MARRIAGE should never be a prison, but should it be a subsidised holiday house?
The government is rightly bemoaning the immense cost for taxpayers of the 50,000-odd divorces in Australia each year in extra single parent and child support payments, not to mention consequent social delinquency and emotional heartache. But its plans for “free” counselling vouchers and so-called expert panels will only add to the waste.
A better idea — one that economists and feminists can rally around, which costs taxpayers nothing — is the introduction of optional “fault divorce”.
The shift to no-fault divorce — celebrated, paradoxically, by so-called progressives then and still — drastically shifted bargaining power away from reluctant divorcees in a way that harmed women and benefited men. Academics at New York University and the IMF have shown how the introduction of “no fault” divorce has not only pushed up divorce rates — Australia’s is around two to three times that before 1975 — but had a permanent, costly and potentially damaging impact.
In the 1970s Australia and the US rightly banished fault divorce, which had prevented formal break-ups without “grounds”. This forced couples to fake the reasons — including adultery, desertion and cruelty (and 11 others in Australia) — even when both were simply content to move on.
This led to ridiculous and sometimes costly charades, but, crucially, gave any spouse who didn’t want to divorce the right to extract compensation before he or she would participate.
“Divorce is less costly for men since they earn substantially more than women on average and also bear a smaller share of the cost of raising children upon divorce,” write Raquel Fernandez and Joyce Wong in their June paper, noting that some degree of specialisation by women in child-rearing is, for now, biologically inevitable regardless of female career pursuits.
“Poorer individuals are hit hardest by the loss of insurance and economies of scale from marriage, leading poorer women in particular to become more averse to marriage,” they add, arguing that the fall in marriage rates since the 1970s — 40 per cent down in Australia since then — shows that women’s aversion to marrying has overpowered men’s increased desire to.
It is much easier for the spouse with higher actual and potential income, usually the male, to walk away from marriage. It is especially difficult for women with younger children who have elected to stay at home to do so. The ‘‘disutility of working’’ is, for these women, much higher than it is for men.
The relentless focus on the cost of weddings obscures the strong economic rationale for marriage — the ability to specialise and economies of scale in domestic duties and accommodation, and the ability to draw on each other’s earning power in tough times.
Modern marriages have become expensive public statements without contractual teeth. Women (and men whose wives have much greater earning potential) have lost the ability to constrain their own or their spouses’ future behaviour.
The dramatic changes in family structures since the 1950s have complex cultural, political and even technological explanations. But it should be no surprise that the sudden, wholesale shift in the standard terms of society’s most famous contract — in favour of the spouse with a better outside option — would have dramatic ramifications.
Women have responded rationally. They have invested far more in their own education and worked longer to ensure self-reliance. They have married far later and had fewer children. Husbands and wives are less willing to make sacrifices to support their partner’s careers because they know they have no certainty that those benefits would be shared if the relationship soured. If women do have children they want taxpayer-funded childcare and paid parental leave, costs foist on to other taxpayers, subconsciously fearful of the long-run consequences of losing their skills.
All these trends might not be optimal. For instance, surveys show most younger women typically want more than two or even three children, but end up having one and in many cases much later in life. Were other marriage contracts available, some women (and men) might prefer to marry younger with the knowledge the economic benefits of marriage can’t be arbitrarily withdrawn by their spouse without compensation.
Australian and US evidence shows women who wanted a marriage to continue did much better financially under the old fault regimes than they do now, where courts expressly ignore the differing desires of the spouses.
Pre-nuptial agreements are expensive, unreliable and awkward. The idea they are an effective substitute for a cheap, standard, government-sanctioned “fault” divorce contact is a typically elitist and naive view.
Permitting couples the option of a modernised form of fault divorce would cost nothing but could potentially lead to a virtuous circle that saved taxpayers substantial sums. More choice typically enhances welfare.
