By Michael Brown
This year marks the 50th anniversary of one of the most ambitious social experiments in Australian history. On 6 January 1976, the newly created Family Court of Australia opened its doors, bringing to life the Family Law Act 1975 (Cth) and the concept of “no-fault divorce.”
For the first time, Australians could end a marriage without proving adultery, cruelty or desertion. It was a moment hailed as liberation from the humiliations of private detectives, evidence of “intolerable behaviour,” and the spectacle of a morality play in open court.
Yet, half a century later, it is difficult to call the Family Law Act a success story.
Few laws have touched the lives of ordinary Australians so intimately – and few have generated so much disappointment, confusion, and bitterness. The Family Court remains the most controversial court in the country. Every Australian family, it seems, has known someone scarred by its processes.
The idea that “fault” could be banished from family law was noble in theory but naïve in practice.
From the beginning, Senator Lionel Murphy, the architect of the reform, sensed the paradox. During the parliamentary debates he admitted he had considered adding an extra ground for divorce to cover such as where a husband “repeatedly comes home drunk and beats up his wife and terrifies the children.” He decided against it, hoping that by removing moral blame the law might ease human pain. But, as Murphy himself conceded, the real conflicts in family life were never about divorce papers; they were about children, property, and money.
In that respect, little has changed. The legal and emotional struggles continue in disputes over children, violence, and finances. The rhetoric of “no fault” has never matched reality. When courts decide who will care for the children, or who deserves a greater share of property, fault inevitably seeps back in.
That irony would not surprise most people of faith. Law can remove the language of morality, but it cannot erase moral reality. Every family law case, at its core, is about broken promises, harm, and the question of justice – who has wronged whom and what can be made right. Pretending otherwise has led to decades of intellectual dishonesty and emotional frustration.
Murphy and his generation also promised that the Family Court would protect the institution of marriage itself. A principle of the act is “the need to preserve and protect the institution of marriage.” But marriage in Australia has been in freefall ever since. After a brief spike in divorces in 1976, the numbers gradually fell – but so did the number of marriages.
Between 1976 and 2023, the crude marriage rate fell from 7.9 to 5.6 per thousand residents. In that same period, de facto relationships quadrupled, and nearly one in four couples now live together without marrying.
In many respects the law merely reflects and reinforces our social imagination. However, once marriage was no longer understood as “a union for life,” it became one lifestyle option among many. Few now speak of marriage as a permanent covenant, or even a promise that binds. The Family Law Act did not cause this cultural shift, but it hastened it by replacing a vision of lifelong fidelity with one of personal autonomy. A generation raised to believe that promises are provisional can hardly be surprised when commitment becomes fragile.
The Family Court was also meant to be “a helping court” – simple, informal, inexpensive and humane. In 1976, the Sydney Morning Herald reported that judges would sit without robes or wigs, and that the courtrooms would “feel more like living rooms than judicial chambers.” Fifty years on, we can see how fanciful this was.
The court system is now a far cry from that splendid vision. Parents – most often fathers –can wait years for a final hearing, while relationships with their children wither in the meantime. A contested custody or property case can easily cost over $100,000 per party. The ideal of “speedy and inexpensive justice” has vanished beneath a mountain of forms and procedural complexity. Even the early optimism that the court’s counsellors might help save marriages has long been abandoned.
To be fair, not all of this is the court’s fault. The court does not exist in a social or moral vacuum. Family law inevitably deals with pain, betrayal, and fear, and the court often sees the worst of human behaviour. No legislation could ever make this painless. But 50 years of experience suggests that the problem is not just human frailty – it is a system built on a false premise.
The Family Law Act assumes that marriage is a contract between autonomous individuals, easily dissolved and rearranged by neutral experts. The Christian vision, by contrast, sees marriage as a covenant written into our very humanity: faithful, fruitful, and oriented to the good of others.
This difference is not merely theological. It has practical consequences. A culture that forgets that marriage is lifelong soon finds that family breakdown becomes normal, not exceptional. Children learn to expect instability. The law, in trying to manage that instability, expands its reach ever further – deciding not only whom a child will live with but how parents may speak to or even think about one another.
Fifty years on, the Family Law Act stands as both a monument to idealism and a mirror of cultural decay. It promised simplicity and compassion; it has delivered bureaucracy and bitterness. It promised to protect marriage; marriage itself is now in crisis. It promised to remove fault; it has merely renamed it.
Michael Brown is a Sydney solicitor.
