Quarterly Essay 17 'Kangaroo Court': Family Law in Australia by John Hirst

Author:John Hirst [John Hirst]
Language: eng
Format: epub
Published: 0101-01-01T00:00:00+00:00

THE FAULT OF NO-FAULT

No-fault divorce has not yet led to no-fault weddings. Marriage services are now very varied, but in some form the couple make a commitment to each other. Not yet are there services where the couples declare:

I promise you nothing.

I will leave when I like.

These would be the words if services followed the principles of the Family Law Act.

Marrying is a moral act. Couples have views of right and wrong behaviour in marriage, as does society at large where “cheating” on your partner, even in these liberated times, is still commonly regarded as a betrayal. Some couples come to divorce agreeing without rancour that their marriage has failed, but more have a sense that the other partner has broken a commitment or has not understood the obligations. They will of course usually have different notions of who had what failings.

When no-fault divorce was introduced, it was promoted as a way of ending marriages which both parties agreed were over. It would rescue them from the hypocrisy and perjury of having to prove fault. However, no-fault divorce has worked in a way not envisaged by its proponents. It allows one partner to surprise the other with the declaration that the marriage is over without having to give reasons or undertake any negotiations on how fault will be acknowledged. So a new sense of injury arises in a regime of no-fault from a partner being able unilaterally to abandon the commitment to the marriage. In marriages where there are children, over 80 per cent of divorces are initiated by one parent – the woman in two-thirds of the cases and the man in one-third.

The difficulty of managing no-fault divorce is that most of the parties involved strenuously believe in fault. When they have children, they are urged most earnestly to put aside their injured feelings and concentrate on what is best for the children. Why should they? A woman after being regularly battered has just left a violent man; a man has just discovered that his wife is leaving to join her secret lover – and they are meant to sit down calmly with their partner and work out what is best for the children. In no other area of life would we expect people to swallow down their pain and hurt. We are very conscious of the need for these feelings to be voiced and heard and understood. Everyone knows that the arguments over children after divorce are frequently a proxy for the unresolved argument between husband and wife, but we have abandoned one way of this being aired (a trial for fault) and have seen no necessity to replace it with anything else.

As we have already seen, the no-fault principle penetrates the whole family law system. Fault does not affect the award of custody, which is determined by the best interests of the child. Custodial parents who then behave badly will be left alone unless they are damaging the children.

They will even be left alone if they are flouting a direct instruction of the Court.

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