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Published online by Cambridge University Press: 24 January 2025
The introduction of ‘no-fault divorce’ in Australia in 1976 promised unhappy spouses a ‘dignified’ way to end their marriage without the need to assign responsibility for the relationship's demise. But in 1989, Richard Ingleby's study of matrimonial breakdown hinted that the reformers of the 1970s had failed to appreciate the non-mutuality of the uncoupling process, and that the Family Law Act 1975 (Cth) ('Family Law Act’) had not been ‘able to prevent divorcing parties feeling the need to consider issues of fault'. Since that time a growing body of research evidence has revealed that blame and recrimination remain salient issues for divorcing couples, and academic commentators have suggested that battles over children and property are often proxies for unresolved relationship grievances. In this climate, legal scholarship has witnessed a renewed interest in the issue of spousal conduct, with radical proposals to construct ‘disloyalty’ in marriage as a legally relevant matter in divorce settlements, and consumers of the family law system have called for the law to pay greater heed to the moral dimensions of intimate relationships.
This article is based on a paper presented to the 24th Australia and New Zealand Law and History Society Annual Conference, ‘Trajectories of Law in History: The Future Behind Us’, University of Auckland, New Zealand, 10–12 July, 2005. The authors would like to thank Professor Susan Boyd for her insightful reflections on the issues raised in this paper, and the two reviewers for their helpful suggestions.
1 See, eg, Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1974, 4323 (Gough Whitlam), and Commonwealth, Parliamentary Debates, House of Representatives, 9 April 1975, 1376 (Jim Cairns).
2 Richard, Ingleby, ‘Matrimonial Breakdown and the Legal Process: The Limitations of No-Fault Divorce’ (1989) 11 Law and Policy 1, 13–14Google Scholar.
3 See, eg, Sandra, Berns, ‘Folktales of Legality: Family Law in the Procedural Republic’ (2000) 11 Law and Critique 1Google Scholar.
4 Eithne, Mills and Mirko, Bagaric, ‘Disloyalty and Divorce: Why (and When) the Traitor Should Pay’ (2004) 18 Australian Journal of Family Law 63Google Scholar.
5 See, eg, Barry, Maley, Divorce Law and the Future of Marriage (2003) 58Google Scholar.
6 Bob, Geldof, ‘The Real Love that Dare Not Speak its Name: A Sometimes Coherent Rant’, in Andrew, Bainham et al (eds), Children and Their Families: Contact, Rights and Welfare (2003) 171, 177Google Scholar.
7 Leskun v Leskun [2006] SCC 25 (Unreported, 21 June 2006). See Kirk Makin, ‘Supreme Court Rules in Landmark Case’, Globe and Mail (Toronto), 21 June 2006.
8 Note that the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) will considerably reduce the legislative discretion given to judges when making parenting orders.
9 Particularly under Family Law Act 1975 (Cth) s 75(2)(o).
10 An aversion to considering fault also affected judicial decisionmaking in custody cases until the mid-1990s: see Kemeri, A Murray, ‘Domestic Violence and the Judicial Process: A Review of the Past 18 Years. Should it Change Direction?’ (1995) 9 Australian Journal of Family Law 26Google Scholar.
11 In the Marriage of Soblusky (1976) 2 Fam LR 11,528; In the Marriage of WA and MH Fisher (1990) 13 Fam LR 806.
12 Kennon (1997) 22 Fam LR 1, 24.
13 See for a rare exception, S and S [2005] Fam CA 1304 (Unreported, Finn, Coleman and Warnick JJ, 15 November 2005).
14 Sarah, Middleton, ‘Matrimonial Property Reform: Legislating for the “Financial Consequences” of Domestic Violence’ (2005) 19 Australian Journal of Family Law 9Google Scholar.
15 See, eg, John, Dewar and Stephen, Parker, ‘The Impact of the New Part VII Family Law Act 1975’ (1999) 13 Australian Journal of Family Law 96Google Scholar, 116, who describe a ‘reverse effect’ of principles developed in appeal cases.
