Finding Fault in Marital Property Law: A Little Bit of History Repeating?
| Date | 01 September 2006 |
| DOI | 10.22145/flr.34.3.1 |
| Author | Helen Rhoades,Shurlee Swain,Nell Alves-Perini,Margaret Harrison |
| Published date | 01 September 2006 |
| Subject Matter | Article |
FINDING FAULT IN MARITAL PROPERTY LAW: A LITTLE
BIT OF HISTORY REPEATING?
Nell Alves-Perini,
∗
Margaret Harrison,
δ
Helen Rhoades,
φ
and Shurlee
Swain
ξ
I INTRODUCTION
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.1 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'.2
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.3 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,4 and
consumers of the family law system have called for the law to pay greater heed to the
moral dimensions of intimate relationships.5 These developments are not unique to
Australia — fathers' groups across different countries have railed against the law's
_____________________________________________________________________________________
∗ BMus (Hons), LLB (Hons). 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.
δ LLB (Melb), LLM (McGill), Family Law Researcher.
φ Senior Lecturer, Faculty of Law, University of Melbourne.
ξ Associate Professor, School of Arts and Sciences, Australian Catholic University.
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, 13–14.
3 See, eg, Sandra Berns, 'Folktales of Legality: Family Law in the Procedural Republic' (2000)
11 Law and Critique 1.
4 Eithne Mills and Mirko Bagaric, 'Disloyalty and Divorce: Why (and When) the Traitor
Should Pay' (2004) 18 Australian Journal of Family Law 63.
5 See, eg, Barry Maley, Divorce Law and the Future of Marriage (2003) 58.
378 Federal Law Review Volume 34
____________________________________________________________________________________
'fault-free' approach to decision making,6 and the Canadian Supreme Court has
recently ruled that 'adulterous conduct' which causes 'emotional trauma' may be
relevant to awards of spousal maintenance.7
In light of these challenges to the no-fault principle, it seems timely to revisit the
role of conduct in marital property law. Like the law governing parenting orders,8 the
framework for adjusting property interests on divorce is a discretionary one, providing
judges with considerable scope to have regard to evidence of a spouse's behaviour if
this appears relevant.9 However, until the Full Court's decision in In the Marriage of CK
and JW Kennon ('Kennon') in 1997, the authorised approach was heavily influenced by
the Family Law Act's no-fault underpinnings,10 and judges were strongly discouraged
from investigating allegations of misconduct unless it had affected the family's
finances.11 Kennon signalled a change of direction, permitting judges to adjust property
entitlements where a 'course of conduct' by one spouse (such as domestic violence),
has had a 'significant adverse impact' upon their partner's contributions.12 Despite this
opening, there have been few subsequent published decisions invoking its principles13
— much to the frustration of advocates for the victims of domestic violence14 —
suggesting the no-fault philosophy continues to exert a substantial hold over judicial
practices. But as recent empirical studies have shown, the images conveyed by
appellate cases can be seriously misleading.15
This article seeks to explore the ways in which judges have approached claims of
marital misconduct in property hearings on a day to day basis, both before and since
the decision in Kennon, by looking at a sample of unreported cases decided in the
Melbourne registry of the Family Court. Reflecting the recent debates, the focus of this
exploration is broader than the issue of family violence. Although there are compelling
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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, 177.
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 26.
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 9.
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 96, 116, who describe a 'reverse effect' of
principles developed in appeal cases.
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