Time to end the divorce between loyalty and the family law

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”.

Marriage is also the only voluntarily assumed relationship that can’t be duplicated - at least not at the same time. There is no end to the number of friends, acquaintances, or even enemies that we can have at one time. Given that we can have only one spouse there is a societal expectation that this relationship is in some sense special.

It follows that we are duty bound to our partners. In fact, people would probably not nurture and cultivate a marriage (and enjoy all of the benefits flowing from such an en-terprise) if they felt that their partner would leave them at the first sign of hard times.

Yet loyalty plays no part in our marriage and divorce law. It is little wonder that parties to family law proceedings are left shaking their heads (and often much worse) when their partner who has fundamentally betrayed them is not held to account for this.

While we have a right to choose our partner (over and over again) this does not mean that disloyalties should have no adverse legal consequences. The “garden variety” betrayal (such as where one partner has a deficit in terms of their contribution to house work or the bank balance) should be left in the garden. However, fundamental betrayals; those that destroy the core of a relationship need to be actionable in the law.

There are at least some sorts of betrayals that fall into this category. The first is physical abuse - this is a no-go zone in any relationship. The second is sexual infidelity - unless of course, the parties to the relationship agree that this is tolerable.

This is not to say that such actions ought to lead to a break up. In fact events of this nature often constitute a defining point in some relationships and paradoxically result in a reevaluation of the relationship, which provides a springboard for a better relationship into the future.

But where, as is often the case, such betrayals lead to separation the scoundrel should pay. Divorce law should be reformed so that a breach of loyalty is actionable (in the sense of being factored into the property settlement) where: 1. the disloyal partner has benefited from the loyalty conferred by the other partner; 2. there was a reasonable expectation that the betrayer would act loyally towards the loyal partner; 3. the innocent partner was induced by the expectation of reciprocal loyalty to act in a manner which benefited the other party; and 4. the innocent party has suffered a detriment due to the betrayal.

If you’re still not hooked on the idea of loyalty, that’s fine too - your views are given expression in the fact that you don’t need to get married.