I have a problem. I often get sucked down online rabbit holes and before I realise it, it’s 8pm and I haven’t left my desk since lunchtime. Last week I got sucked down one such rabbit hole and hoo boy, it’s a good one.

The Happily Ever… Before and After brochure

It all started when I went looking for the purpose behind the requirement for us to give the Happily Ever… Before and After brochure to our couples. Because that requirement is within section 42(5A) of the Marriage Act 1961, I knew it had been added after the Act was originally written. The capital letter at the end of a section or subsection number gives it away. If it was in there at the time of original publication, it would have its own section number. The capital letter means it was shoved in between two other sections at some later point.

I discovered this requirement had been added to the Act as part of the Marriage Amendment Bill 1976. I was hoping that reading the Explanatory Memorandum to the Bill as well as the Hansard records from the time would give me the purpose of the requirement to hand out this brochure. It did, sort of, good enough at least for what I was looking for.

The notice period

But then. Then I read the rest of the Explanatory Memorandum. And it was one of the other amendments in that Bill that really interested me:

Clause 13 – Notice to be given and declaration made: Paragraphs (a) and (b) of this clause provide for the extension of the minimum period for giving notice of intended marriage from 7 days to 1 month before the intended marriage [emphasis added].

What? The notice period used to be 7 days???? Whenever we have mentioned even the possiblity of considering decreasing the notice period, we have been utterly howled down by many celebrants, for reasons such as:

  • celebrants need at least a month to craft a personalised and meaningful ceremony
  • couples need plenty of time to make sure they’re not making a mistake
  • but the divorce rate!!!
  • anyone who needs to get married quicker can just apply for a shortening (it’s really not that easy!).

I immediately texted Josh (because that’s who I text about most of my marriage law discoveries).

Texts between Josh and Sarah

And hence, the rabbit hole. Josh took out a 24-hour subscription to the Sydney Morning Herald archives, I found the transcripts from the House of Representatives debates about the proposed amendments on Historic Hansard, and we were on the case. As well as we can figure out from the media coverage, the Bill, the Explanatory Memorandum, the debate in the House of Reps, and other historical research, here’s a brief history of the notice period and what happened to bring it up to one month.

Pre-1963

The Marriage Act 1961, the one that governs how couples marry in Australia today, came into force on 1 September 1963. Before that, marriage was managed by the individual States (the Territories were governed by the Commonwealth until 1978). They all had their own marriage laws with completely different rules around literally everything. One day I’ll write about all those differences (they’re utterly fascinating), but for this post I’m concentrating on the notice period.

Across the country, weddings in some Christian churches may have required the banns of marriage to be read for three consecutive Sundays. This was to ensure anyone who knew of any reason why the couple should not be married could make their knowledge known ahead of time. Reasons could include one of the couple being married to someone else, or the couple being too closely related by blood.

Otherwise, according to Antony Whitlam, Member for Grayndler (ALP), in his address during the debate on the Marriage Act Amendment Bill 1976 on 19 August 1976, (backed up by my fact checking) the notice periods for marriages across the country were as follows:

Queensland: no notice required

New South Wales: no notice required

Victoria: 3 days

Tasmania: 7 days

South Australia: 10 days

Western Australia: 7 days

Yes, you read that right. In New South Wales and Queensland, you could literally rock up to the District Registrar’s office, sign some declarations, and get married straight away.

Marriage Act 1961

When the Marriage Act 1961 was created, there was a LOT of debate about how long the notice period should be, but they eventually settled on 7 days. And that was all well and good for more than 10 years. Then came the Whitlam Government’s changes to divorce laws. We’re going on a bit of a tangent here, but it’s absolutely required.

