My colleagues will be surprised I’m writing about Gough Whitlam but as politicians go he’s pretty universally appreciated and one reason for that is the Family Law Act. Enacted in 1975, though it came into effect under Malcolm Fraser the following year, the Family Law Act was Australia’s first foray into no fault divorce. That’s remained how it works since. In 2009 the states legislated for defacto relationships to be determined under the same legislation and now all matrimonial disputes, except perhaps child support, are determined under that piece of legislation.
I should say this isn’t going to be an academic or heavily researched piece of writing, I just think it’s interesting that we take ‘no fault divorce’ for granted in Australia.
What does it mean, ‘no fault divorce’? In certain states of the USA (33 according to the website I looked at), and in England and Wales, and no doubt many other countries, the party petitioning for Divorce must establish a ground. This can be two years of separation (if you have the consent of your spouse), or more commonly things like adultery, deviant sexual conduct, habitual drunkenness, sexual desertion, drug addiction, and non-support.
My understanding of the significance of those things in most foreign jurisdictions is that essentially the law then tries to preserve the position of the party who has not been wronged. I’ve run several cases with a quirky international element, including the UK and several states of the USA. In those cases, the Court’s aim has been to protect the position of the “innocent” party. This is generally achieved by them retaining most of the property (including the house they lived in), having majority care of children, and receiving significant ‘alimony’ (we call it spouse maintenance).
This is fundamentally different to Australian family law which is based on, interestingly:
1. A just and equitable division of the property taking into account the parties contributions and current circumstances – but not whose shonky behaviour led to the breakdown of the relationship;
2. Parenting arrangements based on the child’s best interests, irrespective of which parent caused the parents to no longer be living together, which the studies widely accept is the best arrangement for children; and
3. Spouse maintenance based on the non-income-earning spouse establishing reasonable need and the other party having surplus income or capacity to support, so quite commonly the wronged/innocent, non-income-earning spouse is financially desolate after separation.
I don’t know which is better. We commonly see cases involving adultery, deviant sexual conduct, habitual drunkenness, drug addiction and non-support. I confess I less commonly hear about sexual desertion. My clients are usually very aggrieved by these matters and the advice that they are, except in extraordinary cases, irrelevant – is generally considered unfair and unsatisfactory. One benefit of a collaborative divorce, rather than a litigated divorce, is that the parties (not the Court) choose which matters are relevant and irrelevant and the parties (not the Court) choose which outcome is the fair outcome.
I’d be interested to hear the views of people who have and haven’t been through the process. I’m not convinced that considering fault, or why a relationship broke down as ‘irrelevant’ is the best policy. I’m not saying we definitely should have fault divorce, but I do think we take it for granted and maybe we should think about it more carefully. Interesting, in the UK the conservative party led by John Major raised a no-fault Family Law Act in 1996 but it wasn’t implemented by the succeeding Labour government led by Tony Blair.
So, to the late, great Gough Whitlam, I’m saying that 40 years on the jury’s out on no fault divorce. The same cannot be said about Medicare, education reform, our friendship with China, or your acquisition of Blue Poles for the ‘outrageous’ sum of $1.3million. It’s now estimated to be worth $100million. What a cracking investment – I wonder how the Family Court would consider that as a contribution, taking into account the capital gain.