The Wife Drought

by Annabel Crabb

  So, wealthy people got divorces through Parliament. Ordinary people just went about ridding themselves of annoying spouses in less administratively difficult ways – murdering them, bigamously marrying someone else, or nicking a loaf of bread and emigrating to Australia.22

  Things were democratised slightly by the Divorce Act of 1857, after which a woman was entitled to a divorce if her husband sodomised her, committed bestiality or was trenchantly and serially unfaithful, but a single national standard for infidelity for men and women was not achieved until 1959.23

  In Australia, meanwhile, the states took the English position and evolved at their own speed. In cosmopolitan New South Wales, a lady could get a divorce from 1892 onwards if her husband had been a drunk for three years, but South Australian women had to wait another thirty-six years for the same right.24

  Divorce and marriage laws were a curious admixture of solicitude for and discrimination against women. The stout ties that bound wives to abusive husbands also nominally obliged those husbands to provide, and this was the source – in the legislative eye, anyway – of considerable comfort to women. As we know from the parliamentary debates around the public service marriage ban, marriage was the principal social welfare unit the nation had to offer its lady constituents.

  So when Gough Whitlam sought to introduce no-fault divorce in 1973, the legislation was utterly revolutionary. Husbands and wives would no longer have to declare whose violence or inconstancy or abandonment had been the cause of the marriage’s disintegration. Husbands would not be tied to an inflexible and lifelong system of alimony; property settlements would be made on the basis of both parties’ contribution to the marriage, both as breadwinners and as homemakers.

  Among the enthusiastic backbench participants in this particular slice of the action-packed Whitlam years were two future prime ministers – Paul Keating, the Member for Bankstown, and John Howard, the Member for Bennelong.

  ‘There was no more important piece of social legislation debated in the time that I was in federal Parliament than the Family Law Bill,’ recalls Howard in his memoir, Lazarus Rising.25 ‘All parties allowed their members a free vote, and this exposed real fissures and bitterness within the Labor Party.’

  Howard spoke in support of much of the bill, and was particularly enthusiastic about the new mechanism for recognising the contribution of homemakers. ‘I believe that that provision is the first legislative expression which has been given to a growing demand in our society that, in adjudicating on and assessing financial relationships between a husband and a wife, both in a divorce situation and in an estate situation, proper and adequate recognition be made of non-financial contributions made to the relationship and to the acquisition of the matrimonial assets,’ he told the House of Representatives on 28 February 1975.26

  Paul Keating’s reservations were much more in evidence, and expressed with a pungency for which the young western Sydney MP was already known.

  ‘Without wishing to be offensive to anyone,’ he began (so far, so good), ‘I suggest that the bill in its present form is pretty much a playboy’s bill and does not pay much concern at all to the welfare of women. I believe that many supporters of the bill are people who do not want to have their conduct exposed and who never want to be named in divorce proceedings.’27

  Keating’s views were far from isolated. In the months and months for which the bill would be debated, its strongest critics argued that the legislation abandoned women; that it left them unprovided for, and that their husbands would readily take the opportunity to skip town, probably with some fast little unit from Accounts.

  It was the provisions awarding no-fault divorce that generated, by far, the most heat and light during the parliamentary debate; hardly surprising. But it was the innocuous sections 75 and 79, which won praise from a young John Howard for recognising for the first time the contributions of stay-at-home mothers, that would provide a long-burn struggle for the Australian court system.

  The framework set by Parliament is pretty broad. Section 79 simply obliges courts to ‘take into account’ contributions, both financial and non-financial, made by husbands and wives to the shared wealth and property being divvied up at the end of their union.

  This is typical of the relationship between the Australian legislature and the court system – a ‘frenemy’ arrangement if ever I’ve seen one. At the end of two years of sobbing debate, Parliament had finally agreed that a value should be put on the contribution of homemakers. The ticklish task of working out exactly how to compute that value was then tossed to the courts themselves. This is a common sort of circumstance; judges are obliged to enforce the laws that Parliament makes, even the ones it rushes through late at night when everyone is drunk or overtired or so sick of the sight of the legislation that they leave gaps. Part of the judicial process is combing back through Hansard to work out what the politicians were really meaning to do. Judges, I often think, cannot enjoy this very much, and I wonder if they get a little revenge-thrill when, from time to time, they do things like declaring whole chunks of refugee policy unconstitutional.

  And what did the courts do with this spanking-new requirement that the contributions of homemakers be formally taken into account in divorce property settlements? How did they work it out? Did they employ the replacement-value model, to figure out a homemaker’s bill for services rendered on the basis of what it would have cost to hire somebody else to do all that stuff? Or did they invoke the opportunity-cost model to figure out what the homemaker might otherwise have earned, had she (and yes, the homemakers in these cases are still usually chicks) not been so incautious as to get hitched to that damn fool of an ex-husband?

  They did not. After a certain amount of post-legislative head-scratching and rummaging through Hansard, the courts agreed that Parliament had definitely intended for homemakers not to be diddled out of property rights just because they had not earned money over the course of their marriages.

  But it was felt that Parliament did not intend for courts to go trawling through people’s marriages and calculating exactly which wives made how many school lunches and which husbands always slept in on Sundays even when it was her birthday.

