Marriage as an institution has changed greatly since the introduction of no-fault divorce in 1975. Quite apart from the recent advent of same-sex marriage, the facts of heterosexual marriage reveal a fourfold increase in divorce, a massive retreat from marriage into extended cohabitation, delayed marriage, a declining birth rate and a substantial increase in the median age of marriage.
Age at marriage has risen by about seven years for both women and men to a median age today of 30 for men and 28 for women. The divorce rate has declined slightly in recent years but exit from cohabitation has grown. Household size has decreased from 4.5 occupants to around 2.6. One parent families with dependent children have increased from 6.4 percent in 1976 to 10.6 in 2011.
The background to all this is economic and moral change, especially in sexual morality.
Nevertheless, as recent events show, there is a strong public interest in marital infidelity or ‘adultery’. It crops up regularly as a newsworthy issue when it concerns presidents, prime ministers, politicians, princes and celebrities. But it does not stop there. Television stations have made infidelity the subject of programs and conjecture about its prevalence amongst ordinary people. These discussants have concluded that infidelity is common; with some defending ‘openness’, while others speak of the ‘devastation’ and ‘hurt’ that infidelity causes.
A news item in the Sydney Morning Herald in 2010 told us that ‘online cheating is a booming business’ and it went on to describe online ‘dating services’ for cheating spouses with one website claiming that it had 10,000 Australian ‘philandering members’ for whom it offers ‘to help you find that special someone when you already have a special someone’. Ah, the wonders of the free market!
But if this news troubles you, don’t blame the market. What that website is doing is perfectly in tune not only with the times but with the law and, apparently, has a clamouring demand. Sexual philandering outside a marriage today offends no law, marital or otherwise. The ‘open marriage’ sought in the 1960s has the legal imprimatur of the Family Law Act. Section 120 of that Act states: “After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage”.
Some might find it a tad hypocritical that in Section 43 of the same Act, among the principles to be applied by the Family Court is:
(a) the need to preserve and protect the institution of marriage as the union of two people to the exclusion of all others voluntarily entered into for life” (emphasis added).
However, having dismissed ‘fault’ from marriage, the Family Court can take no account of marital infidelity.
In the face of the general frisson provoked by our now-former deputy prime minister, one wonders where public opinion stands today in relation to fidelity in marriage. In the days of fault divorce, with marriage conceived as a solemn act of commitment, infidelity, along with desertion, were the most common reasons given for ending a marriage.
Is it now the case that infidelity has been morally ‘normalized’ and accepted? Or might it be that a great many people, perhaps a majority, still have a vestigial feeling, despite the relaxation of sexual morality over the last generation, that it is seriously wrong, or at least regrettable?
This was a question asked fifteen years ago in an A C Nielsen survey commissioned by the Centre for Independent Studies. The question put to 5,700 adults between the ages 18-74 was whether they believed that ‘serious misconduct’ in a marriage, such as adultery, should be taken to account by family law at a divorce settlement. Overall, 74.6 per cent of respondents ‘strongly agreed’ or ‘agreed’ to the proposition. The sample included those who were single, engaged, married, divorced, separated, de facto, and widowed or widower, and those without children. The ‘strongly agree’ or ‘agree’ responses ranged from 68 to 82 per cent for males and from 72 per cent to 76 per cent for females.
Fifteen years on, it looks today as though there could still be a majority. But a change in the law; not likely.
Barry Maley is a Senior Fellow at the Centre for Independent Studies. He has published widely on marriage and family matters.
Got something to add? Join the discussion and comment below.