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”.

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

Fraught

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.

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.”

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. Above all, no-fault divorce has created uncertainty about the durability of marriage and a loss of confidence in a time-honoured institution.

Unjust

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.”

Exploitation

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”.

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.”

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”.

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