Sunday, 22 September 2013

Times change, naturally so too does divorce


Over the years family law (to use the broader term for ‘divorce’) has altered quite dramatically – with the single most significant reform being the introduction of the Family Law Act in 1975.

The introduction of ‘no-fault divorce’ and later the recognition of superannuation as a financial asset in property division and more recently the extension of property division legislation to de facto couples (to name but three) are not only substantial legal developments but represent, either as a portent of change or maybe even a generator of change, the immense societal change that has occurred over the past 40 years, including:
 
  • The rate of marriage has decreased

Sometimes there will be a headline claiming that the rate of divorce is down. And in some individual years it is, compared to the previous year. But, in an historical context, of more significance is the fact that the rate of marriage is down.
 
Nowadays, many couples choose to live together in de-facto relationships before marriage, and increasingly, instead of marrying at all. And they do so without the social repercussions that would have occurred in the past – employers don’t discriminate on the basis of living arrangements, banks lend de facto couples money for a home, and schools enrol children whose parents are not married. Think about how our grandparents or great-grandparents would have talked - such a choice would have been scandalous one or two generations ago.

Whatever the greater societal reasoning, since 2009 (in many states, 2010 in the others) the Family Law Act has applied to both married couples and de facto couples who separate and wish to divide their property and it has applied to the parenting arrangements for children of de facto couples for significantly longer – meaning that the law, now the same for married or de facto couples, better reflects society.

  • More often it is the female partner that initiates property division or seeks parenting arrangements

There are any number of reasons why a couple may separate – for which either person in the relationship may be responsible – but increasingly women are initiating the legal separation.

And it is often said that this is attributable to two things: societal acceptance of separation and financial independence. From an historical perspective many women felt they had to be married to achieve financial stability, however, today women are more likely to be educated and in paid employment – they are in a position to see marriage (or a long-term relationship) as a choice, and not a necessity. Not only are they more financially independent but as the social stigma of divorce has dissipated they can also rely on both family and friends for emotional and practical support.

I also believe another reason may be that cases decided by the family law Courts over the years have encouraged a faith that contributions made throughout the relationship will be properly recognised in any property division, including:

    • the recognition of superannuation as an asset available for division  - a significant development, as in the past some couples had no other assets available for division and the husband (historically the gender with the greater superannuation interest) would retain the entire superannuation despite the contribution made by the wife who had raised the children and kept the home thus allowing the husband to work and accumulate the superannuation; and
    • the recognition of the Court’s powers to obtain assets held by companies and trusts  - another significant development, as there have been numerous instances of assets being placed in the ownership of separate legal entities although often practically speaking that entity is one of the parties, meaning that without the extension of the Court’s powers the asset may not be available for division.

  • That “grey divorce” is increasing
Something is a trend when it gets its own name – and separation later in life is definitely on the increase. A steady rise in life expectancy, the budding number of women who are financially independent and the increasing social acceptance of separation are all said to be behind this trend.

1 comment:

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