2009/15: Should Australia return to 'fault-based' divorce?<BR>

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2009/15: Should Australia return to 'fault-based' divorce?<BR>

2009/15: Should Australia retain 'no fault'-based divorce?

What they said...
'Requiring fault would be bound to hurt the children who will be caught in the crossfire'
Barbara Dafoe Whitehead, an American sociologist

'Has no fault divorce really just created a escape for those who are responsible for ending the marriage when it suits them?'
Julie Singleton, Family Law solicitor

The issue at a glance
On July 10, 2009, Tony Abbott, the Opposition families and Aboriginal affairs spokesperson called for a return to the fault-based system of divorce which was discarded in 1975, to be replaced by a 'no-fault' system.
Mr Abbott's plan, outlined in his soon-to-be released book, 'Battlelines', would see additional grounds for divorce reintroduced, including adultery, cruelty, habitual drunkenness and imprisonment.
It would be similar to the defunct Matrimonial Causes Act.
Mr Abbott's proposal has met with a mixed response. Some groups have welcomed what they see as an attempt to address some of the shortcomings of the Family Law Act. Others have been highly critical of what they see as a return to an adversarial and unsatisfactory system.
It is interesting to note that no member of Mr Abbott's own party has come out and given unqualified support to his proposal.

Background
Current divorce provisions in Australia
You can apply for a divorce in Australia if either you or your spouse:
regard Australia as your home and intend to live in Australia indefinitely, or
are an Australian citizen by birth, descent or by grant of Australian citizenship, or
ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
You need to satisfy the Court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
To apply for a divorce, you must complete an Application for Divorce and file it with the Court and pay the application fee. You may be eligible for a fee exemption or waiver.
If you apply for a divorce together with your spouse, it is a joint application and you and your spouse are joint applicants.
If you apply for a divorce by yourself, you are a sole applicant and your spouse is the respondent.
You may prepare your own divorce application or ask a lawyer to do it for you. The Application for Divorce Kit has instructions for completing the application and filing it. It includes an Application for Divorce form.

What a court considers in divorce applications
The Family Law Act 1975 established the principle of no-fault divorce in Australian law. This means that a court does not consider why the marriage ended.
The only ground for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.

Children and property
The granting of a divorce does not decide issues about property and maintenance or parenting arrangements for your children. If you want to make arrangements about these issues you can:
make an agreement with your spouse and file it with a court, or
seek orders from a court, where you and your spouse cannot reach an agreement.
For parenting cases, you also have the option to make a parenting plan. .
If you want to apply for maintenance for yourself or a division of property, you must file a separate application within 12 months of the date the divorce becomes final.

Matrimonial Causes Act
The act, abandoned in 1975 in exchange for a 'no-fault' system, provided fourteen grounds for divorce, including adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity, or separation for more than five years.

Internet information
On July 11, 2009, The Sydney Morning Herald published a news report titled, 'Make it harder to divorce: Abbott'. The report gives some information on Tony Abbott's proposal that fault-based divorce be reintroduced. The full text of the article can be found at http://news.smh.com.au/breaking-news-national/make-it-harder-to-divorce-abbott-20090711-dgu2.html

On July 12, 2009, The Sydney Morning Herald published a news report titled, 'Abbott plugs fault-based divorce option', which outlines Tony Abbott's proposal to re-introduce opt-in fault-based divorced. The full text of the article can be found at http://news.smh.com.au/breaking-news-national/abbott-plugs-faultbased-divorce-option-20090712-dh2o.html

On July 12, 2009, The Sydney Morning Herald published a feature article giving more details of Tony Abbott's proposal regarding fault-based divorce. The article is written by Josh Gordon and is titled 'Battlelines are drawn with a nod to family tradition'. The full text of this article can be found at http://www.smh.com.au/national/battlelines-are-drawn-with-a-nod-to-family-tradition-20090711-dgp1.html

On July 14, 2009, the Internet social commentary site, socialcritic.net, published an opinion piece critical of Mr Abbott's fault-based divorce proposal. The full text of this comment can be found at http://www.socialcritic.net/no-fault-divorce/

