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Three epochs of family law

The central thesis of this seminar is that we are now moving into a time of profound change in regulating the consequences of relationship breakdown. The changes can be understood in terms of three epochs of the legal regulation of the family.

The first epoch: the indissolubility of marriage

The first epoch, which lasted more than 500 years, structured family law around the centrality and indissolubility of marriage. This appeared to flow inexorably from the teachings of Jesus on divorce:

'... a man shall leave his father and mother and be joined to his wife, and the two shall become one flesh. Therefore what God has joined together, let no- one separate.' (Matthew 19:5-6)

The legal embodiment of the biblical injunction had many strands. It was not only a question of the indissolubility of marriage. More than this, the union of man and woman becoming 'one flesh' in the sacrament of marriage meant a legal union also which had profound consequences in terms of property rights, the law of tort, the laws of evidence and many other areas. The law took seriously the wedding vow, 'with all my worldly goods, I thee endow'. This can be seen clearly in the property systems of continental Europe.¹ In Roman-Dutch law that meant that all the property of the parties was treated as jointly owned, including premarital property and property acquired by inheritance.² A similar effect was achieved at common law, as the wife's property passed to the control of the husband and she only achieved her own separate property through means of equitable doctrine. Other community property systems adopted the ganancial system which originated in Spain.³ Property acquired by the efforts of the parties during the marriage is treated as community property and is jointly owned.

Marriage, in that first epoch meant therefore a union of identity in terms of property ownership, as well as in other respects, and the obligation of marriage included an obligation of lifelong support.

That did not much change with the introduction of a secular law of divorce. The indissolubility of marriage was qualified, but the law of divorce was still consistent with its premises inasmuch as divorce was seen as a remedy for failure to keep the marriage contract, and thus the law reinforced the concept of indissolubility by providing remedies for failures to uphold it.

The second epoch: free dissolubility of marriage

The second epoch has lasted barely thirty years. Its central themes have been ambivalence about marriage as a significant status in the ordering of relationships, the free dissolubility of marriage, and post-separation autonomy. It was built on a consensus about divorce which began to emerge in western countries in the late 1960s and early 1970s. There were a number of assumptions:

• a recognition of the futility of maintaining a fault-based divorce system
• the 'clean break' concept in property division: self-reliance after divorce
• children needed continuity of relationships with at least one parent.

The divorce consensus, then, was that dead marriages should be given a decent burial and that it should be possible for the parties to get on with their lives and start afresh once decisions had been made about financial matters and custody.

What then was the role of the courts in the divorce process? Essentially, apart from pronouncing the ending of the marriage, which was increasingly an administrative process, the role of family law was one of allocation:

• Allocation of property
• Allocation of custody and access rights

Once this allocation had occurred, then people could get on with their lives with the past behind them. The old marriage was dead and they could begin anew, repartner, and build a new family life with only vestiges of continuity with the old.

This view can be seen in the approach to post-divorce parenting. Irene Théry, the French sociologist, has characterised the second epoch model as the substitution model of post-divorce parenting.⁴ The marriage breakdown marks the dissolution of the nuclear family. It exists no longer, and thus the future upbringing of the child depends on a choice between two alternatives, the home of the mother or the home of the father. That might be a single parent household or a reconstituted or blended family. A consequence of having to choose between the two alternative households is that parental authority is awarded to the sole custodial parent and there is a strong differentiation between the role of the custodial and non-custodial parent. The position of the non-custodial parent is redefined as one of being a visiting parent.⁵

Problems with the free dissolubility model

Many of the assumptions on which the the free dissolubility concept of divorce was based in the late 1960s and early 1970s have proven to be erroneous.

(i) Financial matters and the costs of caring

One erroneous assumption is the idea that it is possible to do justice in terms of property division by allowing a clean break which sets the parties free to build new lives economically. Family lawyers now recognize that parenthood frequently has a profound effect on the earning capacity of the children's primary carer, due to the role-division which occurs (even in two-income families). It is very common where there are children for the cost of caring to have impacted significantly on the capacity of one parent to earn income commensurate with that person's qualifications and ability. ⁶ This has significant implications if they separate.⁷ This is now seen as a major issue which needs to be addressed in the division of property both in relation to married couples and cohabitees.

