
Inserted by No. 99, 1965, s. 10.
41A. (1) For the purposes of section thirty-nine of this Act, a ground shall
not be deemed to have been condoned, and, for the purposes of sub-section (3)
of section thirty-seven of this Act and of section forty-one of this Act,
adultery of the petitioner shall not be deemed to have been condoned, by
reason only of a continuation or resumption of cohabitation between the
parties (whether with or without acts of sexual intercourse between them) for
one period not exceeding three months if the court is satisfied that-
(a) the cohabitation was continued or resumed, as the case may be, with a
view, on the part of the party to whom condonation might otherwise be
attributed, to effecting a reconciliation; and
(b) a reconciliation was not effected during that period.
(2) For the purposes of proceedings on the ground specified in paragraph (b)
of section twenty-eight of this Act, where-
(a) before the desertion had continued for two years, the parties, on one
occasion, resumed cohabitation (whether with or without acts of sexual
intercourse between them), but the deserting party, within a period of three
months after the resumption of cohabitation, again, without just cause or
excuse, wilfully deserted the other party; and
(b) the court is satisfied that-
(i) the resumption of cohabitation was with a view, on the part of the
deserted party, to effecting a reconciliation; and
(ii) a reconciliation was not effected during the period of
cohabitation,
the periods of desertion before and after the period of cohabitation may be
aggregated as if they were one continuous period, but the period of
cohabitation shall not be deemed to be part of the period of desertion.
(3) For the purposes of proceedings on the ground specified in paragraph (m)
of section twenty-eight of this Act, where-
(a) since the separation, the parties, on one occasion, resumed
cohabitation (whether with or without acts of sexual intercourse between
them), but, within a period of three months after the resumption of
cohabitation, they again separated and thereafter lived separately and apart
up to the date of the petition; and
(b) the court is satisfied that-
(i) the resumption of cohabitation was with a view, on the part of
either party, to effecting a reconciliation; and
(ii) a reconciliation was not effected during the period of
cohabitation,
the periods of living separately and apart before and after the period of
cohabitation may be aggregated as if they were one continuous period, but the
period of cohabitation shall not be deemed to be part of the period of living
separately and apart.
(4) For the purposes of the preceding provisions of this section, a period
of cohabitation shall be deemed to have continued during any interruption of
the cohabitation that, in the opinion of the court, was not substantial.
(5) The operation of this section extends to things that occurred before the
commencement of this section.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 42.
Court not to make decree of dissolution where petition for decree of nullity
before it.
SECT
42. Where both a petition for a decree of nullity of a marriage and a
petition for a decree of dissolution of that marriage are before a court, the
court shall not make a decree of dissolution of the marriage unless it has
dismissed the petition for a decree of nullity of the marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 43.
Petition within three years of marriage.
SECT
43. (1) Subject to this section, proceedings for a decree of dissolution of
marriage shall not be instituted within three years after the date of the
marriage except by leave of the court.
(2) Nothing in this section shall be taken to require the leave of the court
to the institution of proceedings for a decree of dissolution of marriage on
one or more of the grounds specified in paragraphs (a), (c) and (e) of section
twenty-eight of this Act, and on no other ground, or to the institution of
proceedings for a decree of dissolution of marriage by way of
cross-proceedings.
(3) The court shall not grant leave under this section to institute
proceedings except on the ground that to refuse to grant that leave would
impose exceptional hardship on the applicant or that the case is one involving
exceptional depravity on the part of the other party to the marriage.
(4) In determining an application for leave to institute proceedings under
this section, the court shall have regard to the interests of any children of
the marriage and to the question whether there is any reasonable probability
of a reconciliation between the parties before the expiration of the period of
three years after the date of the marriage.
(5) Where, at the hearing of proceedings that have been instituted by leave
of the court under this section, the court is satisfied that the leave was
obtained by misrepresentation or concealment of material facts, the court
may-
(a) adjourn the hearing for such period as the court thinks fit; or
(b) dismiss the petition on the ground that the leave was so obtained.
(6) Where, in a case to which the last preceding sub-section applies, there
is a cross-petition, if the court adjourns or dismisses the petition under
that sub-section, it shall also adjourn for the same period, or dismiss, as
the case may be, the cross-petition, but if the court, having regard to the
provisions of this section, thinks it proper to proceed to hear and determine
the cross-petition, it may do so, and in that case it shall also proceed to
hear and determine the petition.
(7) The dismissal of a petition or a cross-petition under sub-section (5) or
(6) of this section does not prejudice any subsequent proceedings on the same,
or substantially the same, facts as those constituting the ground on which the
dismissed petition or cross-petition was brought.
(8) Nothing in this section prevents the institution of proceedings, after
the period of three years from the date of the marriage, based upon matters
which have occurred within that period.
(9) In this section, a reference to the leave of the court shall be deemed
to include a reference to leave granted by a court on appeal.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 44.
Claim for damages.
SECT
44. (1) A party to a marriage, whether husband or wife, may, in a petition
for a decree of dissolution of the marriage on the ground that the other party
to the marriage has committed adultery with a person, or on grounds including
that ground, claim damages from that person on the ground that that person has
committed adultery with the other party to the marriage and, subject to this
section, the court may award damages accordingly.
(2) The court shall not award damages against a person where the adultery of
the respondent with that person has been condoned, whether subsequently
revived or not, or if a decree of dissolution of the marriage on the ground of
the adultery of the respondent with that person, or on grounds including that
ground, is not made.
(3) Damages shall not be awarded under this Act in respect of an act of
adultery committed more than three years before the date of the petition.
(4) The court may direct in what manner the damages awarded shall be paid or
applied and may, if it thinks fit, direct that they shall be settled for the
benefit of the respondent or the children of the marriage.
(5) No action for criminal conversation lies, whether under this Act or
otherwise.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 45.
Joinder of adulterer, &c.
SECT
45. (1) Where, in a petition for a decree of dissolution of marriage or in
an answer to such a petition, a party to the marriage is alleged to have
committed adultery with a specified person, whether or not a decree of
dissolution of marriage is sought on the ground of the adultery, that person
shall, except as provided by the rules, be made a party to the proceedings.
(2) Where, in a petition for a decree of dissolution of marriage or in an
answer to such a petition, a party to the marriage is alleged to have
committed rape or sodomy on or with a specified person, whether or not a
decree of dissolution of marriage is sought on the ground of the rape or
sodomy, that person shall, except as provided by the rules, be served with
notice that the allegation has been made and is thereupon entitled to
intervene in the proceedings.
(3) Where a person has been made a party to proceedings for a decree of
dissolution of marriage in pursuance of sub-section (1) of this section, the
court may, on the application of that person, after the close of the case for
the party to the marriage who alleged the adultery, if it is satisfied that
there is not sufficient evidence to establish that that person committed
adultery with the other party to the marriage, dismiss that person from the
proceedings.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 46.
Re-marriage.
SECT
46. Where a decree of dissolution of marriage under this Act has become
absolute, a party to the marriage may marry again as if the marriage had been
dissolved by death.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 47.
Ground for decree of nullity of marriage.
SECT
Division 2-Nullity of Marriage
47. Subject to this Division, a petition under this Act for a decree of
nullity of marriage may be based on the ground that the marriage is void or on
the ground that the marriage is voidable at the suit of the petitioner.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 48.
Who may institute proceedings.
SECT
48. A decree of nullity of marriage shall not be made-
(a) on the ground that the marriage is voidable by virtue of paragraph (a)
of sub-section (1) of section twenty-one of this Act-upon the petition of the
party suffering from the incapacity to consummate the marriage, unless that
party was not aware of the existence of the incapacity at the time of the
marriage;
(b) on the ground that the marriage is voidable by virtue of paragraph (b)
or (c) of sub-section (1) of that section-upon the petition of the party
suffering from the disability or disease; or
(c) on the ground that the marriage is voidable by virtue of paragraph (d)
of sub-section (1) of that section-upon the petition of the wife.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 49.
Incapacity to consummate marriage.
SECT
49. (1) A decree of nullity of marriage shall not be made on the ground that
the marriage is voidable by virtue of paragraph (a) of sub-section (1) of
section twenty-one of this Act unless the court is satisfied that the
incapacity to consummate the marriage also existed at the time when the
hearing of the petition commenced and that-
(a) the incapacity is not curable;
(b) the respondent refuses to submit to such medical examination as the
court considers necessary for the purpose of determining whether the
incapacity is curable; or
(c) the respondent refuses to submit to proper treatment for the purpose of
curing the incapacity.
(2) A decree of nullity of marriage shall not be made on the ground that the
marriage is voidable by virtue of paragraph (a) of sub-section (1) of section
twenty-one of this Act where the court is of opinion that-
(a) by reason of-
(i) the petitioner's knowledge of the incapacity at the time of the
marriage;
(ii) the conduct of the petitioner since the marriage; or
(iii) the lapse of time; or
(b) for any other reason,
it would, in the particular circumstances of the case, be harsh and oppressive
to the respondent, or contrary to the public interest, to make a decree.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 50.
Restrictions on certain grounds.
SECT
50. A decree of nullity of marriage shall not be made on the ground that the
marriage is voidable by virtue of paragraph (b), (c) or (d) of sub-section (1)
of section twenty-one of this Act unless the court is satisfied that-
(a) the petitioner was, at the time of the marriage, ignorant of the facts
constituting the ground;
(b) the petition was filed not later than twelve months after the date of
the marriage; and
(c) marital intercourse has not taken place with the consent of the
petitioner since the petitioner discovered the existence of the facts
constituting the ground.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 51.
Effect of decree of nullity of a voidable marriage.
SECT
51. (1) A decree of nullity under this Act of a voidable marriage annuls the
marriage from and including the date on which the decree becomes absolute.
(2) Without prejudice to the operation of the last preceding sub- section in
other respects, a decree of nullity under this Act of a voidable marriage does
not render illegitimate a child of the parties born since, or legitimated
during, the marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 52.
Grounds for judicial separation.
SECT
Division 3-Judicial Separation
52. Subject to this Division, a petition under this Act by a party to a
marriage for a decree of judicial separation may be based on one or more of
the grounds specified in paragraphs (a) to (l) (inclusive) of section
twenty-eight of this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 53.
Application of provisions of Division 1.
SECT
53. The provisions of sections twenty-nine to thirty-five (inclusive) and
sections thirty-nine to forty-five (inclusive) of this Act apply to and in
relation to a decree of judicial separation and proceedings for such a decree
and, for the purposes of those provisions as so applying, a reference in those
provisions to a decree of dissolution of marriage shall be read as a reference
to a decree of judicial separation.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 54.