Of course, any new option should avoid the anachronism of requiring specific grounds for divorce. Both parties’ wanting to split (for whatever reason) should be quite enough. But such agreement would imply the unwanted party has been adequately compensated. Over time, the “fault” marriages might become more popular as the existing, more whimsical variety came to be seen as a half-hearted alternative.
The father was not named on the now 18-year-old daughter’s birth certificate. Not was he listed as a contact at her school.
But the mother applied to the Federal Circuit Court for a ruling that she had been in a de facto relationship with the father so she could claim a share of his assets.
In ruling there was no defacto relationship, Judge Joe Harman nevertheless found the father had provided for the girl through childhood. Now the mother, 56, is likely to be reported by the court for welfare fraud because, not only was she not a single mother, she also claimed to have been employed by the father.
Judge Harman said there was a saying: “You cannot have the egg and the half-penny too.”
The daughter had been brought up knowing the man was her father, he was at her birth and he had provided for her since but had no idea until recently that he was not on her birth certificate.
The judge found that, although the parents and their daughter lived for many years in the same property, the mother and father had not only separate bedrooms but separate homes — she in the residence and he in the business part of the property.
“The sexual relationship that has existed between the parties has been brief, sporadic and far from reflective of mutual commitment between them,” Judge Harman said.
“In all probability for these parties, engaging in sex with each other met a need and has not implied anything else, be it emotion or commitment.”
When they rented out the residence, the judge found the man lived upstairs while the woman lived downstairs with her daughter.
“During the period the parties were living under the one roof I am not satisfied they lived in a de facto relationship,” Judge Harman said.
He rejected the woman’s evidence the man had been complicit in her claiming single parents’ benefits because they needed the money.
IT’S a question most of us either know, or have a fairly good idea about -Who’s you’re daddy? But do we really know if the man we call ‘dad’ is actually who we think he is?
Up to a third of us should be questioning our parentage according to a revealing new poll, which provides a startling insight into Australian women’s sexual habits and raises some potentially hairy paternity issues.
The survey conducted by Roy Morgan research, asked both Australian and American women if they had ever had sex with more than one man in a single month, and also if they ever had multiple partners.
The findings form part of a landmark documentary to air on SBS on Sunday, April 20.
12% of American women & 8% of Australian woman admitted to sex outside a long-term relationship.
Who’s Your Daddy? conducts the first ever purpose-designed paternity poll, asking some truly awkward questions.
The show, which forms part of SBS’s Tales of the Unexpected series, compares rates of paternity uncertainty in Australia and the United States, and follows parents and children as they discover the truth behind who their father really is.
The survey draws a sharp parallel to a 1972 UK study which found one in three children was not related to the man they called dad.
According to the recent findings up to 30 per cent of Aussie women admitted to having had sex with more than one man in a single month.
On the fertile days of their cycle when women are most likely to conceive, they are also more likely to flirt with men other than their romantic partner.
But if you think it’s just the youngsters who are enjoying multiple partners, think again.
The group of women most likely to answer yes to having more than one partner in a month were those aged between 35-49, or 36 per cent of women, followed by 35 per cent of those aged between 24-35.
Of those who said yes to sleeping with more than one man at the same time, eight per cent admitted they were either married or in a long-term relationship, compared to 12 per cent of American women who were asked the same question.
But when it came to admitting if the children were conceived at the time they had multiple partners the answers weren’t so clear cut.
Overall just one per cent revealed they conceived a child while in a long-term relationship and involved with multiple partners, yet were certain their long-term partner was the biological father of their child.
And according to one expert, that figure could be much higher.
Non-invasive DNA Paternity testing can now be conducted as early as 9-weeks into a pregnancy.
Tales of the Unexpected contributor Rob Brook is an evolutionary biologist, said the question of paternity was important to people and had the potential to pull families apart.
“This issue cuts to the core of what it means to be a human being,” he said.
“The fascinating thing about this documentary is it shows we want to know who we are, not only socially but genetically too.”
Professor Brooks said the question of paternity was also crucially important to men and fathers as well, who invest time, money and emotions into their children.
