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A review of Marriage, Divorce and Family Justice. By Barry Maley.

Mar 1, 1993

Centre for Independent Studies, 1992.

It seems that the amount of pro-family rhetoric heard rises in proportion to the nearness of the March 13 federal election. But the policies being put forward by both Mr Keating and Dr Hewson seem at best window dressing considering the very real crisis the family finds itself in.

That is why it is heartening to see a new book on family policy just released by the Centre for Independent Studies. Written by CIS Senior Fellow Barry Maley, the book, Marriage, Divorce and Family Justice is an important contribution to the debate about economic and social justice for the beleaguered family. Indeed, except for Alan Tapper’s The Family in the Welfare State (1990), no other book comes to mind which seeks to champion the cause of the family in the realm of public policy.

Maley’s book is divided into two sections: Family Law Reform and Public Policy Reform. At the heart of section one is the concept of “contract”. Maley argues that contract, and the sense of permanency that goes with it, is what distinguishes marriage from de facto relationships.

The two chief faults of the Family Law Act, says Maley, are the failure to set out the contractual obligations of marriage, and the lack of certainty in divorce settlements. “Family law as it stands directly flouts the most elementary requirements of justice in marriage because it stands by helplessly as contractual abandonment runs rife without clear and predictable remedy.” These weaknesses explain why “the Family Law Act has significantly weakened, almost to the point of obliteration, the distinction between marriage and cohabitation.”

Maley argues for a much stronger emphasis on contract, with its attendant responsibilities and obligations, while acknowledging that marriage is not simply contractual in nature: “marriage is at least a contract, but there is more to it than can ever be captured in contractual terms.”

Concerning “fault”, Maley argues that fault should not enter into discussions about whether a divorce can take place, but only in discussions of settlement: “divorce should be readily available but broken promises should be paid for at the time; fault is not an issue in divorce but it is an issue affecting the terms of the divorce settlement, of the winding up of the marriage contract.”

Thus Maley (reflecting the libertarian bent of the CIS), argues that the “right to divorce is as precious as the right to get married”. Divorce is seen in terms of breach of contract. Such a conception is not meant to minimise marriage, however, says Maley. Rather, by emphasising the importance of contractual obligation in marriage, and in minimising the discretionary powers of Family Court judges, marriages will be entered into more seriously and the tendency for easy divorce will be put in check. Says Maley, “if the law takes marriage rights and obligations seriously and justly enforces them, so will wives and husbands take them seriously, and this cannot help but lead to more responsible and considerate behaviour.”

Part two of the book deals with questions of economic policy and family well-being. Maley notes that the current system severely disadvantages intact families: “A number of studies have shown conclusively that existing taxation and welfare polices, rather than giving equitable aid to two-parent families with dependent children, actively discriminate against them by working to reduce their ‘equivalent incomes’ in comparison with the childless, those whose children have grown up, and the aged.”

Indeed, for every dollar spent on children of parents who stay together, the federal government spends ten dollars on children of parents who have separated. “Current family policy not only denies equity, it handicaps the capacity of parents of intact families effectively to raise their children … by promising government support for separated parents, it provides an unintended incentive for family breakup.”

Government policy on child care is a good example of such inequities. Child care subsidies are conditional upon mothers joining the paid workforce. “These subsidies are explicitly based on favouring and supporting labour market participation by mothers of young children.” Women who choose to stay at home to look after their young children are denied any financial assistance. Where is the equity in such a situation? Where is the genuine choice for women?

Maley offers a proposal to help rectify the current imbalance in family policies. He bases his proposal on the presumption that “parenting, whether within the married state or outside it, is a joint enterprise from whose responsibilities neither parent can unilaterally opt out without penalty.” He proposes to replace all current family support schemes with a child tax credit. This would amount to, say, $2000 annually per dependent child.

The intention of such a policy is “to treat all children equally in terms of the support they get from the state and not to advantage one form of family at the expense of another or to create incentives that encourage unnecessary dependency or lead to behaviours that work against the welfare of children and the integrity and autonomy of families.”

Maley admits that the $2000 figure is low when the actual costs of rearing children are taken into consideration: “A $2000 tax credit/benefit alone, while fairer than the existing system, would not remove present inequities. One option is to increase it.” Another option is to combine it with income splitting. Income splitting for income-tax purposes would be for married couples with pre-school dependent children only, says Maley.

How does one evaluate such proposals? First, it can be said that it is refreshing to find other parties concerned about the plight of the family. Groups such as the Australian Family Association have seemed like a voice crying in the wilderness on these issues. It is encouraging that the CIS, with its traditionally narrow focus on economic issues, has broadened its concerns to include family questions.

Given the secular, free-market orientation of the CIS, it is not surprising that questions of religion and morality, and their bearing on marriage and the family, do not emerge in Maley’s book. Thus other measures of help to families – e.g. counseling, before both marriage and divorce – are not discussed. Talk of the “sanctity” of marriage is obviously absent as well.

But on the issues that are raised, namely family law reform, and public policy reform for families, there is much to be gained from this book. It offers a clear critique of the current system’s shortcomings, while offering some practical, albeit perhaps controversial, proposals for change.

There is clearly widespread discontent over current family law policy. Maley’s proposals here are worth looking at more closely, even though they may not please everyone concerned about the traditional family and the non-economic importance of marriage.

Maley’s tax credit proposal should also be welcomed. Certainly the present system needs change. Whether his proposal is feasible – electorally, economically and socially – is an open question. But it is a step in the right direction.

A healthy society depends upon healthy families. The issues involved are complex and open to debate. But surely Maley is right when he maintains that “a sound family policy is almost the whole of a good welfare policy.”

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