Effect of decree.
SECT
54. A decree of judicial separation relieves the petitioner from the
obligation to cohabit with the other party to the marriage while the decree
remains in operation, but, except as provided by this Division, does not
otherwise affect the marriage or the status, rights and obligations of the
parties to the marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 55.
Effect on rights to sue, devolution of property, &c.
SECT
55. (1) While a decree of judicial separation is in operation, either party
to the marriage may bring proceedings in contract or in tort against the other
party.
(2) Where a party to a marriage dies intestate as to any property while a
decree of judicial separation is in operation, that property shall devolve as
if that party had survived the other party to the marriage.
Inserted by No. 99, 1965, s. 11.
(2A) The last preceding sub-section does not derogate from any jurisdiction
of a court under a law of a State or Territory of the Commonwealth to make
orders affecting the rights of persons in respect of property as to which a
person dies intestate.
(3) Where upon, or in consequence of, the making of a decree of judicial
separation a husband is ordered to pay maintenance to his wife, and the
maintenance is not duly paid, the husband is liable for necessaries supplied
for the wife's use.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 56.
Exercise of joint powers not affected.
SECT
56. Nothing in this Division prevents a wife, during separation under a
decree of judicial separation, from joining in the exercise of any power given
to herself and her husband jointly.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 57.
Decree of judicial separation not to bar subsequent proceedings for
dissolution of marriage.
SECT
57. (1) A decree of judicial separation does not prevent the institution by
either party to the marriage of proceedings for a decree of dissolution of
marriage.
(2) The court may, in any proceedings for a decree of dissolution of
marriage on the same, or substantially the same, facts as those on which a
decree of judicial separation has been made, treat the decree of judicial
separation as sufficient proof of the facts constituting the ground on which
that decree was made.
(3) Notwithstanding the last preceding sub-section, the court shall not
grant a decree of dissolution of marriage without receiving evidence by the
petitioner in support of the petition.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 58.
Discharge of decree on resumption of cohabitation.
SECT
58. (1) Where, after a decree of judicial separation has been made, the
parties have voluntarily resumed cohabitation, either party may apply for an
order discharging the decree.
(2) Upon such an application, the court shall, if both parties consent to
the order, or if the court is otherwise satisfied that the parties have
voluntarily resumed cohabitation, make an order discharging the decree.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 59.
Application of Division to decrees made before commencement of this Act.
SECT
59. The provisions of sections fifty-four to fifty-eight (inclusive) of this
Act apply to and in relation to a decree of judicial separation made before
the commencement of this Act by a court in Australia as well as to such a
decree made after the commencement of this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 60.
Ground for decree of restitution of conjugal rights.
SECT
Division 4-Restitution of Conjugal Rights
60. A petition under this Act by a party to a marriage for a decree of
restitution of conjugal rights may be based on the ground that the parties to
the marriage, whether or not they have at any time cohabited, are not
cohabiting and that, without just cause or excuse, the party against whom the
decree is sought refuses to cohabit with, and render conjugal rights to, the
petitioner.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 61.
Agreement for separation.
SECT
61. An agreement for separation, whether entered into before or after the
commencement of this Act, does not constitute a defence to proceedings under
this Act for a decree of restitution of conjugal rights.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 62.
Sincerity of petitioner.
SECT
62. The court shall not make a decree of restitution of conjugal rights
unless it is satisfied-
(a) that the petitioner sincerely desires conjugal rights to be rendered by
the respondent and is willing to render conjugal rights to the respondent;
and
(b) that a written request for cohabitation, expressed in conciliatory
language, was made to the respondent before the institution of the
proceedings, or that there are special circumstances which justify the making
of the decree notwithstanding that such a request was not made.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 63.
Notice as to home.
SECT
63. Where the court makes a decree of restitution of conjugal rights on the
petition of a husband, the petitioner shall, as soon as practicable after the
making of the decree, and at such other times as the rules so require, give to
the respondent notice, in accordance with the rules, of the provision made by
the petitioner, or which the petitioner is willing to make, with respect to a
home for the purpose of enabling the respondent to comply with the decree.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 64.
Enforcement of decree.
SECT
64. A decree of restitution of conjugal rights is not enforceable by
attachment.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 65.
Ground for decree of jactitation of marriage.
SECT
Division 5-Jactitation of Marriage
65. A petition under this Act for a decree of jactitation of marriage may be
based on the ground that the respondent has falsely boasted and persistently
asserted that a marriage has taken place between the respondent and the
petitioner.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 66.
Decree to be in discretion of court.
SECT
66. Notwithstanding anything contained in this Act, the court may, in its
discretion, refuse to make a decree of jactitation of marriage.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 67.
Facts, &c., occurring before commencement of Act or outside Australia.
SECT
Division 6-General
67. (1) A decree may be made, or refused, under this Part by reason of facts
and circumstances notwithstanding that those facts and circumstances, or some
of them, took place before the commencement of this Act or outside Australia.
(2) For the purposes of this section, the provisions of sections
twenty-nine, thirty and thirty-one of this Act shall be deemed to extend to
matters which occurred before the commencement of this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 68.
Institution of proceedings.
SECT
68. (1) Subject to the next succeeding sub-section, a matrimonial cause of a
kind referred to in paragraph (a) or (b) of the definition of ''matrimonial
cause'' in sub-section (1) of section five of this Act shall be instituted by
petition.
(2) A respondent may, in the answer to the petition, seek any decree or
declaration that the respondent could have sought in a petition.
(3) Proceedings of a kind referred to in paragraph (c) of the definition of
''matrimonial cause'' in sub-section (1) of section five of this Act that are
in relation to proceedings under this Act for a decree or declaration of a
kind referred to in paragraph (a) or (b) of that definition-
(a) may be instituted by the same petition as that by which the proceedings
for that decree or declaration are instituted; and
(b) except as permitted by the rules or by leave of the court, shall not be
instituted in any other manner.
(4) The court shall, so far as is practicable, hear and determine at the
same time all proceedings instituted by the one petition.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 69.
Duty of court.
SECT
69. Except as provided by this Act, the court, upon being satisfied of the
existence of any ground in respect of which relief is sought, shall make the
appropriate decree.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 70.
Decree nisi in first instance.
SECT
70. A decree of dissolution of marriage or nullity of a voidable marriage
under this Act shall, in the first instance, be a decree nisi.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 71.
Decree absolute where children under sixteen years, &c.
SECT
Sub-section (1) substituted by No. 99, 1965, s. 12.
71. (1) A decree nisi of dissolution of marriage or of nullity of a voidable
marriage, being a decree made on or after the date of commencement of the
Matrimonial Causes Act 1965, does not become absolute unless the court, by
order, has declared that it is satisfied-
(a) that there are no children of the marriage in relation to whom this
section applies; or
(b) that the only children of the marriage in relation to whom this section
applies are the children specified in the order and that-
(i) proper arrangements in all the circumstances have been made for the
welfare of those children; or
(ii) there are special circumstances by reason of which the decree nisi
should become absolute notwithstanding that the court is not satisfied that
such arrangements have been made.
Inserted by No. 99, 1965, s. 12.
(1A) For the purposes of the last preceding sub-section, the court shall,
where the circumstances make it appropriate to do so, treat the welfare of a
child as including its advancement and education.
(2) In this section, ''children of the marriage in relation to whom this
section applies'' means-
(a) the children of the marriage who are under the age of sixteen years at
the date of the decree nisi; and
(b) any children of the marriage in relation to whom the court has, in
pursuance of the next succeeding sub-section, ordered that this section shall
apply.
(3) The court may, in a particular case, if it is of opinion that there are
special circumstances which justify its so doing, order that this section
shall apply in relation to a child of the marriage who has attained the age of
sixteen years at the date of the decree nisi.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 72.
When decree becomes absolute.
SECT
Sub-section (1) amended by No. 99, 1965, s. 13.
72. (1) Subject to this section, a decree nisi made on or after the date of
commencement of the Matrimonial Causes Act 1965 becomes absolute by force of
this section at the expiration of-
(a) a period of three months from the making of the decree; or
(b) a period of twenty-eight days from the making of an order under
sub-section (1) of the last preceding section,
whichever is the later.
Sub-section (2) omitted by No. 99, 1965, s. 13.
* * * * * * * *
(3) Where a decree nisi has been made in any proceedings, the court of first
instance (whether or not it made the decree), or a court in which an appeal
has been instituted, may, either before or after it has disposed of the
proceedings or appeal, and whether or not a previous order has been made under
this sub-section-
(a) having regard to the possibility of an appeal or further appeal, make
an order extending the period at the expiration of which the decree nisi will
become absolute; or
(b) if it is satisfied that there are special circumstances which justify
its so doing, make an order reducing the period at the expiration of which the
decree nisi will become absolute.
Amended by No. 99, 1965, s. 13.
(4) Where an appeal is instituted (whether or not it is the first appeal)
before a decree nisi has become absolute, then, notwithstanding any order in
force under the last preceding sub-section at the time of the institution of
the appeal but subject to any such order made after the institution of the
appeal, the decree nisi, unless reversed or rescinded, becomes absolute by
force of this section-
(a) at the expiration of a period of twenty-eight days from the day on
which the appeal is determined or discontinued; or
(b) on the day on which the decree would have become absolute under
sub-section (1) of this section if no appeal had been instituted,
whichever is the later.
(5) A decree nisi shall not become absolute by force of this section where
either of the parties to the marriage has died.
Amended by No. 99, 1965, s. 13.
(6) In this section, ''appeal'', in relation to a decree nisi, means-
(a) an appeal or application for leave to appeal against, or an
intervention or application for leave to intervene relating to-
(i) the decree nisi; or
(ii) an order under the last preceding section in relation to the
proceedings in which the decree nisi was made; or
(b) an application under section seventy-four or seventy-five of this Act
for rescission of the decree or an appeal or application for leave to appeal
arising out of such an application.
Added by No. 99, 1965, s. 13.
(7) For the purposes of this section, where an application for leave to
appeal or to intervene, or for a re-hearing, is granted, the application shall
be deemed not to have been determined or discontinued so long as-
(a) the leave granted remains capable of being exercised; or
(b) an appeal, intervention or re-hearing instituted in pursuance of the
leave is pending.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 73.
Certificate as to decree absolute.
SECT
73. (1) Where a decree nisi becomes absolute the Registrar or other proper
officer of the court by which the decree was made shall prepare and file a
memorandum of the fact and of the date upon which the decree became absolute.
