California, for those who know anything about that famous American state, is regarded by many as a land of fruits and nuts. All things weird and wonderful seem to originate in California. The liberalization of divorce laws also began in California. Indeed California became the first jurisdiction in the Western world to eliminate all fault-based grounds for divorce. More about California in a moment.
First a bit of background. Before the divorce revolution of the 60s and 70s, most divorce law was based on the concept of fault. There were exceptions. For example, in Australia and some American states, divorce was permitted after a period of separation or on grounds of incompatibility as well as on fault grounds. But on the whole, if one spouse wanted to get a divorce while the other did not, it was a difficult and time-consuming procedure.
In the push for liberalization, California and England led the way. In 1966, the Archbishop of Canterbury issued a report concluding that traditional English divorce law should be replaced with a statute that concentrated on the state of marriage rather than the behaviour of the spouses. In 1969, the year California liberalised its divorce laws, England did so too, but by way of compromise. English divorce law still retained the old fault system, by allowed divorce on the grounds of irretrievable breakdown.
Between 1969 and 1985 divorce law in nearly every Western country was profoundly altered. Some of the most dramatic changes took place in predominantly Catholic countries like Italy and Spain, where civil divorce was introduced, or Portugal where divorce was extended to Catholic marriages.
In four countries – the Netherlands, Sweden, West Germany, and nineteen American jurisdictions – fault grounds were eliminated entirely. In Sweden, liberalization of the grounds for divorce were taken further than any other country, except for some of the American states. In 1973 Sweden replaced a system of mixed fault and nonfault grounds with a system which permits either spouse to terminate a marriage without having to allege and prove fault, without having to obtain the other spouse’s consent, and without a long period of separation. The only stipulation is if children are involved, in which case a six-month “period of consideration” must be observed!
In New Zealand liberalization of divorce laws took place in 1980. The number of divorces doubled between 1980 and 1982. The divorce rate peaked at this time, then stabilised. Divorce can be granted after a two year period of separation.
By the mid 1980s most Western countries had radically liberalised their divorce laws. In his Road to Divorce, the historian Lawrence Stone describes this transformation of Western societies from “largely non-separating and non- divorcing “ ones to “separating and divorcing” ones as “perhaps the most profound and far-reaching social change to have occurred in the last five hundred years.” Consider the numbers. In the United States in 1960, there were thirty-five divorced persons for every 1,000 married persons. In 1990 there were 140 — a 400 percent increase in thirty years.
During that same period, the proportion of children living with only one parent jumped from 9 percent to 25 percent. Between 1960 and 1985, the percent of all childbirths occurring outside of marriage increased from 5 to 22; the percent of teenage mothers who are unmarried increased from 15 to 58; and the overall proportion of American adult life spent in residence with both a spouse and at least one child dropped from 62 percent, the highest in America’s history, to 43 percent, the lowest in its history.
As Barbara Whitehead puts it, these numbers reflect two processes. The first is deinstitutionalization: the erosion of marriage as a social institution embodying widely shared moral values. The second is dejuridification: the shrinking of the legal regulation of marriage. “Together,” says Whitehead, “these processes have transformed marriage from a binding social commitment to an essentially private, freely terminable lifestyle option. In essence, divorce has become a “right” — less a judicial issue than an administrative procedure.”
What caused this momentous change? Most would argue that the cultural revolution of the 60s was the stimulus to such change. The anti-authority rebellion with its emphasis of pleasing the self made for fertile breeding grounds for concepts like no-fault divorce.
During this time in the United States, says Mary Ann Glendon, “the ‘no-fault’ idea blended readily with the psychological jargon that already had such a strong influence on how Americans think about their personal relationships…(and) fit neatly into an increasingly popular mode of discourse in which values are treated as matters of taste, feelings of guilt are regarded as unhealthy, and an individual’s primary responsibility is assumed to be to himself.”
The idea of no-fault tells us that, when a marriage ends, no one is to blame. People change; people grow apart; and they must be allowed to pursue their own happiness. No-fault terminology tells us that marriage is essentially a private matter, designed for the fulfilment of the individual spouses. As Whitehead puts it, “Other prospective stakeholders in the relationship — such as children or the society as a whole — are understood to be at best minority shareholders whose claims are effectively without standing and therefore unenforceable”.
These ideas stand in sharp contrast to the common wisdom of our parents’ generation, perhaps best summarized in a famous essay by Roscoe Pound, who insisted that family law “must distinguish the individual interests in domestic relations from the social interest in the family and marriage as social institutions.” This social interest, Pound argued, is twofold: “the maintenance of the family as a social institution” and “the protection of dependent persons, in securing to all individuals a moral and social life and in the rearing and training of sound and well-bred citizens for the future.”