16 See Juliet, Behrens, ‘Domestic Violence and Property Adjustment: A Critique of “No-Fault” Discourse’ (1993) 7 Australian Journal of Family Law 9, 23–5Google Scholar.
17 Middleton, above n 14, 20. See also Peter, Nygh, ‘Family Violence and Matrimonial Property Settlement’ (1999) 13 Australian Journal of Family Law 10Google Scholar.
18 The project, ‘How Much is it Worth: Families, Work and Property’, was funded by an Australian Research Council Linkage-Projects grant with the Family Court of Australia as Industry Partner.
19 The criteria for inclusion in the sample were that an application for adjustment of property interests under s 79 of the Family Law Act had proceeded to a final hearing and resulted in final orders by judicial determination.
20 Mills and Bagaric, above n 4.
21 Ibid 71.
22 Ibid 71, 73.
23 See Patrick, Parkinson, ‘Quantifying the Homemaker Contribution in Family Property Law’ (2003) 31 Federal Law Review 1, 50–1Google Scholar.
24 Mills and Bagaric, above n 4, 72.
25 John, Hirst, ‘Kangaroo Court: Family Law in Australia’ (2005) 17 Quarterly Essay 1Google Scholar. See for a critique of Hirst’s arguments, Ann, Genovese, ‘States of Contempt and Equality: The Family Court, John Hirst and Feminism’ (2006) 21 Australian Feminist Studies 173Google Scholar.
26 Hirst, ibid, 71.
27 Ibid 71–2.
28 Ibid 72, 73.
29 Shelley, Day Sclater, ‘Narratives of Divorce’ (1997) 19 Journal of Social Welfare and Family Law 423Google Scholar; Shelley, Day Sclater and Candida, Yates, ‘The Psycho-Politics of Post-Divorce Parenting’ in Andrew, Bainham, Shelley, Day Sclater and Martin, Richards (eds), What is a Parent: A Socio-Legal Analysis (1999) 278Google Scholar.
30 Day Sclater, ibid, ‘Narratives of Divorce’, 424–6.
31 Ibid 435.
32 Carol, Smart and Vanessa, May, ‘Why Can’t They Agree? The Underlying Complexity of Contact and Residence Disputes’ (2004) 26 Journal of Social Welfare and Family Law 347Google Scholar; Julia, Pearce, Gwynn, Davis and Jacqueline, Barron, ‘Love in a Cold Climate — Section 8 Applications Under the Children Act 1989’ (1999) 29 Family Law 22Google Scholar; Berns, above n 3.
33 Smart and May, ibid.
34 Sue, Arthur et al, Settling Up: Making Financial Arrangements After Divorce and Separation (2002)Google Scholar ch 5.9.
35 Grania, Sheehan and Jody, Hughes, Division of Matrimonial Property in Australia (2001) 26Google Scholar.
36 Commonwealth Constitution s 51(xxii).
37 Matrimonial Causes Act 1959 (Cth) s 28(a) (b) and (d).
38 Matrimonial Causes Act 1959 (Cth) s 28(l).
39 Matrimonial Causes Act 1959 (Cth) s 28(m).
40 Matrimonial Causes Act 1959 (Cth) s 41; Henry Finlay and Alastair Bissett-Johnson, Family Law in Australia (1972) 373.
41 Finlay and Bissett-Johnson, ibid, 286–7.
42 See Peter, McDonald, Can the Family Survive? (1984)Google Scholar.
43 In December 1971, the Senate referred the Senate Standing Committee on Legal and Constitutional Affairs to inquire into and report upon ‘the law and administration of divorce, custody and family matters with particular regard to oppressive costs, delays, indignities and other injustices’: Terms of Reference, Senate of the Commonwealth Parliament to Standing Committee on Constitutional and Legal Affairs.
44 David, Hambly, ‘Reforming Australian Divorce Law’ (1972) 5 Federal Law Review 59, 63Google Scholar.
45 Ibid 68.
46 Leonie, Star, Counsel of Perfection: The Family Court of Australia (1996) 136Google Scholar.
47 Jenny Hocking, ‘Lionel Murphy: A Political Biography’ (1997) 157–8.
48 Catherine, Rosenbrock, ‘An Account of the Legislative Background to the Australian Institute of Family Studies’ (2001) 60 Family Matters 71Google Scholar.
