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The Divorce and Matrimonial Causes jurisdiction was established by An Act to Confer Jurisdiction on the Supreme Court in Divorce and Matrimonial Causes, 1873 (36 Vic Act No 90. The Court could now annul marriages, authorise judicial separation, or order the restitution of conjugal rights. A Judge in the Jurisdiction of Divorce was to be appointed with a right of appeal to the full court. Grounds for divorce or judicial separation were adultery, bigamy, rape, sodomy, bestiality, cruelty or desertion for at least two years. If the separation or divorce was requested on grounds of adultery, the adulterer was to be a correspondent in the case. The Court needed to be satisfied that there had not been collusion of an act of adultery to secure a divorce or separation. A jury could determine matters of fact, and appeal to a full court, which may approve a new trial, was available. Witnesses were to be examined orally allowing for cross-examination. The judge could order the husband to pay alimony. Following a judicial separation a wife became the sole owner of any property. If the Court found grounds for divorce a decree nisi was granted. If the decree nisi was not rescinded and there was no appeal against it, the decree became absolute after three months. However if there were dependent children, arrangements for their well being had to be made before a decree absolute could be granted.
In 1881 the Matrimonial Causes Act Amendment Bill (1877) gained royal assent. There were five sections to the Act, all devoted to enabling dissolution of a marriage at the suit of a wife for a husband’s adultery.
The Matrimonial Causes Amendment Act, 1884 (98 Victoria Act No. 3) altered some details in the principal Act and set down regulation concerning the empanelment of and procedures for a jury when required in divorce matters.
The Divorce Amendment and Extension Act, 1892 (55 Victoria No. 37) received assent in January, 1892. This Act set out grounds for divorce, desertion, habitual drunkenness, cruelty or neglect of a wife, repeated criminal convictions or a commuted capital conviction, and penal servitude, or repeated violent assaults. A Puisne Judge presided over this court for which a jury was not routinely engaged except by the request of the parties. Appeal was available to the full Court. The judge had the power to forbid publication of evidence heard before the Court, failure to comply with this order being considered as a contempt of court. The Court had power to make orders regarding the distribution of property and the granting of alimony. A Judge could assent to a divorce case being heard before a Circuit Court.
The Matrimonial Causes Procedure Amendment Act, 1893 [56 Vic. Act No. 36] permitted majority verdicts, cut down fraudulent evasion of alimony, maintenance or costs, and altered the law as to restitution of conjugal rights. The Divorce Judge was able to refer questions of law to the Full Court, and to order solicitor-and-client costs.
The Consolidating Matrimonial Causes Act, 1899 changed the previous instrument in detail only. This remained the statute regulating the marriage proceedings until the Commonwealth of Australia’s Matrimonial Causes Act 1959 which came into effect on 1 February, 1961 superseding the states` divorce laws.
The Commonwealth bestowed the Federal Jurisdiction in divorce upon the states. The Matrimonial Causes Division was abolished by the Supreme Court Act, 1970 (Act No. 52, 1970) and its business was transferred to the newly named Divorce Division. Through the Administration of Justice Act, 1973 (Act No.19, 1973) the Division underwent a further title change from 19 April 1973 to become the Family Law Division. This reflected a wider range of responsibilities than the Divorce Division including the adoption of children and the custody of infants.
The Matrimonial Causes Act, 1959 was superseded by the Family Law Act (Commonwealth in 1975) which was proclaimed to commence on 5 January, 1976 - an Act which dealt with a range of family issues beyond the scope of the repealed Act. The Act established the Family Court of Australia, and made provision for the states to establish State Family Courts. New South Wales elected not to establish a State Family Court. State Supreme Courts all possessed concurrent jurisdiction over custody, maintenance and property disputes and had the power to grant injunctions. The New South Wales Supreme Court maintained its Family Law Division as part of its Civil Law Division until 2 May 1977, when following the change of Supreme Court rules, family and divorce issues were moved to the Equity Jurisdiction.
In 1987 the Australian Family Court’s jurisdiction over custody and child welfare became exclusive and was removed from the states, however, it remained subject to state adoption and child welfare laws which continued to see cases before the state courts. Likewise property issues between couples often impinge on state rather than federal legislation as do maintenance issues for families inadequately provided for under the will of a deceased person. The granting of injunctions for the adoption of children remains with the state.
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