Introduction

Twenty minutes before midnight on 14 April 1912, the largest ship ever built hit an iceberg off the coast of Newfoundland on its maiden voyage across the Atlantic. Within hours, the Titanic sank and over 1,500 people perished. The world was shocked by the catastrophe, but not just because of the horrific number of casualties. Built in Belfast, the size, power and opulence of the Titanic symbolized Britain's global pre-eminence as the richest and most powerful country in the world. If Britain's navy had ruled the waves when the song ‘Rule Britannia’ was penned in 1740, its merchant navy and shipping lines now commanded the world's oceans and connected the largest intercontinental empire the world had ever seen. What type of portent was the doomed voyage of the Titanic? If the largest ship in the world could sink, what unseen iceberg lay before Britain to threaten its Empire, wealth and global power?

There were certainly Britons who began to see icebergs on every horizon. The belief that liberalism and its political economy had made possible the progressive improvement of the world – ushering in a new era of prosperity, political reform and the expansion of a civilizing empire – began to erode in the final decades of the nineteenth century. Doubt was not endemic, and many continued to believe that Britain had found the keys to the future. Even so, it was very real for those concerned with the poverty and dreadful social conditions most Britons experienced despite living in the richest country on earth. A growing awareness of these social problems caused some Britons to believe that the nation's progress had given way to degeneration.

Poverty had neither gone away nor been dramatically worsened by the Great Depression, but it had become more visible and widely discussed. Although poverty is always with us, it only becomes visible at specific moments when it is viewed as problematic. This happened in the late nineteenth century for a variety of reasons. New forms of social investigation highlighted and scientifically measured the alarming extent of poverty. The promise of liberal political economy to deliver wealth to the nation was exposed as a fiction.

Introduction

This chapter begins by examining the concept of alimony, which will provide the historical and theoretical background of maintenance understood as a right, but which is limited in scope in the current provisions of the Family Law Act 1975 (Cth) (‘FLA’). Drawing on our analysis of property distribution in the previous chapter, this chapter will further develop the analysis of family law as maintaining the unequal effects of economic dependence in heterosexual relations in marriage, whether de jure or de facto.

The property division provisions of family law are not very relevant in poorer families, where no or very little property is available for distribution. However, the effect of the philosophy of the clean break principle in family law functions to delegitimise ongoing maintenance in these families as well. The economic dependence generated in an ongoing relationship becomes the individual problem of the financially weaker spouse. Moreover, at the breakdown of a marriage the legal discourse changes from marriage as a partnership with different but complementary roles, to one that is more about individual autonomy and self-sufficiency. While property provisions appear to acknowledge the need to compensate the caregiver, in cases where not much property is available, the expectation is that at the end of the marriage both parties should be able to fend for themselves. This analysis will illustrate the significance of family law moving between these different conceptions of relationships: as a partnership between two interdependent parties on the one hand, and as a contract between two equal partners on the other.

We will develop our argument by analysing the specific provisions of the FLA in the context of the widespread social reality that most women are neither generating incomes to the same extent as men nor generally the owners of substantial property in their own right. An analysis of the legislative provisions and case law on maintenance will lend support to our argument that there is an urgent need to revisit the maintenance discourse in family law.

History of the concept of alimony and maintenance

In any discussion of spousal maintenance the issue is, to put it starkly: why are women dependent financially, and why is it the responsibility of their former husbands to provide for them? This can be answered only if the historical development of ideas about marriage, divorce and financial work are considered together.

Introduction

The chapter is in two parts. Part One begins by providing the historical background of child maintenance and the introduction of the contemporary child-support regime. The introduction of the Child Support Scheme (‘CSS’) (as opposed to court-ordered child maintenance) marks a significant move from a legal to an administrative model of regulation. The CSS particularly requires analysis in the way it was designed to help address child poverty by imposing financial obligations on parents (but in effect on fathers) for their offspring. The focus on key changes to the regime since its introduction allows us to demonstrate the development of family law in its broader social context and how the influence of the discourse of neoliberalism has translated into the context of private responsibility for the child. The tensions that exist in this area and changes to the specific provisions of the Child Support Acts1 are used to illustrate how the competing interests of parents (voiced most notably by fathers’ groups), children and the state have informed developments in this area.