He said that while some men may not know they’ve had children, it’s important that the children they know about are biologically theirs, making it more likely the fathers would stick around and help raise and care for them.
“You’ll notice when a child is born many people comment how much it may look like the father,” Professor Brooks told news.com.au
“This is our way of reassuring him that he can be sure he’s the dad.”
But he said he was a little surprised that 30 per cent figure wasn’t higher given women are enjoying more sexual freedom than ever.
“Historically our species haven’t been as sexually active as they are now,” he said. “Especially when you compare this to 150 or even 50 years ago when we were more constrained.”
He said when it came to children, women were always certain they were the child’s biological parent whereas men could only ever be certain with DNA testing.
* Who’s Your Daddy? airs Sunday, April 20 at 8.30pm on SBS One.
The “no-fault” divorce revolution that spread across the Western world was led in the 1970s by members of the cultural, academic, legal and political elites, in particular by radical feminists who made the case for easy divorce as a means of women’s liberation. By declaring marriage to be an oppressive institution, they demanded “no fault” as a means of allowing wives to escape marriage and achieve a “right of exit”.
Although divorce is generally perceived as a solution for unhappy spouses, in reality it sadly is not. Research shows that an important contextual factor accounting for family violence is actually separation and divorce. Indeed, separation and divorce instigate more conflict, and in some circumstances cause formerly non-abusive partners to resort to violence.
Arguably, issues resulting from separation and divorce, such as child arrangements, economic difficulties, lack of knowledge of family law, and a state of heightened emotions, often perpetuate and exacerbate family conflict and violence.
Family breakdown represents a formidable source of human misery and unhappiness. Barry Maley, a senior fellow at the Sydney-based Centre for Independent Studies (CIS), observed 11 years ago: “It is a common factor in wider social problems of crime, suicide, violence, poverty, child abuse and educational underperformance.”
And yet, the 1975 change in Australia’s family law to no-fault divorce has created avenues for individuals to exploit others opportunistically and still receive the support of the law. Above all, no-fault divorce has created uncertainty about the durability of marriage and a loss of confidence in a time-honoured institution.
It is one thing to allow no-fault divorce for a failed marriage when both the husband and wife agree that they want a divorce. But it is quite another matter when a divorce occurs without mutual consent — that is, when one of the spouses unilaterally leaves the marriage.
Unilateralism such as this should constitute unlawful desertion unless the spouse has been driven out of marriage by the other spouse’s misconduct. The deserted spouse should then be able to apply for divorce after one year’s separation, and the misconduct of the other spouse should affect the terms of the divorce settlement.
When no-fault divorce was introduced in Australia, it was promoted as a way-out for marriages that both spouses agreed were over. It would protect people from the embarrassment of having to prove any fault.
…the 1975 change in Australia’s family law to no-fault divorce has created avenues for individuals to exploit others opportunistically and still receive the support of the law.
Before 1975, however, it was necessary for a spouse, in order to get a divorce, to prove that fault (i.e., serious misconduct) had been committed by the other spouse. Without proof of fault, a divorce would not be granted. Fault divorce meant that only the innocent party could apply for a divorce, and it would be open to the court to award a more favourable property settlement to the spouse who had been the victim of any serious misconduct.
The Family Law Act 1975, introduced by the Whitlam Labor government’s Attorney-General, Lionel Murphy, abolished the need to prove any serious misconduct to obtain a divorce. Either spouse could now freely terminate their marriage without any consent of the other party. This move to no-fault divorce meant that misconduct in a marriage became legally irrelevant.
Dr Maley has described the consequences: “Current divorce law has introduced a number of perverse incentives for behaviour that undermines confidence in marriage and sustains high divorce rates. It promotes marital uncertainty, opportunism and forms of spouse exploitation.”
By disempowering a non-consenting spouse, the no-fault divorce has enlarged the scope for the other spouse to engage, without fear of penalty, in opportunistic behaviour — behaviour, moreover, which reaps personal benefits at the expense of the innocent party.