On July 18, 2009, The Sydney Morning Herald published a feature article titled, 'The love-hate reality of Murphy's law'. The article presents in some detail arguments for and against no-fault divorce. The full text of this article can be found at http://www.smh.com.au/lifestyle/the-lovehate-reality-of-murphys-law-20090717-do8h.html

On July 25, 2009, Radio National's AM program presented a range of views from a variety of stakeholders on the federal review of the Family Law Act. These comments indicate the wide divergence of opinion on the current operation of the Act and the benefits and disadvantages that could result from its reform.
A full transcript of the program can be found at http://www.abc.net.au/am/content/2009/s2636240.htm

Family Law solicitor, Julie Singleton, has published an opinion piece on her Internet site. Ms Singleton gives qualified support to a reintroduction of fault-based divorce. The full text of this opinion can be found at http://www.juliesingleton.com/blog/?p=20

On December 26, 2006, Radio National's The Law Report examined the shortcomings of fault-based divorce. A full transcript of the program can be found at http://www.abc.net.au/rn/lawreport/stories/2006/1812502.htm

The United States Christian commentary site Leadership U has published two opinion pieces - one supporting fault-based divorce, the other opposing it. Though these comments derive from an American context, many of the arguments are relevant to the Australian situation. The full text of these opinion pieces can be found at http://www.leaderu.com/ftissues/ft9708/articles/gallagher.html

Arguments in favour of retaining 'no-fault' divorce
1. Divorces are likely to be more acrimonious or unpleasant if fault provisions are re-introduced
It has been claimed that fault-based divorce tends to be far less pleasant than no-fault divorce. Establishing grounds for divorce often involved the hiring of private detectives to prove grounds such as adultery. Sometimes one or more of the partners in the divorce created false grounds to justify a divorce.
In an article published in The Sydney Morning Herald on July 18, 2009, Rick Feneley and Stephanie Peatling noted, 'This week private investigators recalled the dark old days of gathering the required damning evidence, when they would crash into motel rooms in a blaze of flashbulbs to catch adulterers in the act; when a husband would hire a prostitute to pose as his lover, so desperate was he to escape an unhappy marriage; when couples, agreeing they wanted to part, would resort to such fraud to persuade the Divorce Court; when newspapers would publish all the grubby detail, no names withheld.
Women's advocates see no advantage in a fault-based system. Elspeth McInnes, from the National Council for Single Mothers and their Children, says it could only achieve the return of 'protracted, bitter proceedings at immense cost and with crippling complexity'.
Alastair Nicholson, the former chief justice of the Family Court, was a lawyer in the days of fault-based divorce, and he found the system "degrading and unpleasant". He believes it would be dangerous for judges to get back into the business of apportioning guilt in matters of the heart. And he says governments have no business prolonging bad marriages.

2. Fault-based divorce is likely to make amicable child-custody arrangements more difficult to achieve
It has been claimed that returning to fault-based divorce would exacerbate ill-feeling between the divorcing parties and that this would make it harder for divorced parents to reach workable agreements on how to care for their children.
Australian National University family researcher Professor Bruce Smyth has claimed that those who would pay the highest price if fault were returned to divorce laws would be the children of separated parents.
Professor Smyth has stated, 'The social science evidence is clear: children do best when parents get along. Why was fault taken out in 1975? Back then, it was well known that when you have a barrage of affidavit materials making character assassinations on the other parent, it would do very little to build co-operative parenting relationships.'
Divorce is likely to have damaging effects on children. David H. Demo and Andrew J. Supple in their article on the effects of divorce on children noted, 'Marriages that end in divorce typically begin a process of unraveling, estrangement, or emotional separation years before the actual legal divorce is obtained.
During the course of the marriage, one or both of the marital partners begins to feel alienated from the other. Conflicts with each other and with the children intensify, become more frequent, and often go unresolved.
Feelings of bitterness, helplessness, and anger escalate as the spouses weigh the costs and benefits of continuing the marriage versus separating.'
It has been claimed that if the divorce can be achieved legally through a no-fault process then some of the antagonism can be reduced and that this is of benefit to the children involved who will witness less hostility and will be less likely to be required to take sides in the conflict.
It has further been argued that custody arrangements are likely to be more amicably achieved if the divorce has been achieved through a no-fault process.

