A review of Divorce Law and the Future of Marriage. By Barry Maley.

Centre for Independent Studies, 2003.

That marriage is in trouble few would deny. But whether this is something to lose any sleep over is not so unanimous. Barry Maley believes that the crisis in marriage is of importance, and needs to be addressed.

He is no stranger to this subject, having penned several earlier volumes on the subject. Thus some of the ideas expressed here are found in his earlier works.

Maley begins by examining the development of marriage in the West over the past several centuries. Up until recently, societies and individuals benefited greatly from the institution of marriage. However, as the West moved from a community-based society to one that emphasises self-fulfillment and individualism, marriage, like other social institutions, began to lose some of its prestige. Thus when no-fault divorce came along in the 70s, marriage suffered an even greater crisis in legitimacy. Easy divorce, coupled with the rise in cohabitation, made marriage look even less important.

The increase in easy divorce, along with greater female workplace participation rates, had some far-reaching social consequences. One was that marriage became less of a desirable goal, especially for women. Another was the rise in unemployment, especially male unemployment. In the past both parties benefited from staying married, but today there is less economic incentive to remain in marriage. Thus both men and women have lowered expectations about marriage today, compared to just a generation ago.

This has led to a rise in cohabitation, with over 70 per cent of couples now cohabiting before getting married. But cohabitation is not a substitute for marriage, and results in less durable marriage. Says Maley, the “promise in cohabitation is not ‘I will’, but ‘I might’.” The uncertainty involved in cohabitation leads to uncertainty about having children, which is part of the reason for our present fertility crisis.

But with the marriage contract now so easily broken, uncertainty reins in marriages as well, so fewer children are also coming from married unions. Marriage used to be a durable and reliable institution. But easy divorce has changed all that. Thus for the remainder of this volume, Maley looks at ways in which we can tighten up marriage and help reduce the incidence of divorce.

No-fault divorce has meant that any person can unilaterally pull out of a marriage, making marriage one of the most easily broken contracts around. The big loser in no-fault divorce of course is the spouse who wants to stay in the marriage. The person wanting out has all the advantages, and the outcomes are often quite one-sided. If both parties want out, fine, but in most cases, one spouse wants to make a go of it, but under the current regime he or she has little say, or leverage, in the matter. “The no-fault family law regime simply endorses desertion without comment or reproof.”

As such, one person can easily exploit the system. Says Maley, “Australian family law presently provides incentives and opportunities for divorce, and opportunistic exploitation of divorce, that were not previously available.” Maley argues that this current injustice must be addressed. Family law should, “as far as possible, include rules for breach of the marriage contract and divorce”. He does not want to abolish no-fault divorce, but he does want to see consensus in the divorce process, not unilateralism. The law of contract, in a sense, should be applied to marriage, so that if only one party wants out, he or she does not have a free run.

Thus serious misconduct in a marriage should be recognised, and damages, at least in principle, for breach of contract, should be provided, says Maley. At this point his proposals in this area become somewhat thin in detail. He does spend several pages providing some examples as to how this might work out in practice, and some possible objections are dealt with, but one suspects that more fine-tuning is required in this area.

Indeed, to make even moderate changes to the current system will be fiercely resisted, so any proposed alterations will need to be carefully thought through and carefully defended. But Maley has at least started the ball rolling. He knows, unlike many of our intelligentsia, that marriage is important. And he knows that the current system is broke, and needs fixing.

This book offers some ways forward. And anything that makes divorce less likely and more fair is a step in the right direction.

[730 words]

One Reply to “A review of Divorce Law and the Future of Marriage. By Barry Maley.”

  1. Hats off to Barry Maley for opening up this topic. No-fault divorce is a destructive force – if we love our children we need to address it (ie. get rid of it).
    Garth Penglase

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