Time to end the divorce between loyalty and the family law

Marriage is also the only voluntarily assumed relationship that can’t be duplicated - at least not at the same time. There is no end to the number of friends, acquaintances, or even enemies that we can have at one time. Given that we can have only one spouse there is a societal expectation that this relationship is in some sense special.

It follows that we are duty bound to our partners. In fact, people would probably not nurture and cultivate a marriage (and enjoy all of the benefits flowing from such an en-terprise) if they felt that their partner would leave them at the first sign of hard times.

Yet loyalty plays no part in our marriage and divorce law. It is little wonder that parties to family law proceedings are left shaking their heads (and often much worse) when their partner who has fundamentally betrayed them is not held to account for this.

While we have a right to choose our partner (over and over again) this does not mean that disloyalties should have no adverse legal consequences. The “garden variety” betrayal (such as where one partner has a deficit in terms of their contribution to house work or the bank balance) should be left in the garden. However, fundamental betrayals; those that destroy the core of a relationship need to be actionable in the law.

There are at least some sorts of betrayals that fall into this category. The first is physical abuse - this is a no-go zone in any relationship. The second is sexual infidelity - unless of course, the parties to the relationship agree that this is tolerable.

This is not to say that such actions ought to lead to a break up. In fact events of this nature often constitute a defining point in some relationships and paradoxically result in a reevaluation of the relationship, which provides a springboard for a better relationship into the future.

But where, as is often the case, such betrayals lead to separation the scoundrel should pay. Divorce law should be reformed so that a breach of loyalty is actionable (in the sense of being factored into the property settlement) where: 1. the disloyal partner has benefited from the loyalty conferred by the other partner; 2. there was a reasonable expectation that the betrayer would act loyally towards the loyal partner; 3. the innocent partner was induced by the expectation of reciprocal loyalty to act in a manner which benefited the other party; and 4. the innocent party has suffered a detriment due to the betrayal.

If you’re still not hooked on the idea of loyalty, that’s fine too - your views are given expression in the fact that you don’t need to get married.