The analysis of these developments also allows us to revisit the opposing pulls of the public/private discourse in family law. In particular, the analysis of child-support agreements (like the analysis of financial agreements in Chapter 7) will reveal the stake that the state continues to maintain in minimising the costs of family breakdown in its capacity to reject agreements that would otherwise come at a cost to the public purse. Simultaneously, this analysis will also illustrate the function of family law and how, in adopting the discourse of individual autonomy, it manages to disengage the cost of caregiving within an ongoing relationship from the arrangements as they exist after relationship breakdown. In the process, it normalises the idea of shared parental responsibility and the primacy of the child's biological parents. Similar to the effect of the child dispute provisions discussed in chapters 8 and 9, the effect of the child support provisions is to normalise the idea of the nuclear family as the ideal form of family, but in a way that promotes parenting as a gender-neutral activity, which fails to account for the reality of the effects of the sexual division of labour. The child-maintenance provisions of the Family Law Act 1975 (Cth) (‘FLA’) when juxtaposed with the Child Support Acts also demonstrate the problems in conceptualising the parents and the child as autonomous individuals.

Introduction

After the Peterloo Massacre in 1819, few would have imagined that Britain, let alone some of its settler colonies, would have the system of representative politics they did in 1885. Although in Britain it would take until 1918 for all men to be able to vote, in Australia and New Zealand they had been doing so since late 1854 and 1879 respectively. Despite lagging behind its precocious colonies, representative politics in Britain were beginning to resemble what we would today call a democratic system. There were regular elections, votes were cast by secret ballot, the treating of voters by candidates and much else had been outlawed as corrupt; the geographical distribution and number of MPs had been made to better correspond to centres of population; political parties had developed national organizations to compete for votes and newspapers provided national coverage of politics. Much also remained radically different from what we consider the democratic forms of politics today. As at Peterloo, a good deal of political activity continued to happen outdoors, on the streets or in mass meetings. Speeches at those meetings were not amplified and could go on for hours. Meetings and campaigns were often unruly and violent affairs. Many continued to believe that those with the vote should use it to represent a broader community (like the family, or a trade) that included non-voters, rather than just their own individual opinions. Nonetheless, if any veterans of Peterloo had still been alive in 1885 they would have had cause to reflect upon the remarkable transformation of British politics.

Politicians in Britain, especially those who belong to the parties that sought to prevent most Britons getting to vote, still like to boast about the nation's history of democracy. When they do so, the expansion of the electorate by the Reform Acts of 1832, 1867 and 1884 occupy almost as mythical a place as the Magna Carta of 1215 or the Glorious Revolution of 1688. Britons, we are told, not only invented democracy but introduced it in such measured terms that they were able to avoid the revolutions that swept the continents of Europe and Latin America in the middle of the nineteenth century. Their parliamentary system was so perfected that Westminster became the mother of – and model for – all colonial Parliaments.