(2) Where a decree nisi has become absolute, any person is entitled on
application to the Registrar or other proper officer of the court by which the
decree was made and on payment of the appropriate fee, to receive a
certificate signed by the Registrar or other proper officer that the decree
nisi has become absolute.
(3) A certificate given under the last preceding sub-section is, in all
courts (whether exercising federal jurisdiction or not) and for all purposes,
evidence of the matters specified in the certificate.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 74.
Rescission of decree nisi where parties reconciled, &c.
SECT
74. Notwithstanding anything contained in this Division, where a decree nisi
has been made in proceedings for a decree of dissolution of marriage, the
court may, at any time before the decree becomes absolute, upon the
application of either of the parties to the marriage, rescind the decree on
the ground that the parties to the marriage have become reconciled.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 75.
Rescission of decree nisi on ground of miscarriage of justice.
SECT
75. Where a decree nisi has been made but has not become absolute, the court
by which the decree was made may, on the application of a party to the
proceedings, if it is satisfied that there has been a miscarriage of justice
by reason of fraud, perjury, suppression of evidence or any other
circumstance, rescind the decree and, if it thinks fit, order that the
proceedings be reheard.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 76.
Intervention by Attorney-General on request from court.
SECT
PART VII-INTERVENTION
76. In any proceedings under this Act, where the court requests him to do
so, the Attorney-General may intervene in, and contest or argue any question
arising in, the proceedings.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 77.
Intervention of Attorney-General in other cases.
SECT
77. In proceedings under this Act for a decree of dissolution or nullity of
marriage, judicial separation or restitution of conjugal rights, or in
relation to the custody or guardianship of children, where the
Attorney-General has reason to believe that there are matters relevant to the
proceedings that have not been, or may not be, but ought to be, made known to
the court, he may, at any time before the proceedings are finally disposed of,
intervene in the proceedings.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 78.
Delegation by Attorney-General.
SECT
78. (1) The Attorney-General may, either generally or in relation to a
matter or class of matters and either in relation to the whole of Australia or
to a State or a Territory to which this Act applies, by writing under his
hand, delegate all or any of his powers and functions under this Part (except
this power of delegation) to the person occupying from time to time, while the
delegation is in force-
(a) the office of Solicitor-General or Crown Solicitor of the Commonwealth;
or
(b) the office of Attorney-General, Solicitor-General or Crown Solicitor of
a State.
(2) A power or function so delegated may be exercised or performed by the
delegate in accordance with the instrument of delegation.
(3) A delegation under this section is revocable at will and does not
prevent the exercise of a power or the performance of a function by the
Attorney-General.
(4) More than one delegation may be in force under this section at the one
time in relation to the whole of Australia or in relation to the same part of
Australia, and a delegation in relation to the whole of Australia may be in
force at the same time as delegations in relation to parts of Australia.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 79.
Intervention by other persons.
SECT
79. (1) In proceedings under this Act for a decree of dissolution or nullity
of marriage, judicial separation or restitution of conjugal rights, where a
person applies to the court for leave to intervene in the proceedings and the
court is satisfied that that person may be able to prove facts relevant to the
proceedings that have not been, or may not be, but ought to be, made known to
the court, the court may, at any time before the proceedings are finally
disposed of, make an order entitling that person to intervene in the
proceedings.
(2) An order under this section may be made upon such conditions as the
court thinks fit, including the giving of security for costs.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 80.
Rescission of decree nisi in consequence of intervention.
SECT
80. Where an intervention takes place under this Part after a decree nisi
has been made and it is proved that the petitioner has been guilty of
collusion with intent to cause a perversion of justice or that material facts
have not been brought before the court, the court may rescind the decree.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 81.
Proceedings not to be taken to be finally disposed of before decree absolute.
SECT
81. For the purposes of this Part, where a decree nisi has been made in any
proceedings, the proceedings shall not be taken to have been finally disposed
of until the decree nisi has become absolute.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 82.
Procedure on intervention.
SECT
82. A person intervening under this Part or Part VI of this Act shall be
deemed to be a party in the proceedings with all the rights, duties and
liabilities of a party.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 83.
Definition.
SECT
PART VIII-MAINTENANCE, CUSTODY AND SETTLEMENTS
83. In this Part, ''marriage'' includes a purported marriage that is void.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 84.
Powers of court in maintenance proceedings.
SECT
84. (1) Subject to this section, the court may, in proceedings with respect
to the maintenance of a party to a marriage, or of children of the marriage,
other than proceedings for an order for maintenance pending the disposal of
proceedings, make such order as it thinks proper, having regard to the means,
earning capacity and conduct of the parties to the marriage and all other
relevant circumstances.
(2) Subject to this section and to the rules, the court may, in proceedings
for an order for the maintenance of a party to a marriage, or of children of
the marriage, pending the disposal of proceedings, make such order as it
thinks proper, having regard to the means, earning capacity and conduct of the
parties to the marriage and all other relevant circumstances.
(3) The court may make an order for the maintenance of a party
notwithstanding that a decree is or has been made against that party in the
proceedings to which the proceedings with respect to maintenance are related.
(4) The power of the court to make an order with respect to the maintenance
of children of the marriage shall not be exercised for the benefit of a child
who has attained the age of twenty-one years unless the court is of opinion
that there are special circumstances that justify the making of such an order
for the benefit of that child.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 85.
Powers of court in custody, &c., proceedings.
SECT
85. (1) In proceedings with respect to the custody, guardianship, welfare,
advancement or education of children of a marriage-
(a) the court shall regard the interests of the children as the paramount
consideration; and
(b) subject to the last preceding paragraph, the court may make such order
in respect of those matters as it thinks proper.
(2) The court may adjourn any proceedings referred to in the last preceding
sub-section until a report has been obtained from a welfare officer on such
matters relevant to the proceedings as the court considers desirable, and may
receive the report in evidence.
(3) In proceedings with respect to the custody of children of a marriage,
the court may, if it is satisfied that it is desirable to do so, make an order
placing the children, or such of them as it thinks fit, in the custody of a
person other than a party to the marriage.
(4) Where the court makes an order placing a child of a marriage in the
custody of a party to the marriage, or of a person other than a party to the
marriage, it may include in the order such provision as it thinks proper for
access to the child by the other party to the marriage, or by the parties or a
party to the marriage, as the case may be.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 86.
Powers of court in proceedings with respect to settlement of property.
SECT
86. (1) The court may, in proceedings under this Act, by order require the
parties to the marriage, or either of them, to make, for the benefit of all or
any of the parties to, and the children of, the marriage, such a settlement of
property to which the parties are, or either of them is, entitled (whether in
possession or reversion) as the court considers just and equitable in the
circumstances of the case.
(2) The court may, in proceedings under this Act, make such order as the
court considers just and equitable with respect to the application for the
benefit of all or any of the parties to, and the children of, the marriage of
the whole or part of property dealt with by ante-nuptial or post-nuptial
settlements on the parties to the marriage, or either of them.
(3) The power of the court to make orders of the kind referred to in this
section shall not be exercised for the benefit of a child who has attained the
age of twenty-one years unless the court is of opinion that there are special
circumstances that justify the making of such an order for the benefit of that
child.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 87.
General powers of court.
SECT
87. (1) The court, in exercising its powers under this Part, may do any or
all of the following:-
(a) order that a lump sum or a weekly, monthly, yearly or other periodic
sum be paid;
(b) order that a lump sum or a weekly, monthly, yearly or other periodic
sum be secured;
(c) where a periodic sum is ordered to be paid, order that its payment be
wholly or partly secured in such manner as the court directs;
(d) order that any necessary deed or instrument be executed and that such
documents of title be produced or such other things be done as are necessary
to enable an order to be carried out effectively or to provide security for
the due performance of an order;
(e) appoint or remove trustees;
(f) order that payments be made direct to a party to the marriage, or to a
trustee to be appointed or to a public authority for the benefit of a party to
the marriage;
(g) order that payment of maintenance in respect of a child be made to such
person or public authority as the court specifies;
(h) make a permanent order, an order pending the disposal of proceedings or
an order for a fixed term or for a life or during joint lives or until further
order;
(i) impose terms and conditions;
(j) in relation to an order made in respect of a matter referred to in any
of the last three preceding sections, whether made by that court or by another
court and whether made before or after the commencement of this Act-
(i) discharge the order if the party in whose favour it was made
marries again or if there is any other just cause for so doing;
(ii) modify the effect of the order or suspend its operation wholly or
in part and either until further order or until a fixed time or the happening
of some future event;
(iii) revive wholly or in part an order suspended under the last
preceding sub-paragraph; or
(iv) subject to the next succeeding sub-section, vary the order so as to
increase or decrease any amount ordered to be paid by the order;
(k) sanction an agreement for the acceptance of a lump sum or periodic sums
or other benefits in lieu of rights under an order made in respect of a matter
referred to in any of the last three preceding sections, or any right to seek
such an order;
(l) make any other order (whether or not of the same nature as those
mentioned in the preceding paragraphs of this sub-section, and whether or not
it is in accordance with the practice under other laws before the commencement
of this Act) which it thinks it is necessary to make to do justice;
(m) include its order under this Part in a decree under another Part; and
(n) subject to this Act, make an order under this Part at any time before
or after the making of a decree under another Part.
(2) The court shall not make an order increasing or decreasing an amount
ordered to be paid by an order unless it is satisfied-
(a) that, since the order was made or last varied, the circumstances of the
parties or either of them, or of any child for whose benefit the order was
made, have changed to such an extent as to justify its so doing; or
(b) that material facts were withheld from the court that made the order or
from a court that varied the order or material evidence previously given
before such a court was false.
(3) The court shall not make an order increasing or decreasing-
(a) the security for the payment of a periodic sum ordered to be paid; or
(b) the amount of a lump sum or periodic sum ordered to be secured,
unless it is satisfied that material facts were withheld from the court that
made the order or from a court that varied the order or that material evidence
given before such a court was false.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 88.
Execution of deeds, &c., by order of court.
SECT
Sub-section (1) substituted by No. 99, 1965, s. 14.
88. (1) Where-
(a) an order under this Part has directed a person to execute a deed or
instrument; and
(b) that person has refused or neglected to comply with the direction or,
for any other reason, the court thinks it necessary to exercise the powers of
the court under this sub-section,
the court may appoint an officer of the court or other person to execute the
deed or instrument in the name of the person to whom the direction was given
and to do all acts and things necessary to give validity and operation to the
deed or instrument.
(2) The execution of the deed or instrument by the person so appointed has
the same force and validity as if it had been executed by the person directed
by the order to execute it.
