FAMILY LAW: by Babette FrancisNews Weekly
'No-fault' principle undermines marriage
, April 23, 2005
The "no-fault" principle enshrined in Australia's Family Law Act has had a devastating impact on the status of marriage and the family, writes Babette Francis.The Federal Government is optimistic that changes to the Child Support Agency and the new Family Relationship Centres will reduce the animosity between divorcing couples.
However, just as geologists and seismologists study fault lines in the earth's crust in an effort to anticipate earthquakes and hopefully minimise loss of life, politicians, sociologists and church leaders need to give similar attention to the "no-fault" principle in contemporary divorce law which has created a seismic and devastating shift in the status of marriage and family.
Until the basic injustice enshrined in the "no-fault" principle is corrected, other modifications may prove as futile as band-aid applications to injuries requiring major surgery.Marriage union
After the Australian Parliament last year overwhelmingly passed the Marriage Amendment Bill 2004
defining marriage as a union of a man and a woman, there was a sense of euphoria among pro-family groups and Christians of all major denominations (with the possible exception of some Uniting Church leaders). There has been similar euphoria in the 17 states of the US which have passed amendments protecting the traditional definition of marriage.
However, the threat to marriage as an institution does not come primarily from homosexual lobbyists for same-sex "marriage".
Most homosexual unions are ephemeral. In Canada, the first two women to get legally "married" were also the first to petition for divorce; and that country had to amend its divorce legislation to enable "same-sex" divorce. Same-sex unions are also, of their nature, sterile.
The most significant threat to marriage is the "no-fault" principle facilitating divorce on demand.
In no other area of legal contract does the law reward the one who breaks the contract and punish the victim. I am not referring here to divorces by mutual consent where there are no children or property disputes - I am focussing on divorces initiated unilaterally by one spouse and forced involuntarily on the other who has committed no fault and in many cases was not even aware that the marriage was in trouble.
There are two common scenarios here.
(1) There is the unfaithful husband who, after many years of marriage, dumps his loyal wife for a more nubile version. The first wife may get some property settlement, but is usually expected to support herself, even though she may have spent years out of the paid workforce raising their now-adult children. Feminists cheer at her struggles - they don't like women being "dependent" on husbands, but take a benevolent view of them being dependent on an employer or on government benefits.Deserting wives
(2) The other more common scenario - as between 60 to 70 per cent of divorces are initiated by women - is where the wife leaves, taking the children with her - and sometimes the furniture too. (One husband came home and found he could not turn on the lights because his wife had even taken the light bulbs.) These deserting wives get custody of the children, most of the value of the family house and the Child Support Agency ensures that husbands pay maintenance for children they rarely see. Among other reports of injustices communicated to me, one husband complained that the CSA will not recognise the private medical insurance payments he made for years to cover his child.
Add bogus accusations of domestic violence or child abuse to an already explosive mix, and the hapless father might find he is turfed out of his house and required to prove his innocence before he is allowed within 100 metres of his children.
Neither the CSA nor the Family Court effectively enforces access orders made for non-custodial (and non-abusive) fathers. Despite the ideological nightmares promoted by the feminist sisterhood, the majority of fathers are not
wife or child abusers or alcoholics, and many of these unfortunate men did not even know their wives were so dissatisfied - or that they were having an affair on the side.
In one Family Court case, the wife insisted on her husband having a vasectomy because she was tired of taking the contraceptive pill. Soon after, she informed her husband that because the "danger" (of getting pregnant) had gone out of their sex life, so had the excitement and she was no longer interested in him.
In the subsequent divorce she gained custody of their three children and more than half the family assets. She re-married and within six months was pregnant to her new husband. The first husband is left with nothing, not even a realistic prospect of a new family.
Political scientist Stephen Baskerville, writing in America's Crisis
magazine (March 2005), observes how feminism has supported divorce. He says:
"Not generally perceived as a gender battle - and never one they wished to advertise - divorce became the most devastating weapon in the arsenal of feminism, because it creates millions of gender battles on the most personal level.
"Germaine Greer openly celebrates divorce as the foremost indicator of feminist triumph: 'Exactly the thing that people tear their hair out about is exactly the thing I am very proud of,' she tells The Australian
Why else would the Victorian Women's Legal Service fund Liam Magill's ex-wife's battle against his case for paternity fraud? Feminists apparently don't prize honesty by women, even about matters as important as the paternity of children.
Historian John Hirst has written poignantly on one father's heartbreak about not seeing his children (Weekend Australian
, March 26-27, 2005), a heartbreak that is multiplied a thousand times all around Australia.
Joe Hockey, the Minister for Human Services, aims to end the gender bias against men in the Child Support Agency, and hopefully this bias will decrease with the appointment of the first male head of the CSA.
However, the bias, despite denials by former Chief Judge Alastair Nicholson, has deep roots in the Family Court itself.
I once observed a Family Court case where a father pleaded to be the carer of his young children because his wife was leaving them in long day-care whilst she pursued her career.Feminist nirvana
He was unsuccessful. His wife gained sole custody and it was her decision to leave the children in day care while she worked. This was nirvana for feminists - mother a career woman, father out of the picture and children in full-time day-care subsidised by taxpayers.
But it is not nirvana for children - witness the violence in suburbs with a preponderance of single-parent families; hear the pleas of defence counsel acting for a teenager caught in crime or drugs: "Your Honour, he comes from a broken home ... " and it can be seen how hollow are the claims that "children of single mothers do just as well as those in married two-parent families".
To stabilise marriage, the incentive of "no-fault" divorce without the penalty of losing custody of children and/or property must be removed as a temptation to irresponsible spouses.
- Babette Francis is coordinator of Endeavour Forum Inc