FAMILY LAW: by John HirstNews Weekly
Family Court 'a monstrosity'
, April 9, 2005
No-fault divorce has not yet led to no-fault weddings. Marriage services are now very varied, but in one form or another the couple make a commitment to each other. So far there are no services where the couples declare: "I promise you nothing" or "I will leave when I like".
These would be the words if services followed the principles of the Family Law Act.
Marrying is a moral act. Couples have views of right and wrong behaviour in marriage, as does society at large, where "cheating" on your partner is still commonly regarded as a betrayal.
Some couples come to divorce, agreeing without rancour that their marriage has failed, but more have a sense that the other partner has broken a commitment or has not understood the obligations. They will, of course, usually have different notions of who had what failings.
When no-fault divorce was introduced, it was promoted as a way of ending marriages that both parties agreed were over. It would rescue them from the hypocrisy and perjury of having to prove fault. But no-fault divorce has worked in a way not envisaged by its proponents. 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.
So a new sense of injury arises in a régime of no-fault from a partner being able unilaterally to abandon the commitment to the marriage.
The difficulty of managing no-fault divorce is that most of the parties involved strenuously believe in fault. When they have children, they are urged most earnestly to put aside their injured feelings and concentrate on what is best for the children.
Why should they? A woman after being regularly battered has just left a violent man; a man has just discovered that his wife is leaving to join her secret lover – and they are meant to sit down calmly with their partner and work out what is best for the children.
In no other area of life would we expect people to swallow their pain and hurt. We are very conscious of the need for these feelings to be voiced and understood.
Everyone knows that the arguments over children after divorce are frequently a proxy for the unresolved argument between husband and wife, but we have abandoned one way of this being aired (fault in divorce) and have refused to consider any other.
The no-fault principle penetrates the whole family law system. Fault does not affect the award of custody, which is determined by the best interests of the child. Custodial parents who then behave badly will be left alone unless they are damaging the children. They will even be left alone if they are flouting a direct instruction of the court.
No-fault also operates in the property settlement after marriage, whereby the property is divided according to the contributions the parties have made (in cash and in kind) to its acquisition and enhancement, and according to their needs after divorce.
You can test your commitment to the no-fault principle by examining the following two scenarios.* Scenario 1:
Wife is at home, primary carer of three children. Husband has many affairs. Wife is constantly humiliated, but forgives him. When he is drunk, he can be violent. Then, after firm promises, he has another affair. She files for divorce.Settlement:
Wife keeps the children and remains in the house; husband leaves. He sees the children every second weekend and pays child support, 32 per cent of his gross earnings.* Scenario 2:
Wife is at home, primary carer of three children. She wants to do some outside work, which will also help with finances. Husband cares for children so that she can work three evenings a week. She has an affair with fellow worker. She files for divorce.Settlement:
Wife keeps the children and remains in the house, into which her lover moves; husband leaves. He sees the children every second weekend and pays child support, 32 per cent of his gross earnings.
If you agree with both settlements you should consider a career in the Family Court.
Many men have experienced scenario 2. The break-up might not involve a new lover; the wife may simply say she wants to start a new life – which will involve depriving her husband of home and children.
Men who have these settlements imposed upon them stagger from the court buildings feeling that they have been in a nightmare world where all the usual standards have been inverted. They are driven to unfashionable declarations of their moral worth: I am not a wife-beater; I have been a good provider; I have been a faithful husband; I love my kids; I am a good worker for the community.
They cannot believe that there is a place, an official institution, where all this counts for nothing; where they are treated exactly the same as the husband in scenario 1, who they would say deserved what he got.
A recent poll showed that 75 per cent of the people thought that serious misconduct in a marriage (for example, desertion, adultery, drunkenness or abuse) should be taken into account when the Family Court decides the settlement following a divorce.
So a clear majority rejects the central principle of the existing law. However, I doubt that they would support the implications of their position: the court examining marital behaviour to establish proof of misconduct.
The Family Court embodies the contradictions of our age. Its actions offend our sense of what is right, but we have not the confidence to set it right, to draw up new instructions that will rescue it from the no-fault morass.
Until there is change, it will continue to give offence. The Family Court is a monstrosity, a court of law that cannot by its no-fault charter be a court of justice.
- John Hirst, a historian at La Trobe University in Melbourne, is author of Quarterly Essay No.17, Kangaroo Court: Family Law in Australia ($13.95, Black Inc.), which is available from News Weekly Books. The above article originally appeared in The Australian (March 21, 2005).