(3) The court may make such order as it thinks just as to the payment of the
costs and expenses of and incidental to the preparation of the deed or
instrument and its execution.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 89.
Power of court to make orders on dismissal of petition.
SECT
Sub-section (1) amended by No. 99, 1965, s. 15.
89. (1) Except as provided by this section, the court shall not make an
order under this Part in favour of the petitioner where the petition for the
principal relief has been dismissed.
Amended by No. 99, 1965, s. 15.
(2) Where-
(a) the petition for the principal relief has been dismissed after a
hearing on the merits; and
(b) the court is satisfied that-
(i) the proceedings for the principal relief were instituted in good
faith to obtain that relief; and
(ii) there is no reasonable likelihood of the parties becoming
reconciled,
the court may, if it considers that it is desirable to do so, make an
order under this Part in favour of the petitioner other than an order under
section eighty-six of this Act.
(3) The court shall not make an order by virtue of the last preceding
sub-section unless it has heard the proceedings for the order at the same time
as, or immediately after, the proceedings for the principal relief.
(4) In this section, ''principal relief'' means relief of a kind referred to
in paragraph (a) or (b) of the definition of ''matrimonial cause'' in
sub-section (1) of section five of this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 90.
No appeal after decree absolute.
SECT
PART IX-APPEALS
90. An appeal does not lie from a decree of dissolution of marriage or
nullity of a voidable marriage after the decree has become absolute.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 91.
Case stated.
SECT
91. (1) If, in proceedings under this Act in a court, not being proceedings
by way of appeal, a question of law arises which the Judge and at least one of
the parties wish to have determined by the High Court before the proceedings
are further dealt with by the court, the Judge shall-
(a) state the facts in the form of a special case for the opinion of the
High Court; and
(b) transmit to the High Court the special case and the documents in the
proceedings, or such of them as are required for the purposes of the
determination,
and a Full Court of the High Court shall hear and determine the question.
(2) The High Court may draw from the facts and the documents any inference,
whether of fact or of law, which could have been drawn from them by the court
by which the case was stated.
(3) In proceedings under this Act, a case shall not be stated to any court
other than the High Court.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 92.
Appeals from single Judges of State Supreme Court.
SECT
92. (1) A person aggrieved by a decree of a Judge of the Supreme Court of a
State exercising the jurisdiction with which that Court is invested by this
Act may, within such time as is prescribed by the rules, appeal from the
decree to the Supreme Court of that State sitting as a Full Court.
(2) The Supreme Court of each State is invested with federal jurisdiction to
hear and determine appeals under this section.
(3) The jurisdiction with which the Supreme Court of a State is invested by
this section is subject to the conditions and restrictions specified in
sub-section (2) of section thirty-nine of the Judiciary Act 1903-1959 so far
as they are applicable.
(4) Upon such an appeal the Court may affirm, reverse or vary the decree the
subject of the appeal and may make such decree as, in the opinion of the
Court, ought to have been made in the first instance, or may, if it thinks
fit, order a rehearing on such terms and conditions, if any, as it thinks
just.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 93.
Appeals to High Court.
SECT
93. Notwithstanding anything contained in the Judiciary Act 1903-1959, an
appeal does not lie to the High Court, except by special leave of the High
Court, from a judgment, decree or order of the Supreme Court of a State given
or made under this Act, whether in the exercise of original or appellate
jurisdiction, including a judgment, decree or order under the Third Schedule
to this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 94.
Decrees under this Act to have effect throughout the Commonwealth and the
Territories.
SECT
PART X-RECOGNITION OF DECREES
94. A decree under this Act has effect throughout the Commonwealth and all
the Territories of the Commonwealth.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 95.
Recognition of other decrees.
SECT
95. (1) A decree of dissolution or nullity of marriage-
(a) made before the commencement of this Act by a court in Australia or
made after the commencement of this Act by such a court in accordance with
Part XIII of this Act; or
(b) made, whether before or after the commencement of this Act, by a court
of a Territory of the Commonwealth other than a Territory to which this Act
applies,
shall be recognized as valid in the Commonwealth and all the Territories of
the Commonwealth.
(2) A dissolution or annulment of a marriage effected in accordance with the
law of a foreign country shall be recognized as valid in Australia where, at
the date of the institution of the proceedings that resulted in the
dissolution or annulment, the party at whose instance the dissolution or
annulment was effected (or, if it was effected at the instance of both
parties, either of those parties) was-
(a) in the case of the dissolution of a marriage or the annulment of a
voidable marriage-domiciled in that foreign country; or
(b) in the case of the annulment of a void marriage-domiciled or resident
in that foreign country.
(3) For the purposes of the last preceding sub-section-
(a) where a dissolution of a marriage was effected in accordance with the
law of a foreign country at the instance of a deserted wife who was domiciled
in that foreign country either immediately before her marriage or immediately
before the desertion, she shall be deemed to have been domiciled in that
foreign country at the date of the institution of the proceedings that
resulted in the dissolution; and
(b) a wife who, at the date of the institution of the proceedings that
resulted in a dissolution or annulment of her marriage in accordance with the
law of a foreign country, was resident in that foreign country and had been so
resident for a period of three years immediately preceding that date shall be
deemed to have been domiciled in that foreign country at that date.
(4) A dissolution or annulment of a marriage effected in accordance with the
law of a foreign country, not being a dissolution or annulment to which
sub-section (2) of this section applies, shall be recognized as valid in
Australia if its validity would have been recognized under the law of the
foreign country in which, in the case of a dissolution, the parties were
domiciled at the date of the dissolution or in which, in the case of an
annulment, either party was domiciled at the date of the annulment.
(5) Any dissolution or annulment of a marriage that would be recognized as
valid under the common law rules of private international law but to which
none of the preceding provisions of this section applies shall be recognized
as valid in Australia, and the operation of this sub-section shall not be
limited by any implication from those provisions.
(6) For the purposes of this section, a court in Australia, in considering
the validity of a dissolution or annulment effected under the law of a foreign
country, may treat as proved any facts found by a court of the foreign country
or otherwise established for the purposes of the law of the foreign country.
(7) A dissolution or annulment of a marriage shall not be recognized as
valid by virtue of sub-section (2) or (4) of this section where, under the
common law rules of private international law, recognition of its validity
would be refused on the ground that a party to the marriage had been denied
natural justice.
(8) Sub-sections (2) to (7) of this section apply in relation to
dissolutions and annulments effected, whether by decree, legislation or
otherwise, before or after the commencement of this Act.
(9) In this section, ''foreign country'' means a country, or part of a
country, outside the Commonwealth and the Territories of the Commonwealth.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 96.
Standard of proof.
SECT
PART XI-EVIDENCE
96. (1) For the purposes of this Act, a matter of fact shall be taken to be
proved if it is established to the reasonable satisfaction of the court.
(2) Where a provision of this Act requires the court to be satisfied of the
existence of any ground or fact or as to any other matter, it is sufficient if
the court is reasonably satisfied of the existence of that ground or fact or
as to that other matter.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 97.
Evidence of husbands and wives.
SECT
97. (1) Subject to this Part, all parties and the wives and husbands of all
parties are competent and compellable witnesses in proceedings under this
Act.
(2) Subject to the next succeeding sub-section, in proceedings under this
Act a husband is competent, but not compellable, to disclose communications
made between him and his wife during the marriage, and a wife is competent,
but not compellable, to disclose communications made between her and her
husband during the marriage.
(3) Where a husband and wife are both parties to proceedings under this Act,
each of them is competent and compellable to disclose communications made
between them during the marriage.
(4) The last two preceding sub-sections apply to communications made before,
as well as to communications made after, the commencement of this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 98.
Evidence of non-access.
SECT
98. In proceedings under this Act, either party to a marriage may give
evidence proving or tending to prove that the parties to the marriage did not
have sexual relations with each other at any particular time, but is not
compellable to give such evidence if it would show or tend to show that a
child born to the wife during the marriage was illegitimate.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 99.
Evidence as to adultery.
SECT
99. (1) A witness in proceedings under this Act who, being a party,
voluntarily gives evidence on his own behalf or, whether he is a party or not,
is called by a party may be asked, and is bound to answer, a question the
answer to which may show, or tend to show, adultery by or with the witness
where proof of that adultery would be material to the decision of the case.
(2) Except as provided by the last preceding sub-section, a witness in
proceedings under this Act (whether a party to the proceedings or not) is not
liable to be asked, or bound to answer, a question the answer to which may
show, or tend to show, that the witness has committed adultery.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 100.
Proof of marriage, &c.
SECT
100. In proceedings under this Act, the court may receive as evidence of the
facts stated in it a document purporting to be either the original or a
certified copy of a certificate, entry or record of a birth, death or marriage
alleged to have taken place whether in Australia or elsewhere.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 101.
Convictions for crimes to be evidence.
SECT
Substituted by No. 99, 1965, s. 16.
101. (1) In any proceedings under this Act, evidence that a party to a
marriage has been convicted, whether in Australia or elsewhere, of a crime is
evidence that the party did the acts or things constituting the crime.
(2) In proceedings under this Act, a certificate of the conviction of a
person of a crime by a federal court, a court of a State or Territory of the
Commonwealth or a court of any part of the Commonwealth of Nations, being a
certificate purporting to be signed by the Registrar or other proper officer
of that court, is evidence of the fact of the conviction and of any
particulars of the crime or of the conviction, including the date on which the
crime was committed, and of any sentence of imprisonment imposed, that are
included in the certificate.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 102.
Attachment.
SECT
PART XII-ENFORCEMENT OF DECREES
102. (1) Subject to the rules, a court having jurisdiction under this Act
may enforce by attachment or by sequestration an order made by it under this
Act for payment of maintenance or costs or in respect of the custody of, or
access to, children.
(2) The court shall order the release from custody of a person who has been
attached under this section upon being satisfied that that person has complied
with the order in respect of which he was attached and may, at any time, if
the court is satisfied that it is just and equitable to do so, order the
release of such a person notwithstanding that he has not complied with that
order.
(3) Where a person who has been attached under this section in consequence
of his failure to comply with an order for the payment of maintenance or costs
becomes a bankrupt, he shall not be kept in custody under the attachment
longer than six months after he becomes a bankrupt unless the court otherwise
orders.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 103.
Enforcement of decrees by other Supreme Courts.
SECT
103. (1) A decree made under this Act by a court having jurisdiction under
this Act may, in accordance with the rules, be registered in another court
having jurisdiction under this Act.