Divorce pre-1976

Before the Family Law Act 1975, divorce was governed by the Matrimonial Causes Act 1959. Under that Act, you could only get divorced if you had already been married for three years, AND if you could prove that your spouse was at fault, and you had evidence of such. There were a whole bunch of different grounds for divorce:

  • adultery
  • desertion for at least two years
  • refusal to consummate the marriage
  • habitual cruelty for at least one year
  • the spouse has committed rape, sodomy, or bestiality
  • habitual drunkenness for at least two years (or parts thereof)
  • habitual intoxication from drugs for at least two years (or parts thereof)
  • the husband has had frequent convictions for crime, been sentenced to prison for at least three years, and left the wife without reasonable means of support (yes, the Act specifically says that the hsuband has committed the crimes and left the wife without support – none of the other reasons are specific as to which spouse is the guilty party!)
  • being in prison for at least three years for a crime punishable by death or imprisonment for life for more than five years
  • being convicted of having attempted to murder or inflict grievous bodily harm on their spouse within the last year
  • habitual refusal to pay maintenance for at least two years
  • failure to comply with a decree of restitution of conjugal rights for at least one year (basically a legal requirement for them to live together and “perform marital services” – feel free to interpret that however you like)
  • being of unsound mind and unlikely to recover
  • being confined to an institution for at least five years for being of unsound mind
  • absence for long enough and under such circumstances as to presume death
  • separation for at least five years.

Collecting evidence of any of these grounds for divorce was time-consuming and expensive. Plus there was the expense of appointing a solicitor and a barrister, and don’t forget the humiliation involved in proving one of these grounds. All in all it was a mess.

Family Law Act 1975

The Family Law Act 1975 changed all of that by introducing no-fault divorce. The person applying for the divorce simply had to declare that the marriage had broken down irretrievably, which was proven by the fact that the couple had been separated for at least 12 months. That was (and is) it. Divorce under the Family Law Act 1975 was far more accessible than it had been under the Matrimonial Causes Act – it was cheaper, less time consuming, and far simpler.

The Family Law Act was created by the Whitlam Labor Government. It passed through Parliament and was enacted on 12 June 1975, just a few months before Whitlam was dismissed and Parliament was dissolved on 11 November 1975. That’s relevant to this story because at the ensuing election, the Coalition won power with the largest majority in Australia’s history: 91 House of Representatives seats to Labor’s 36.

The Family Law Act and therefore no-fault divorce came into force on 5 January 1976. In the first quarter of 1975, there had been 6261 divorces. In comparison, Following the introduction of no-fault divorce, the first quarter of 1976 saw 21,846 divorces. What happened? The new Coalition government FREAKED THE FUCK OUT. Honestly, I don’t know what they were expecting: a divorce was now way easier and cheaper to get, of course there were going to be more of them!

Marriage Amendment Bill 1976

And now we finally come to the point. Horrified by the massive “flood” of divorces (as described by the Sydney Morning Herald on 9 May 1976), the Coalition created the Marriage Amendment Bill, which was designed to “discourage the formation of hasty or ill-advised marriages” (Bob Ellicott, Attorney-General, 3 June 1976).

Thus entered more funding for pre-marriage education, the requirement that we tell couples about pre-marriage education by giving them the Happily Ever… Before and After brochure, and the change to the notice period from 7 days to 1 month. After passing through Parliament unimpeded, the new laws came into force on 20 June 1977.

And that’s why we have the 1 month’s notice period for marriage in Australia.

Has it worked?

These amendments were designed to “take positive steps to underpin marriage and the family as part of society”. As reported in the Sydney Morning Herald on 9 May 1976, they were “to offset the rising levels of divorce.”

At the time these amendments were being drafted, 1 in 6 marriages ended in divorce. Now, it’s somewhere between 1 in 2 and 1 in 3 marriages end in divorce (this article suggests 44%).

Clearly, these amendments did NOT work to slow down the divorce rate. It therefore begs the question, is the one month notice period of any use in today’s Australia? Increasing the notice period didn’t have the proposed impact, so is there any point maintaining it? Why not consider bringing it back to 7 days, or even 3 days like our friends across the pond in New Zealand? No, I’m not saying I think the notice period should definitely be 3 days. I’m saying I think we should look at it and seriously consider whether a month is the most appropriate notice period for Australia in the 21st century.