It is not easy however, to work out how to deal with this problem. The approach which has attracted most support is to compensate the spouse who has disproportionately borne the cost of caring in the property settlement. The problem is that this may overcompensate the spouse who has withdrawn from workforce participation. If the justification for ongoing income transfers after a property settlement is to compensate women for their sacrifices in terms of impaired earning capacity, it must be noted that this justification assumes that with the breakdown of the marriage they will need to support themselves for the long-term future through their involvement in the paid workforce. The empirical evidence on women's sharp decline in living standards following divorce tends to show that these adverse effects are significantly ameliorated by repartnering: that is, women with children are often able to regain the economic security and stability that they lost in the first marriage by entering a second marriage.⁸ Thus compensation for loss of living standards resulting from the marriage breakdown may only be necessary if she does not repartner.

If women who repartner are typically placed back in the same position after a few years as they had been in the course of the first marriage, then fully compensating for the adverse impact on earning capacity in the property division may mean compensating for a loss which does not eventuate in the medium term. This problem could be addressed if compensation for economic disadvantage as a result of the history of the marriage was payable through periodic maintenance which terminates on remarriage. This is perhaps not an attractive option given parties' desire for a clean break. However, in Canada, spousal maintenance is now being used as a means of making substantial income transfers to compensate women for the economic consequences of role-division in the marriage.⁹ Similar ideas are gaining strength in the US.

(ii) The needs of children

Children don't fit very well into the clean break concept either. The idea that they could just attach to one parent and that would be sufficient may have seemed as if it were soundly based thirty years ago but it has proven to be an illusion. This is shown both in terms of objective evidence of the impact of father-contact on children's adjustment and also the reflections of the children of divorce upon their own needs and experiences.

All the evidence from recent studies has indicated that where fathers engage in active parenting following dissolution, that has real benefits for children. Amato and Gilbreth's meta-analysis for example, showed that high levels of paternal involvement are linked to better outcomes in school age children. Active parenting includes help with homework and projects, providing emotional support, and using authoritative discipline. The ability to actively parent, which is more likely if there is meaningful midweek as well as weekend contact, is linked as well to better academic performance, compared to those children with less actively involved fathers.¹⁰ Children of divorce also reflect from their own experience the yearning for more time with fathers.¹¹

This is not to say at all that children are always better off with two parents. We know a great deal now about the effects of violence on children and on the effects of exposure to serious ongoing conflict after separation. High levels of contact are not always in the best interests of children. However, what ought to be clear is that the substitution model of divorce which characterised the thinking of divorce lawyers in the second epoch, should now be regarded as utterly inconsistent with the needs of most children. Those interests are best served if we can find ways of encouraging active parenting by both parents following separation, to the extent that this is practicable.

(iii) The attitudes of separated and divorced parents

The notion that following the breakdown of a relationship both parents should be actively involved in parenting is also consistent with parents' expectations. Funder and Smyth's research for the AIFS demonstrates this very clearly.¹² They found that when parents are married 78 per cent of Australians think children should always be cared for by both parents, sharing the duties and responsibilities for their care, welfare and development and another 20 per cent think this should mostly be the case. When parents are separated or divorced, assent is still strong for this proposition, although somewhat more conditional; 50 per cent of Australians think this should always be the case and another 33 per cent think this should mostly be the way parents care for their children under these conditions. These are the views of respondents in the survey taken as a whole. But even among the subset of those who had experienced separation and divorce, the results were very similar, although fathers more than mothers were likely to say that children should be cared for by both parents.

This does suggest that the notion of active parenting by both parents after divorce has considerable resonance with the Australian population.

(iv) The new engagement of fathers

It is clear also that there is a strong desire from fathers for shared parenting. This is shown in the massive rise in contact applications in recent years. This is not just a phenomenon in Australia. It is also happening elsewhere. In Britain, contact applications rose 282% between 1992 and 1998 before dropping off a little. In Denmark, the number of contact applications nearly doubled between 1995 and 2000.

The level of dissatisfaction of fathers was rather dramatically revealed in the AIFS's ADTP study. Smyth, Sheehan and Fehlberg found that 41% of fathers, who had been separated on average for about 5 years, wanted a change in the parenting arrangements.¹³ This shows a substantial level of dissatisfaction with the substitution model.

