SOCIETY by Christopher BrohierNews Weekly
The colossal cost to society of no-fault divorce
, October 25, 2014
Avoiding unnecessary divorce and restoring justice in marital separations should be a major public policy objective and will necessitate a major overhaul of the Family Law Act 1975, argues Adelaide barrister-at-law Christopher Brohier, in a paper he delivered at the National Marriage Day parliamentary briefing session held in Parliament House, Canberra, on August 27, 2014.
An abridged version of his paper is reproduced here. For the original full-length version, complete with footnotes, please scroll down to the end of this article.
The concept of no-fault divorce, which became law in Australia in 1975, was part of a revolution in divorce law reform which swept through the Western world in the late 1960s and 1970s. It was predicated on a notion that the law should aim to buttress marriage, but if the marriage was finished in fact, the law should “enable the empty legal shell to be destroyed with the maximum fairness, and minimum bitterness, distress and humiliation”.
However, many countries, Australia included, became part of the revolution without properly considering the financial consequences. Writing perceptively in 1985, a British academic Pamela Symes noted that amidst all the debate in relation to divorce law reform, a question that was not considered was: how was it all to be paid for?
Further, a philosophical underpinning of the no-fault divorce revolution was that, after the divorce, the parties could make a fresh start to their lives. There would be, in addition to the divorce, a once-for-all settlement of property matters and even in relation to matters involving children. The courts not only allocated property, but children, and that on a binary basis. One parent was granted “custody”, and the other limited visiting rights or “access”. Once those issues were settled, the parties could be autonomous.
The past 39 years have shown that the rise in divorce has thrown a significant and probably unsustainable burden on the public purse in the areas where the Australian (and other Western nations) budgets are most vulnerable, namely the issues of aged care, health and youth affairs.
Those years have also shown that the assumption that the parties could be autonomous after divorce was wrong. The development of family law has shown that while a marriage may be dissolved, parenthood is indissoluble. The idea of the “enduring family” has emerged. However, there has not been a corresponding re-evaluation of the concept of no-fault divorce or of the basic grounds for divorce. It is time this was done.
Divorce is a matter of private law. Why then should governments be interested in lessening the number of divorces? The answer, which may not have been appreciated at the start of the no-fault revolution, is that the costs imposed by family breakdown are being borne by the public purse.
According to Sydney University law school’s Professor Patrick Parkinson: “A British study found the costs of family breakdown were £41.74 billion in 2011, or £1,364 for every taxpayer. A Canadian study, published in 2009, estimated the costs in that country as 7 billion Canadian dollars per year. A U.S. study estimated the costs of family breakdown and unmarried parenthood in 2008 as being at least $112 billion per year.
“Such calculations do not include the less measurable costs such as the intergenerational impacts considered in this article. The human costs are, of course, immeasurable.”
No doubt the same order of costs, per capita, will apply in Australia.
Accordingly, and especially in times of budgetary constraints, where all sides of politics accept that there need to be structural savings in Australia’s budgetary situation (a matter which is in common with all Western nations), it is eminently proper that avoiding unnecessary divorces becomes a public policy objective.
This paper examines three areas where costs are imposed on the public purse by divorces: the areas are aged care, health and children.
A 2007, the Australian Institute of Family Studies reported that the adverse financial impacts of divorce were reflected in lower rates of home ownership for those who have been divorced as against those who have never divorced, and that “divorced singles were more reliant on the public pension than those who had not divorced”. The study found that the increased reliance on the pension by divorced singles “has important implications for the financing of retirement incomes in Australia in coming decades and the extent to which the taxpayer will have to bear the costs of providing for retirement incomes”.
The lower rates of home ownership will also impact on the costs of providing aged care, as it increases the likelihood of those persons having to be cared for in institutions at greater cost to the community and decreases the number of persons who are able to pay bonds to aged care institutions, to make some contribution toward the cost of institutional care.
These findings are unsurprising, as the inevitable effect of divorce is that two households are created when before there was one: “People cannot go from one household into two households, with a duplication of housing costs, furnishings and appliances, and other such expenses, without suffering a significant loss of living standards.”
Professor Parkinson points to another aspect in which divorces increase the costs of aged care, albeit in a hidden way. That is that divorce reduces the capacity of adults in mid-life to care for the older generation.
