Tuesday, January 13, 2015

James on the History of Cruelty in Australian Divorce

Colin G. James, Newcastle Law School; has posted A History of Cruelty in Australian Divorce, which appeared in the 2006 ANZLH E-Journal.  Here is the abstract:    
This paper examines the concept of matrimonial cruelty in Australia during the twentieth century. Cruelty was a matrimonial offence in Australian statutes and grounds for judicial separation or divorce until 1975. Most allegations of cruelty were by wives against their husbands. Judges often espoused on men's role as husbands, their use of power and the nature of hierarchy within marriage. I examine the background of matrimonial cruelty as it developed within English common law in the Australian colonies until Federation. While claiming to be doing justice, the courts used the grounds of cruelty in a strategy to preserve hierarchy in the marriage-based family by silencing women and empowering men. The theory was that men were 'naturally' superior to women in ways that were good for the family and ultimately for social stability. Until the 1970s, the Australian man had a legal duty to control his wife as much as a wife had a duty to obey her husband. The legal endorsement of patriarchy over decades reinforced misogynist attitudes in men as much as it provoked ultimately successful feminist demands for reform. Cruelty was abolished with all matrimonial offences by the Family Law Act 1975 however the controlling attitudes remained, to materialise in a new regime of domestic violence.