According to John Hirst, a historian and social commentator at Melbourne’s La Trobe University, “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”.
Indeed, as Dr Maley explains: “Despite the continuing reality of serious marital misconduct, its costs and damages were no longer recognised by family law. It put an end to redress and compensation. It therefore removed a disincentive to irresponsible, selfish, or malicious behaviour within a marriage. It diminished the ‘contractual’ element in marriage and the presumption that marriage entailed obligations and duties whose dereliction might bring punitive consequences.
“By removing the consensual settlement possibilities of fault divorce, it disempowered a non-consenting spouse by closing the opportunity for bargaining mutually satisfactory terms to end a marriage.”
Under “no-fault” divorce, selfishness is therefore rewarded and considerations of justice and fairness expunged from the legal system. Because of its involuntary nature, no-fault divorce inescapably involves governmental arbitrariness.
According to American political theorist Stephen Baskerville, the no-fault principle “inescapably involves government agents forcibly removing legally innocent people from their homes, seizing their property, and separating them from their children. It inherently abrogates not only the inviolability of marriage but the very concept of private life”.
Professor Baskerville explains: “Far more than marriage, divorce mobilises and expands government power. Marriage creates a private household, which may or may not necessitate signing some legal documents. Divorce dissolves a private household, usually against the wishes of one spouse. It inevitably involves state functionaries — including police and jails — to enforce the divorce and the post-marriage order.
“Almost invariably, the involuntarily divorced spouse will want and expect to continue enjoying the protections and prerogatives of private life: the right to live in the common home, to possess the common property, or — most vexing of all — to parent the common children. These claims must be terminated, using the penal system if necessary.”
The no-fault principle permeates the whole family court system in Australia. In no other area of legal contract does the law reward irresponsible behaviour. Rather, those who break a contract may expect to be punished. Under the old system, an innocent wife was fully entitled to “handsome maintenance”, even when she was able to support herself. On the other hand, a guilty wife was not entitled to maintenance unless she was responsible for young children and unable to support herself.
The post-1975 regime reversed this policy and fundamentally changed the principles on which financial and custody settlements were made. Under current rules, a spouse can betray the other spouse and be entitled to spousal maintenance as well as the custody of the children. Moreover, full-time mothers — those who are most committed to traditional marriage — are likely to be more disadvantaged after divorce when marital property is distributed by either agreement or court determination.
Likewise, a conscientious husband, who is not guilty of any misconduct, is made extremely vulnerable by the prospect of losing contact with his children he has loved, protected and helped raise. The victimised father will be forced to maintain his “guilty” ex-wife and his now-separated children, to continue to pay the mortgage charges, to vacate the family home, and to pay rent for a separate residence for himself. The father is therefore doubly victimised.
Dr Maley writes: “His marriage and its expectations have been destroyed; he has largely lost his children, lost his home and a large part of his income. His prospects of mending his shattered and impoverished life, re-partnering and perhaps having other children, are minimal.”
Many faithful husbands and loving fathers have experienced this. The break-up may not involve a new lover. Rather, the wife may be just “tired” of being married and wanting to “start a new life”. One can hear the testimony of many husbands whose wives have run off and been awarded the sole custody of their children, while they were expected to pay child support and spousal maintenance. Of course, under no-fault divorce the conscientious husband will be treated exactly the same way as the unfaithful spouse, the one who has abandoned his wife and children.
Ultimately, no-fault-divorce undermines justice as it rewards irresponsible behaviour and makes a complete mockery of marital vows. Perhaps those who are marrying should consider declaring at their wedding ceremonies, “I promise you nothing”, or “I will leave you whenever I want”.
To stabilise marriage, the Family Law Act must be amended to remove the present incentive of no-fault divorce, which enables a spouse to unilaterally leave a marriage without any fear of losing custody of children and property. This egregious legal anomaly is a standing invitation to irresponsible behaviour.
If this urgent reform is not undertaken, the Family Court of Australia will continue to perpetuate injustice by rewarding those spouses responsible for grave marital misconduct and by separating children from their legally blameless parents.
