Zimmerman: Repeal Spousal Maintenance Laws

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August 18, 2020 by Robert Franklin, JD, Member, National Board of Directors

Professor Augusto Zimmerman goes on, in his presentation to the Joint Select Committee, to take on the issue of spousal maintenance (A Sense of Place, 7/27/20).  As with the child support/parental alienation/male suicide triumvirate of issues, he pulls no punches.

Surely, there is little doubt that elementary considerations of fairness and equity demand that the law compelling the payment of spouse maintenance be immediately repealed under the current ‘no-fault’ system.

It is that system of “no-fault” divorce that’s the focus of his opposition to alimony.  Zimmerman points out that, in the past, when marriage was much less easy to dissolve than it is today, a system of spousal maintenance could be defended.  After all, back then, women tended to be the primary or sole caregivers to children and, if a man violated his marriage contract, could be left with no means of support.

But today’s reality bears little resemblance to that of pre-“no-fault” days.

During the ‘no-fault’ revolution in Western societies throughout the 1960s and 1970s, the law removed considerations of ‘fault’ and divorce became a ‘right’ freely available at the decision of one spouse even against the wishes of the other.

Naturally, it becomes far more difficult in such circumstances to justify support for a young woman who leaves her husband for reasons such as boredom or because she has formed a new relationship outside the marital relationship.

Indeed, it is precisely that blatant unfairness that so rankles so many payers of alimony.  The idea that the lower earning spouse can fail/refuse to financially contribute to the family, have an extra-marital affair, divorce the other spouse and be paid to do so is simply a bit much for many people.  To the extent our legal system embraces such plainly unjust outcomes, it loses credibility and legitimacy with everyday people.

Curiously though, Zimmerman never mentions the more telling and obvious argument against alimony – that only the disabled or the very old can be said to need that support.  Again, the simple fact is that both women and men can support themselves and any legal requirement that they be supported by an ex-spouse is both unnecessary and unjust.  Essentially anyone can work and earn a living.  They should be required to do so.

Moreover, the promise of alimony is a considerable incentive to divorce.  It’s a regular payment of cash, usually for years and often enough for life.  Like all offers of cash, it powerfully motivates the potential recipient to do what’s required to get it.  In this case, divorce is the only thing required. 

Society has a great interest in stable, long-lasting marriages.  Married adults are more likely to be employed, less likely to commit crime and ingest illicit drugs, etc. than are unmarried adults.  And of course two married parents tend strongly to produce healthier, happier children than do unmarried parents, so a healthy society promotes stable marriages.  Ours does the opposite and alimony is an integral part of that disfunction.

Zimmerman’s argument that Australia’s system of spousal maintenance is unfair is apt, as far as it goes.  But it’s incomplete and, I suspect, insufficient to reform the law.  Somehow I just can’t see appeals to fairness and justice getting much traction, given the current state of discourse about family courts and family law in the Land Down Under.

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