The third epoch: family law and the indissolubility of parenthood

The third epoch, into which we are now beginning to move is developing from the recognition that while marriage may be dissoluble, parenthood is not. In this new epoch, parenthood will be the factor of most significance in determining the legal consequences flowing from relationships. Indeed, the important distinctions in terms of the legal consequences of relationship breakdown will not be between married and non-married couples, but between parents and non-parents.

The most significant signs of the third epoch are in relation to post-separation parenting. As long ago as 1986, Irene Théry argued that there was another conception of post-separation parenting which was emerging, and this is the concept of the enduring family. In this conceptualisation, divorce is a 'transition between the original family unit and the re-organisation of the family which remains a unit, but a bipolar one.'¹⁴ She notes that this conception of post-separation parenting implies the refusal of a choice between parents in favour of joint parental authority. It is the model of the Family Law Reform Act.

The labour pains of the third epoch

In this third epoch, we are slowly coming to recognise that divorce can only mark a change in the relationship of most couples, not its end, and that a society which takes children's wellbeing seriously must do what it can to create the conditions in which children's wellbeing is least harmed by their parents' separation.

This change between epochs is not occurring without pain and difficulty. Part of the struggle we are experiencing in modern family law (and which is sometimes framed in the language of gender conflict) is between two conflicting visions of what divorce means for parents. On the one hand, people are holding on to the promise of post- divorce autonomy and the chance for a fresh start. On the other hand, we are having to deal with the consequences of the parents' connectedness through their children and the economic impact of the role-division within the relationship. These conflicts are played out in many areas of the law, including post-divorce financial arrangements, the enforcement of contact orders and in relocation cases.

A major contributor to this conflict is that modern Australian family law resembles a city which experienced different approaches to urban planning in different eras and which, as a consequence, now has no conceptual coherence. Some aspects of modern family law still reflect first epoch thinking. Others reflect an unresolved conflict between second and third epoch thinking. The result is incoherence, as well as practical injustice in many cases.

a) First epoch thinking

(i) Support obligations without connection to the circumstances of the marriage

Echoes of first epoch thinking can especially be seen in the area of financial provision on divorce. We still find in the law now the echoes of the idea that marriage involves a lifelong commitment, but this idea is now superimposed onto a world of no-fault divorce, often incongruously. The major policy issue involved here is whether divorced spouses should be life-long insurers for each others' adversities.

Examples:

• Bracklow v Bracklow (1999) 169 DLR 577. In this case, the Court held that according to Canadian law, a husband was under a duty to pay substantial ongoing support to his former wife as a result of serious and ongoing illness which had no connection with the circumstances of the marriage. While Bracklow does not say that spousal maintenance need be lifelong, the Supreme Court rejected the notion that the Court's powers were limited to circumstances arising out of the marital relationship.


• Braithwaite and Fox (2000) is an unreported decision in Hobart of Frederico J. The parties had separated in 1980 and there were two children of the marriage. Both children had long since grown up by the time this case reached the Court. Subsequently, the husband remarried. The parties had lived at various times in England and Australia. Initially, the husband paid spousal maintenance but by 1990, an English court had reduced it to one penny per month, an order no doubt designed just to preserve her entitlement. In July 1997, the wife, who by this time was back in Australia, was diagnosed with insulin-dependent diabetes and a thyroid condition. She was on a disability pension. She then sought maintenance from her ex-husband, who was living in England. Sensibly, the English court rejected the application, but Frederico J, applying Australian law twenty years after the couple separated, held that the husband was liable to pay $314 per week maintenance. In so doing, he ignored the fact that she was receiving a disability pension as the law required him to do. The result was that the ex-husband was placed in the position of being the wife's lifelong insurer rather than the Government.

(ii) The conceptual basis for family property division

Fundamental questions ought to be asked also about the whole basis of property division where there are no children. Here the cost of caring is unlikely to be such as to require significant wealth transfers between men and women. Yet the law applies first epoch notions of property sharing irrespective of any real need to compensate a partner for the cost of caring or to reverse an unjust enrichment.

This partnership model of marriage, which is entirely proper where there has been a significant role division due to the presence of children, makes little sense in a childless marriage, yet first epoch ideas of community property can be seen in the decisions of the courts in such cases regularly. Now the tendency around the country is towards extending the Family Law Act jurisprudence to de factos and to gay couples, without any serious questioning about whether the first epoch marriage paradigm is appropriate to such relationships where there are no children. ¹⁵

b) Second epoch thinking: the claim for post-divorce autonomy

The relocation cases demonstrate the struggle between post-divorce autonomy and the idea of shared parenting. We need to ask in relation to such cases whether the best interests of the child can remain the test? That test was devised in a first epoch world where a choice had to be made between the competing claims of two parents to custody. It is not an appropriate test when what has to be sorted out are the potentially conflicting claims of different members of the original family, all of whose interests need to be considered.

