By Karlie L’Estrange
In 1975 the Family Law Act was passed in response to popular support for radical reform to family law legislation. The reforms symbolically heralded a new era for women’s equality inAustralia. The most popular reform was the removal of the requirement of a petitioner in divorce proceedings to prove the other party was at fault for the breakdown of the marriage, which promised to streamline divorce proceedings and allow couples to dissolve marriages quickly and inexpensively. The reforms represented a major win for feminism as they promised to allow women to escape from violent, adulterous or otherwise unsuitable marriages and to enter society with autonomy and equality. The reality was however not so cut and dry.
Shifting attitudes and values in the 1960s and 1970s
The 1960s and 1970s represent a period of increasing liberalization inAustraliaand the popular consensus held that Australian family law was based on outdated notions of society and family. The Matrimonial Causes Act 1959 – 1975 was based on the idea of the nuclear family as the primary feature of a stable, law-abiding society. Throughout the 1960s and 1970s social values and ideas about morality were evolving radically, and while the nuclear family remained the most common form of family, it was slowly losing its place as the fundamental core of society. In 1972 single mothers became eligible to receive a full pension equivalent to that received by women who were married or widowed, and between 1974 and 1986 the number of sole parents in Australia increased from 183,200 to 316,400. (Source: Dept. FaHCSIA) In 1960 only 4.8% of babies were born outside marriage and by 1970 that number had increased to 8.3%. (Source: AIFS) In 1975 only 16% of marriages were preceded by cohabitation, increasing to 23% by 1979. (Source: AIFS) These trends suggest that by the 1970s attitudes towards alternative family structures were shifting and social attitudes were becoming more accepting and inclusive.
The trouble with the Matrimonial Causes Act 1959 – 1975
Prior to 1975 a marriage could only be dissolved on one or more of the fourteen grounds for dissolution provided for in the Act, which included among other things adultery, desertion and habitual intoxication. The trouble with proving fault was that it usually required the petitioning party to hire a private investigator at great expense. No doubt the law worked for couples who were able to sort out their issues amicably, trouble lay where the law and society worked to trap women in the domestic sphere by offering few viable alternatives to marriage and motherhood. Law and society also worked to impose what was tantamount to a jail sentence on families in violent situations, being that divorce was difficult to obtain and carried a social stigma. Domestic violence was a major factor in prompting the women’s movement to campaign furiously for legal reform throughout the 1960s and 1970s.
The effects of legal reform
The most popularly triumphant issue of the Family Law Act 1975 was that it extinguished fault. As a result, divorce rates rose from 1.04% of the total population in 1971 to 2.7% of the total population in 1981. (Source: ABS) The reforms also created a whole new set of problems for women’s equality. Liberal divorce laws have had no effect on domestic violence as women continue to suffer abuse despite their social autonomy and legal rights – in 1988 85% of calls to the Queensland Police Service related to male assaults against female partners. (Source: Australian Institute of Criminology) In the years following the reforms, many women found themselves worse off financially following divorce, particularly the uneducated or unskilled as they remained confined to low paying jobs. Single, divorced and widowed women with children found it especially difficult to find suitable employment because of a lack of part-time work and opportunities to further their education. On the flip side, mothers who wanted to stay at home with their children often found that they were financially unable to do so because their rights to spousal maintenance were extinguished under the new laws unless they were physically incapable of working.
The modern paradox
While the reforms gave women the gift of social autonomy, they also forced some women into adverse financial circumstances. Many women were found themselves stuck in low paying jobs in an era when child care was practically non-existent. Evidently, the law does not have the power to cure social ills with the stroke of a pen. Rather than resolving issues of equality, the new legislation simply presented a whole new range of issues that continue to be debated well into the twenty-first century. The women’s movement advocated choice because social values confined women to the home; yet ironically in 2011 where women have more rights and autonomy than ever before, liberal family laws and social values combined with a dual income economy push mothers into the workforce and away from their children. Once again the element of choice has been removed and women’s autonomy is threatened. Warren & Tyagi (2003) argue that the dual income economy has had a profound effect on western societies because the exorbitant spending of dual income families in the 1980s and 1990s caused the cost of living and housing to rise so significantly that mothers in the 2000s and beyond have no choice but to go back to work because families cannot survive on a single income. The modern paradox is that women’s choices are again limited, only in different ways than in 1975.
For Warren & Tyagi (2003) see