Barry Maley is Senior Fellow at The Centre for Independent Studies. He is the author of Family and Marriage in Australia, recently published by the CIS.

In Britain, in some 20-odd state legislatures in the USA, and also more widely in America, there has been an ongoing discussion about whether the rules of marriage and divorce need to be reformed. In Australia, apart from some relatively minor amendments to existing family law, there has been virtually no serious discussion about alternatives to the present regime in this country, despite a lot of disquiet about family matters.

And disquiet for good reasons. I don't want to repeat what I've said in my recent book, but let me remind you of a few facts. About 1.3 million children, or some 28% of all dependent children, now live apart from one of their natural parents. In almost 90% of cases it is the father who is missing. Those children live either in a sole parent family or a step family or a blended family. Almost 30% of births occur outside marriage. This is a 600% increase since the 1960s. About 7% of children live with cohabiting parents.

Well over 40% of the marriages made today are likely to end in divorce. This represents a quadrupling of the divorce rate over the last 40 years.

In Australia, the rates of abuse and neglect of children who live in sole parent families or step or blended families are 8 to 10 times higher than for children living with their natural parents.

Children from homes broken by divorce, or the separation of a cohabiting or de facto couples, have at least twice the risk of a variety of behavioural, emotional and performance problems as children from intact married families. They are much more likely to get into trouble with the law, to use drugs, and to have turbulent relationships later in life.

The costs of these developments in crime, gaols, policing, foster care, drug rehabilitation, child support enforcement, housing assistance, sole parent pensions, and a raft of other welfare palliatives, throw a heavy financial burden on the taxpayer.

All of these trends have been building since the 1970s and it seems clear that the basic reasons are similar in many developed countries.

To sum up, the evidence is overwhelming that children, on average, do significantly better if reared by their married natural parents. Society is better off, and the taxpayer is better off. Marriage, even in its present attenuated form, serves adults and children better than its substitutes. It's crystal clear that public policy should move towards strengthening marriage as the most suitable environment for raising children.

There is one important point to be made here. Most dependent children are still reared in intact married families. In the majority of those families, the mothers still stay at home full-time or close to full-time before their children go to school.

Those families are still marked by a high degree of specialisation by husband and wife; with the husband concentrating on building a career and the wife concentrating on child care and varieties of home production - at least while their children are young. The traditional family, in that sense, is not extinct, even though its frequency and duration are much reduced. So, when it is claimed that we can't put the clock back, most families with children haven't brought the clock forward to the extent that is sometimes claimed.

The tax system treats the single income family with dependent children very badly compared to 30 years ago. I say something in my book about remedying that situation, but I won't go into it here. Let me just say that I think that the retreat from generous tax treatment of the earning family with children is a factor in forcing some mothers into the workforce against their preferences, a factor in financial stress that threatens some marriages, and a factor which raises the costs of children.

There are two other changes in the last 20 to 30 years that deserve mention. This is the rapid increase in age at marriage, and the retreat from marriage into cohabitation or de facto living instead of marriage. This is perhaps of little public concern unless children are involved, because cohabiting relationships are very much more unstable than marriage, and the proportion of children living with cohabiting parents is increasing.

The rise in cohabitation and the problems when cohabiting relationships break down, are leading the state governments to regulate cohabitation more extensively in matters of property rights. In some cases, maintenance for an abandoned partner can be ordered by the courts. In those senses, cohabitation is beginning to look more like marriage.

Family Law

Well, against that brief background of a faltering family system and its consequences for children, I want to turn now to the possible role played by family law in increasing the divorce rate and marital instability, and therefore prejudicing the well-being of children.

In 1975 we moved to a no-fault system of family law, where a marriage could be ended simply by the spouses separating for a year, with no questions asked about the circumstances and conduct leading up to the application for divorce. The Family Court determines the property settlement and questions of custody of children (or residence and contact, as it is now called), but may be influenced by any agreement between the parents in this regard.

The need for a formal marriage certificate, and the requirement of one year's separation before divorce, are the main distinguishing features nowadays between marriage and cohabitation.