 

Quotes from various stakeholders in 1976

If you’re interested, here’s some quotes from various stakeholders in 1976.

Bob Ellicott, Attorney-General (Coalition)

A widely made suggestion for promoting marriage stability is that persons should be made to wait longer before being able to marry. I have received suggestions that persons should have to wait up to 12 months before being able to marry. Although the opinion of marriage counselling experts is somewhat divided on the value of long engagements, the Government saw merit in the proposal to extend the minimum period for giving notice of intended marriage beyond the existing period of 7 days. Proposals for substantial expansion of this period had to be weighed against the consideration that, in principle, arbitrary restrictions on a fundamental right such as the right to marry should not be lightly imposed. The Government decided that the best compromise would be to increase the minimum period of notice of intended marriage to 1 month, which is the period proposed in many of the suggestions received [emphasis added].

I said earlier that I did not believe for one moment- I do not think I ever suggested it- that by increasing the time for giving notice of intention to marry from 7 days to one month we would suddenly solve all problems. However, this proposal emphasises the fact that those entering marriage ought to think more carefully about it and about the obligations of marriage. If they do they are more likely to have a more lasting marriage. That is the theory behind it.

Jack Birney, Member for Phillip (Coalition)

The whole purpose of the Marriage Amendment Bill is without doubt to uphold the institution of marriage by instilling in persons desiring to enter into the marriage state a perceptiveness of the obligations and responsibilities of the marriage vows. This is most laudable at a time when the institution of marriage in many quarters is being held up to ridicule and indeed in contempt.

Maurice Neil, Member for St George (Coalition)

This clause has received the most favourable public reaction. There have been numerous Press reports. I understand telegrams have been received by the Government stating that the extension of the period is an admirable idea as it signifies to the nation the importance of thinking about marriage and of arranging it in a sober fashion and in a sober time space

Antony Whitlam, Member for Grayndler (ALP)

The proposal is that the minimum period of notice which intending partners to a marriage should give will be extended from 7 days to 30 days. That is a gross invasion of civil liberties.

From the kind of information I put before the House, it appears that not significantly more people in Queensland before 1961 who were married and who had to give no notice of their intention to marry have had their marriages come unstuck than persons in South Australia where, before this Parliament legislated, 10 days notice had to be given.

There is no logic whatsoever in extending the period of notice to 30 days.

Albert James, Member for Hunter (ALP)

I am opposing the provision in this legislation for the extension of notice from 7 days to one month. This would prolong the agony that a young couple have to suffer when they are in love, they are going to have a child and they want to get married as soon as possible.

Gordon Scholes, Member for Corio (ALP)

We delude ourselves if we think that will make any significant difference in the degree of breakdown of marriage. Marriage breaks down for a variety of reasons. I do not think delaying the decision to marry by an additional 3 weeks will make a great deal of difference to that breakdown.

Lionel Bowen, Member for Kingsford Smith (ALP)

This legislation when introduced in 1961 was based on what we might call a non-party philosophy. The basis for the provision that we are now considering is that 7 days would be a sufficient period for the purpose involved. In my view, that provision was related more to giving adequate notice to enable a celebrant to organise the necessary details than to suggesting that this would be the minimum period required for the parties to get to know each other [emphasis added].

Vic Parsons, civil celebrant (quoted in The happy making of a marriage, the civil way, The Age, 11 May 1976)

This will be a general imposition on the community that is not going to be beneficial.

In Victoria, before the Commonwealth took over marriage in 1961, people wanting to wed were required to give only three days’ notice, and still the divorce rate increased.

Time has nothing to do with divorce. What it is really is a sign of the times.

This is to placate a certain conservative section of the community concerned about the divorce rate.