Making unhappy couples stay together causes more pain than divorce does

Radical change in the Australian family form has fundamentally changed our society. Couples are postponing marriage, or replacing it with cohabitation. Divorce rates are rising and fertility rates falling. While this transition presents a challenge to policymakers, we must remember that ill-considered legislation can do more harm than good.

With the House of Representatives Standing Committee on Family and Community Affairs due to report its findings of the Child Custody Inquiry to Parliament before 31 December, Australian family law is once again re-entering the political debate.

In a book released this week, Barry Maley, a senior fellow at the influential Centre for Independent Studies has fired the first salvo in the debate, arguing for a reversal of unilateral divorce laws in Australia.

Since the introduction of the 1975 Family Law Act, Australia has embraced unilateral divorce laws. Simply put, Australians are free to file for divorce irrespective of the consent of their spouse, and divorce will be granted so long as a one-year separation period has occurred.

Mr Maley argues that these laws are a factor in high divorce rates, and have transformed marriage into little more than an uncertain bond between partners. To reverse this trend, he proposes a divorce regime where the only way out of marriage should be through the consent of your partner, or proof of marital fault such as abuse or infidelity.

Unfortunately for Australia’s 4.1 million married couples and 4.8 million children, this debate too often rests more on colourful political rhetoric than careful analysis. That is, until now. Jointly, with Dr Betsey Stevenson, we recently completed a multi-year research project (pdf, 429Kb)into the effects of unilateral divorce laws. The results are stark, showing far-reaching consequences that transcend the typical political debate.

We studied the US, because it effectively provides a large-scale social experiment. There, divorce is an issue of state jurisdiction, and so the introduction of no-fault divorce varied from state to state. Some states have yet to adopt any progressive reform, and so were ideal as a point of comparison.

Our findings reveal that under no-fault laws a wife can threaten to leave an abusive husband, and this becomes a credible threat. Under the old regime, this was not so. Our theory is that the fear of divorce creates a strong incentive for abusive partners to behave. They are faced with the choice to either "shape-up, or ship out". This is only one factor in a complex set of relationships but it highlights an important aspect of power in relationships.

More generally, easy access to divorce redistributes marital power from the party interested in preserving the marriage, to the partner who wants out. In most instances, this resulted in an increase in marital power for women, and a decrease in power for men. (Women are much more likely to file for divorce than men.)

Our analysis of US data revealed allowing no-fault divorce caused female suicide rates to decline by around one-fifth, domestic violence by about a third and intimate femicide – the husband’s murder of his wife – declined by about a tenth.

Australian data seems largely consistent with these findings. In the decade following the introduction of the 1975 Family Law Act, female suicide declined by roughly 20 per cent, or some 100 victims per year, when compared with the preceding decade.

While Australian data on domestic violence and intimate femicide did not exist in the 1970s, our findings from the US suggest Australia would have seen about 50,000 fewer incidences of domestic violence per year, as a direct result of the Family Law Act.