Right: Family law specialist Julie Singleton has stated that the present "no-fault" system does not satisfy some divorce litigants who may have grievances they would like to air.
.Arguments against retaining 'no-fault' divorce
1. No-fault divorce may leave one partner with a sense of injustice
It has been claimed that the current 'no-fault' divorce provisions may mean that any 'injured' party in the divorce, the one who neither initiated the divorce nor mistreated the other partner may feel unfairly treated.
Family Law solicitor, Julie Singleton, has stated, 'I must admit that as a practitioner in the Family Law Area it is sometimes extremely difficult to explain to a client who has had their heart broken by a cheating wife or husband that it just doesn't matter as far as the law is concerned.
Somehow the wronged partner does want to be able to say that they were the innocent victim of the separation even if it only means just that, an acknowledgement that they were not the one's at fault for the marriage coming to an end means a lot.'
Ms Singleton went on to explain, 'Has no fault divorce really just created a escape for those who are responsible for ending the marriage when it suits them?...
I was in court the other day when a solicitor acting for a wife was trying to strike out parts of a husband's affidavit because if referred to his depression over his wife's affair... They argued that the affair was not relevant under the Family Law Act and should therefore be struck out. The husband's solicitor argued that the affair was relevant in showing the cause of the husband's actions post separation. The affair had caused the husband to suffer severe depression this caused the husband to cease being to be able to work for a period of months post separation. It was argued therefore that he reasonably used joint funds of the parties to support himself during this period.
...Every person in a failed marriage wants to know and understand why and how the marriage ended. To legislate that that does not matter surely is unrealistic because it matters the most. If we were to legally recognise that certain behaviour can result in the failure of your marriage (that is, a long affair or alcohol or drug abuse ) and that one party needs to admit that, even if it results in no additional weight is to be given it in property matters would help parties emotionally.'
In a review of Barry Maley's Divorce Law and the Future of Marriage by Bill Muehlenberg published by the Centre for Independent Studies in 2003, Muehlenberg outlined the problems 'no-fault' divorce created for the partner wishing to preserve the marriage. Muehlenberg stated, 'No-fault divorce has meant that any person can unilaterally pull out of a marriage, making marriage one of the most easily broken contracts around. The big loser in no-fault divorce of course is the spouse who wants to stay in the marriage. The person wanting out has all the advantages, and the outcomes are often quite one-sided. If both parties want out, fine, but in most cases, one spouse wants to make a go of it, but under the current regime he or she has little say, or leverage, in the matter. "The no-fault family law regime simply endorses desertion without comment or reproof."'
2. Children may need to be told the truth of their parents' separation
It has been argued that shielding children from knowing the causes of their parents' divorce may be in the best interests of neither the children nor their parents.
Family Law solicitor, Julie Singleton, has stated, 'We are... told by child counsellors that the children shouldn't be involved in the why's or how's of the marriage breaking down. That we should tell children it is a joint decision of Mummy and Daddy that they don't want to be together anymore.
But what if Mummy really loves Daddy and Daddy has left because he is in love with someone else. The kids keep asking Mummy why doesn't Daddy come and live back at home?
Is it really realistic to say that if mum or dad had an affair and has left the marriage that somehow everyone is going to be able to keep that from the children?
The emotional pain to some people can result in emotional breakdowns, depression, extreme sadness and sense of loss. To ask people to hide from their children the cause of this distress may in some circumstances be unrealistic, surely?'
3. No-fault divorce makes divorce too easy to get
There are those who argue that no-fault divorce has made it too easy for partners to end their marriage. They claim that Australia's divorce rate of some 48,000 marriage dissolutions is a human tragedy which often leaves behind unsettled children and welfare-dependent custodial parents.
Those who put this case argue that divorce should be less easy to obtain so that couples are required to strive harder to make their marriages succeed.
