High divorce rates, and the fragile state of marriage and family life, are two of our most serious social problems. Anything we can do to make marriages fairer and firmer, without restricting exit from a bad union, will benefit thousands of adults and children. Reforming divorce law to achieve these things is not the whole answer to the marriage and family problem, but it's a vital element.
Two things about the divorce law are problematic. A spouse can impose a divorce on a partner without any consultation, any questions asked or any constraints. This opens the door to opportunistic and selfish behaviour of the grossest kind. A husband or wife can simply abandon partner and children for somebody richer, better looking or healthier. And maybe get a divorce settlement that gravely damages the interests and expectations of an innocent spouse and children.
The other problem is that serious misconduct in a marriage, radical breach of the marital "contract", by abuse, adultery, desertion or drunkenness for example, is ignored by the law. The marriage contract is the only contract that can be broken with impunity. Little wonder that the divorce rate is 400 per cent greater than 40 years ago, that more young couples are rejecting marriage, waiting much longer if they do get married, and avoiding the risks of having children within such a fragile relationship.
There are two reforms possible that would counter unilateralism in divorce, discourage and compensate for serious marital misconduct and still allow any spouse who wants to escape a bad marriage to do so, as at present, after a year's separation.
The first thing to do, where both spouses want to end the marriage, and where serious misconduct is not an issue (or not one that either spouse wishes to raise), would be to require that an application for divorce must be a joint, consensual one. Such an application would include agreed terms of settlement of the divorce, be presented to the court, and dissolution of the marriage would follow.
The objective here is to end unilateralism by ensuring that each spouse has equal power and equal voice in thrashing out the terms of the divorce settlement and custody arrangements, if relevant. In reaching the agreement together, they will be forced to confront the real costs of the divorce to each of them and to any children. They will either think again or strive to minimise the costs. This will make for fairer, carefully considered divorces, less post-divorce conflict, and better arrangements for children. This is tantamount to ending the "contract" by mutual agreement.
The other measure, if a marriage has involved serious misconduct and victimisation, would be to provide for this to be raised, on application, as an issue that could affect the court's determination of the terms of settlement. But it would not be a condition of getting a divorce.
Again the divorce application by either or both spouses, after the usual year's separation, would be heard immediately and lead to divorce, whether or not serious misconduct has been demonstrated. If it has, it would be open to the court to take this into account in the terms of settlement.
A recent article by brothers Justin and Rohan Wolfers misread this proposal as one requiring that fault be reintroduced as a condition of divorce. This is not so.
A lot of injured parties are leaving the Family Court without receiving the fair deal they are entitled to. Under present divorce law, unilateral divorce and destruction of a marriage through serious misconduct are the source of much unacknowledged and unremedied injustice.
Divorce law needs to be reformed so that couples contemplating marriage realise that they will be fairly treated if it comes to divorce. They will then have more confidence in marriage, invest more in it, be more prepared to have children, and thereby improve its chances of success and stability.