(2) A decree registered in a court under this section may, subject to the
rules, be enforced as if it had been made by the court in which it is
registered.
(3) A reference in this Part to the court by which a decree was made shall
be read as including a reference to a court in which the decree is registered
under this section.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 104.
Recovery of moneys as judgment debt.
SECT
104. (1) Where a decree made under this Act orders the payment of money to a
person, any moneys payable under the decree may be recovered as a judgment
debt in a court of competent jurisdiction.
(2) A decree made under this Act may be enforced, by leave of the court by
which it was made and on such terms and conditions as the court thinks fit,
against the estate of a party after that party's death.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 105.
Summary enforcement of orders for maintenance.
SECT
Sub-section (1) amended by No. 99, 1965, s. 17.
105. (1) Where a court has made under this Act an order for payment of
maintenance, the order may be registered, in accordance with the rules, in a
court of summary jurisdiction of a State or of a Territory to which this Act
applies, and an order so registered may, subject to the rules, be enforced in
the same manner as if it were a similar order for maintenance made by the
court of summary jurisdiction.
(2) The several courts of summary jurisdiction of the States and of the
Territories to which this Act applies are authorized to do all things
necessary for the purposes of the last preceding sub-section.
(3) In this section, ''court of summary jurisdiction of a State or of a
Territory to which this Act applies'' has the same meaning as in section eight
of this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 106.
Enforcement of maintenance orders by attachment of earnings.
SECT
106. An order under this Act for the payment of maintenance may be enforced
in accordance with the Third Schedule to this Act and the provisions of that
Schedule have effect in relation to the enforcement of such orders.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 107.
Enforcement by other means.
SECT
107. Subject to this Act, the rules may make provision for the enforcement
of decrees made under this Act by means other than those specified in the
preceding provisions of this Part.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 108.
Enforcement of existing decrees.
SECT
108. A decree made in a matrimonial cause before the commencement of this
Act by a court in Australia or by an officer of such a court may be enforced-
(a) in the manner in which it could be enforced if this Act had not been
passed; or
(b) subject to the rules, in the manner in which a like decree made by that
court under this Act may be enforced.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 109.
Power to make rules for purposes of this Part.
SECT
109. (1) The power to make rules conferred by sub-sections (1) and (4) of
section one hundred and twenty-seven of this Act includes power to make rules
for the purposes of sections one hundred and two, one hundred and three and
one hundred and eight of this Act and for the purposes of any jurisdiction
conferred by the Third Schedule to this Act on the Supreme Court of a State or
of a Territory to which this Act applies.
(2) The power to make rules conferred by sub-section (1) of section one
hundred and twenty-seven of this Act includes power to make rules for the
purposes of section one hundred and five of this Act and for the purposes of
any jurisdiction conferred by the Third Schedule to this Act on a court of
summary jurisdiction.
(3) The power of any authority under the law of a State or of a Territory to
which this Act applies to make rules of court or other provisions in relation
to the practice and procedure of courts of summary jurisdiction of that State
or Territory extends, by force of this Act, to the making of rules of court or
other provisions (not inconsistent with this Act or with any rules made by the
Governor-General for the time being in force under this Act) for the purposes
of section one hundred and five of this Act and for the purposes of any
jurisdiction conferred by the Third Schedule to this Act on a court of summary
jurisdiction.
(4) Rules or other provisions made in accordance with the last preceding
sub-section shall be deemed not to be statutory rules within the meaning of
the Rules Publication Act 1903-1939.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 110.
Definitions.
SECT
PART XIII-TRANSITIONAL PROVISIONS
110. In this Part-
''pending proceedings'' means proceedings which have been instituted in the
Supreme Court of a State or of a Territory to which this Act applies before
the date of commencement of this Act but have not been completed before that
date;
''the court'', in relation to pending proceedings, means the court in which
the proceedings were instituted.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 111.
Pending proceedings to be continued in accordance with this Part.
SECT
111. Pending proceedings constituting a matrimonial cause may be continued
and dealt with in accordance with and by virtue of this Part, and not
otherwise.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 112.
Continuance of proceedings for dissolution or nullity of marriage, or judicial
separation.
SECT
112. (1) Except as provided by this Part, the law to be applied, and the
practice and procedure to be followed, in and in relation to pending
proceedings, being proceedings for a decree of dissolution or nullity of
marriage or of judicial separation, shall be the same as if this Act had not
been passed.
(2) Without prejudice to any power that the court has, by virtue of the last
preceding sub-section, to amend, or permit the amendment of, a petition, the
court may, in any such proceedings, upon application by the petitioner and on
such conditions, if any, as the court thinks fit, permit the petitioner to
amend the petition so as to include a ground of relief provided by this Act
and not already included in the petition and, where such a ground is so
included, then, in relation to that ground, the provisions of this Act
applicable in relation to that ground apply as if the proceedings had been
instituted under this Act.
(3) Notwithstanding sub-section (3) of section five of this Act, a reference
in this Act to the date of the petition or the date of institution of
proceedings shall, in relation to a ground of relief included, or sought to be
included, in a petition by virtue of the last preceding sub-section, be read
as a reference to the date on which the application for leave to amend the
petition was instituted.
(4) Where, in pending proceedings for a decree of dissolution of marriage,
the facts and circumstances that have been established, whether before or
after the commencement of this Act, by the petitioner in support of a ground
included in the petition are such that they would have established a ground or
grounds for the same relief under this Act if this Act had been in force at
the date of the petition and the proceedings had been instituted under this
Act, the bars to relief applicable in relation to the ground included in the
petition shall be those that would be applicable in proceedings on the ground
that would have been established under this Act, or, if more than one ground
would have been established, such one of those grounds as most nearly
corresponds to the ground included in the petition, and no other bars.
(5) In the case of pending proceedings, being proceedings for a decree of
nullity of marriage on the ground that the marriage is voidable by reason of
the parties being within the prohibited degrees of consanguinity or affinity
under the law of a State or of a Territory to which this Act applies, a decree
of nullity of the marriage shall not be made after the commencement of this
Act if the parties were not, at the time of the marriage, within one of the
degrees of consanguinity or affinity set out in the Second Schedule to this
Act.
(6) A decree of dissolution or nullity of marriage or of judicial separation
may be made in pending proceedings either on any basis of jurisdiction that
would have been applicable to the proceedings if this Act had not been passed
or on any basis of jurisdiction applicable to proceedings under Part VI of
this Act for the same relief.
(7) A reference in this section to a bar to relief shall be read as a
reference to a bar to the granting of the relief sought, whether absolute or
in the discretion of the court, other than a bar arising by virtue of section
forty-three of this Act.
(8) In this section-
''date of the petition'', in relation to a petition, means the date on which
the petition was filed in, or issued out of, a court;
''petition'' includes a writ of summons, a cross-petition, a
counter-petition, a counter-claim and an answer;
''petitioner'' includes a plaintiff, a cross-petitioner, a
counterpetitioner, a defendant counter-claiming and a respondent seeking
relief in an answer.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 113.
Application of this Act to pending proceedings for dissolution or nullity of
marriage, or judicial separation.
SECT
113. (1) Subject to section one hundred and fifteen of this Act, the
provisions of Part III, sections twenty-nine, thirty and thirty-one (including
those sections as applying to proceedings for a decree of judicial separation
by virtue of section fifty-three), sections forty-six, fifty-one, fifty-four
to fifty-eight (inclusive) and sixty-seven, Parts VII to XII (inclusive) and
Part XIV of this Act apply, so far as they are capable of application, to and
in relation to pending proceedings, being proceedings for a decree of
dissolution or nullity of marriage or judicial separation, as if those
proceedings had been instituted under this Act and any decree made in the
proceedings had been made in proceedings so instituted.
(2) Subject to section one hundred and fifteen of this Act, the provisions
of sections seventy to seventy-five (inclusive) of this Act apply to and in
relation to pending proceedings, being proceedings for a decree of dissolution
of marriage or nullity of a voidable marriage, other than proceedings in which
a decree nisi has been pronounced before the commencement of this Act, as if
those pending proceedings had been instituted under this Act and any decree
made in the proceedings had been made in proceedings so instituted.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 114.
Continuance of other pending proceedings.
SECT
114. Subject to the next succeeding section, pending proceedings
constituting a matrimonial cause, not being proceedings for a decree of
dissolution or nullity of marriage or of judicial separation, shall be deemed
to have been instituted and dealt with under this Act and may be continued and
dealt with under this Act.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 115.
Special provisions as to pending appeals or existing rights to appeal.
SECT
115. (1) Notwithstanding section one hundred and eleven of this Act, where
in any proceedings constituting a matrimonial cause a decree has been made
before the commencement of this Act-
(a) any appeal in respect of that decree may be continued or instituted;
(b) any new trial or rehearing ordered upon the hearing of such an appeal,
or upon an appeal heard before the commencement of this Act, may be had and
completed; and
(c) any decree may be made upon any such appeal, new trial or rehearing,
and, if a decree so made is a decree nisi, the decree may be made or become
absolute,
as if this Act had not been passed.
(2) In this section, ''appeal'' includes-
(a) an application for leave or special leave to appeal;
(b) an application for a new trial or a rehearing; and
(c) an intervention.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 116.
Special provisions relating to decrees of restitution of conjugal rights under
previous law.
SECT
116. (1) Subject to this section, paragraph (k) of section twenty-eight of
this Act shall be deemed to apply in relation to a decree of restitution of
conjugal rights made by a court in Australia before the commencement of this
Act in like manner as it applies in relation to decrees made under this Act.
(2) Where there has been, whether before or after the commencement of this
Act, a failure to comply with a decree referred to in the last preceding
sub-section made before the date of commencement of this Act and that failure
enabled, or would, if this Act had not been passed, have enabled, the party in
whose favour the decree was made to institute proceedings for dissolution of
marriage forthwith upon that failure, proceedings for dissolution of marriage
may be instituted by that party under this Act as if the words ''for a period
of not less than one year'' were omitted from paragraph (k) of section
twenty-eight of this Act and as if section forty-three of this Act had no
application to proceedings on the ground specified in that paragraph.
(3) For the purposes of proceedings brought by virtue of this section (other
than proceedings under the last preceding sub-section), the requirements of a
decree of restitution of conjugal rights made before the commencement of this
Act shall, notwithstanding that any time limited by law for compliance with
those requirements has expired, be deemed to have continued so long as the
decree did not, by order of a competent court, cease to have effect.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 117.
Special provisions relating to certain Western Australian marriages.