Introduction

In 1931 Britain only just remained the world's pre-eminent superpower. The United States of America may have eclipsed her industrial output and become her creditor during the Great War, and the dollar may have displaced the pound as the global currency in 1931, yet territorially the sun still never set on the vast British Empire. Even in 1953, Britons could still imagine themselves as living in one of the world's most powerful countries. They had again emerged from the Second World War victorious, with an Empire that still claimed a fifth of the globe, and able to attract most of the world's leaders for the coronation of Queen Elizabeth II. As Elizabeth ascended the throne, Edmund Hillary and Tenzing Norgay reached the summit of Mount Everest, the world's tallest mountain. Few cared that Hillary was from New Zealand and Tenzing from Nepal, for the expedition was British-led. The following year Roger Bannister became the first man to run a four-minute mile. By 1976, though, Britons could no longer be under any illusions about their country's diminished status. Some condescendingly joked, forgetting Britain had once been part of the Roman Empire, that it had been reduced to the status of Italy with rockets. That is to say, its Empire had been reduced to just Hong Kong, Gibraltar and the Falklands – and its economy ranked alongside Italy's in size. All that appeared to be left of Britain's former global influence was one of five seats on the United Nations Security Council and a formidable nuclear arsenal. How and why this seemingly dramatic reversal of fortune happened, and what it meant for Britain's place in the world, is the story of this chapter.

It is a story most often told as one of decline and fall, or of Britons wilfully abandoning the conceits of empire to focus on building their own social democracy. Neither is quite right. Social democracy remained embedded in broader imperial and global structures. It relied upon the reconfigured forms of imperialism that gave rise to what is sometimes described as the Third British Empire. Moreover, Britain's social democracy, like its new global role, was shaped and constrained by the Cold War that broke out between the United States and the Soviet Union after World War II.

Introduction

Throughout this book, we have demonstrated how the nuclear family is upheld as the ideal family model in law. Generally, the nuclear family is treated as a private family. In family law this understanding has been translated to mean that the state has a role in regulating the family only in specific circumstances. This is usually when the family is not functioning as normal – that is, like a nuclear family – and the state needs to step in and normalise the family situation. In the financial relations chapters, we saw how family law in Australia generally will only intervene at the time the relationship breaks down to make an order for property distribution or spousal maintenance.

Similarly, we have seen how the law functions to reconstruct the nuclear family for the child when the relationship between the parents has broken down. As discussed in the chapters on children's matters, there has been a rise in the protection of children's rights. In family law these rights are inextricably linked to the rights of their parents. For example, the Family Law Act 1975 (Cth) (FLA) identifies the right of children ‘to know and be cared for by both their parents’ (s 60B(2)(a)). This example illustrates how a right of the child is being upheld, but at the same time the right relates to their immediate familial relationship. It is through the upholding of these rights that the nuclear family structure is upheld in law.

Moreover, when the discussions in the chapters on financial relations and children are considered together, we can see how family law operates to naturalise the sexual division of labour. It does this by maintaining a non-interventionist stance when a relationship is intact. But when the relationship breaks down, its methods of intervention impose an autonomy model upon families that does not adequately account for any dependencies that can (and do) exist within them. This creates unequal outcomes especially for women, as they are usually the more financially dependent partners. This approach does not adequately account for women's caring role, either in the distribution of property or in determining parental responsibility in child-related disputes.

Introduction

Adoption and assisted reproduction treatment are practices usually associated with the creation of new families, especially for couples who cannot produce their own biological children.

These practices, however, are not without their critics. In this chapter, our focus is to identify how the nuclear family structure features in the regulation of these practices. The ‘best interests of the child’ continues to be the guiding principle, but, as we have seen in previous chapters, it is a much-contested concept. The debates in the areas of adoption and assisted reproduction treatment also highlight that there is no fixed understanding of what is best for the child. The discussion below shows how the principle serves to advance different ideological positions on the family. At the same time, this discussion demonstrates the potential for the family to be reconceptualised. Nevertheless, it will be evident that at present the legal approach functions to use the best interests principle to uphold the nuclear family and the social hierarchies that it supports.

Adoption

The area of adoption is a vast topic and we are unable to canvass all of the pertinent issues. We will focus primarily on how adoption is a mechanism of maintaining the salience of children having a single set of parents as the quintessential family. Adoption as a legal device permanently transfers all the legal rights and responsibilities of being a parent from the child's birth parents (or anyone with parental responsibility for the child) to the adoptive parents. However, and consistent with the approach adopted in this book, it is important to note that developments in the area of adoption also demonstrate how the state is involved in regulating behaviour related to forming a family (evident also in the area of abortion) and in determining who can maintain a family once a child is born (evident also in child protection), and that this regulation is paradoxical in simultaneously privileging the private nuclear family unit. Moreover, the concept of the child's best interests is instrumental, whether in supporting adoption or disapproving of it; but, in either case, law- and policymakers maintain that the nuclear family is the best family model for bringing up children.