An editorial published in The Australian on July 14, 2009 supports this view. Titled, 'We make the disaster of divorce too easy', it states, 'In calling for a debate on divorce, Tony Abbott has done his own ambitions no good, but he has assisted all Australians in putting an intractable issue on the agenda - whether we are too tolerant of divorces that damage dependent children...
Clear-eyed individuals of all religions, and none, will recognise he has raised an issue that we have too long attempted to ignore. While the divorce rate peaked at the beginning of the decade, it is still around the 20-year trend, with 48,000 divorces in 2007. It is time to consider whether this is a figure that can be reduced without leaving people trapped in abusive relationships. And it is time to debate whether the rights of the 44,000 children whose parents divorce each year to be brought up in homes where they enjoy the full-time attention of cohabiting parents are being too easily ignored...
It is a system that works for people who agree their partnership has failed, and it helps many couples with dependent children to quarantine them from conflict. But too often the very process of divorce exacerbates, even creates, disputes...
In addition to the emotional impact, divorce is often an economic disaster for dependent children. While non-custodial parents who avoid their child support obligations are often better off after a family breakup, too many children are destined for economic disadvantage by divorce. More than one in five children now live in single-parent households, 90 per cent of these headed by women. And most of these mothers are poor, with social security rather than assistance from the other parent or paid work accounting for most of their income. In addition to the psychological disruption of growing up without both parents, children in single-parent families are 10 times likelier to live in a household where no one works. While we have heard for 35 years how children suffer when they live with unhappy parents, a generation has already grown up in homes where a passive life on welfare is the norm. The lessons they can too easily learn this way inevitably shape their own attitudes to work and family life as adults.'
4. No-fault divorce treats marriage as a lesser contract
It has been claimed that the protections surrounding marriage are far less than those which are afforded to other, less significant, contracts.
This point has been made by federal Opposition member, Mr Tony Abbott. Mr Abbott has stated, 'Something akin to Matrimonial Causes Act marriage ought to be an option for people who would like it ... Even though [marriage] is probably the most important commitment that any human being can make, in fact there are many, many contracts which are harder to enter and harder to get out of than this one.'
In an article published in the Courier Mail on April 24, 2009, Marcus Kuczynski, argued that marriage was far more important than the usual civil or commercial contract.
Mr Kuczynski stated, 'Getting married is widely regarded as one of the most important decisions a person is likely to make in their life.
One of the principal reasons is that it is seen as a lifelong contract or commitment, a formal and affirming statement of love between a man and a woman, and a building block for the basic unit of society - the family...
It's not like signing a contract for a loan or to buy a new car. We are talking about humans here.
Sure marriage is not always a bed of roses and there are never any iron-clad guarantees that couples will last the distance and uphold their vows of "till death do us part". But if they have made the decision to get hitched for the right reasons, it encourages them to try harder to live up to their promises.
Being able to opt out of their commitment every five years makes no sense.'
5. As proposed by Tony Abbott, marrying couples could decide whether they wanted fault provisions should they subsequently divorce
Mr Abbott's proposal is an attempt to strengthen the marriage contract, but only for those couples who wish to do so.
Under Mr Abbott's plan, couples would be given the option of being married under a new law akin to the now-defunct Matrimonial Causes Act, a fault-based system of divorce.
The act, abandoned in 1975 in exchange for a 'no-fault' system, provided 14 grounds for divorce, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity, or separation for more than five years.
Thus, couples who wished to do so, would enter into a form of marriage contract which it would be harder for them to dissolve should they later wish to end the marriage. Mr Abbott's thinking would appear to be that any couple who knew it would be harder for them legally to terminate their marriage would strive harder to make it work.
The opt-in nature of Mr Abbott's proposal appears to free it from the criticisms of those who claim that the member of the federal Opposition is attempting to force his own conservative and religiously-based social views on the Australian electorate. As it stands, were Mr Abbott's proposal ever to become law, only those Australians who wanted fault-based divorce provisions would be married under an act which included them.