The support given to elderly parents is multifaceted and of common knowledge. It takes the form of assisting with shopping, cleaning, paperwork, finances and medical appointments, to name but a few. Such informal support is vital in “reducing the necessity for the elderly to go into institutional care, or in delaying that eventuality”.
This burden of care for the elderly has often fallen on women. However, as separated and divorced women have taken an increased role in the paid workforce in the last two decades to be the sole breadwinner for the family (as well as caring for the children), their capacity to care for their elderly parents has decreased. Further, divorce also removes much of the sense of obligation one party may have had to care for their parents-in-law.
This means that the burden of providing the services to keep people in their own homes, or the greater burden of providing institutional care, falls more on the public purse.
Australian research has found that there are large health differences between married men and women, and men and women who are separated or divorced or widowed. The latter have greater mortality rates, more acute symptoms and mental health problems than the former.
This differential is particularly evident in suicide rates. Kate Fairweather-Schmidt and her colleagues in their 2010 study found that the risk of suicide among the divorced, separated and widowed is about 75 per cent more than for the married. Such findings are common in the research: “Relationship breakdown is one of the major causes of suicide worldwide.”
Again, these findings are unsurprising. The emotional trauma associated with divorce means that the parties are often under severe distress. The adverse financial impacts that divorce causes mean that those involved have less to spend on health and related matters.
There is now no doubt that children who live with their two biological married parents do better across the board than children in other forms of families. An American academic, Professor Susan Brown, recently reviewed the evidence and said: “Children residing in two-biological-parent married families tend to enjoy better outcomes than do their counterparts raised in other family forms. [They] experience better educational, social, cognitive and behavioural outcomes than do other children, on average.
“The benefits associated with marriage not only are evident in the short-term but also endure through adulthood.”
Professor Paul Amato, a leader in this field of research, has said: “Research during the last decade continued to show that children with divorced parents, compared with children with continuously married parents, score lower on a variety of emotional, behavioural, social, health and academic outcomes, on average.... The links between divorce and forms of child well-being have remained relatively constant across decades.”
McLanahan and Percheski have reported: “A large body of research indicates that living apart from a biological parent (typically the father) is associated with a host of negative outcomes that are expected to affect children’s future life chances or ability to move up the income ladder.”
In a 2005 study entitled “The impact of family formation change on the social, cognitive and emotional well-being of the next generation”, Professor Amato opined: “Increasing marital stability to its 1980 level would result in nearly half a million fewer children suspended from school; about 200,000 fewer children engaging in delinquency or violence; a quarter of a million fewer children receiving therapy; about a quarter of a million fewer smokers; about 80,000 fewer children thinking about suicide; and about 28,000 fewer children attempting suicide.
“Seen from this perspective, restoring family stability to levels of a few decades ago could dramatically affect the lives of many children.”
As with the other issues discussed above, these findings should not surprise us. They are the result of legal and sociological theories coming into conflict with the irreducible realities of our make-up or the natural law. In such a conflict the natural law must win.
Efforts to ease these consequences by coerced child-support regimes, while ameliorative to some extent, do not address the issue. First, because they are costly (in Australia it costs 34.6 cents to the government for every dollar collected in child support through the Child Support Agency). Secondly, because most of those who have to pay child support are on moderate-to-low incomes and often cannot contribute much if anything. Thirdly, because maintaining two homes from an income that previously had to support one inevitably means there is less for all, and so fewer opportunities for the children. Finally, and most importantly, the natural biological benefit of a father and mother both present is irreplaceable. As Professor Parkinson says, “The economics of separation inevitably dictate loss” — a fortiori, the human trauma of separation.
As Justice Paul Coleridge, a senior Family Division Judge in the United Kingdom has said: “What is a matter of private concern when it is on a small scale becomes a matter of public concern when it reaches epidemic proportions.”
The assumption that divorce would dissolve the family unit, which was fundamental to the no-fault divorce revolution, has now been abandoned.
Emeritus Professor Margo Melli has said what many Australians have proved in the crucible of living with divorce: “Today, divorce is not the end of a relationship but a restructuring of a continuing relationship.” Marriage may be dissoluble by law but family is indissoluble in fact.
Australia has been at the forefront in recognising this truth by legislative reform, i.e., by the 2006 amendments to the Family Law Act, which require courts to consider shared care arrangements in relation to children. Section 60B of the Family Law Act now provides: “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.”