49 Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1974, 4320 (Gough Whitlam).
50 Commonwealth, Parliamentary Debates, Senate, 29 October 1974, 2033 (Alan Missen); Commonwealth, Parliamentary Debates, House of Representatives, 9 April 1975, 1376 (Jim Cairns).
51 Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1974, 4323 (Gough Whitlam).
52 Commonwealth, Parliamentary Debates, House of Representatives, 28 February 1975, 916 (George Erwin); Commonwealth, Parliamentary Debates, House of Representatives, 9 April 1975, 1376 (Jim Cairns).
53 Family Law Act 1975 (Cth) s 48.
54 Commonwealth, Parliamentary Debates, Senate, 3 April 1974, 642 (Lionel Murphy).
55 Commonwealth, Parliamentary Debates, Senate, 19 November 1974, 2506 (John Carrick); Commonwealth, Parliamentary Debates, Senate, 19 November 1974, 2525 (Glen Sheil); Commonwealth, Parliamentary Debates, Senate, 30 October 1974, 2156 (Peter Durack).
56 As well as Part VIIIB (dealing with superannuation interests), Part VIIIA (dealing with financial agreements), and Part VIIIAA (dealing with third party interests).
57 Family Law Act 1975 (Cth) s 79(2).
58 Family Law Act 1975 (Cth) s 79(4)(a)–(c).
59 Family Law Act 1975 (Cth) s 75(2)(b).
60 Family Law Act 1975 (Cth) s 75(2)(a), (c).
61 See Nygh, above n 17.
62 In the Marriage of GAJ and PMC Issom (1976) 7 Fam LR 305. See also In the Marriage of Weber (1976) FLC 90–072, where the wife’s contribution as homemaker was found to have been diminished because of her alcohol abuse.
63 In the Marriage of Soblusky (1976) 2 Fam LR 11,528.
64 Ibid 11,550, 11,551. See also In the Marriage of BA and AC Ferguson (1978) 4 Fam LR 312.
65 Behrens, above n 16, 10.
66 In the Marriage of Hack (1977) 6 Fam LR 425, 427.
67 See also Barkley v Barkley (1976) 1 Fam LR 11,554.
68 In the Marriage of Benson (1984) FLC 91–584; In the Marriage of R and E Shaw (1989) 12 Fam LR 806; In the Marriage of Kowaliw (1981) FLC 91–092.
69 In the Marriage of WA and MH Fisher (1990) 13 Fam LR 806.
70 See, eg, Janet, Johnston, ‘Domestic Violence and Parent-Child Relationship in Families Disputing Custody’ (1995) 9 Australian Journal of Family Law 12Google Scholar.
71 Duncan, Chappell and Heather, Strang, ‘Domestic Violence — Findings and Recommendations of the National Committee on Violence’ (1990) 4 Australian Journal of Family Law 211Google Scholar.
72 Behrens, above n 16. See also Regina, Graycar, ‘The Relevance of Violence in Family Law Decision Making’ (1995) 9 Australian Journal of Family Law 58Google Scholar.
73 Behrens, above n 16, 14.
74 Ibid 24.
75 In the Marriage of JG and BG (1994) 18 Fam LR 255; In the Marriage of RJ and DJ Jaeger (1994) 18 Fam LR 126; In the Marriage of G and CJ Patsalou (1995) 18 Fam LR 426; In the Marriage of W and L Doherty (1995) 20 Fam LR 137; Kennon (1997) 22 Fam LR 1; In the Marriage of G and G Marando (1997) 21 Fam LR 841.
76 See In the Marriage of PG and BJ Marsh (1993) 17 Fam lR 289 (domestic violence); and Re W and W (1994) 17 Fam LR 751 (sexual abuse of step-daughters by step-father).
77 In the Marriage of W and L Doherty (1995) 20 Fam LR 137, 141 (Baker J).
78 Kennon (1997) 22 Fam LR 1.
79 Note that such cross-vested claims are no longer possible since the High Court’s decision in Re Wakim; Ex parte McNally (1999) 198 CLR 511.