SECT
117. (1) Subject to this section, where, in the case of a marriage that took
place before the date of commencement of this Act and subsisted immediately
before that date-
(a) the validity of the marriage would be determined, but for this Act, in
relation to any of the circumstances referred to in the next succeeding
paragraph, in accordance with the law of the State of Western Australia; and
(b) at the time of the marriage-
(i) either of the parties to the marriage was incapable of consummating
the marriage;
(ii) the consent of either of the parties was not a real consent because
it was obtained by duress or fraud or because that party was mentally
incapable of understanding the nature of the marriage contract; or
(iii) either of the parties was not of marriageable age,
the marriage is, by force of this Act, voidable.
(2) The last preceding sub-section does not enable a decree of nullity to be
made under this Act by reason of the fact that a party was not of marriageable
age, where-
(a) the parties have freely cohabited as man and wife after the incapable
party attained an age of capacity to marry; or
(b) the proceedings are brought by the other party and that other party was
aware of the facts before the marriage.
(3) Sub-section (1) of this section does not enable a decree of nullity to
be made under this Act by reason of duress or fraud practised on the party
bringing the proceedings where that party has freely cohabited with the other
party as man and wife after the duress or with full knowledge of the facts
constituting the fraud.
(4) In the case of a marriage to which this section applies a decree of
nullity shall not be made-
(a) on the ground of incapacity to consummate the marriage-upon the
petition of the party suffering from the incapacity, unless that party was not
aware of the existence of the incapacity at the time of the marriage; or
(b) on the ground that the consent of a party was obtained by duress or
fraud-except on the petition of that party.
(5) The provisions of section forty-nine of this Act apply in relation to a
marriage that is voidable under this section by reason of the incapacity of a
party to consummate the marriage.
(6) Notwithstanding anything contained in this section, where proceedings
for a decree of dissolution of marriage on a ground arising from any of the
matters referred to in paragraph (b) of sub-section (1) of this section have
been instituted before the commencement of this Act, the proceedings may be
continued and dealt with as if the preceding provisions of this section had
not been enacted.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 118.
Hearings to be in open court.
SECT
PART XIV-MISCELLANEOUS
118. (1) Except to the extent to which the rules make provision for
proceedings, or part of proceedings, to be heard in chambers, the jurisdiction
of a court under this Act shall, subject to the next succeeding sub-section,
be exercised in open court.
(2) Where, in proceedings under this Act, the court is satisfied that there
are special circumstances that make it desirable, in the interests of the
proper administration of justice, that the proceedings, or any part of the
proceedings, should not be heard in open court, the court may order that any
persons not being parties to the proceedings or their counsel or solicitors
shall be excluded during the hearing of the proceedings or the part of the
proceedings, as the case may be.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 119.
Proceedings to be heard without jury.
SECT
119. Proceedings under this Act constituting a matrimonial cause shall be
heard and determined by the court sitting without a jury.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 120.
Transactions intended to defeat claims.
SECT
120. (1) In proceedings under this Act, the court may set aside or restrain
the making of an instrument or disposition by or on behalf of, or by direction
or in the interest of, a party, if it is made or proposed to be made to defeat
an existing or anticipated order in those proceedings for costs, damages,
maintenance or the making or variation of a settlement.
(2) The court may order that any money or real or personal property dealt
with by any such instrument or disposition may be taken in execution or
charged with the payment of such sums for costs, damages or maintenance as the
court directs, or that the proceeds of a sale shall be paid into court to
abide its order.
(3) The court shall have regard to the interests of, and shall make any
order proper for the protection of, a bona fide purchaser or other person
interested.
(4) A party or a person acting in collusion with a party may be ordered to
pay the costs of any other party or of a bona fide purchaser or other person
interested of and incidental to any such instrument or disposition and the
setting aside or restraining of the instrument or disposition.
(5) In this section, ''disposition'' includes a sale and a gift.
Section 121 repealed by No. 99, 1965, s. 18.
* * * * * * * *
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 122.
Position of clergy as to re-marriage.
SECT
122. A minister of religion is not bound to solemnize the marriage of a
person whose former marriage has been dissolved, whether in Australia or
elsewhere, otherwise than by death.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 123.
Restrictions on publication of evidence.
SECT
123. (1) Except as provided by this section, a person shall not, in relation
to any proceedings under this Act, print or publish, or cause to be printed or
published, any account of evidence in the proceedings, or any other account or
particulars of the proceedings other than-
(a) the names, addresses and occupations of the parties and witnesses, and
the name or names of the member or members of the court and of the counsel and
solicitors;
(b) a concise statement of the nature and grounds of the proceedings and of
the charges, defences and counter-charges in support of which evidence has
been given;
(c) submissions on any points of law arising in the course of the
proceedings, and the decision of the court on those points; or
(d) the judgment of the court and observations made by the court in giving
judgment.
(2) The court may, if it thinks fit in any particular proceedings, order
that none of the matters referred to in paragraph (a), (b), (c) or (d) of the
last preceding sub-section shall be printed or published or that any matter or
part of a matter so referred to shall not be printed or published.
Amended by No. 60, 1966, s. 3.
(3) A person who contravenes sub-section (1) of this section, or prints or
publishes, or causes to be printed or published, any matter, or part of a
matter, in contravention of an order of a court under the last preceding
sub-section, is guilty of an offence punishable, on conviction-
(a) in the case of a first offence, or a second or subsequent offence
prosecuted summarily-by a fine not exceeding One thousand dollars or
imprisonment for a period not exceeding six months; and
(b) in the case of a second or subsequent offence, being an offence
prosecuted on indictment-by a fine not exceeding Two thousand dollars or
imprisonment for a period not exceeding one year.
(4) Proceedings for an offence against this section shall not be commenced
except by, or with the written consent of, the Attorney-General.
(5) The preceding provisions of this section do not apply to or in relation
to-
(a) the printing of any pleading, transcript of evidence or other document
for use in connexion with proceedings in any court or the communication of any
such document to persons concerned in the proceedings;
(b) the printing or publishing of a notice or report in pursuance of the
direction of a court;
(c) the printing or publishing of any publication bona fide intended
primarily for the use of members of the legal or medical profession, being-
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(d) the printing or publishing of a photograph of any person, not being a
photograph forming part of the evidence in proceedings under this Act.
(6) In this section, ''court'' includes an officer of a court investigating
a matter in accordance with the rules and ''judgment of the court'' includes a
report made to a court by such an officer.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 124.
Injunctions.
SECT
124. A court exercising jurisdiction under this Act may grant an injunction,
by interlocutory order or otherwise (including an injunction in aid of the
enforcement of a decree), in any case in which it appears to the court to be
just or convenient to do so and either unconditionally or upon such terms and
conditions as the court thinks just.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 125.
Costs.
SECT
125. In proceedings under this Act, the court may, subject to the rules,
make such orders as to costs and security for costs, whether by way of
interlocutory order or otherwise, as the court thinks just.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 126.
Frivolous or vexatious proceedings.
SECT
126. (1) The court may, at any stage of proceedings under this Act, if it is
satisfied that the proceedings are frivolous or vexatious, dismiss the
proceedings.
(2) The court may, at any stage of proceedings under this Act, if it is
satisfied that the allegations made in respect of a party to the proceedings
are frivolous or vexatious, order that that party be dismissed from the
proceedings.
MATRIMONIAL CAUSES ACT 1959-1973 - SECT. 127.
Rules.
SECT
Sub-section (1) amended by No. 99, 1965, s. 19.
127. (1) The Governor-General may make rules, not inconsistent with this
Act, for or in relation to the practice and procedure of the courts having
jurisdiction under this Act, or any of them, including rules-
(a) prescribing matters relating to the costs of proceedings and the
assessment or taxation of those costs;
(b) prescribing the court fees to be charged in respect of proceedings
under this Act or in relation to declarations, affidavits, instruments,
documents, searches or extracts;
(c) authorizing a court to refer to an officer of the court for
investigation, report and recommendation claims or applications for or
relating to the custody of children or maintenance or any other matter before
the court;
(d) authorizing an officer making an investigation referred to in the last
preceding paragraph to take evidence on oath or affirmation, and to obtain and
receive in evidence a report from a welfare officer, and enabling the
summoning of witnesses before an officer making such an investigation for the
purpose of giving evidence or producing books and documents;
(e) regulating the procedure of a court upon receiving a report of an
officer who has made an investigation referred to in paragraph (c) of this
sub-section;
(ea) providing for the manner of service of process of a court under this
Act, and for dispensing with such service;
(f) authorizing an officer of a court to perform and exercise, on behalf of
the court or otherwise, in relation to proceedings under this Act, functions
and powers not involving the exercise of the judicial power of the
Commonwealth and enabling the court to review the decision of that officer in
relation to the performance or exercise of any function or power;
(g) providing for proceedings in forma pauperis and the remission of court
fees in the case of persons authorized to proceed in forma pauperis; and
(h) prescribing matters incidental to the matters specified in the
preceding paragraphs of this sub-section.
(2) Sections forty-eight, forty-nine and fifty of the Acts Interpretation
Act 1901-1957 apply to and in relation to rules made under the last preceding
sub-section in like manner as they apply to and in relation to regulations.
(3) Rules made under sub-section (1) of this section have effect
notwithstanding anything contained in any rules or other provisions made in
pursuance of the next succeeding sub-section.
Amended by No. 99, 1965, s. 19.
(4) The power of a Judge or Judges, or of another authority, under the law
of a State or of a Territory to which this Act applies to make rules of court
or other provisions in relation to the practice and procedure of the Supreme
Court of that State or Territory extends, by force of this Act, to the making
of rules of court or other provisions (not inconsistent with this Act or with
any rules made by the Governor-General for the time being in force under this
Act) providing for a matter in respect of which rules may be made under
sub-section (1) of this section.
(5) Rules or other provisions made in accordance with the last preceding
sub-section, other than rules of the Supreme Court of the Australian Capital
Territory, shall be deemed not to be statutory rules within the meaning of the
Rules Publication Act 1903-1939.
(6) Until rules or other provisions have been made in accordance with this
section, and so far as rules or other provisions so made do not provide for
the circumstances of any particular case, the practice and procedure,
immediately prior to the commencement of this Act, of the Supreme Court of a
State or of a Territory to which this Act applies (including powers of the
Court as regards costs) shall, subject to this Act and the Constitution,
apply, as far as practicable, to and in relation to matters arising in that
Court under this Act.