The British writer on family matters, Patricia Morgan, has described cohabitation as 'marriage lite'. It seems to me that, following that analogy and comparing marriage today with the more restrictive regime before 1975, we could well describe marriage today as 'marriage lite'. And we could think of marriage before 1975 as marriage 'full-strength', because it did not permit divorce without an inquiry into the conduct of the spouses that had led to divorce, and because proven misconduct by a spouse was necessary to justify a divorce. Fault could also influence the terms of the divorce settlement - with the possibility of a more favourable settlement for a spouse damaged by the misconduct of his or her partner. In other words, it was a more restrictive regime.

A crucial and to my knowledge unexplored question in this country, is whether the changes we made in 1975 have influenced perceptions of marriage and the behaviour of couples within marriage or contemplating marriage. It would be surprising if the major change from a more restrictive to a less restrictive regime had not affected how people conduct themselves within marriage and their attitudes toward it.

In the absence of any empirical study the best we can do is try to imagine how rational adults would respond to the different incentives and disincentives that that change created.

First of all, let's take a double-income couple with no children. Each partner is well-educated, energetic, ambitious, established in a career and with above average incomes. They have no wish to have children and look forward to concentrating on their careers and a comfortable, interesting and exciting life together. They can travel extensively, eat out whenever they feel like it, and hire house help when they need it. They have married with this as their intended way of life.

Our second couple are both working when they get married, and earning above-average incomes. They agree that they will have children and that thereafter the wife will concentrate on domestic and child-rearing activities, while the husband concentrates on advancing his career to provide a steadily increasing income. In short, each partner will specialise, and their activities will be complementary and primarily oriented to jointly building their family assets, buying a house, and rearing their children; the husband by supplying cash income and some help for his wife and children; and the wife by child care and varieties of home production. They see this as the most effective and desirable way of promoting their joint welfare. So, shortly after marriage, the wife leaves work to have children and devotes herself wholly to their children and the home. For this wife, life is harder in, say, the first 15 to 20 years of marriage, and becomes easier, with more options, including a return to work, when the children are reared. But her career prospects are greatly diminished, if not eliminated.

Survey evidence by Mariah Evans of the Melbourne Institute (Mariah Evans, The Australian, 27/3/02, p.13) suggests that our second couple here closely approximates what is sought by the majority of married couples with children. For such couples there is a high degree of marital specialisation until the children are older, at which point most mothers begin to look for full-time or part-time work.

In these two examples, note that each couple has made quite different investments in their marriage because they want different outcomes. What kind of matrimonial law would best suit each couple and their distinct situations and aspirations?

For the first couple, if their relationship deteriorates and either or both of them should want to end the marriage, the present no-fault, no-penalties, no questions asked regime suits them very well. The marriage can be ended simply by walking away from it and living apart for a year. They will split any property they have accumulated and their key investment, their individual income-earning capacities and prospects, can be taken away wholly intact and unaffected by the break-up. Everything in the marriage, including their now defunct companionship, is either expendable, portable or fungible, with neither partner disadvantaged in comparison to the other.

For the second couple, who have chosen to make their contributions complementary, the situation would be quite different - especially for the wife - if it comes to unilateral divorce by her high-earning husband. Their assets are largely the result of cooperative specialisation. She will have sacrificed her career and a large part of her income-earning capacity. She will more than likely have custody of the children and perhaps some child payments from her former husband, but economically she is likely to be worse off. She will have no right to alimony if wronged, and no guarantee of being able to continue to live in the family home. Since the husband initiated the divorce, we can assume that he expects to gain more by leaving than by staying, even though he may see less of his children. He takes his superior and enhanced income-earning capacity with him.

Would a rational woman, wanting the married life I have described for our second couple, place herself in this kind of jeopardy if she had had a choice between a fault regime that offered her some protections against finishing up like this, and a no-fault regime which offered her none? The odds are that she would choose a fault regime which gives some protection against misconduct and desertion, via alimony and perhaps assignment of the family home, rather than the present one which does not.

And is it not also likely that some men would prefer a regime that better protected them and their children against desertion by a wife who is more likely to gain custody of the children?

Some Implications

The point I'm making is that present family law suits some but can leave others disappointed and unfairly disadvantaged.

