Matrimonial Causes Act 1959 (Cth)
MATRIMONIAL CAUSES ACT 1959 [Note: This Act is "repealed" by Act No. 53 of 1975]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)
- 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 (Repealed)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 toSECT
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.
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
----------------------------------------------------------------------------
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
----------------------------------------------------------------------------
(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.
0
0
0