Shared care or shared parenting is now common and the old “custody” and “access” regime is over. This movement towards some form of shared care has also occurred (or is being debated) across the Western world.
As Professor Parkinson has observed: “Legal systems throughout the Western world have not created the indissolubility of parenthood. Slowly, painfully, and through much conflict in the legislatures and the courts, legal systems have had to come to terms with the reality of parenthood’s indissolubility. Positive law has had to become realigned with natural law.
“Having sought freedom from the pain of broken relationships, people have had to come to terms with the limitations on that freedom. Autonomy is limited by the connectedness of parenthood for as long as each parent desires that close connection with his or her children, and insofar as the law will refuse to sever or attenuate that connection.”
Why should the law attempt to reduce the number of divorces and keep families together? This paper has shown that the impact on the public purse and the reality of the enduring family require such an attempt. It is also clear that the rise in divorce was aided and abetted by the no-fault divorce revolution.
According to the 2007 study by the Australian Institute of Family Studies: “In Australia, the divorce rates started to climb from the mid-1960s and rose very sharply following the introduction of the Family Law Act 1975 that introduced no-fault divorce. The sharpness of the divorce peak in 1976 was partly due to a backlog of long-term marital separations for which the end of the marriage was formalised as soon as the new Act came into effect.
“Following the 1976 peak, the divorce rate subsequently declined and has since been stable, but at a much higher level than prior to the introduction of the new Act.”
If the increase in the divorce rate was aided and abetted by a change in the law, it is legitimate that the law attempt to reduce that rate.
As a matter of public policy, legislative efforts will yield most benefit by supporting marriage. Unmarried cohabiting relationships break up at a far higher rate than marriages. An Australian study has found that the chances of a cohabiting couple with children breaking up are greater by a factor of seven than a married couple who had not lived together before marriage, and greater by a factor of four than a married couple who had cohabited before marriage.
Accordingly, the benefits to the public purse flow from supporting marriage rather than any variant thereof.
Three propositions for reform are suggested:
1) Revisiting the one-year period of separation as proof of an irretrievable breakdown of the marriage.
The period was selected arbitrarily. Some European countries require a three-year waiting period. Requiring a greater period of separation, say two years, will force couples to give greater consideration to staying together and resolving their conflicts.
The evidence suggests that longer waiting periods are associated with lower divorce rates. This complements the other evidence that nearly half of divorcing couples are from low-conflict relationships, which could survive with help.
2) Mandatory reconciliation counselling.
Australia has already legislated for mandatory mediation to resolve issues such as parenting orders before an application may be filed. This proposal would entail refining these provisions to require counselling specifically directed at the possibility of reconciliation.
Aligned to such counselling may be a requirement for a formal notice before action process. Such a process is widely used in civil courts. In the Family Court this may take the form of a formal notice by one party to another that their marriage faces serious difficulties and suggesting that they undertake counselling together. Such a procedure may overcome the common situation that one party first discovers that there are issues in the marriage when the other announces they are leaving.
3) Providing the right for a court to award damages for a breach of the marriage contract.
Marriage is a contract. The law gives a right to claim damages for breaches of contract in the civil and commercial arenas. Why should marriage be the only contract which may be breached with impunity?
The law, by means of ascribing consequences to actions, signals to us what we as a community hold important. It is clear that the no-fault revolution, in allowing the marriage contract to be breached without any legal consequences (though, as this paper has demonstrated, there are serious and unavoidable consequences in fact), has, to the detriment of Australian society, undermined the value we place on marriage. It is time to change and give new value to marriage.
The benefit to assisting the longevity of marriages is that, once it is known that damages may flow, parties may be more inclined to abide by the marriage contract. Such a coercive tool is a well-used legislative method to bring about social change.
Such a reform is likely to find community support.
Thirty-nine years after the no-fault divorce revolution gave Australia the Family Law Act, our society has experienced the massive financial and human costs of a legislative reform that was enacted without adequate forethought.
The cost of fragile families that has ensued is now significant. As Professor Parkinson has said: “Fragile families lead to broken hearts. They also threaten the well-being of the community as a whole. Turning this around will require a Herculean effort, but we cannot afford not to make the attempt.”
Now is the time to start.
The original full-length version of Christopher Brohier’s National Marriage Day address, complete with footnotes, is available HERE.