FAMILY LAW: The innocent victims of ‘no-fault’ divorce

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.[2] Indeed, separation and divorce instigate more conflict, and in some circumstances cause formerly non-abusive partners to resort to violence.[3]

Arguably, issues resulting from separation and divorce, such as child arrangements, economic difficulties, lack of knowledge of family law, and a state of heightened emotions, often perpetuate and 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 11 years ago: “It is a common factor in wider social problems of crime, suicide, violence, poverty, child abuse and educational underperformance.”[5]

And yet, the 1975 change in Australia’s family law to no-fault divorce has created avenues for individuals to exploit others opportunistically and still receive the support of the law.[6] Above all, no-fault divorce has created uncertainty about the durability of marriage and a loss of confidence in a 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 should 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.

Before 1975, however, it was necessary for a spouse, in order to get a divorce, to prove that fault (i.e., serious misconduct) had been committed by the other spouse. 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 has described the consequences: “Current divorce law has 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 party.

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”.[8]

Indeed, 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 the 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 American 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”.[10]

Professor Baskerville explains: “Far more than marriage, divorce mobilises 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 when she was able to support herself.[12] On 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 were made. Under current rules, a spouse can betray the other spouse and be entitled to spousal m
aintenance as well as the custody of the children. Moreover, full-time mothers — those who are most committed to traditional marriage — are likely to be more disadvantaged after divorce when marital property is distributed by either 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 vacate 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]

Many faithful husbands and loving fathers have experienced this. 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.

Augusto Zimmermann, LLB, LLM, PhD (Monash), teaches legal theory and constitutional law at Murdoch University, Western Australia. He is also president of the Western Australian Legal Theory Association (WALTA) and editor of The Western Australian Jurist. Last year he published a widely acclaimed book, Western Legal Theory: Theory, Concepts and Perspectives (Sydney: LexisNexis Butterworths, 2013).