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To Have But Not To Hold

To Have But Not To Hold

A history of attitudes to marriage and divorce in Australia 1858-1975

By Henry Finlay

CONTENTSREVIEWSSUPPLEMENTS

An extraordinary revolution in family relationships took place in Australia between 1857 and 1976. Marriage changed from an institution to be preserved at almost any cost to a union of equal partners, to be dissolved when it had irretrievably broken down. A millennium of legal, social and religious practice was swept away in less than 120 years. Gender relations were transformed.

Change, however, was not straightforward or consistent. The Commonwealth parliament did not act until 1959 and different reforms took place at different times in the Colonies and States.

In To Have But Not To Hold, Henry Finlay recounts the transformation through the eyes of parliamentarians. Fierce and varied debates take place in which all shades of opinion are represented. Marriage is sacred. Marriage is an economic union. Marriage is a social contract. Women are dependent. Women are equal. Fault must be punished. Indissoluble marriage preserves the family and the foundations of society. Indissoluble marriage destroys people’s lives.

This book, by a leading scholar in family law, breaks new ground in its account of a fundamental change which underpins modern Australia’s attitudes.


CONTENTS

Cases/ Index

Foreword by The Hon Elizabeth Evatt AC

Part 1 Colonies and States

The Introduction of Divorce
England
Australia
Reception of Divorce in the Australian Colonies
South Australia: 1858
Tasmania: 1858-1860
Victoria: 1858-1861
Western Australia: 1863
Queensland: 1862-1864
New South Wales: 1861-1873
Divorce Extension and the Waning of Colonial Rule: The More Populous States
Victoria: 1864-1958
New South Wales: 1873-1958
Divorce Extension: The Smaller States
South Australia: 1888-1941
Queensland: 1875-1953
Western Australia: 1897-1957
Tasmania: 1919-1959

Part 2 Marital Relations in a Federation: 1901-1975

The Commonwealth Becomes Involved
The Matrimonial Causes Power
The Dobson Bill, A First Attempt: 1901
World War One, A Global Problem: 1919
World War Two - The Problem Grows: 1945
A Step Towards Uniformity: 1955
And another Step-The Joske Bill: 1957
The Commonwealth Takes Over
The Matrimonial Causes Debates: House of Representatives: 1959
The Matrimonial Causes Debates: The Senate: 1959
Marriage and the Constitution: 1962
A Matter of Family Law
The Family Law Debates: The Senate: 1973-1975
The Family Law Debates: House of Representatives: 1974-1975
Some Conclusions and a Forward Glimpse

Acknowledgements/ Introduction

REVIEWS

An insight into the changing attitudes and beliefs of politicians toward marriage, divorce and the transformation of the role of women, the family unit and a woman’s place within the last century. … The book provides a valuable perspective on the changing political views of divorce law and concurrent deeper social changes which propelled divorce law reform in this country.

Law Society Journal (NSW), Vol 43, September 2005

The introduction and conclusion are of considerable insight, interest and substance. The freely dissoluble marriage prior to the Council of Trent to the declining relevance today of the formal marriage itself mark the two historical extremes of the analysis and reflect a curious evolution of attitudes in the light of the increasing regulation of and consequences attaching to marriage.
The balance of the work records in considerable detail the commissions of enquiry and debates in each of the colonial legislatures and their successors surrounding the introduction and development of the various pieces of state and ultimately Commonwealth legislation. The research into these processes is meticulous and the result a comprehensive overview of the lengthy gestation that divorce legislation endured in parliamentary arena. …

NSW Bar News, Winter 2005

To have but not to hold is a major contribution to the history of divorce law in Australia. This scholarly work from one of Australia’s best-known family law academics, explores the revolution in family relationships that took place between 1857 and 1975. …
This fascinating and detailed account of the changes to, and the development of, Australian family law, focusses on the parliamentary debates of the time. This book is an exercise in ‘old school’ erudition involving the accumulation of small but important pieces of detail embedded in the social and legislative nooks and crannies of history. Straddling the disciplines of sociology, history and law, the book is likely to be of interest to family law academics, socio-legal historians, policymakers and those interested in the sociology of the family. This book is to have and to read.

Family Matters, No 70, Autumn 2005

I have to say that this is a fascinating book, … its pages are littered with example after example of what today we would quickly recognise as outrageous chauvinism on the part of the then, all male, politicians. …
… Henry Finlay has gone to extraordinary attempts to research this book and has quoted extensively from the Parliamentary debates of the time, thus giving the reader an opportunity to immerse oneself into the subject as if we had been observers at the time.
The book is not just an historical treatise. Rather, I think it gives us reason to pause and consider the present, 1975 legislation, not just in the context of following on from the Matrimonial Causes Act of 1959, but in the light, now, of well over one hundred years of spirited debate on women’s rights and the rights of children.

BJM, Tasmanian Law Society Newsletter

[A] parliamentary and legal history of divorce law reform by a legal academic with decades of experience and vast expertise in the field of family law. If you want to know when a particular colony introduced desertion as a ground for the dissolution of marriage, or when another abolished the sexual double standard for men and women when considering adultery in divorce cases, you will find the answer here – and particularly in the very useful table on pages 52-53.

Journal of Australian Colonial History, Vol 8 2006

The strength of To Have but Not To Hold lies in its very thorough documentation of the attitudes of politicians to divorce in Australia at a time when the colonies were seeking increased autonomy, and in the period following federation when the Commonwealth failed to exercise its matrimonial causes powers. Despite their limitations, the Parliamentary Debates and the other contemporary records provide a valuable insight into the public views of legislators operating in a very different social context from our own.

Melbourne University Law Review Vol 30 No 2, 2006

Finlay’s latest book begins to fill a significant gap in Australian legal history and is a welcome addition to his impressive body of achievements. It consists of excerpts from Parliamentary debates concerning divorce over 117 years.
… The book will interest many, including family, social, political and legal historians, and will be useful as a reference text for serious research. It should provoke broader studies that will show how major reforms are stifled or stumble into reality, despite the isolation of our Parliaments and the unrepresentative attitudes of our politicans.

The Newcastle Law Review, Volume 8 No 2, 2004-05

The history of the evolution of matrimonial law [from ‘save-marriage-at-all-costs’ c1858 to no fault divorce in 1976] has at times ranged from the sublime to the ridiculous. … This study in the social changes in the family as viewed by the church, the government and individuals is a fascinating insight into community feeling in Australia and makes for a very interesting read.

Ancestor, Vol 27 No 2

The overriding theme of the book is an examination of how changing social attitudes are reflected in law reform in relation to marriage and divorce. This is well illustrated by the three key shifts in the conceptual framework of Australian marriage and divorce laws that the book traces.
... There are several secondary themes that are interwoven through the text. A predominant one is that changing social attitudes in relation to marriage and divorce clearly reflect the changing role of women in society. ... Finlay assumes a feminist perspective of legislative reform.
... Finlay certainly achieves his goal to detail social and legal developments in relation to marriage and divorce laws from 1858 to 1975.

(2005) 26 Qld Lawyer


SUPPLEMENTS

Speech by Elizabeth Evatt AC, given at the launch


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Published 9 March 2005
Publisher The Federation Press
Hardback/448pp
ISBN 9781862875425
Australian RRP $69.50
International Price $63.00
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Law - Family
Australian History / Studies
Family Studies


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