-----------
MATRIMONIAL CAUSES ACT 1959-1973 - FIRST SCHEDULE
SCH
THE SCHEDULES
FIRST SCHEDULE
Sections 12 (2),
17
OATH OR AFFIRMATION BY MARRIAGE GUIDANCE COUNSELLOR OR MARRIAGE CONCILIATOR
I, A.B., do swear by Almighty God (or solemnly and sincerely affirm and
declare) that I will not disclose to any person any communication or admission
made to me in my capacity as a marriage guidance counsellor (or marriage
conciliator) except in so far as it is necessary for me to do so for the
proper discharge of my functions as a marriage guidance counsellor (or
marriage conciliator).
MATRIMONIAL CAUSES ACT 1959-1973 - SECOND SCHEDULE
SCH
SECOND SCHEDULE*
Section
19
PROHIBITED DEGREES OF CONSANGUINITY AND AFFINITY
Consanguinity. Affinity.
Marriage of a man is prohibited if the woman is, or has been, his-
Ancestress Wife's mother
Descendant Wife's grandmother
Sister Wife's daughter
Father's sister Wife's son's daughter
Mother's sister Wife's daughter's daughter
Brother's daughter Father's wife
Sister's daughter Grandfather's wife
Son's wife
Son's son's wife
Daughter's son's wife
Marriage of a woman is prohibited if the man is, or has been, her-
Ancestor Husband's father
Descendant Husband's grandfather
Brother Husband's son
Father's brother Husband's son's son
Mother's brother Husband's daughter's son
Brother's son Mother's husband
Sister's son Grandmother's husband
Daughter's husband
Son's daughter's husband
Daughter's daughter's
husband
For the purposes of this Schedule, it is immaterial whether the relationship
is of the whole blood or half-blood, or whether it is traced through, or to,
any person of illegitimate birth.
MATRIMONIAL CAUSES ACT 1959-1973 - THIRD SCHEDULE
SCH
Substituted by No. 60, 1966, s. 4.
THIRD SCHEDULE
Section
106
ENFORCEMENT OF ORDERS FOR MAINTENANCE
1. In this Schedule, unless the contrary intention appears-
''attachment of earnings order'' means an order under paragraph 5 of this
Schedule;
''defendant'', in relation to a maintenance order or to proceedings in
connexion with a maintenance order, means the person liable to make payments
under the order;
''earnings'', in relation to a defendant, means any moneys payable to the
defendant-
(a) by way of wages or salary (including any fees, bonus, commission,
overtime pay or other emoluments payable in addition to wages or salary); or
(b) by way of pension, including-
(i) an annuity in respect of past services, whether or not the
services were rendered to the person paying the annuity; and
(ii) periodical payments in respect of or by way of compensation for
the loss, abolition or relinquishment, or any diminution in the emoluments, of
any office or employment,
but not including any pay or allowances as a member of the Defence Force
or any moneys payable to the defendant under the Social Services Act
1947-1966, the Repatriation Act 1920-1966, the Repatriation (Far East
Strategic Reserve) Act 1956-1964, the Repatriation (Special Overseas Service)
Act 1962-1965 or the Seamen's War Pensions and Allowances Act 1940-1966;
''employer'', in relation to a defendant, means a person (including the
Crown in right of the Commonwealth or a State, the Administration of a
Territory to which this Act applies and any authority of the Commonwealth, of
a State or of a Territory to which this Act applies) by whom, as a principal
and not as a servant or agent, earnings are payable or are likely to become
payable to the defendant;
''maintenance order'' means an order under this Act for the payment of
maintenance, and includes such an order that has been discharged if any
arrears are recoverable under the order;
''net earnings'', in relation to an attachment of earnings order and in
relation to a pay-day, means the amount of the earnings becoming payable on
that pay-day to the defendant by the employer to whom the order is directed,
after deduction from those earnings of-
(a) any sum deducted from those earnings under Division 2 of Part VI of
the Income Tax Assessment Act 1936-1966;
(b) any sum of a kind referred to in section 82H of that Act deducted
from those earnings, not being a sum deducted in respect of a life insurance
premium other than a life insurance premium payable under a superannuation or
retirement benefit scheme; and
(c) any sum of a kind referred to in section 82HA of that Act deducted
from those earnings;
''normal deduction'', in relation to an attachment of earnings order and in
relation to a pay-day, means an amount representing a payment at the normal
deduction rate specified in the order, or at the normal deduction rate so
specified that is applicable to that pay-day, as the case may be, in respect
of the period between that pay-day and either the last preceding pay-day, or,
where there is no last preceding pay-day, the date on which the employer
became, or last became, the defendant's employer;
''pay-day'' means an occasion on which earnings to which an attachment of
earnings order relates become payable;
''protected earnings'', in relation to an attachment of earnings order and
in relation to a pay-day, means the amount representing a payment at the
protected earnings rate specified in the order in respect of the period
between that pay-day and either the last preceding pay-day, or, where there is
no last preceding pay-day, the date on which the employer became, or last
became, the defendant's employer.
2. In this Schedule-
(a) a reference to an order includes, in relation to an order that has been
varied, a reference to the order as so varied;
(b) a reference to a person entitled to receive payments under a
maintenance order is a reference to a person entitled to receive payments
under the maintenance order either directly or through another person or for
transmission to another person;
(c) a reference to proceedings relating to an order includes a reference to
proceedings in which the order may be made; and
(d) a reference to costs incurred in proceedings relating to a maintenance
order shall be read, in the case of a maintenance order made by the Supreme
Court of a State or of a Territory to which this Act applies, as a reference
to such costs as are included in an order for costs relating solely to that
maintenance order.
3. Subject to this Schedule, a person entitled to receive payments under a
maintenance order may apply to-
(a) the court that made the order; or
(b) the court in which the order is for the time being registered under
section 103 or section 105 of this Act,
for an attachment of earnings order.
4. An application under the last preceding paragraph may be made ex parte
and without specifying the name of any employer of the defendant.
5. If the court is satisfied that the defendant is a person to whom earnings
are payable or are likely to become payable and-
(a) that, at the time when the application was made, there was due under
the maintenance order and unpaid an amount equal to not less than-
(i) in the case of an order for weekly payments-four payments; or
(ii) in any other case-two payments; or
(b) that the defendant has persistently failed to comply with the
requirements of the order,
the court may, in its discretion, by an order require a person who appears to
the court to be the defendant's employer in respect of those earnings or a
part of those earnings to make out of those earnings or that part of those
earnings payments in accordance with paragraph 13 of this Schedule.
6. The court shall not make an attachment of earnings order if it appears to
the court, in a case to which sub-paragraph (a) of the last preceding
paragraph applies, that the failure of the defendant to make payments under
the maintenance order was not due to his wilful refusal or culpable neglect.
7. An attachment of earnings order shall specify a normal deduction rate or
normal deduction rates and, where it specifies two or more such rates, it
shall also specify the pay-day or pay-days to which each of those rates is
applicable.
8. The rate to be specified as a normal deduction rate shall be the rate at
which the court considers it to be reasonable that the earnings to which the
order relates should, or should on the pay-day or pay-days to which the rate
is to be applicable, as the case may be, be applied in satisfying the
requirements of the maintenance order but not exceeding the rate that appears
to the court to be necessary for the purpose of-
(a) securing payment of the sums from time to time falling due under the
maintenance order; and
(b) securing payment within a reasonable time of any sums already due and
unpaid under the maintenance order and any costs incurred in proceedings
relating to the maintenance order that are payable by the defendant.
9. An attachment of earnings order shall also specify the protected earnings
rate, that is to say, the rate below which, having regard to the resources and
needs of the defendant and of any person for whom he must or reasonably may
provide, the court considers it to be reasonable that the net earnings of the
defendant on any pay-day should not be reduced by a payment under the order.
10. An attachment of earnings order shall provide that payments under the
order are to be made to an officer of the court specified in the order.
11. An attachment of earnings order shall contain such particulars as the
court thinks proper for the purpose of enabling the person to whom the order
is directed to identify the defendant.
12. An attachment of earnings order does not come into force until the
expiration of seven days after the day on which a copy of the order is served
on the person to whom the order is directed.
13. An employer to whom an attachment of earnings order is directed, being
an attachment of earnings order that is in force, shall, in respect of each
pay-day, if the net earnings of the defendant exceed the sum of-
(a) the protected earnings of the defendant; and
(b) so much of any amount by which the net earnings that became payable on
any previous pay-day were less than the protected earnings in relation to that
pay-day as has not been made good on any other previous pay-day,
pay, so far as that excess permits, to the officer specified for the purpose
in the order-
(c) the normal deduction in relation to that pay-day; and
(d) so much of the normal deduction in relation to any previous pay-day as
was not paid on that pay-day and has not been paid on any other previous
pay-day.
14. A payment made by the employer under the last preceding paragraph is a
valid discharge to him as against the defendant to the extent of the amount
paid.
15. Where proceedings for attachment are brought in a court under section
102 of this Act, or where proceedings are taken in a court of summary
jurisdiction to enforce an order registered in that court under section 105 of
this Act, the court may, instead of making any other order, make an attachment
of earnings order.
16. Where an attachment of earnings order is in force, no writ, order or
warrant of commitment or attachment shall be issued or made in proceedings for
the enforcement of the maintenance order that were begun before the making of
the attachment of earnings order unless the court in which those proceedings
were taken otherwise orders.
17. The court by which an attachment of earnings order has been made may, in
its discretion, on the application of the defendant or a person entitled to
receive payments under the maintenance order, make an order discharging,
suspending or varying the attachment of earnings order.
18. An order suspending or varying an attachment of earnings order shall not
come into force until the expiration of seven days after the date on which a
copy of the order is served on the person to whom the attachment of earnings
order is directed.
19. An attachment of earnings order ceases to have effect-
(a) upon the issuing or making of a writ, order or warrant of commitment or
attachment for the enforcement of the maintenance order in relation to which
the attachment of earnings order applies;
(b) upon the discharge of the attachment of earnings order; or
(c) subject to the next succeeding paragraph, upon the discharge or
variation of that maintenance order.
20. Where it appears to the court discharging a maintenance order that
arrears under the order will remain to be recovered under the order, the court
may, in its discretion, direct that the attachment of earnings order shall not
cease to have effect until those arrears have been paid.
21. Where an attachment of earnings order ceases to have effect, the proper
officer of the court by which the order was made shall forthwith serve notice
in writing accordingly on the person to whom the order was directed.
22. Where an attachment of earnings order ceases to have effect, the person
to whom the attachment of earnings order is directed does not incur any
liability in consequence of his treating the order as still in force at any
time before the expiration of seven days after the date on which the notice
required by the last preceding paragraph is served on him.
