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Home   >   Opinion
>   Article

Divorce is hell, but so is a bad marriage

December 10, 2003

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The return of a show-fault regime would be a backward step for
unhappy couples, write Justin Wolfers and Rohan Wolfers.

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 parliamentary committee on family and community affairs due to
report its findings of the child custody inquiry to Parliament before
December 31, Australian family law is again re-entering the political
debate.

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

Since the introduction of the 1975 Family Law Act, Australians have
been free to file for divorce irrespective of the consent of their spouse,
and divorce will be granted so long as there is a one-year separation.
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, 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. Until now. With Dr Betsey Stevenson we
recently completed a multi-year research project into the effects of
unilateral divorce laws. The results are stark, showing far-reaching
consequences that transcend the typical political debate.

We study 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 varies from state to state. Some states
have yet to adopt any progressive reform, and so were ideal as a point of
comparison.

The 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.

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.

Our analysis of US data revealed the legislative change had caused
female suicide to decline by about a fifth, domestic violence to decline
by about a third, and intimate femicide - the husband's murder of his wife
- to decline by about a tenth.

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

Although there was no Australian data on domestic violence and intimate
femicide for the 1970s, our findings from the US suggest that Australia
has seen about 50,000 fewer incidences of domestic violence a year as a
direct result of the act.

Interestingly, while the rise in divorce rates did closely coincide
with legislative change, our analysis suggests that liberalised divorce
laws were not responsible for any long-term change in divorce patterns.

State-to-state comparisons in the US show that aside from a spike,
legislative change had little to no effect on divorce rates. Indeed, the
long-run rise in divorce was the result of broad social, cultural and
religious change throughout the 1960s and '70s.

Like the state-to-state comparison in the US, we ran the same tests on
Australia and New Zealand (where unilateral divorce was introduced only in
1981). In both countries there was a spike in the divorce rate in the
years shortly after the reforms.

However, this probably reflected the dissolution of a stored up pool of
failed marriages in which one spouse was trapped by fear, impoverishment
or an inability to prove fault. In the longer term, we found the
legislation was responsible for only a very minor change in Australia's
divorce rate.

While society often bemoans the end of traditional family structures,
reform needs to focus on improving bad marriages rather than prohibiting
healthy divorces. A return to a pre-1975 divorce regime would mean little
more than a return to abuse and violence in the household.

Dr Justin Wolfers is an assistant professor of economics at Stanford
Business School. Rohan Wolfers is a research associate at OzProspect, a
non-partisan public policy think tank. They are brothers and children of a
divorce.

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