The “no-fault” divorce revolution that spread across the Western world was led in the 1970s by members of the cultural, academic, legal and political elites, in particular by radical feminists who made the case for easy divorce as a means of women’s liberation. By declaring marriage to be an oppressive institution, they demanded “no-fault” as a means of allowing wives to escape marriage and achieve a “right of exit”.1
Although divorce is generally perceived as a solution for unhappy spouses, in reality it sadly is not. Research shows that an important contextual factor accounting for family violence is actually separation and divorce.2Indeed, separation and divorce instigate more conflict, and in some circumstances cause formerly non-abusive partners to resort to violence.3Arguably, issues resulting from separation and divorce, such as child arrangements, economic problems, lack of knowledge of family law, and a state of heightened emotions, often exacerbate family conflict and violence.4
Family breakdown represents a formidable source of human misery and unhappiness. Barry Maley, a senior fellow at the Sydney-based Centre for Independent Studies (CIS), observed some years ago: “It is a common factor in wider social problems of crime, suicide, violence, poverty, child abuse, and educational social performance”.5
And yet, the 1975 change in Australia’s family law to “no-fault divorce” has opened up for individuals to exploit others opportunistically and still receive the support of the law.6Above all, no-fault divorce has created uncertainty about the durability of marriage and a loss of confidence in the time-honoured institution.
It is one thing to allow no-fault divorce for a failed marriage when both the husband and wife agree that they want a divorce. But it is quite another matter when a divorce occurs without mutual consent – that is, when one of the spouses unilaterally leaves the marriage. Unilateralism such as this should constitute unlawful desertion unless the spouse has been driven out of marriage by the other spouse’s misconduct. The deserted spouse should then be able to apply for divorce after one year’s separation, and the misconduct of the other spouse affect the terms of the divorce settlement.
When no-fault divorce was introduced in Australia, it was promoted as a way-out for marriages that both spouses agreed were over. It would protect people from the embarrassment of having to prove any fault.
Prior to 1975, however, it was necessary for a spouse to prove that fault (i.e.; serious misconduct) had been committed by the other spouse in order to get a divorce. Without proof of fault, a divorce would not be granted. Fault divorce meant that only the innocent party could apply for a divorce, and it would be open to the court to award a more favourable property settlement to the spouse who had been the victim of any serious misconduct.
The Family Law Act 1975, introduced by the Whitlam Labor government’s Attorney-General, Lionel Murphy, abolished the need to prove any serious misconduct to obtain a divorce. Either spouse could now freely terminate their marriage without any consent of the other party. This move to no-fault divorce meant that misconduct in a marriage became legally irrelevant. Dr Maley describes the consequences: “Current divorce law introduced a number of perverse incentives for behaviour that undermines confidence in marriage and sustains high divorce rates. It promotes marital uncertainty, opportunism and forms of spouse exploitation”.7
By disempowering a non-consenting spouse, the no-fault divorce has enlarged the scope for the other spouse to engage, without fear of penalty, in opportunistic behaviour – behaviour, moreover, which reaps personal benefits at the expense of the innocent person. According to John Hirst, a historian and social commentator at Melbourne’s La Trobe University, “it allows one partner to surprise the other with the declaration that the marriage is over without having to give reasons or undertake any negotiations on how fault will be acknowledged”.8Indeed, as Dr Maley explains:
Despite the continuing reality of serious marital misconduct, its costs and damages were no longer recognised by family law. It put an end to redress and compensation. It therefore removed a disincentive to irresponsible, selfish, or malicious behaviour within a marriage. It diminished the “contractual” element in marriage and the presumption that marriage entailed obligations and duties whose dereliction might bring punitive consequences. By removing the consensual settlement possibilities of fault divorce, it disempowered a non-consenting spouse by closing opportunity for bargaining mutually satisfactory terms to end a marriage.9
Under “no-fault” divorce, selfishness is therefore rewarded and considerations of justice and fairness expunged from the legal system. Because of its involuntary nature, no-fault divorce inescapably involves governmental arbitrariness. According to political theorist Stephen Baskerville, the no-fault principle “inescapably involves government agents forcibly removing legally innocent people from their homes, seizing their property, and separating them from their children. It inherently abrogates not only the inviolability of marriage but the very concept of private life”.10Professor Baskerville explains:
Far more than marriage, divorce mobilizes and expands government power. Marriage creates a private household, which may or may not necessitate signing some legal documents. Divorce dissolves a private household, usually against the wishes of one spouse. It inevitably involves state functionaries – including police and jails – to enforce the divorce and the post-marriage order. Almost invariably, the involuntarily divorced spouse will want and expect to continue enjoying the protections and prerogatives of private life: the right to live in the common home, to possess the common property, or – most vexing of all – to parent the common children. These claims must be terminated, using the penal system if necessary.11
The no-fault principle permeates the whole family court system in Australia. In no other area of legal contract does the law reward irresponsible behaviour. Rather, those who break a contract may expect to be punished. Under the old system, an “innocent” wife was fully entitled to “handsome maintenance” even where she was able to support herself.12On the other hand, a “guilty” wife was not entitled to maintenance unless she was responsible for young children and unable to support herself.
