No Fault Today, No Marriage Tomorrow

From the Dean

A regular article written by Phillip Jensen in his role as Dean of Sydney at St Andrew's Cathedral.

Originally Published:
16th July 2011

Tagged: divorce marriage

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I do not generally seek advice about marriage from celebrity models, but I could not help noticing that Christie Brinkley said she’ll “never get married again”. 

It wasn’t so much this bold claim that drew my attention. After four failed marriages and a very messy divorce case it’s only sensible to forswear marriage.  However, it was her reason for renouncing marriage that was interesting. “I learned in my divorce that marriage is ridiculous. You take a vow but you don't get brownie points when you honour your vow and the other person doesn't”…“The court doesn't recognize that. It's like, 'All right now, let's see how we're going to divvy up the kids.’ Well, obviously, the one that didn't break the vows should be the role model, but no.”

Here is the end point of the ‘no fault divorce’ regime. It was introduced into Australia in the 1970’s. The problems involved in proving fault, even manufacturing evidence of fault, and the cost, acrimony, and difficulty of divorce was addressed by the simple ‘no fault’ 12 month separation rule. It did not solve fights and quarrels about property and children but it simplified the process for dissolution of the marriage.

The legislation retained the definition of marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life", but effectively gutted it of any meaning. For the promises you make, as you voluntarily enter into this union, no longer mean what they say. Your ‘solemn vow and promise’, often made in the sight of God, is to be united exclusively for better, for worse till death parts you - but the reality is quite different. No longer is adultery a fault that frees the innocent party. You can keep or fail to keep your promises – there is no fault. Furthermore, you are only committed to stay with each other as long as you want to. You can leave whenever you want for whatever reason suits or pleases you. The only limitation is that you will not go through a similar agreement or wedding with somebody else until a year has elapsed from your separation.

Today in Australia, notwithstanding the legal definition, the de facto definition of marriage is “a community recognized voluntary sexual union of a man and a woman that will not allow another similarly recognized union until after twelve months separation”.

Consequently, many people see little point in formalizing their union with a wedding or any legal recognition – at least not until children are born. Even members of the Royal Family have modelled cohabitation prior to marriage and woe betide anyone who would question their actions.

By the turn of the century, a Federal Government report (“To Have and to Hold”, House of Representatives Standing Committee on Legal and Constitutional Affairs, 1998) demonstrated the disastrous effects that go with this new pattern of relationship - the increased instability of de facto marriages, the deleterious consequences for the children and the massive cost to the community. The clearly documented increase in family instability was demonstrated to be not good for Australia or Australians. But such a report had no impact, for the heart hears its desired deceits.

It was not the law alone that brought about this social change. It was the consequence of the community moving from a Christian culture to a materialist culture, especially through the sexual revolution of the sixties. But the law does many things, including framing the parameters and structures of society, as it educates and informs the citizens.

It took a generation for the implications of the new divorce law to affect not just divorce but marriage itself. Christians warned that the logic of the divorce legislation would undermine marriage though the direction and magnitude of the shift was not predicted. Nobody at the time imagined that forty years after the passing of the legislation, the majority of couples would live together prior to, or without ever getting married, and as many as one in three children would be born out of wedlock. But changing the basis for divorce changed the real meaning of marriage and, for many people, has effectively made marriage redundant.

So now again we have a minority wishing to address their problems by changing the nature of marriage. The homosexual community is a much smaller minority, than those who were seeking easier divorce and they are not facing legal or financial discrimination, for their issues have all been dealt with in recent legislation. Their motivation for changing marriage is to gain social acceptance of their lifestyle.

However, such a change is self-defeating as it will only further diminish the distinctive value of marriage and its place in society. It will not immediately change our relationship with our spouse, but over time it will further erode the fundamental place that family life has in our nation. It is a further rejection of the Christian culture but it is also, and more importantly for our parliamentarians, a further undermining of the family structure on which all stable societies are built.

Here then is a great paradox. At this time when the community has, by simplifying divorce, so redefined marriage as to say that it is of no real value (“only a piece of paper”), some people feel their relationship will only gain value if it is recognized as a marriage.