As the example of my hypothetical second couple suggests, under the present no-fault regime, marital investments in domestic activities and the having and rearing of children are risky for many women. The simple point is this: If an investment is likely to bring a return, it is more likely to be made; but if it is at risk of being lost or to incur a later disadvantage, it is less likely to be made. Also, if it is true that fewer household and child investments will tend to impoverish the complementariness and the benefits from specialisation in a marriage, such a marriage will tend to offer less to its partners, be less fulfilling, and be less likely to last.

So we should expect that the trend will inevitably be towards fewer children in an uncertain marital regime, and fewer mothers willing to give up market work to stay home for them, because doing so puts at risk her capacity to support herself if divorced and forced to raise them alone.

For men who want children, making the investment in having them is at more risk in an uncertain marital environment. The value of children is therefore diminished for both men and women.

Support for these propositions is all about us. More and more women are staying at work after marriage, and couples are having fewer children - half as many as they did in the 1960s. More mothers are working, including more mothers with infants. Obviously, not all of this is due to marital instability. Potent factors here have been the wishes of mothers simply to go to work for its own sake or to add to family income, and the increased taxation of families. The Howard government has made some changes recently, but they are pretty marginal.

Children have become much more expensive relative to middle incomes, and men and women are not having the children they say they would like to have. Marital uncertainty, the decline of marital specialisation, the rising relative costs of children, and the opportunity costs for working mothers if they give up work to look after children, are all implicated in our falling fertility rate.

One would also predict that abuse and conflict within marriage, short of criminal behaviour, would have increased under the present regime because no penalty can be imposed upon an abusing spouse through a divorce settlement. But there is no evidence that I am aware of to verify or falsify that prediction.

What I'm suggesting here is that the change to a 'marriage lite' regime has had important ramifications that were not foreseen by the advocates and legislators who brought about the change - quite apart from the ignored and uncompensated injustices which have been inflicted on innocent spouses by the misconduct or malice of vanished partners. So, let me offer some more general observations on those ramifications.

A key one was the disappearance of proven fault, or serious misconduct in the marriage, as a factor influencing a divorce settlement or the terms of a divorce.

As I've already pointed out, in a great many cases it made mothers and home-makers more vulnerable than men to impoverishment and hardship after divorce, because they could no longer expect alimony or a more favourable property settlement if they were the victims of misconduct or desertion. The present regime favours higher earning men.

However, from the opposite perspective, the asset-poor wife of a rich husband can today invoke a unilateral divorce and expect to receive at least half of his assets, irrespective of her conduct during the marriage or her motives in seeking the divorce, since such things are now irrelevant to the divorce settlement.

Also, with the introduction of sole parent pensions in 1973 together with other allowances, divorced women with custody of children can depend upon a reliable, if modest, income from the state - perhaps a more reliable income than that of a poorly-educated, low-skilled husband vulnerable to unemployment or financial difficulties. Accordingly, for many women in that situation, a disincentive to divorce was removed.

So, depending upon the circumstances of an individual marriage, one spouse might expect to reap gains from divorce at the expense of the other spouse - with the benefits insulated from any consideration by the law of the demerits or ulterior motives of his or her conduct. In other words, the new no-fault regime altered the balance of power within marriages and hence the expectations which were brought to a marriage, since opportunistic or exploitative behaviour, and other forms of misconduct, no longer faced the possibility of sanctions under the terms of a divorce settlement. Those entering marriage with a firm resolve to be faithful and dutiful and who lived out that resolution were placed at a potential disadvantage compared to the less faithful and the less dutiful.

Also, the spreading of losses and the sharing of gains that might occur within a marriage were no longer secure expectations when either spouse could flee at the prospect of loss, or refuse to share gains without penalty. In other words, a party to marriage may remain almost as financially insecure after marriage as before it, and time and effort committed to building assets for the marriage became much riskier.

My conclusion thus far is that the change we made in 1975, although it may have suited many and have had a few side advantages in eliminating collusion, raids on adulterers, and judges in bedrooms, it also created incentives and disincentives of importance that have worked against fairness, marital happiness, and stability for many adults and children.

In other words, the conditions applying to divorce play a vital role both in keeping a marriage alive, and in delivering justice to both parties if it fails.

All of which suggests a direction for reform that I will say more about shortly. But there is a reform proposal in a different direction that I want to speak about first.

