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Time to end the divorce between loyalty and the family law

By Mirko Bagaric - posted Monday, 6 February 2006

Ending the divorce between loyalty and family law would bring the law into line with rightly held moral standards. It would also lead to fairer property divisions and probably result in fewer divorces.

The Prime Minister, John Howard, has suggested that couples contemplating the ultimate union should take pre-marriage classes in a bid to reduce the divorce rate, which sees about one in three marriages fail. Soon, couples with children will have to undergo counselling before being permitted to divorce.

The big question is what they should teach at the classes and focus on during the counsel-ling sessions? The PM almost nailed it when he said that the high divorce rates are the result of a “period when the notion of responsibility to others was discounted in favour of the maximisation of personal pleasure and pursuits.”


What the PM is alluding to is the almost forgotten virtue of loyalty, which is an obligation or preference which one voluntarily assumes towards a living being (except oneself) or a cause, even when it is contrary to one’s self-interest.

More loyalty will probably lead to less marriage bust ups. But loyalty is a double edged sword. It also means that we need to abolish the concept of absolute no fault divorce. We shouldn’t treat scoundrels and faithful partners alike.

The introduction of no fault divorce in Australia in 1975 made it much easier for grumpy partners to move on (as history teaches us, often to the next unhappy relationship) and obviated the need for the court to examine which partner’s fault resulted in the bust up.

This was, on balance, a positive reform. People should be free to terminate unsatisfying relationships. It is also normally unhelpful to attempt to unravel blame and praise in the context of a long relationship.

While there are good reasons in favour of no fault divorces, they don’t trump all other com-peting considerations. Loyalty needs to be dusted off from the cupboard and a spot found for it in family law.

Loyalty is important for several reasons. At the pragmatic level, it is a catalyst for an enormous amount of desirable human conduct. It has been proclaimed that loyalties ground more of the principled, honourable and other kinds of non-selfish behaviour in which people engage than do any other moral principles.


For some people, loyalty is such a powerful force that it moves them to willingly lose their life for their country or other cause. In less dramatic contexts, loyalty is the force that sees many make great personal sacrifices, by caring for sick or infirm relatives, friends or even pets.

Loyalty is also one of the foundations of trust which enables society to engage in co-operative action by enabling us to make confident predictions regarding the way in which others will behave and respond to our requests and actions.

Loyalty and marriage are theoretically inseparable. Marriage is one of the rare circum-stances in contemporary life where a person expressly declares that they will act loyally towards another. Phrases such as “for better or worse”; “in sickness and in health” are ways of saying “I will be loyal to you”, or “I will stay with you even when it hurts”.

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Article edited by Hudson Birden.
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A version of this piece was first published in The Canberra Times on January 4, 2006.

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About the Author

Mirko Bagaric, BA LLB(Hons) LLM PhD (Monash), is a Croatian born Australian based author and lawyer who writes on law and moral and political philosophy. He is dean of law at Swinburne University and author of Australian Human Rights Law.

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