Feminism also has to take part of the blame for this problem. As but one example, let me mention a radio broadcast I recently heard. It was an ABC rebroadcast of a talk given a few days earlier by feminist Dr Anne Summers, author of Damned Whores and Gods Police. Her talk took place at the launch of the second edition of the book – the first edition written twenty years ago. She said the most memorable thing about writing the book was the number of women whom came up to her afterwards thanking her for giving them the courage to walk out of their marriage. Imagine that. Summers greatest thrill was knowing how many marriages and families she helped to break up. That says a lot about feminism. (Of course feminism sees divorce as a liberation from an oppressive institution, not a break up of a sacred trust.)
What is to be done?
Two major changes are needed, it seems, if we want to reverse the rise in divorce. One is a cultural shift, the other a legal one.
1. Cultural change
The cultural challenge is in some ways the more difficult of the two. What is needed is a major effort to tell modern culture that it is wrong to emphasise the individual over the family or the community. Popular culture is especially to be blamed for this stress on personal self-gratification at the expense of the social good.
What is needed is the reestablishment of the social stigma that has traditionally accompanied voluntary family dissolution. It is not politically correct to assign blame, guilt or shame to family breakdown today, but that is what is needed nonetheless. In the past people tended to stay together in marriage for three reasons: 1) social shame and stigma acted as a deterrent; 2) the good of the children was seen as paramount; and 3) it was economically unviable to breakup a marriage. Today we have undermined all three reasons for making marriage work.
Yet it is important to remember that social trends are not irreversible. Re-stigmatizing a behaviour will reduce its frequency. Smoking is a good case in point. Thirty years ago some 60% of all adults and young people were smokers. Today the figure is around 25%. What caused this reversal? Health warnings, obviously, but a social stigma which made people feel guilty, at least in public, of continuing in such behaviour. The same needs to be done with easy divorce. We need to reapply a sense of shame and guilt to those who irresponsibly seek to break up marriages.
2. Legal change
Reform of our marriage laws can also contribute, at least indirectly, to a broader renewal of the marital relationship. The first priority is surely to reverse the legal trend toward easy, no-fault, little-responsibility divorce. Our current campaign at reform of the Family Law Act is an attempt to do just this.
A more general goal should be to emphasise in law the importance of marriage. As the US Presidential Commission report entitled “Families First” put it, “Marriage laws should state explicitly the social importance of marriage; define the society’s vital stake in life-long marriages; and enumerate the obligations inherent in marriage, especially the obligation of parents to their children.” This is important because laws not only “establish rules and create incentives – both of which certainly influence behaviour – but they also inevitably convey a message about the way the society respects institutions and regulated behaviour.”
The permanence of the marriage contract needs to be reaffirmed. And the idea that such an arrangement of life-long marriages that put children first is a creation of the 1950s in America has to be challenged. Anthropologists have long recognised that the two-parent family, cemented by marriage, has been the historical and universal norm of human relationships. Margaret Mead put it this way, “No matter how free divorce, how frequently marriages break up, in most societies there is the assumption of permanent mating, the idea that the marriage should last as long as both live. . . . No known society has ever invented a form of marriage strong enough to stick that did not contain the ’till death us do part’ assumption.” (Male and Female, Dell, 1949, 1968. p. 200.) Such a concept runs headlong into the mentality of modern culture, the me-first mentality.
Most discussions of divorce today settle on the aftermath of divorce – custody disputes, alimony payments etc. A recent Parliamentary inquiry into family law was entirely devoted to these issues. Almost no thinking is directed to the prevention of divorce.
One of the few to examine family law in Australia from a preventative point of view is Centre for Independent Studies fellow Barry Maley. In his book Marriage, Divorce and Family Justice, 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, is 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.”
Obviously his rejection of fault will not please most here, but at least he is emphasising the importance of the contractual basis of marriage.
Can the Family Law act be reversed in Australia? As mentioned, a campaign for its reform is now under way by the Australian Family Association. And other groups have been working for change. Whether such change is likely remains to be seen. Any attempts at overturning liberalised divorce laws in other countries have only seen cosmetic changes, or at best, more consideration for the interests of children in divorce settlement proceedings. But as we have seen with the issue of cigarette smoking, (no offence to any smokers here) certain forms of irresponsible behaviours can and do change over time.
