In both instances there have been changes and modifications by legislative acts and judicial interpretations, but a Spanish judicial decision has even more weight in a Cuban tribunal than an English decision has in an American court because Cuba, being a younger Republic than the United States, is much nearer to its motherland in point of time, besides its closer resemblance in race, religion and customs.

CHAPTER x.x.xI.

COMMONWEALTH OF AUSTRALIA.

The Commonwealth of Australia, created by an act of the Imperial Parliament in 1900 (63 and 64 Vic. cap. 12), is a federal State under the supreme authority of the Crown of Great Britain.

This act of Parliament not only created a federal Commonwealth out of the colonies of Queensland, New South Wales, Victoria, South Australia, West Australia and Tasmania, but it also granted to the new Commonwealth a written const.i.tution which is obviously modeled upon that of the United States of America.

The const.i.tution provides that "every law in force in a colony which has become or becomes a State shall, unless it is by this const.i.tution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth or as at the admission or establishment of the State, as the case may be."

It is also provided that "when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid."

All powers not delegated to the central or federal government are reserved to the States.

However, in spite of its resemblance to other federal systems, the principle of the responsibility of ministers to Parliament proclaims its English parentage.

The judicial power is exercised under the const.i.tution by a federal supreme court, called the High Court of Justice, and other courts of federal jurisdiction.

It is expressly provided in the Australian const.i.tution that the Parliament of the Commonwealth shall, subject to the const.i.tution, have power to make laws for the peace, order and good government of the Commonwealth with respect to "divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants."

It will be observed that Parliament is given no power under the const.i.tution to make laws prescribing the qualifications for marriage, the impediments thereto, and regulations concerning the celebration. All such power is reserved by the respective States.

Moreover, the grant of power to Parliament to make laws with regard to "divorce and matrimonial causes" is not a power "by this const.i.tution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State."

Until the Parliament of the Commonwealth shall legislate on the subject, by pa.s.sing enactments concerning divorce and matrimonial causes superseding the existing statutes of the several States, the laws of each State will continue in operation.

In this chapter we shall consider, first, such laws and regulations concerning marriage and divorce as are in effect throughout the entire Commonwealth, and then, under separate headings, discuss the laws and regulations of each State.

MARRIAGE.--The courts of Australia, following the English courts, only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others.

The law of the place where marriage is celebrated--that is, the _lex loci celebrationis_--alone guides the court in ascertaining whether or not a marriage is regular. All the formal preliminaries, such as the publication of banns, or license, the consent of the parties ent.i.tled to give or withhold consent and the solemn declaration of the contracting parties before competent authority, according to the law of the place of celebration, must be complied with.

LEGAL AGE.--The legal age for marriage throughout the Commonwealth of Australia begins with fourteen years for a male and twelve years for a female.

PARENTAL CONSENT.--In all of the States parental consent is required for the marriage of males and females under twenty-one years of age.

BANNS OR LICENSE.--Unless a marriage license is procured banns must be published in the parish in which the parties reside, and if they live in different parishes the banns must be published in each parish.

Where a man has caused the banns to be published or has procured a license under a false name or names, or has been married under a false name or names, he will not be allowed to annul the marriage on that account. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage.

CONSANGUINITY AND AFFINITY.--The law considers it against public policy and morality, and contrary to the well-being of the parties, that persons closely related by blood or marriage should intermarry. Marriages are therefore prohibited between all ascendants and descendants, legitimate or illegitimate.

A man is also prohibited from marrying his stepmother, wife's mother, stepdaughter, daughter-in-law, son's daughter-in-law, daughter's daughter-in-law, stepson's daughter, stepdaughter's daughter, niece by blood, niece by affinity, or nephew's wife.

A woman is prohibited from marrying her uncle by blood or affinity, husband's uncle, father-in-law, stepson, son-in-law, son's son-in-law, daughter's son-in-law, stepson's son, stepdaughter's son, nephew by blood or affinity, or niece's husband.

ANNULMENT OF MARRIAGE.--A marriage may be annulled in any of the States of the Commonwealth upon competent proof showing:

1. A prior and existing marriage of one of the parties.

2. Impotency or such physical malformation of one of the parties which prevents him or her from consummating the marriage by s.e.xual intercourse.

3. Relationship within the prohibited degrees.

4. That the marriage was procured by fraud, violence or mistake as to ident.i.ty.

5. That one of the parties was insane at the time the marriage was concluded.

6. That the marriage was celebrated without the consent of the persons by law ent.i.tled to give or withhold consent.

7. That the marriage was performed without legal license, or the publication of banns, or solemnized before a person not having authority to officiate.

A marriage will not be annulled on the last ground stated if it appears that one of the parties acted in good faith and honestly believed that the person who solemnized the marriage had the required authority.

JUDICIAL SEPARATION.--A decree of judicial separation, which is equivalent to the old form of limited divorce (_a mensa et thoro_) may be obtained in any of the States for the following causes:

1. Adultery of either husband or wife.

2. Desertion without legal cause for two years or more.

3. Cruelty or abusive treatment of one spouse by the other.

It is an absolute bar to a suit for judicial separation that the pet.i.tioner has committed adultery since the marriage.

DIVORCE.--Absolute divorces completely dissolving the marriage bond are granted by the courts of every State in Australia. As every State has its separate statutes on the subject, which set forth the legal causes for divorce, we shall consider such causes in our discussion of each State separately.

DEFENCES.--In all the States condonation of a matrimonial offence, which is a legal cause for divorce, is a good defence to the pet.i.tion.

It is also a sufficient defence for the respondent to show that the offence complained of was committed by the connivance or active consent of the pet.i.tioner.

Connivance in adultery as a bar to divorce is founded on the doctrine _volenti non fit injuria_, the consent consisting in acquiescence, active or pa.s.sive, in the adulterous intercourse. Pa.s.sive acquiescence is a sufficient bar, provided it was carried out with the intention that the husband or wife would be guilty; but it must be something more than mere inattention, indifference or dulness of apprehension. The presumption, where the facts are equivocal, is in favour of absence of intention.

One spouse must not invite the other to commit adultery; but he or she may permit the licentiousness of the other spouse to have its full scope without being guilty of connivance.

It is not connivance to watch for the purpose of discovering a suspected fact so as to make conviction certain.

COLLUSION.--An illegal agreement and co-operation between a pet.i.tioner and a respondent in a divorce action to enable the pet.i.tioner to obtain a judicial dissolution is a fraud upon the court. Upon such collusion appearing the court, at its own instance, will dismiss the pet.i.tion.

DESERTION.--The High Court of Justice of the Commonwealth has defined desertion, which in several of the States is a legal cause for absolute divorce, as follows: "Desertion involves an actual and wilful bringing to an end of an existing state of cohabitation by one party without the consent of the other. Such 'consent' must be shown by something more than a mere mute acquiescence in an existing state of separation or non-resistance to abandonment. What is necessary is some communication of the intended acquiescence or non-resistance to the other by express words or by conduct."

FORM OF DIVORCE DECREE.--A decree of divorce in any of the States is granted _nisi_, or provisionally, and cannot be made absolute until three months have elapsed after the decree _nisi_ is entered.

A judicial separation may be granted, even if the suit is for an absolute divorce, if the court deems such a decree better meets the law and facts of the case.