The discussion will begin by providing an overview of the history and current practice of adoption in Australia. Child protection and adoption are related areas.

Introduction

The 2000 amendments to the Family Law Act 1975 (Cth) (‘FLA’) introduced the concept of financial agreements. The main significance of this change is that a financial agreement can be binding on the parties, allowing them to opt out of the jurisdiction of the FLA. This chapter juxtaposes the trend in the FLA of providing private ordering arrangements through mechanisms such as financial agreements and the social reality of dependencies created through family care arrangements that usually arise from caring for children. We analyse how notions of individual autonomy and private ordering are endorsed in a law that was apparently meant to provide for the dependencies created by these caregiving roles (see Chapter 5). The rationale behind the new provisions is to promote individual autonomy and free choice, which are principles based in the ideology of capitalism, and aligned to the liberal understanding of family as a contract. We argue that, with the possibility of creating binding financial agreements, the potential normative message of the FLA to promote just and equitable property distributions at the end of a marriage or de facto relationship is wiped clean.

However, the argument that the introduction of binding financial agreements is merely reflecting either the individual autonomy or privacy of the parties does not provide a full explanation for this change to the law. This is because there are provisions in the FLA that override private agreement-making in specific circumstances. This is exhibited most strongly in instances when the social-welfare system is called upon to make up for any shortfall in the ability of financially weaker parties to provide for themselves after marriage or relationship breakdown. Provisions for financial agreements exist parallel to those that apply in cases of spousal maintenance (discussed in Chapter 6) and child support (discussed in Chapter 10). These provisions allow courts to scrutinise maintenance arrangements made between parties if and when social-welfare payments are claimed. Thus, the ideology of autonomy operates to protect the financial interests of the parties, but only so long as the finances are sufficient for the parties to bear the costs of relationship breakdown. The analysis below will thus demonstrate how the tension between autonomy and dependency also exists in the context of agreement-making, and how the nuclear family in this context is relied upon in the FLA as a means of containing the costs of family dependencies to the state.

Introduction

At this stage, with less than a century left to cover before we reach the present, it is worth recalling that we are perhaps only half way through the story of the rise, demise and reinvention of liberal political economy. The last three chapters have shown how a variety of economic and political crises from the late nineteenth century provided fundamental challenges to the central tenets of liberal political economy. The first Great Depression punctured faith in the efficiency of free markets, and the Great War accelerated the erosion of cheap government and laissez-faire. Yet it was the second Great Depression, and the final abandonment of free trade and the gold standard in 1931, that marked the decisive moment of transition to a new system of government and economic management. The next three chapters will outline the development of a new social democratic system of government that sought to actively manage markets so as to secure the rights to work, health, housing and education for all members of society. Rather than allowing markets to determine the fate of individuals, governments would now manage the economy in the interests of society as a whole.

This system had three chief characteristics. First, the development of new forms of economic management and planning by the state that stretched across, and depended on Britain's imperial economic system. Britain did not introduce anything approaching the ‘New Deal’ President Roosevelt developed in the United States to combat the Great Depression that unfolded after the financial crash of 1929. Yet the new importance attached to developing colonial economies, the introduction of protectionist tariffs and a new Sterling Area to bolster the value of the pound, as well as the designation of ‘Distressed Areas’ with the highest rates of unemployment at home that required assistance, all signalled a new approach to state planned economic management. The experience of mass unemployment during the Great Depression was vital to the Labour Party's success at the end of the Second World War in arguing that the state should nationalize and publicly own key industries to secure ‘full employment’.

