The law and administration of divorce and related matters and the clauses of the Family Law Bill 1974

Barely two months after the Standing Committee on Constitutional and Legal Affairs was established in 1971, an inquiry into Australia’s family and divorce law was referred to it on the motion of then Leader of the Opposition in the Senate, Lionel Murphy. Murphy’s aim was to make ‘simple, dignified, inexpensive proceedings’ available for divorcing Australians. The committee commenced its inquiry in early 1972, tabling a brief interim report in October.

Murphy, a member of the committee from 1971 to 1973 and subsequently the Attorney-General, went on to introduce the Family Law Bill 1974 in the Senate, which sought a complete reform of family and divorce law in Australia amid a period of great social change and expectation.

The committee’s ongoing inquiry was broadened to include consideration of the bill and its final report, tabled in October 1974, made a number of significant recommendations to improve it. These included the introduction of the principle of ‘no-fault’ divorce and the establishment of the Family Law Council and the Family Court of Australia.

Nearly all the committee’s recommendations were adopted and the bill was passed into law with a substantial majority, coming into effect from 5 January 1976.

Lois D’Arcy. (CC-BY-SA-4.0)

Marriage celebrants

Another of Lionel Murphy’s achievements as Attorney-General was the 1973 establishment of the Civil Marriage Celebrant Program. Murphy, who felt strongly that non-churchgoers should have the option of a meaningful secular ceremony, personally appointed the first hundred civil celebrants.

Murphy was opposed by his political party, public servants and even his personal staff. On 19 July 1973, defying them all, he hand-typed a letter appointing 26-year-old Lois D’Arcy (left) as Australia’s first civil celebrant and posted it to her in the middle of the night.

Murphy’s initiative was ultimately extraordinarily popular—almost 80 per cent of Australian marriages are now performed by civil celebrants.

‘The Bolam divorce case in court’, Illustrated Australian News (Melbourne), 3 October 1883, p. 156, State Library Victoria, IAN03/10/83/156

Dreadful divorces

Before 1976, almost all divorce cases required one spouse to prove that their partner was guilty of cruelty, adultery or desertion—there was no such thing as a mutually agreed divorce. In some cases, divorcing couples had to invent scenarios and manufacture evidence.

As one submission to the committee noted, this adversarial system could only result in ‘bitterness and hatred between two people who once were friends and lovers’.

An already difficult situation was made worse by the lack of discretion and privacy. Newspapers freely published the sordid details of divorce cases and identified those involved.

Find out more

Alan Joseph Missen, committee member 1974-86, Interview with Toby Miller, 1980 National Library of Australia, TRC 732, session 3, 00:26:34-00:30:11. Full interview available at https://nla.gov.au/nla.obj-194676376/listen.
John Fogarty, ‘Establishment of the Family Court of Australia and its early years: a personal perspective’ Australian Institute of Family Studies , Family Matters no. 60 (September 2001)
Article—Alastair Nicholson CJ and Margaret Harrison, ‘Family Law and the Family Court of Australia: experiences of the first 25 years’, Melbourne University Law Review vol. 24 no. 3 (December 2000)
Article—‘The headache of going through the divorce court’ The Australian Women’s Weekly, 7 October 1970, p. 7