'Home Brew' Marriage

In speculating about possible reforms, some have suggested that we could solve some of the problems of high divorce rates if marriages were to be no more than variable civil contracts agreed between a man and a woman, and not governed by a difficult-to-change federal statute. The idea is that individual contracts would deliver more flexibility and choice, conform to the differing wishes of couples, and therefore be more likely to promote marital stability and predictability.

In fact our family law has already moved very slightly in this direction. Marriage partners and prospective spouses can now make financial agreements which the Family Court will uphold unless there are special reasons for not doing so.

So the argument for contractual marriages goes like this: If agreements or contracts can be made about financial matters, what would be the rationale for objecting to marital agreements or contracts that would cover conduct during a marriage, the education and custody of children, the conditions under which a marriage may be dissolved, and the terms of settlement upon dissolution? Or, indeed, any other matter of interest to the spouses?

It would seem, therefore, that what we might call the 'home brew', variable-contract form of marriage could be the answer to reducing divorce and promoting more marital satisfaction and stability. Prospective spouses could forge binding agreements that would govern any aspect of their marriage that they wished. They could expect it to deliver long-term satisfaction to both, or compensation if the contract were breached. What could be fairer and more likely to promote marital harmony?

I think this confidence, and the foresight it presupposes is misplaced - especially contracts that would go beyond protecting the property rights of third parties - such as relatives involved in a farm or family business, or children by a former marriage.

In effect, it would seek to privatise marriage and denature both it, and the family system it creates, as social institutions. There is a strong public interest in the character of marriage and its dissolution and in protecting children from marital arrangements that may not be in their best interests.

In my view, if we are to preserve the idea of marriage, it cannot be captured in the essentially limited nature of contract. Contracts, by their very nature, circumscribe the nature of the social relations with which they are concerned. They define rights and they define obligations in ways which must be amenable to measurement and objective judgement. The terms of a contract cannot be open-ended without mocking the whole idea of contract.

Yet open-endedness in many important respects is the essence of marriage. Marriage is a putatively permanent and total merging of the lives, property and interests of the spouses in mutual care, support and cooperation whose scope simply cannot be specified in contractual terms. And the more so if children are involved. If marriage is in any sense a contract, it is a contract of a kind which seeks to supersede the notion of contractual limitation in a number of ways.

Sustaining that conception of marriage rules out any contracts that would abridge it. Hence the reluctance of governments, for centuries until recently, to recognise financial agreements. Any marriage, including one governed by an individual contract, would also find that difficult situations would constantly arise where the terms of the contract are silent or unclear, and public authorities would be forced to intervene anyway.

Indeed, public policy has always been wary of two things. First of all, in becoming involved too much with managing the detail of family affairs and the day-to-day conduct of marital relationships. And wary, too, of endorsing excessive private ordering of the terms of marriage. Courts in the English-speaking countries for centuries have shied away from recognising agreements and contracts between spouses; no doubt for some of the reasons I have suggested.

Marriage, in that tradition, is also seen as the child's protectorate, and to allow scope for individuals to significantly vary marital relations could have unforeseeable and unwelcome consequences for children. It is the public interest in ensuring the care of children and their effective socialisation that drives the state to oversee the general character of marriage and its stability as a child rearing and socialising institution. This points in the direction of universality of the nature of the marital relationship rather than consent to almost infinite variability.

If neither marriage 'lite' nor 'home brew', contract marriage, are adequate to the task of shaping a marriage regime that will serve the interests of children and adults with a reasonable degree of stability and also deliver justice to adults, what should be done?

I believe we have to strengthen marriage by making it less vulnerable to the transient tensions and quarrels of married life, and less easily dispensable. We should look for incentives that will encourage spouses to avoid precipitate action and to think twice about incurring the costs of divorce, and the consequences of divorce for their children. And I believe that that points in the direction of re-introducing misconduct within a marriage, or fault, as a circumstance that can be relevant to the terms of settlement of a divorce.

That doesn't mean returning to the pre-1975 matrimonial regime requiring fault to be proven before a divorce could be allowed. It would simply mean re-establishing proof of fault as an option that could affect the terms of the divorce settlement.

A second change I would make would be to require that the Family Court must inquire into every application for divorce to establish whether, in its opinion, there is clear evidence that the marriage is irretrievably ruined and that the spouses are wholly and irreparably alienated from each other.