Economic management enabled the second important feature of social democratic government, namely a system of welfare that would provide social security for all. The welfare systems developed either side of the Great War had been limited to specific demographics and proved deeply inadequate for the challenges of the Great Depression.

Introduction

This chapter is focused first on the law of divorce, and second on the family violence provisions in the Family Law Act 1975 (Cth) (‘FLA’). The discussion aims to illuminate how the tensions that exist in the law continue to uphold the nuclear family construct and perpetuate inequalities in society.

In the 20th century there was a significant shift in western family law jurisdictions from fault-based divorce to no-fault divorce. This chapter links the history of these legal developments to the effects of market liberalism and the notion of personal autonomy that underpins it. However, as will become apparent, the liberal transition in divorce law has not been complete. In the Australian context the specific provisions of the FLA challenge this understanding and illustrate the continuing influence of the Christian conception of marriage and its need for legal protection. The scope of the jurisdiction of the courts to bring about reconciliation between the parties using alternative measures, such as marriage counselling, provides a good example of the investment the law continues to have in maintaining the institution of marriage. A sociological analysis of the no-fault basis of divorce will explicate the unresolved tension between the individualism of liberal ideas and the interdependencies of family relations that maintain marriage as a status relationship.

The tension between the private and public is also relevant here. Whether we accept that familial relationships are autonomous or dependent, the understanding of the family as a private institution continues to prevail in law. As long as that distinction exists in law, the issue of when and in what circumstances it is appropriate for the law to regulate the family continues to arise.

However, the effect of the public and private distinction is somewhat paradoxical, as we see in relation to the FLA provisions that continue to perpetuate the private nuclear family through the regulation of divorce. Golder observes, in a historical study of the introduction of divorce laws in New South Wales, how the public and private spheres converged in divorce proceedings when the courts discussed issues of women's sexuality, women's domestic labour and men's financial responsibility for women and children. The same could almost be said about divorce discourse in contemporary times, for although the legislative grounds of divorce have radically changed, it is evident that the state continues to maintain a stake in marriage through the regulation of divorce.

Introduction

The four nations of the British Isles were torn apart by civil wars, rebellions and revolution during the seventeenth century. These were bloody and brutal conflicts. In the so-called first Civil War in England (1642–46), 14 per cent of adult males died as a result of the conflict, a higher proportion of fatalities than in the First World War. Even this paled in comparison to England's invasion of Ireland (1649–53) under Thomas Cromwell when between 25 and 50 per cent of the Irish population perished. At the heart of these dreadful conflicts was a series of questions that struck at the very legitimacy of the state. Should a monarch or a parliament rule? Who had the authority to raise taxes and armies? Should the state have the right to prescribe the religious practice of its subjects, whether Catholic or Protestant? How could Scotland and Ireland resist the imperial ambitions of England? These questions were raised again in 1688, when a small group of Whigs in Parliament enacted a coup. That coup, later described as the Glorious Revolution, displaced the Catholic king, James Stuart (he was James II in England and Ireland, but James VII in Scotland), in favour of his Protestant daughter Mary and her Dutch husband William of Orange. In the tumultuous months between William and his army arriving at Torbay in November and the installation of William and Mary as monarchs first of England and Wales in February and then Scotland in May 1689, few were sanguine that peace had arrived at last, let alone that the legitimacy and stability of the state had finally been secured. Tories were worried that the authority of the monarchy had been eroded and that they would be left out in the cold by the new regime. Some even sympathized with the Jacobites, those eager to restore James to the throne, who remained particularly strong in Ireland and Scotland where war and rebellion continued to foment. The absolute power of monarchs across the rest of Europe, except the Netherlands, was unchallenged. The prospects for the survival of the revolutionary state were not promising.

And yet by 1819 the British state was the most powerful in the world. It had transformed itself into a United Kingdom with the Acts of Union with Scotland (1707) and Ireland (1800).