Augusto Zimmermann, LLB, LLM, PhD (Monash), teaches legal theory and constitutional law at Murdoch University, Western Australia. He is also president of the Western Australian Legal Theory Association (WALTA) and editor of The Western Australian Jurist. Last year he published a widely acclaimed book, Western Legal Theory: Theory, Concepts and Perspectives (Sydney: LexisNexis Butterworths, 2013).
A newly-wed who falsely reported being raped to police, in an effort to hide her 6 year affair had been allowed to walk free from Court, after she claimed that she was the victim in this sorry tale of infidelity, deceit and false allegations.
JESSICA Gore had been married to her partner Darren for just four weeks when she came home late crying that she had been raped by a stranger.
The allegations sparked rumours a sex attacker who had been plaguing the local area might have struck again at around 10pm on September 24 last year.
Detectives took on the investigation after a description of the man given by Gore resembled an efit image issued by police.
Forensics officers scoured the area, but Gore was arrested a week after the complaint was made and was charged with perverting the course of justice.
She was sentenced at Canterbury Crown Court yesterday after admitting the charge at an earlier hearing.
Gore was given an eight-month suspended prison sentence by Judge Heather Norton, who also praised police handling of the case.
It became very clear to police that her claims were just an attempt to hide a six-year secret affair she had been keeping from her husband.
Ms Gore, a mother-of-two from Kent, UK, claimed she had been attacked while walking home from babysitting for a friend.
But detectives quickly unravelled her bogus story, uncovering a number of text messages between her and her lover Matthew Richards.
Ms Gore, 32, had in fact been at Mr Richards’ house which was a short distance from her own home.
In Canterbury Crown Court Ms Gore admitted perverting the course of justice and was given a suspended prison sentence of eight months, suspended for a year.
She also admitted she had been cheating on her partner “on-off” for six years.
Judge Heather Norton told her: “This wasn’t just a vague allegation. You gave an incredible amount of detail.
“This was all at a time when there was an ongoing investigation into rapes in the Ashford area.”
Judge Norton let her walk free but said: “This is an extremely exceptional case.
“I do so with some reluctance and it is really by the skin of your teeth.”
Ms Gore’s story began to unravel when her friend said she had not been babysitting at her house.
Police then examined Ms Gore’s phone and found explicit messages between her and Mr Richards.
Defending Ms Gore, James Ross said: “It was Mrs Gore’s belief that, unless she consented to this blackmail to have sex with him on that particular day, he would tell her husband.
“In effect, that her lover would pull the plug on her entire life.”
Ms Gore suffered from mental health issues and her difficulties with men stemmed from problems she had as a child, Mr Ross added.
Judge Norton told the court: “Sadly, in this case, the allegation of rape proved to be untrue but was not admitted until after extensive inquiries had been carried out by detectives, at a time when there was understandable public concern about a number of earlier assaults being carried out in the Ashford area.
“I would echo the comments by Judge Norton that this strikes fear into the hearts of women and undermines actual victims.”
A woman who worked as a pole dancer is set to receive $3.25 million from her ex-husband after the Family Court ruled against his bid to have their pre-nuptial agreement overturned because of her “false promises”.
The couple, referred to by the court as Mr Wallace and Ms Stelzer, first met in 1998, when he was married to someone else, and moved in together shortly after.
He was 51 years old, divorced and came into the marriage with an “overwhelming pool of assets”. He has a net worth of more than $16 million.
She was 38 years old at the time, “had no assets” and had also been married previously.
He married Ms Stelzer in October 2005, but not before a pre-nuptial agreement was signed, stating that Ms Stelzer would receive $3.25 million if the marriage broke down in the first four years.
They separated after two.
Mr Wallace fought to have the pre-nup deemed invalid, claiming that Ms Stelzer behaved fraudulently by making “false promises of love and desire for children”.