3. No fault divorce makes it easier for children to keep a positive relationship with each parent
Referring to the United States where fault-based divorce still applies in some states, a number of social commentators have noted that fault-based divorce is likely to damage the children's relationship with their parents.
Inn 2002 Barbara Dafoe Whitehead noted, 'Requiring fault would be bound to hurt the children who will be caught in the crossfire. If we have learned anything from thirty years of high divorce, it is this: When divorcing parents have legal incentives to fight, they will. And fault gives them yet another incentive. Inevitably, children will be recruited as informants and witnesses in the legal battle to establish fault. The fault finding may also be exploited to prejudice or interfere with the child's attachment to the "at-fault" parent. Of course, this ugly practice of blaming and discrediting the other parent goes on under no-fault divorce law, but fault will provide legal justification for such behavior.'

4. Fault-based divorce could keep partners together in unhappy marriages
It is claimed that a full return to fault-based divorce could see many couples remain in unhappy marriages because they had insufficient grounds to legally divorce.
Critics of fault-based divorce compare the situation in the United States unfavourably with the situation in Australia. The United States has fault-based divorce in many states, where Australia does not.
In an article published in The Sydney Morning Herald on July 18, 2009, Rick Feneley and Stephanie Peatling noted, 'If New Yorkers want to leave their spouse, incompatibility is not accepted as grounds to end the marriage. Unless husband and wife agree to part, one must prove the other is to blame before a court will dissolve the union.
One of the few grounds for divorce in New York is cruel and inhuman treatment - but courts commonly set a very high bar for what qualifies, particularly when a couple has been married a long time. In Shortis v Shortis in 2000, the attempted choking of the husband and the threat to slit his throat was not cruelty. Fuld and Fuld were married for 45 years, but hadn't spoken for three years. Husband told terminally ill wife to "drop dead" and aggravated her by playing the television loudly, but this was not cruelty. In another case, throwing dishes at a husband, pulling his hair and destroying his clothing did not amount to cruelty.'
In the United States divorce is an issue of state jurisdiction, and so the introduction of no-fault divorce varies from state to state. Some states have yet to adopt any progressive reform, and so allow for comparison between states were there is no-fault divorce and where there is not.
The findings reveal that under no-fault laws a wife can threaten to leave an abusive husband, and this becomes a credible threat. Under the old regime, this was not so. It appears that the fear of divorce creates a strong incentive for abusive partners to behave.
More generally, easy access to divorce redistributes marital power from the party interested in preserving the marriage to the partner who wants out. In most instances, this resulted in an increase in marital power for women, and a decrease in power for men.
An analysis of United States data reveals no-fault divorce has caused female suicide to decline by about a fifth, domestic violence to decline by about a third, and intimate femicide - the husband's murder of his wife - to decline by about a tenth.
Australian data seems largely consistent with these findings. In the decade after the introduction of the 1975 Family Law Act, female suicide declined by roughly 20 per cent, or about 100 victims a year, when compared with the preceding decade.

5. The opt-in nature of the proposed fault-based divorce is illogical and unwieldy
There have been many critics of Mr Abbott's suggestion that couples be able to decide if their marriage can only be terminated in a fault-based manner.
It has been noted that only those couples most strongly committed to their individual union and the institution of marriage would be likely to decide, prior to getting married, that they wanted stricter provisions to apply should they ever seek to divorce. Critics conclude that these are the least likely people to finish up contemplating divorce and thus Mr Abbott's proposal is of little pointless.
This position has been put on the blog site 'Quote the Raivans', where the suggestion was made that 'If both parties share a belief in "traditional" marriage then surely their promises in the eyes of the Lord have more power than a secular legal contract. Making marriage harder to get out of only benefits those who don't want to get out of one, and probably they're not the ones who are trying to do so.'
There are also those who note that an opt-in provision would be difficult to enforce in the event that it were ever required. Couples who married in the belief that they would never divorce may be prepared to opt for harsher divorce provisions. However, should they reach a point where one or the other of them wanted to end the marriage, then they would be likely to want to sidestep the fault provisions for which they had volunteered.
In the online opinion site, 'The Social Critic', one of the commentators stated, 'The proposal does not go so far as to suggest a return to the days before the no-fault divorce laws of 1975 but [it] does suggest a commitment by couples who marry to decide on their own to make getting a divorce much harder than it is now and opt in to a fault-based divorce.
This may sound very wholesome on the surface, but without making it an actual law, it is difficult to understand how such a commitment would be binding.'
In the United States, Louisiana, Arkansas and Arizona have laws that give newlyweds - as Abbott suggests - the right to "opt in" to a fault-based system. But they have not resulted in fewer divorces, says John Wade, chairman of Australia's Family Law Council. And he says divorce courts have tended to ignore these private agreements. In any case, 97 per cent of Louisiana couples still opt for no-fault divorce.

