DIVORCE LAW by Augusto ZimmermannNews Weekly
No-fault divorce and the moral basis for spousal support
, October 11, 2014
During the period when the law still regarded marriage as the union between husband and wife indissoluble except by death, this gave rise to a life-long right by a wife to be supported by her husband, unless forfeited by her.
Back in those days marriage was considered an institution with effective contractual overtones, which provided the wronged party with the right to seek compensation and to be released from the marriage relationship.
Under this “fault” system, compensation was available on grounds of matrimonial offence relating to adultery, cruelty and desertion. The courts were then required to consider the commission of offence, and the party responsible for the marital breakdown would be held accountable for his misbehaviour.
In this context, any award of financial support reflected not only an element of assistance to the spouse unable to support herself, but also an element of punishment of the “guilty” party. As such, if a man deserted his wife she could successfully apply for the right of financial support.
Hence, in the 1964 case of Davis v Davis, Justice (Sir) John Barry of the Victorian Supreme Court declared: “The broad notion acceptable to the community is, I think, that if a husband of means irretrievably destroys the reality of a marriage, and it appears that he contemplates marriage with another woman whom he prefers to his wife, the court should ensure that he pays to the spouse he is repudiating whatever, having regard to his means and his conduct towards her, and her conduct towards him, is fair and reasonable, recognising that he is pursuing his own gratification in disregard of obligations he undertook.”
In a subsequent decision in Atkinson v Atkinson (1969), Barry stated: “The conduct of a husband amounting to a matrimonial offence is considered … a necessary element in determining what order is proper … or what order is just and equitable in the circumstances of the case.”
By contrast, a wife who committed adultery forfeited her right to spousal maintenance absolutely. In Adams v Adams (1968), the Supreme Court of New South Wales, under Justice Colin Begg, said of the woman who violated the marriage vow: “In the usual case a wife who has been found guilty of a matrimonial offence will not be awarded maintenance.”
Before the introduction in 1975 of “no-fault” divorce, therefore, spousal support rested on the premise that the party who was not legally at fault for the marital breakdown was entitled to a form of expectation damages.
The idea relied on the indissolubility of marriage, which for the husband involved a continuing obligation to support his wife.
As such, a man who had broken the promise of supporting a woman by entering into matrimony still had the legal obligation to look after her welfare if she was in need and unable to support herself.
During the “no-fault” revolution in Western societies throughout the 1960s and 1970s, the law removed considerations of “fault” and divorce became a “right” freely available at the decision of one spouse even against the wishes of the other. As such, “need” replaced “fault” as the primary criterion for awarding spousal support.
There are, however, significant difficulties in justifying support in jurisdictions that have removed the fault-based aspects of spousal maintenance. Naturally, it is not so difficult to justify support for a wife who is abandoned for a younger woman or for a wife who leaves her husband because of his violence.
However, it is much more difficult to justify support for a wife who decides to leave for reasons such as boredom or because she has formed a new relationship outside the marital relationship.
To the extent that she is unable to support herself independently, a disloyal wife still remains legally entitled to receive support from her betrayed husband.
The apparent anomaly is consistent with the feminist approach to heterosexual marriage. Radical feminists regard marriage as a “patriarchal” institution based on gender inequality and the division of labour between men and women. In this context, instead of perpetuating women’s dependency, spousal support is viewed as a compensation to be expected and earned for every wife who divorces her male “oppressor”.
According to such feminist scholars, feminism supports law which not only “recognises and rejects the categories of public and private”, but which “must also reject traditional categories of … husband and wife”.
Although acknowledging the variety of reasons why a marriage might break down, it is not unreasonable to question the legitimacy of a system which compels some to support to an unfaithful spouse who leaves the relationship for entirely unilateral and selfish motivations.
It should be a valid defence to any claim for support that the party seeking compensation was in some way directly responsible for the end of the marital relationship.
For these reasons, in the rationale for spousal maintenance some recognition of responsibility for the marital breakdown should be taken into full consideration. In the past, the law has been criticised for conscious or unconscious gender biases in its operation. This may well be so, but now we are witnessing a more distinctive contribution by feminist ideology: the conscious reward of selfish behaviour and the deliberate undermining of justice by family law.
Augusto Zimmermann, LLB, LLM, PhD (Monash), is a senior lecturer in legal theory and constitutional law at Murdoch University, Western Australia. He is also a Commissioner with the Law Reform Commission of WA; fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF); president of the Western Australian Legal Theory Association (WALTA); and editor of The Western Australian Jurist. Last year he published a widely acclaimed book, Western Legal Theory: Theory, Concepts and Perspectives (Sydney: LexisNexis Butterworths, 2013).
 Davis v Davis  VR 278 at 282.
 Davis v Davis  VR 278 at 281.
 Adams v Adams (1968) 11 FLR 197 at 200.
 Patrick Parkinson, Family Law and the Indissolubility of Parenthood (New York: Cambridge University Press, 2011), p.249.
 Alison Diduck and Helena Orton, “Equality and support for spouses” (1994)57 The Modern Law Review 681, 687.
 Parkinson, op. cit., p.258.