The post-1975 regime reversed this policy and fundamentally changed the principles on which financial and custody settlements are made. Under current rules, a spouse can betray the other spouse and be entitled to spousal maintenance as well as the custody of the children. Moreover, full-time mothers, those who are most committed to traditional marriage, tend to be rather disadvantaged when marital property is distributed at divorce either by agreement or court determination.13
Likewise, a conscientious husband, who is not guilty of any misconduct, is made extremely vulnerable by the prospect of losing contact with his children he has loved, protected and helped raise. The victimised father will be forced to maintain his “guilty” ex-wife and his now-separated children, to continue to pay the mortgage charges, to leave the family home, and to pay rent for a separate residence for himself. The father is therefore doubly victimised. Dr Maley writes: “His marriage and its expectations have been destroyed, he has largely lost his children, lost his home and a large part of his income. His prospects of mending his shattered and impoverished life, re-partnering and perhaps having other children, are minimal”.14
According to Babette Francis, there are two common scenarios here:
(1) There is the unfaithful husband who, after many years of marriage, dumps his loyal wife for a more nubile version. The first wife may get some property settlement, but is usually expected to support herself, even though she may have spent years out of the paid workforce raising their now-adult children. Feminists cheer at her struggles – they don’t like women being “dependent” on husbands, but take a benevolent view of them being dependant on an employer or on government benefits
(2) The other more common scenario is where the wife leaves, taking the children with her – and sometimes all the furniture too. These deserting wives get custody of the children, most of the value of the family house and the Child Support Agency ensures that the husbands pay maintenance for children they rarely see.The husband may also be forced to pay spousal maintenance for the unfaithful wife. Add bogus accusations of domestic violence or child abuse and the hapless father might find he is turfed out of his house and required to prove his innocence before he is allowed within 100 metres of his children.15
Many faithful husbands and loving fathers have experienced scenario two. The break-up may not involve a new lover. Rather, the wife may be just “tired” of being married and wanting to “start a new life”. One can hear the testimony of many husbands whose wives have run off and been awarded the sole custody of their children, while they were expected to pay child support and spousal maintenance. Of course, under no-fault divorce the conscientious husband will be treated exactly the same way as the unfaithful spouse, the one who has abandoned his wife and children.
Ultimately, no-fault-divorce undermines justice as it rewards irresponsible behaviour and makes a complete mockery of marital vows. Perhaps those who are marrying should consider declaring at their wedding ceremonies, “I promise you nothing”, or “I will leave you whenever I want”. To stabilise marriage, the Family Law Act must be amended to remove the present incentive of no-fault divorce, which enables a spouse to unilaterally leave a marriage without any fear of losing custody of children and property. This egregious legal anomaly is a standing invitation to irresponsible behaviour. If this urgent reform is not undertaken, the Family Court of Australia will continue to perpetuate injustice by rewarding those spouses responsible for grave marital misconduct and by separating children from their legally blameless parents.
1 R. Albert Mohler Jr., ‘The Divorce Divide – A National Embarrassment’ (2009) 30 (3) The Australian Family 12, 12.
2 Anne McMurray, ‘Domestic Violence: Conceptual and Practice Issues’ (2005) 18(3) Contemporary Nurse 219, 223.
3 Desmond Elllis and Noreen Stuckless, ‘Separation, Domestic Violence, and Divorce Mediation’ (2006) 23 Conflict Resolution Quaterly 461, 462.
4 Anne McMurray, ‘Domestic Violence: Conceptual and Practice Issues’ (2005) 18(3) Contemporary Nurse 219, 223.
5 Barry Maley, ‘Reforming Divorce Law’, (2012) 33 (1) The Australian Family 28-46, p.29.
6 Barry Maley, ‘Reforming Divorce Law’, (2012) 33 (1) The Australian Family 28-46, p.28.
7 Barry Maley, ‘Reforming Divorce Law’, (2012) 33 (1) The Australian Family 28-46, p.
8 John Hirst, ‘Family Court a Monstrosity’, News Weekly, April 9, 2005.
9 Barry Maley, ‘Reforming Divorce Law’, (2012) 33 (1) The Australian Family 28-46, p.32.
10 Stephen Baskerville, ‘Divorced from Reality’, Touchstone, January/February 2009.
11 Babette Francis, ‘No-Fault Principle Undermines Marriage’, News Weekly, April 23, 2005, at http://www.newsweekly.com.au/article.php?id=1998&s=USKRBa
12 Ailsa Burns, ‘Breaking Up: Separation and Divorce in Australia’ (Melbourne/Vic: Nelson, 1980), pp.21-22.
13 Barry Maley, ‘Reforming Divorce Law’, (2012) 33 (1) The Australian Family 28-46, p.35. See also: Grania Sheehan and Jody Hughes, ‘The Division of Matrimonial Property in Australia’, Family Matters 55 (Autumn 2000).
14 Barry Maley, ‘Reforming Divorce Law’, (2012) 33 (1) The Australian Family 28-46, p.43.
15 Babette Francis, ‘No-Fault Principle Undermines Marriage’, News Weekly, April 23, 2005, at http://www.newsweekly.com.au/article.php?id=1998&s=USKRBa