If the Court is not convinced that the marriage has broken down and if there is no abuse or violence, the marriage would simply continue, with each spouse retaining the right to petition for divorce after, say, a further 12 months.

If, in the meantime, either spouse left the family home for a period of 12 months, the other spouse could petition for divorce on the ground of desertion and the Court could hear evidence again. If, however, at the first hearing of a petition, the Court is convinced that the marriage has broken down, it would permit a divorce, but before the terms of settlement are arranged the Court could consider any claims of serious misconduct against the other party. If proven, the terms of settlement could include more favourable treatment for the injured party.

I believe that these changes would have the following effects:

1. They would raise the status of marriage by more firmly declaring the seriousness of ending it and by requiring a finding by the Court that the couple were hopelessly alienated.

2. They would acknowledge the reality and damage of marital misconduct and determine whether some form of alimony, restitution or compensation was appropriate.

3. This in turn would introduce a constraint on serious misconduct that is presently missing and thereby enhance justice in marriage. Conduct within marriage must surely be affected by the conditions under which a marriage is dissolved. These things are routine concerns in commercial contract law, but we ignore them in marriage.

4. They would improve the bargaining position of an innocent spouse, especially a wife who had specialised in child-rearing and home production, in determining the settlement terms of a divorce.

In addition, I think that there should be a rebuttable presumption of joint custody of children if it comes to divorce. American evidence suggests that this tends to reduce divorce rates.

This is a sketch of what we might call 'full-strength' marriage which attempts to make a clear distinction between marriage as a socially affirmed and uniformly regulated compact and cohabitation or a de facto relationship.

Conclusion

So, let me sum up with some proposals as a basis for discussion.

I think the main focus of public policy should be upon protecting the interests of children by endorsing marriage as the exclusive relationship within which children should be reared.

In the absence of death of a parent, there is no such thing as single parenthood. Both mother and father have equal responsibility in caring for the child they have voluntarily brought into the world. They are under an obligation to rear that child cooperatively together, and in legal circumstances that will give some assurance that they will stay together to do so.

Accordingly, if a cohabiting or de facto couple have a child, this should immediately move them from a de facto to a de jure relationship akin to marriage, unless there are good reasons - such as bigamy or extreme youth - that would rule it out. Their legal relationship would be identical to marriage, and marriage in the reformed state I have suggested.

This would include a more rigorous court inquiry and, perhaps, a longer waiting period before a divorce could be finalised.

Since first making this suggestion a few months ago, I have found that Professor Anthony Giddens, the leftish sociologist reputed to be one of Prime Minister Tony Blair's gurus, has made a similar one. Giddens says this:

"The proportion of children born outside marriage probably won't decline, and life-long sexual partnerships will almost certainly become increasingly uncommon. Contractual commitment to a child could thus be separated from marriage, and made by each parent as a binding matter of law, with married and unmarried fathers having the same rights and the same obligations. Both sexes would have to recognize that sexual encounters carry the chance of life-time responsibilities..."

I agree with the sentiment, but I don't see how it can be accomplished in some 'contractual' state that is not tantamount to marriage, hence my recommendation.

For couples without children or who have no intention of having children, marriage or cohabitation without marriage would remain options.

I would, however, propose that no marriage be ended without a court inquiry into whether or not the marriage has truly broken down.

We would have a kind of coalescence of 'marriage lite' and 'full strength' marriage by leaving it open to childless spouses to choose whether, if it comes to divorce, one or both will take the option of claiming misconduct during the marriage as a factor to be taken into account at the divorce settlement. It seems to me no less than fair that this should be done and, in any case, it would be likely to lead to bargaining before divorce that would equalise the powers of both parties. Thus, if the partners can convince the court that their marriage should be ended, they could divorce with a settlement agreed between them and not raise any questions of misconduct requiring investigation.

I think our family system is now under such strain that we cannot defer a serious public discussion of the possibilities of reform of marriage as central to promoting the well-being of children and the greater happiness of adults. The issues are complex and will require a great deal more detailed discussion by those with expertise and experience in matters of family law. But discussion is long overdue. The time has come for that to happen and for governments to act.