Written by MBA Lawyers Family Law Partner Joelene Seaton
As we celebrate International Women’s Day 2021, I have taken the chance to reflect upon how women have been treated in family law in history.
Before 1857 – divorce was unattainable unless by Act of Parliament
Before 1857, divorce was generally not available in Australia (or England) unless it was by Act of Parliament, and further, it was rarely available to women at all. This was to protect a man’s lands and titles for his heirs and to safeguard against a wife ‘introducing spurious (illegitimate) offspring’ into her husband’s family.
If a wife committed one single act of adultery then the husband could apply for divorce. However, for a wife to apply for divorce, her husband’s adultery had to have aggravating circumstances such as desertion, cruelty, sodomy or bestiality, bigamy or incest.
Post world-war laws
Following the two world wars, marriage and divorce laws had some changes. In the 1940s, a law was proposed to make contraceptives available to married women, recognising the right of married couples to decide the size of their family. Although initially opposed due to views about contraception in general, the law passed after contraceptives were issued to soldiers and it became “more acceptable” by society.
The Matrimonial Causes Act came into force in 1959, which declared a marriage voidable where at the time of marriage the wife was pregnant by a person other than the husband. Notably, though, there was no mention about the marriage being voidable if the husband made another woman pregnant at the time of marriage.
This Act introduced 14 grounds upon which either a husband or wife could apply for divorce, including adultery, wilful desertion, cruelty and refusal to consummate the marriage. The grounds were expressed to be “gender neutral”, meaning both women and men could apply for divorce for these reasons.
Women were still disadvantaged though, because a spouse needed to prove marital fault and often required hiring a solicitor or private detective to collect evidence. With women financially reliant on their husbands, this process was often out of reach.
There was only one “no-fault” ground that was accepted when applying for a divorce which stipulated a couple must be separated for more than five years for either spouse to make a divorce application without evidence.
Welcomed changes in 1975
When the Family Law Act was passed in 1975, there was a record number of divorce applications lodged! Spouses were no longer required to prove fault, they no longer had to prove the other spouse did something to cause the marriage to fail.
Another major change for this Act was the fact that now, both financial and non-financial contributions were recognised. One of the specific non-financial contributions to be assessed and considered by the court is the contribution of a homemaker. For women at the time, it was seen as a win because they had greater representation in the home than they did in the workforce.
Same-sex rights recognised
On 9 December 2017, the Marriage Act 1961 was amended to redefine marriage as the ‘union of 2 people to the exclusion of all others, voluntarily entered into for life’. The right to marry under Australian law is no longer determined by sex or gender. Same-sex couples who are married, either in Australia or overseas, are now recognised as married for the purposes of the Family Law Act 1975.
Many areas of family law operate in the same way regardless of whether parties are married or in a de facto relationship. This is the case for parenting matters and for some property matters. Same-sex couples who have married in Australia since the 2017 amendment to the Marriage Act and same-sex couples who married overseas prior to the amendment (“pre-commencement married couples”) are now subject to the provisions of the Family Law Act relating to married couples.
Since the amendment of the Marriage Act, same sex married couples have had access to the divorce system in the same way as different sex couples. For any couple to get divorced they must demonstrate that the marriage has broken down irretrievably. This requires the parties to have been separated for not less than a year and to have no reasonable prospect of reconciliation.
Where to next?
For women, their history in Australian family law unfortunately reflects women’s rights history globally, however, as we reflect on how far we’ve come in marriage equality in Australia and the celebrations we’ve seen this week to celebrate all women, I know we are on the right path.
Let’s all choose to challenge and strive for an inclusive world. For family law matters, we must strive for a world where we can choose to marry, separate or divorce on equal footing.