80 Kennon (1997) 22 Fam LR 1, 19.
81 Ibid 24.
82 Ibid 19.
83 Ibid 24.
84 Behrens, above n 16, 11.
85 Cases were excluded where the conduct related to the running of the case (such as a failure to disclose assets to the court).
86 A schedule of these judgments and the conduct alleged in them is included at the end of this article. Of our sample of 260 cases, 220 were decided prior to the Full Court’s decision in Kennon, and 40 were decided after Kennon was handed down.
87 There were seven cases where the existence of family violence was noted in the judgment without any further discussion of it, and there were several other cases in which the description of the marriage suggested indicia of abuse.
88 Grania, Sheehan and Bruce, Smyth, ‘Spousal Violence and Post-separation Financial Outcomes’ (2000) 14 Australian Journal of Family Law 102Google Scholar.
89 Including cases where family violence was mentioned but not further discussed, our pre-Kennon sample of 220 judgments contained only 15 (possibly 16) cases where the issue of family violence appears to have been raised. The post-Kennon cohort of 40 judgments contained nine such cases.
90 For example, judges sometimes made an overall adjustment for a series of factors, such as conduct and initial contributions, without assigning a percentage to any particular one.
91 This case predated the development of the ‘erosion’ principle.
92 Case 3.21 (1988).
93 Case 2.34 (1984).
94 For example, in Case 1.33 (1979), the judge concluded that the wife’s ‘drinking habits’ had not ‘played a major role in inhibiting the growth of the family finances’.
95 Case 1.15 (1978).
96 Case 2.22 (1982); Case 2.3 (1981).
97 Case 1.32 (1979). It was notable, by contrast, that the husband’s long work hours in Case 2.7 (1981) were described as ‘a reflection of the unhappy situation in the matrimonial home’.
98 Case 1.30 (1979).
99 Behrens, above n 16, 14–16.
100 Nygh, above n 17.
101 Sarah, Middleton, ‘Domestic Violence, Contributions and s 75(2) Considerations: An Analysis of Unreported Property Judgments’ (2001) 15 Australian Journal of Family Law 230Google Scholar. Middleton examined 35 unreported first instance judgments drawn from 10 separate registries that were decided by 22 different judicial officers. Some of the cases had been decided before Kennon but had made claims for an increased contribution on the basis of the Full Court’s decision in Doherty.
102 Ibid 230.
103 Out of a total of 40 judgments decided after Kennon.
104 Case 5.27 (1999).
105 The judgment in this case does not disclose the amount of the adjustment made for this factor.
106 The judge in Case 5.22 expressed a personal preference for a broad interpretation of the Full Court’s ruling, commenting that he ‘would be concerned if too much weight was to be placed upon the “floodgates principle“’.
107 Middleton, above n 101, 237.
108 Case 5.25 (1999).
109 Fogarty and Lindenmayer JJ noted in Kennon that they did not favour a negative contributions approach: (1997) 22 Fam LR 1, 24.
110 For example, the introduction of the Family Law Reform Act 1995 (Cth), which replaced the custody and access division of parental responsibilities with a shared parenting framework.
111 See Behrens, above n 16, and Middleton, above n 101.
112 Case 3.9 was decided 11 years before Kennon.
113 For example, in Case 5.30, where the wife was said to be suffering from significant health problems — including headaches, depression, insomnia, and anxiety — as a result of the husband’s abuse.
114 See for this argument, Parkinson, above n 23. See also Patrick, Parkinson, ‘Reforming the Law of Family Property’ (1999) 13 Australian Journal of Family Law 117Google Scholar.
115 Behrens, above n 16.
116 Middleton, above n 14.
117 See McMillan and Jackson (1995) 19 Fam LR 183 on the issue of the scope for judges’ personal values to affect decision making.
118 Austin, Asche, ‘Changes in the Rights of Women and Children under Family Law Legislation’ (1975) 49 Australian Law Journal 387, 393Google Scholar.