Towards the future

The move into the third epoch is inexorable. It is necessitated by the breakdown of the model on which we have built family law over the last thirty years. Yet it is not without conflict. In the future we need to understand divorce for parents as a transition, not an ending. We need to discourage unrealistic expectations either of autonomy or of equal parenting, and we need dispute resolution mechanisms for post- divorce parental conflicts which are quick, cheap and not dependent on having legal representation. The third epoch will require a fundamental re-design of family law. The first step towards change is to realise the magnitude of the problem.

Notes

1. For a history of community property systems, see C Lobingier, 'The Marital Community: Its Origin and Diffusion' (1928) 14 American Bar Association Journal 211; M Vaughn, 'The Policy of Community Property and Inter-spousal Transactions' (1967) 19 Baylor Law Review 20.

2. These systems are sometimes called 'universal' systems. In countries which have retained such systems, pre-nuptial agreements are common.

3. The word 'ganancial', is derived from the Spanish verb 'ganar' (to gain) and noun 'ganancia' (gain or profit). The 'profits' of the marital partnership are jointly owned, but not windfall gains such as gifts from third parties and inheritances: W Reppy and C Samuel, Community Property in the United States, (2nd ed, 1982) p. 2. The ganancial system is otherwise known as a community of acquests system.

4. Théry, I, 'The Interest of the Child' and the Regulation of the Post-Divorce Family' (1986) 14 International Journal of the Sociology of Law, 341-358.

5. Ibid at 354-355

6. P. McDonald (ed), Settling Up (Sydney: Prentice-Hall, 1986); K. Funder, M. Harrison and R. Weston, Settling Down (Melbourne: AIFS, 1993).

7. M. Brinig and J. Carbone, 'The Reliance Interest in Marriage and Divorce' (1988) 62 Tulane L.R. 855; S Sugarman, 'Dividing Financial Interests on Divorce' in S. Sugerman and H. Hill Kay (eds) Divorce Reform at the Crossroads (New Haven, Conn: Yale UP 1990) ch. 5.

8. See P. McDonald (ed), Settling Up< (Sydney: Prentice-Hall, 1986); K. Funder, M. Harrison and R. Weston, Settling Down (Melbourne: AIFS, 1993).

9. This has become a prominent feature of Canadian law of spousal maintenance since the decision of the Supreme Court of Canada in Moge v Moge <(1992) 43 RFL (3d) 345; [1992] 3 SCR 813.

10. Amato, P.R., and Gilbreth, J.G., 'Nonresident fathers and children's well-being: A meta-analysis' (1999) 61 Journal of Marriage and Family, 557-573.

11. Fabricius, W.V. and Hall, J.A., 'Young adults perspectives on divorce: Living arrangements' (2000) 38 Family and Conciliation Courts Review 446-461. See also Laumann-Billings, L. and Emery, R.E. 'Distress among young adults from divorced families', (2000) 14 Journal of Family Psychology, 671- 687.

12. Funder K and Smyth B, Evaluation of the Impact of Part VII of the Family Law Reform Act 1995 (AIFS 1996). See also Funder K, 'The Australian Family Law Reform Act 1995 and Public Attitudes to Parental Responsibility' (1998) 12 International Journal of Law, Policy and the Family 47-61.

13. Smyth B, Sheehan G and Fehlberg B, 'Patterns of Parenting After Divorce: A Pre-Reform Act Benchmark Study' (2001) 15 Australian Journal of Family Law 114-128.

14. Op cit at 356.

15. These ideas are developed further in P. Parkinson, 'The Property Rights of Cohabitees: Is Statutory Reform the Answer?' in D. Pearl, A. Bainham and R. Pickford (eds) Frontiers of Family Law (2nd ed) John Wiley and Sons, Chichester, England, 1995, 301.

Australian Institute of Family Studies, Level 20, 485 La Trobe Street, Melbourne Vic 3000, Australia.
Tel: (03) 9214 7888. Fax: (03) 9214 7839. URL: http://www.aifs.gov.au/