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.

Further implications
The Family Law Act is being extensively reviewed by the Australian Institute of Family Studies as part of a parliamentary undertaking that accompanied the 2006 changes on shared custody. However, the federal Government does not seem inclined to change the conditions for entering or exiting marriage.
Though there is fairly general consensus that aspects of the Family Law Act need reform, what is not in dispute are the 'no-fault' provisions of the Act. The largest area of contention in the Family Law Act are the manner in which custody of and access to children is given.
The most recent changes to the Act were made under the Howard government in 2006.
The 2006 amendments changed the way matters involving children are dealt with. These included:
a progression towards compulsory mediation (before Court proceedings can be filed, in an effort to ensure matters do not reach litigation);
greater examination of issues involving family violence, child abuse or neglect;
more importance being placed on a child's family and social connections, and
a presumption that parents have equal parental responsibility - not equal parenting time.
Children's matters are determined on the basis of who the child will 'live with' and 'spend time with' (terms which were formerly labeled 'residence' and 'contact' respectively). Although the term custody is often used to describe where children live the concept was abolished in 1995 with the Family Law Reform Act. The concept of custody gave much wider decision making powers to the parent with whom children lived, than either the concept of 'residence' or 'live with'. Since 1995 both parents legally have the same (but not shared) parental responsibility for children, regardless of where and with whom the children live, until and unless a court makes a different order (s61C).
If there is a dispute about parenting matters and the case is placed before a court, then the Court must apply a presumption that it is in the best interests of children that their parents have equal shared parental responsibility for the children (section 61DA). In practical terms this means that parents must consult one another about major decisions affecting the care of children (but not day-to-day decisions), whereas without that order parents can make decisions together or without consulting each other. The presumption does not apply in circumstances of family violence or there has been any abuse (including sexual abuse) of a child, a parent or any family member living with the child.
There is no presumption of equal time with the child, however, if the presumption of equal shared parental responsibility has not been mitigated, the Court must consider allocating it. If the decision is made to not allocate equal time in such circumstances, then the Court is required to consider allocating 'substantial and significant' time instead (section 65DAA).
These new provisions are being examined by the Australian Institute of Family Studies. Of particular concern is that the more equal parenting arrangements made possible under the 2006 reforms of the Family Law Act may have inadvertently placed children at the risk of violence from one of their parents. Issues such as these appear to be of far greater concern to parents, welfare groups and Family Law authorities than the re-institution of fault-based divorced as proposed by Mr Tony Abbott.

Newspaper items used in the compilation of this issue outline
NOTE that newspapers did not treat this issue to any great extent. See the "Internet Information" section for other material

AUSTRALIAN, July 14, page 11, editorial, `We make the disaster of divorce too easy'.
http://www.theaustralian.news.com.au/story/0,25197,25777793-16741,00.html

AUSTRALIAN, July 13, page 3, news item by Siobhan Ryan, `No-blame divorce laws under scrutiny'.
http://www.theaustralian.news.com.au/story/0,25197,25770732-5013404,00.html

AGE, July 13, page 4, news item by Farah Farouque, `No fault of Abbott's, but big marriage idea gets little support'.
http://www.theage.com.au/national/no-fault-of-abbotts-but-big-marriage-idea-gets-little-support-20090712-dhe7.html