Marriage has evolved from a relatively stable bond to a highly uncertain one. High divorce rates, the substitution of cohabitation for marriage, later ages at marriage, falling fertility and the ill effects of family instability on children and adults have occurred in conjunction with social and economic changes, including changes in family law.
- The 1975 change to unilateral, no-fault divorce is identified as a factor in marital instability and high divorce rates. It has created uncertainty about the durability of marriage, loss of confidence in it and opened up new opportunities for spouses to exploit each other opportunistically.
- Reform should retain no-fault divorce where the spouses are agreed that they want to divorce, but remove unilateralism by requiring that all divorce applications (after the usual one year’s separation) have the consent of both husband and wife.
- Where there is not mutual consent to divorce, unilaterally leaving a marriage would constitute serious marital misconduct, that is, desertion (unless the spouse concerned has been driven out of the marriage by the other spouse’s misconduct). The deserted spouse could apply for divorce after one year’s separation and claim that misconduct should affect the terms of the divorce settlement. Also, if other forms of serious misconduct have occurred, it would be open to a spouse to claim and prove the misconduct. If proven, the Court could award damages via the divorce settlement.
- A survey of 5,700 adult men and women shows that three out of four – across various age groups, men and women, the married and the unmarried, and those with or without children – believe that serious misconduct in marriage should influence a divorce settlement.
- The objectives of the reforms are:
- to recognise the reality and damage of serious marital misconduct, to discourage it and to compensate the victims as far as possible, but without requiring proof of misconduct as a condition of divorce;
- to end unilateralism;
- to establish a balance of incentives and disincentives in family law that will help to stabilise marriages and restore confidence in marriage as a dependable bond between a man and woman.
Women substantially committed to a ‘traditional’ or ‘neotraditional’ marriage combining children and domesticity with workforce participation are vulnerable to disadvantageous divorce settlements, while men are vulnerable to losing contact with their children.
Barry Maley is Senior Fellow at The Centre for Independent Studies (CIS) and former Director of the Centre's Taking Children Seriously research program, completed in 2001. This paper is an edited extract from his forthcoming book Divorce Law and the Future of Marriage. His most recent book is Family & Marriage in Australia (CIS 2001).