December 3rd 2016

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Articles from this issue:

COVER STORY Anti-discrimination law validates Safe Schools

CANBERRA OBSERVED Triggs on the way out, but her weapon (18C) must go too

ANALYSIS What is possible to a Trump White House

EDITORIAL Trump portends the start of a new political era

EUTHANASIA Late-night reprieve in SA Parliament

EAST ASIAN AFFAIRS Taiwan and Japan look extinction in the face

SEXUAL POLITICS Victorian Liberals pledge to scrap Safe Schools

LAW AND SOCIETY No-fault divorce a tragedy of nuclear proportions

PARENTING Experts envisage lustrous future for infant graduates

POLITICAL HISTORY Folly with a touch of good sense: Colonel Sibthorp

ECONOMICS Trump as a symptom of the end of neoliberalism

MUSIC Vale Leonard: did we ever really understand you?

CINEMA Fantastical and beastly: Fantastic Beasts and Where to Find Them

BOOK REVIEW A Life well spent

BOOK REVIEW Catholic revisals


FOREIGN AFFAIRS How the left whitewashed Fidel Castro

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No-fault divorce a tragedy of nuclear proportions

by Augusto Zimmermann

News Weekly, December 3, 2016

The National Family Law Conference was held in Melbourne on October 19–21, 2016, with more than 1000 family law professionals from across Australia in attendance. The chairwoman of the Law Council of Australia’s Family Law Section, Wendy Kayler-Thomson, said this year’s conference marked the 40th anniversary of the introduction of the Family Law Act – a milestone in Australia’s legal history.

“The Family Law Act was revolutionary. It created no-fault divorce and recognised the homemaker and parent contribution in property division,” Ms Kayler-Thomson said.

“No-fault divorce” was presented by its advocates as a humanising effort to allow marriages that were declared “irretrievably broken” to be terminated without the necessity of a court trial, painful testimony, and some finding of guilt.



The Family Law Act has contributed to the detonation of the nuclear family home.

Ultimately, however, no-fault divorce has had the effect of making the marriage contract only provisional. As a result, the institution has shifted from being a strong contract into being a remarkably weak contract: one that is considered in force insofar as both parties “feel” equally committed to the relationship.

So, it does not come as a surprise that the divorce rate has skyrocketed and divorce is now the norm rather than the exception. This year alone approximately 50,000 Australians will get divorced. This should be a cause of great concern.

According to Dr Barry Maley, a Senior Fellow at the Sydney-based Centre for Independent Studies, divorce “is a common factor in wider social problems of crime, suicide, violence, poverty, child abuse, and educational social performance”.

There are tremendous costs all around when marriages break up. For instance, figures from Monash University’s Centre for Population and Urban Research reveal that family break-up is the primary cause of the rise in poverty levels in this country. The centre’s research has found a strong link between single-parent families and the prospect of poverty and deprivation.

According to a News Corp analysis of information released by the federal Attorney-General’s Department (in conjunction with the Department of Human Services and the Department of Social Services), in the 2014 financial year alone the Commonwealth Govern­ment spent $12.5 billion on support payments to single parents, including rent assistance and other government-funded benefits, with each Australian taxpayer paying about $1,100 a year to support families in crisis.

Divorce also puts people at a high risk for psychiatric and physical diseases. A Canadian study of 8,652 divorced and widowed people between ages 51 and 61 reveals that the longer they have been living without their partners, “the higher the likelihood of heart or lung disease, cancer, high blood pressure, diabetes, stroke, and difficulties with mobility, such as walking or climbing stairs”.

Likewise, a study of 127,545 adults carried out by the U.S. National Centre for Health Statistics reveals that divorced people report more smoking, more physical inactivity, and heavier drinking habits than married people. All of these can contribute to greater health problems.

It is beyond any reasonable doubt that children whose parents divorce are much more likely to suffer numerous negative side effects. They tend to have a significantly lower educational achievement. They are far more likely to have difficulties at school and to drop out of high school, and hence are less likely to graduate from university, even when compared with children from families who have lost a father through death.

Children of divorced parents are much more likely to experience alcohol and drug abuse. And they are far more likely to have a worse economic standard in their adult lives and to end up in poverty.

The evidence is so compelling that it has led Dr David Popenoe, a profes­sor of sociology at Rutgers University, to conclude: “In my many years as a sociologist, I have found few other bodies of evidence that lean so much in one direction as this one: on the whole, two parents – a father and a mother – are better for a child than one parent.

“There are, to be sure, many factors that complicate this simple proposition. We all know of a two-parent family that is truly dysfunctional – the proverbial family from hell. A child can certainly be raised to a fulfilling adulthood by one loving parent who is devoted to the child’s wellbeing. But such exceptions do not invalidate the rule any more than the fact that some three-pack-a-day smokers live to a ripe old age casts doubt on the dangers of cigarettes.”

Under extraordinary circumstances divorce may become a last recourse as it can provide a way out for children and adults in high-conflict marriages. There are times when the damage being done is so bad that it is in the best interest of adults and children that a family no longer stay together. These instances are rare and the majority of divorces do not fit this category.

On the whole, most marriages could actually be saved and turned into satisfying relationships if both partners committed themselves to making the relationship work, and if both were willing to get help and do some changing.

There is little doubt that insensitivity to the needs of other people and a self-centred view of life that insists upon the fulfilment of one’s own wishes and rights, are important contributors to the divorce epidemic that has plagued Western societies.

Furthermore, an unwillingness to make and keep commitments, coupled with a disinclination to assume responsibility, are attitudes that commonly stimulate conflict in a marriage relationship.

However, as American psychiatrist Dr Gary R. Collins explains: “Conflict is not the problem so much as the inability of couples to handle and resolve their differences.”

One of the reasons divorce is so prevalent in our society is because commitment and sacrifice are archaic words that no longer have any meaning. In the process of losing our family values, we have completely lost the ability to really love and achieve contentment and deep happiness.

In this context, of course, it is fundamental to reconsider the importance of sacrificial love in keeping the marriage vow.

However, it is equally important that our government eliminate all the existing legal incentives provided for those who seek an easily available divorce on entirely selfish or unethical grounds.

Dr Augusto Zimmermann is Law Reform Commissioner with the Law Reform Commission of Western Australia; Director of Post Graduate Research and former Associate Dean (Research) at Murdoch University Law School; Professor of Law (adjunct) at the University of Notre Dame Australia, Sydney campus; President of the Western Australian Legal Theory Association (WALTA); and Fellow at the International Academy for the Study of the Jurisprudence of the Family.

The author wishes to thank Heath Harley-Bellemore for his comments on an earlier version of this paper.

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