No-fault divorce law has precipitated marital instability in Australia, discouraging people from marrying, staying together, acting to support their spouses and having children. According to respected social commentator Barry Maley, divorce law erodes confidence in marriage by creating opportunities for spouses to exploit each other. In his new book, Divorce Law and the Future of Marriage, released by The Centre for Independent Studies on Friday 5 December, Maley argues that divorce law reform is urgently needed to restore incentives for couples and families to stay together. His proposes that divorce be subject to mutual consent, and that serious marital misconduct must be taken into account in divorce settlements.
The book maps a century of social, legal and economic changes which have destabilised family and marriage in the Western world, and explores how law reform would reduce divorce through detailed case studies.
The 1975 change to unilateral, no-fault divorce created opportunities for spouses to exploit each other through divorce, by ignoring the continuing reality of serious marital misconduct in divorce settlements. It therefore removed a disincentive to irresponsible, selfish, or malicious behaviour within a marriage.
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Unilateralism allowed one spouse to instigate divorce without the consent of the other. As a result, spouses can no longer bargain in divorce settlements from positions of equal power, and those reluctant to divorce or affected by misconduct are disadvantaged.
‘Women in traditional marriages who have sacrificed their earning capacity and job prospects for domestic production and rearing children are exposed to disadvantageous property and financial settlements following divorce, whilst men risk loosing custody and access to their children.’
Maley outlines reform proposals to create incentives for responsible and considerate conduct in marriage. He argues that reform should retain no fault divorce where the spouses are agreed that they want to divorce, but should remove unilateralism by requiring that all divorce applications must have the consent of both husband and wife.
‘Where there is no consent to divorce, or misconduct is involved, fault could be raised to influence the terms of the divorce settlement.’
‘These reforms would provide incentives supporting marital stability, and greater fairness and equity for all parties if divorce is unavoidable.’
