PUBLIC RECORD OFFICE
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-
2
No. 45. (VICTORIA.)
QUEEN'S ADVOCATE to COLONIAL OFFICE. MY LORD DUKE,
Doctors' Commons, December 18, 1860. I AM honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 7th December instant, stating that he was directed to transmit copy of
■ Despatch (No. 14, 17th April 1858) addressed by Lord Stanley to Governor Barkly in answer to a petition from the Synod of the United Church of England, Ireland, and Scotland in Victoria as to the expediency of enacting a law of divorce.
"
Sir Frederic Rogers was also pleased to enclose a Despatch from Sir Henry Barkly submitting "An Act to amend the law relating to divorce and matrimonial causes in Victoria," which, in accordance with Lord Stanley's instructions, he has reserved for the signification of Her Majesty's pleasure, as it contains a provision for the dissolution of marriages on the ground of desertion, which does not form part of the present law of England.
Sir Frederic Rogers was also pleased to enclose copies of a correspondence between Governor Barkly and the Bishop of Melbourne upon the additional clause, and a petition from the Roman Catholic bishop praying that the Bill may be disallowed, and to request that I would take these papers into consideration, and with special reference to the clause respecting divorce on account of desertion, report to your Grace my opinion whether there is any reason why the Act in question should not be confirmed.
In obedience to your Grace's commands, I have taken these papers into considera- tion, and have the honour to
Report
That I am of opinion that the Act in question should not be confirmed with the provision in section thirteen as it now stands, to the effect that desertion without reasonable cause by either party for a period of four years should of itself constitute a sufficient ground of dissolution of their marriage.
If this provision were either omitted or so altered as to place the law of the Colony in conformity with the law of England, I see no other reason why the Act should not be confirmed.
The objections to this provision are not of a purely legal or technical nature; there is no merely legal reason why the Act should not be confirmed, the objections thereto are proper for the consideration of Her Majesty's Government in its Imperial character, they give rise to the most serious questions of moral and social policy, and of the principles and spirit which should influence the whole system of Imperial jurisprudence on the subject of dissolution of marriage, more especially in relation which enjoy representative Legis- to those Colonies by "occupation and settlement latures and what is now called "responsible Governmenta."
I can only suggest that in the absence of any special reasons, a general conformity with the law of England, if not on the subject of divorce generally, at all events on the subject of the dissolution of marriages, should in all fresh Colonial legislation on the subject be kept steadily in view by Her Majesty's Government. This is clearly contemplated by Lord Stanley's Despatch to Sir H. Barkly of April 17th, 1858, and many Colonies have since the recent alteration of the law of England passed Colonial Acts in entire conformity with the Imperial Statute 20 & 21 Vict. cap. 85.
This Act is, as far as I am aware, the first instance of an entire deviation therefrom in a most important point, and if confirmed it will operate to a certain degree as a precedent in favour of similar and even further deviations in Colonial legislation from the principle of the English law in "pari materiâ.”
The serious results of conflicts of law between different portions of the British dominions, especially on the subject of divorce, are so obvious as to need no comment; they are fraught with the saddest consequences both to individuals and to society, and those which exist already (as between England and Scotland) are admitted to be blemishes and faults in our jurisprudence.
I can find no special reasons whatsoever in the papers for sanctioning this parti cular enactment, no ground is suggested which would not apply to other Colonies by
0 16278.-536. 25.-9/86.