23. A person to whom an attachment of earnings order is directed shall,
notwithstanding anything in any other law, but subject to this Schedule,
comply with the order.
24. Where, on any occasion on which earnings become payable to a defendant,
there are in force two or more attachment of earnings orders in relation to
those earnings, the person to whom the orders are directed-
(a) shall comply with those orders according to the respective dates on
which they came into force and shall disregard any order until an earlier
order has been complied with in relation to those earnings; and
(b) shall comply with any order as if the earnings to which the order
relates were the residue of the defendant's earnings after the making of any
payment under any earlier order.
25. Where, on any occasion on which earnings become payable to a defendant,
there is in force, in addition to an attachment of earnings order under this
Act, a State attachment of earnings order directed to the employer in respect
of the defendant, being an order that came into force before the order under
this Act came into force, the employer shall-
(a) disregard the order under this Act for the purpose of complying with
the State attachment of earnings order; and
(b) comply with the order under this Act as if the earnings to which the
order relates were the residue of the defendant's earnings after the making of
any payment under the State attachment of earnings order.
For the purposes of this paragraph-
''maintenance order'', means an order for the payment of money made under,
or enforceable under, a law of a State or Territory of the Commonwealth that
makes provision in relation to the maintenance of wives, children or other
persons including an order for payment of expenses of any kind or for payment
of costs and an order for the recoupment of moneys spent in, or provided for,
the maintenance of a person or meeting expenses of any kind;
''State attachment of earnings order'' means an order called an attachment
of earnings order made, for the purpose of enforcement of a maintenance order,
in accordance with the law of a State or Territory of the Commonwealth,
including an order made by virtue of the Maintenance Orders (Commonwealth
Officers) Act 1966.
26. For the purposes of paragraphs 24 and 25 of this Schedule, where a
variation of an order has come into force, the order shall be deemed to have
come into force as so varied on the day upon which the order came into force.
27. A person who makes a payment in compliance with an attachment of
earnings order shall give to the defendant a notice in writing specifying
particulars of the payment.
28. Where a person on whom a copy of an attachment of earnings order that is
directed to him is served-
(a) is not the defendant's employer at the time when the copy of the order
is served on him; or
(b) is the defendant's employer at that time but ceases to be the
defendant's employer at any time before the order ceases to have effect,
the person shall give notice in writing accordingly to the proper officer of
the court that made the order and shall so give notice-
(c) in a case to which sub-paragraph (a) of this paragraph
applies-forthwith after the copy of the order is served on the person; and
(d) in a case to which sub-paragraph (b) of this paragraph
applies-forthwith after the person ceases to be the defendant's employer.
29. Where proceedings relating to an attachment of earnings order are
brought in any court, the court may, either before or after the hearing-
(a) order the defendant to furnish to the court, within a specified period,
a statement signed by the defendant specifying-
(i) the name and address of his employer, or, if he has more employers
than one, of each of his employers;
(ii) particulars as to the defendant's earnings; and
(iii) such particulars as are necessary to enable the defendant to be
identified by any of his employers; and
(b) order any person who appears to the court to be an employer of the
defendant to give to the court, within a specified period, a statement signed
by him or on his behalf containing such particulars as are specified in the
order of all earnings of the defendant that became payable by that person
during a specified period.
30. A document purporting to be a statement referred to in the last
preceding paragraph shall, in any proceedings relating to an attachment of
earnings order, be received in evidence and shall, unless the contrary is
shown, be deemed without further proof to be such a statement.
31. The court by which an attachment of earnings order has been made shall,
on the application of the person to whom the order is directed, of the
defendant or of the person in whose favour the order was made, determine
whether payments to the defendant of a particular class or description
specified in the application are earnings for the purposes of that order.
32. A person to whom an attachment of earnings order is directed who makes
an application under the last preceding paragraph does not incur any liability
for failing to comply with the order with respect to any payments of the class
or description specified in the application that are made by him to the
defendant while the application, or any appeal from a determination made on
the application, is pending.
33. The last preceding paragraph does not apply in respect of any payment
made after the application has been withdrawn or any appeal from a
determination made on the application has been abandoned.
34. The officer to whom an employer pays any sum in pursuance of an
attachment of earnings order shall pay that sum to such person entitled to
receive payments under the maintenance order as is specified by the attachment
of earnings order.
35. Any sum received by virtue of an attachment of earnings order by the
person entitled to receive it shall be deemed to be a payment made by the
defendant to that person, so as to discharge first any sums due and unpaid
under the maintenance order (a sum due at an earlier date being discharged
before a sum due at a later date) and secondly any costs incurred in
proceedings relating to the maintenance order that were payable by the
defendant when the attachment of earnings order was made or last varied.
36. A copy of an order or other document that is required or permitted to be
served on a person other than an incorporated company, society or association
under this Schedule may be served on the person-
(a) by delivering the document to the person personally;
(b) by leaving the document at the usual place of residence or business of
the person, or at the last place of residence or business of the person known
to the person on whose behalf the document is being served, with a person who
apparently resides in, or is employed at, that place and is apparently over
the age of sixteen years; or
(c) by properly addressing and posting (under prepaid postage) the
documents as a registered letter to the person at any place referred to in the
last preceding sub-paragraph.
37. A copy of an order or other document that is required or permitted to be
served on an incorporated company, society or association under this Schedule
may be served on the company, society or association-
(a) by leaving the document at any place of business of the company,
society or association, or at any place that is the registered office of the
company, society or association under the law of any State or Territory to
which this Act applies, with a person who is apparently employed at that place
and is apparently over the age of sixteen years; or
(b) by properly addressing and posting (under prepaid postage) the document
as a registered letter to the company, society or association at any place
referred to in the last preceding sub-paragraph.
38. Service of a document in accordance with sub-paragraph (c) of paragraph
36, or sub-paragraph (b) of paragraph 37, of this Schedule shall, unless the
contrary is proved, be deemed to have been effected at the time at which the
letter would be delivered in the ordinary course of post.
39. The rules may make provision for or in relation to the service on the
Commonwealth, on a State, on the Administration of a Territory to which this
Act applies or on a body corporate (not being an incorporated company, society
or association) incorporated for a public purpose by or under a law of the
Commonwealth, of a State or of such a Territory of copies of orders or other
documents that are required or permitted to be so served under this Schedule.
40. A person who-
(a) fails to comply with a requirement of this Schedule, or of an order
under this Schedule, that is applicable to him;
(b) in any statement or notice furnished to a court under this Schedule or
in compliance with an order made under this Schedule makes a statement that he
knows to be false or misleading in a material particular; or
(c) recklessly furnishes such a statement or notice that is false or
misleading in a material particular,
is guilty of an offence punishable, on conviction, by a fine not exceeding Two
hundred dollars.
41. It is a defence if a person charged with an offence arising under
sub-paragraph (a) of the last preceding paragraph proves that he took all
reasonable steps to comply with the requirement or order.
42. A person who dismisses an employee, or injures him in his employment, or
alters his position to his prejudice, by reason of the circumstance that an
attachment of earnings order has been made in relation to the employee or that
the person is required to make payments under such an order in relation to the
employee is guilty of an offence punishable, on conviction, by a fine not
exceeding Two hundred dollars.
43. In any proceedings for an offence arising under the last preceding
paragraph, if all the facts and circumstances constituting the offence, other
than the reason for the action of the person charged with having committed the
offence, are proved, the burden lies upon that person to prove that he was not
actuated by the reason alleged in the charge.
44. Where a person is convicted of an offence arising under paragraph 42 of
this Schedule, the court by which he is convicted may order that the employee
be reimbursed any wages lost by him and may also direct that the employee be
reinstated in his old position or in a similar position.
45. Where a court has made an order under the last preceding paragraph for
the reimbursement of any wages lost by an employee, a certificate under the
hand of the clerk or other proper officer of the court specifying the amount
ordered to be reimbursed and the persons by whom and to whom the amount is
payable, may be filed in a court having civil jurisdiction to the extent of
that amount and is thereupon enforceable in all respects as a final judgment
of that court.
46. The several courts of the States are invested with federal jurisdiction,
and jurisdiction is conferred on the courts of the Territories to which this
Act applies, in matters arising under this Schedule.
47. The jurisdiction with which the several courts of the States are
invested by the last preceding paragraph is subject to the conditions and
restrictions specified in sub-section (2) of section 39 of the Judiciary Act
1903-1966 so far as they are applicable.
48. Notwithstanding anything contained in the Judiciary Act 1903-1966, an
appeal does not lie to the High Court from an order of a court of summary
jurisdiction under this Schedule.
49. This Schedule has effect in relation to a defendant notwithstanding any
law that would otherwise prevent the attachment of his earnings or limit the
amount capable of being attached.
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--
MATRIMONIAL CAUSES ACT 1959-1973 - NOTES
NOTES
1. The Matrimonial Causes Act 1959-1973 comprises the Matrimonial Causes Act
1959 as amended by the other Acts specified in the following table:
----------------------------------------------------------------------------
Number Date of
Act and year Date of
Assent commencement
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Matrimonial Causes Act
1959 No. 104, 1959 16 Dec 1959 1 Feb 1961 (see
Gazette 1960, p.
4245)
Matrimonial Causes Act
1965 No. 99, 1965 13 Dec 1965 1 Feb 1966 (see
Gazette 1965, p.
5521)
Matrimonial Causes Act
1966 No. 60, 1966 29 Oct 1966 (a)
Statute Law Revision Act
1973 No. 216, 1973 19 Dec 1973 31 Dec 1973
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(a) Section 2 of the Matrimonial Causes Act 1966 provides as follows:
''2. (1) Sections 1, 2 and 3 of this Act shall come into operation on the
day on which this Act receives the Royal Assent.
''(2) The remaining provisions of this Act shall come into operation on
the day on which the Maintenance Orders (Commonwealth Officers) Act 1966 comes
into operation.''
The Maintenance Orders (Commonwealth Officers) Act 1966 came into
operation on a date fixed by Proclamation. The date fixed was 1 April 1969
(see Gazette 1969, p. 1548).
The Matrimonial Causes Act 1971-1973 shall be read as one with this Act. A
print of that Act follows.
2. As to the application of sections 18, 19 and 20 of the Matrimonial Causes
Act 1959-1973 and the Second Schedule to that Act generally in relation to
marriages under the Marriage Act 1961-1973, see section 22 of the Marriage Act
1961-1973; as to the application of sections 18 and 19 of the Matrimonial
Causes Act 1959-1973 and the Second Schedule to that Act in relation to
adopted children, see sections 23 and 24 of the Marriage Act 1961-1973.