We shouldn’t treat scoundrels and faithful partners alike. That’s why plans by the Federal Government to give fathers the automatic right to have their children tested to determine their paternity (in response to the farcical High Court decision where a father was denied damages for financially supporting two cuckoo children) don’t go far enough.

The Magill case underscores a major divorce between law and morality. Wide-ranging reform of the family law system is necessary.

The reforms should be underpinned by an injection of an old-fashioned concept which unfortunately rarely finds its way into the statute books. The concept is loyalty – which is an obligation or preference which one voluntarily assumes towards a living object or a cause, even when it is contrary to one’s self-interest.

Loyalty is a catalyst for an enormous amount of desirable human conduct. In has been proclaimed that loyalties ground more of the principled, honourable and other kinds of non-selfish behaviour in which people engage than do any other moral principles. Loyalty is the force that sees many make great personal sacrifices, by caring for sick or infirm relatives, friends or even pets. It should be encouraged.

Loyalty and marriage are inseparable. People would not nurture and cultivate a marriage (and enjoy all of the benefits flowing from such an enterprise) if they felt that their partner would leave them at the first sign of hard times.

The introduction of no fault divorce in 1975 was on balance a positive reform – grumpy partners should be able to move seamlessly on to their next normally unhappy relationship. However, the changes went too far.

The reasons in favour of no fault divorces don’t always trump competing considerations.

Partners who commit egregious acts of disloyalty during marriage should cop a financial whack when it comes to dividing up the family assets. If the disloyalty results in cuckoo children, the cheating mother should pay damages to her partner.

While we have a right to choose our partner (over and over again) this does not mean that all disloyalties should have no adverse legal consequences. The “garden variety” betrayal (such as where one partner has a deficit in terms of their contribution to housework or the bank balance) should be left in the garden.

However, fundamental betrayals – those that destroy the core of a relationship –need to be actionable in the law.

There are at least two sorts of betrayals that fall into this category. The first is physical abuse – this is a no-go zone in any relationship. The second is s-xual infidelity – unless of course, the parties to the relationship agree that this is tolerable.

Where such betrayals lead to separation the scoundrel must pay.

If you’re still not hooked on the idea of loyalty, that’s fine too – your views are given expression in the fact that you don’t need to get married.

Peter Fray

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