He also said his lawyers did not give him adequate legal advice and make clear the pros and cons of the pre-nuptial agreement. He said that his lawyers had taken only minutes to sign it.
In 2004, the Family Law Act specified that the body of financial agreements had to state that legal advice had been given to clients, and solicitors were required to provide a signed certification.
However, a number of agreements were subsequently deemed invalid because there was nothing in the body of the agreement stating that advice had been given.
But in 2010, wording of the legislation was relaxed and the court could uphold an agreement that did not comply with the technicalities of the legislation.
Mr Wallace argued that his pre-nup was signed before the 2010 amendment and so his agreement should be deemed invalid.
However, on Wednesday the Family Court ruled the pre-nup was binding and that the amended legislation “can have a retrospective operation which is constitutionally valid”.
Professor Patrick Parkinson, a family law specialist at the University of Sydney, said divorce lawyers had been watching the case, known as the “pole dancer case” very closely.
“The ruling means there’s much more certainty about the validity of agreements that were drafted between 2000 and 2008.”
Family lawyer Paul Doolan agreed and said the decision now removed a lot of uncertainty surrounding financial agreements.
“I think it’s a good decision generally and it gives a lot of confidence to the community and to the legal profession, but there are still a host of problems with the legislation and the government needs to fix them.”
One of those “technical problems” includes having lawyers “come under more scrutiny”, as the legislation still allows courts to analyse how solicitors gave advice to clients, despite the signed certification, he said.
“Why would you even bother having the certificate if the court is able to look at the quality of the advice?”
Editor: This extract below, referring to the NSW parliamentary inquiry into provocation, is another example of how important issues are being air-brushed by the media into a one-sided moral crusade.
You may (or may not) have noticed that the female equivalent of provocation, for example the “battered women defence” are clearly protected by these ideologues by the creation of two categories of provocation, the extreme (in other words, if a woman is provoked), and mere words (in other words, if a man is provoked).
I take great issue with the comments of Assistant Police Commissioner Mark Murdoch who said that: “‘Words alone should not amount to provocation, no matter the intensity, ferocity or malice.”
My question to him would be, “why not, when words alone are enough in every other aspect of law and crime?”
With divorced single men having $762,000 less in assets at age 55 than those who have stayed married, and divorced single women having about $645,000 less than women who have stayed married, the research shows a bleak financial outlook for divorcees.
The joint research conducted by the Australian Institute of Family Studies (AIFS), the Australian National University and the University of Queensland involved almost 7700 households from 2001 to 2010.
It found those who divorce were likely to have had lower household incomes prior to their marriage break-up than those who remained married.
Unless they remarried, the divorce then widened the financial gap.
Editor: One can only wonder why she made these false allegations, but I would add that if it had something to do with her pursuing a sexual encounter behind her boyfriend’s back, then she would neither be the first nor last to have sought to hide her clandestine activity by falsely accusing an innocent third party.
A 21-year-old Sydney woman has been sentenced to 15 days jail in Phuket for falsely accusing a local taxi driver of assaulting her.
The woman, whose name has not been released, told Thai police she was the victim of an assault early on Sunday on the resort island and that two other Thai men restrained her during the attack.
The report, confirmed by Phuket Provincial Court sources, said the woman initially told the officers she become separated from her boyfriend in a nightclub area of Patong early on Sunday morning.
She said she was taking a taxi back to her resort when the driver picked up two other men.
She alleged he then drove to a secluded area and assaulted her while the other men held her down. Afterwards, they took her passport and cash.
A six-year-old boy will live with his father in Australia while his brother, two, will live in Canada with their mother.
The woman had abducted the older son and was ordered to return him under the rules of the Hague Convention.
The case has similarities to the battle involving four sisters whose Queensland mother has refused to take them “home” to Italy where they were brought up and where their Italian father lives. The girls remain in Queensland pending a High Court challenge brought by their maternal aunt.
In the latest case, Justice Christine Dawe said, while there was a presumption it was in the best interests of children if their parents had equal shared responsibility, this was an exception.