  The late Justice Nygh, of the Family Court, made the point with some force:

  It has been suggested from time to time that the Court must assess in some way or another the contribution made by a party, for instance, as a breadwinner on one hand and as homemaker on the other, on a scale which presumably ranks from the perfect to a total failure … it is not, I think, the function of this Court. It has never done so and I trust will never do so in the future, to assess the quality of each party on a scoring-board which, so far as breadwinners are concerned, would give top marks to the Holmes à Courts of this world and bottom marks to the unemployed roustabout and, I suppose, in the homemaker and parenting stakes, would give top marks to those ladies who in the age of the great dictators would have received the glorious motherhood medal, and bottom marks to those ladies who – it is alleged – spend most of their time in the tennis club and the coffee klatch and waste their precious time in idle leisure. I take the view, based on the traditional marriage vows, that the parties take one another for better and for worse.28

  What has emerged instead is a rather different rule of thumb. The courts look at the property the couple has accumulated together and simply credit the homemaker with a chunk of it; the very fact of her existence is the relevant factor, not the quality of her work.

  Here’s Justice Dawson’s view, from a pivotal 1984 High Court case concerning the divorce of a Mr and Mrs Mallet: ‘The contribution of a homemaker or parent is to free the other party to the marriage – usually the husband or father – to devote his time and energy to the pursuit of financial gain and so to make a real and substantial contribution to the acquisition, conservation or improvement of property where the monies gained are used for any of those purposes. There can be no doubt that this is a correct explanation of the policy whi
ch lies behind this aspect of the legislation.’29

  Here we see the sniff of a new model for valuing the work of housewives, where the relevant consideration is not whether she is a good mother or housekeeper, or what she could otherwise have been doing with her time, but the extent to which her very presence frees her husband up to go and make money. The value of her work is thus tied directly to the value of his: if he goes out and makes a million through hard work and strategic investment, then her homemaking duties are richly rewarded. If he is a small-time bungler, her share of the property won’t be any the larger for the fact that she was more competent a housewife than he was an earner.

  The interesting thing is that the courts have regularly made exceptions for male breadwinners with exceptional skills.

  When Brett Whiteley and his wife Wendy divorced in 1989 after a 25-year marriage, for instance, the marital property of about $11 million was acrimoniously contested. Both were artists, and Brett Whiteley had often said he considered his wife to have been born with the greater talent. But it was his commercial success that generated the sizeable fortune, bolstered by Wendy’s role as his muse, model, adviser, and the mother of their child.

  Justice Alwynne Rowlands, of the Family Court, nominated a 67.5–32.5 split Brett Whiteley’s way. ‘Because of his special skill as an artist, he made by far and away the major contribution to the substantial assets the parties now have,’ Justice Rowlands ruled. ‘While giving weight to the wife’s contribution in the various areas to which I have referred, it is clear that it has been the husband’s industry and talent which has been substantially more significant of the two.’30

  In 1993, another landmark case, Ferraro v Ferraro, found that a special talent for business entitled the husband to a greater share of the property even though his wife, it was acknowledged by the court, had made a substantial contribution to the business. Again, her contribution was important because of what it allowed her husband to do. ‘The facts are that the husband, particularly in the latter years, devoted his full-time attention to his business activities and thus the wife was left with virtually the sole responsibility for the children and the home,’ found the judgement. ‘That latter circumstance is significant not only in relation to the evaluation of the wife’s homemaker contributions … but is important because it freed the husband from those responsibilities in order to pursue without interruption his own business activities.’31

  So, according to the courts, a homemaker’s contribution to family wealth isn’t gauged by his or her skilfulness in homemaking, nor is it gauged by calculating how much it would cost to hire someone else to do their job. Nor do the courts, it seems, pay any mind to the opportunity cost model; Justice Rowland wasn’t the least bit worried about how much Wendy Whiteley, for instance, could have earned as an artist under her own steam had she not been busy having a baby, advising her husband, and lolling about in bathtubs with her pants off in order that Brett Whiteley should never be short of a shapely bottom for one of his squillion-dollar canvases.

  No: the courts, working with the structure the Parliament gave them back in 1975, seem to have arrived constructively at their own model for calculating the value of a housewife. The relevant consideration is not what the homemaker herself does, but what her work enables her husband to do, of which she is usually entitled to roughly half, unless he has been especially brilliant.

  At first blush, this is an extremely old-fashioned approach. Even to talk, in the twenty-first century, of ‘housewives’ feels rather antique, and I apologise for doing it; the fact is that when the Family Court considers the role and contribution of homemakers under the Family Law Act, the majority of those homemakers continue to be women. There are hardly any cases in which a breadwinning woman and her stay-at-home husband litigate on the breakdown of their marriages. And to receive half of jointly accumulated assets is generally held to be a reasonable deal, so you don’t hear too much squawking about it. But the curious logjam remains in our ability, as a society, to put a proper value on domestic work.

  I’m reminded of a book I have by Dorothy Carnegie, entitled How to Help Your Husband Get Ahead in His Social and Business Life.32 It was published in 1953, and its author is billed on the dust jacket as ‘Mrs Dale Carnegie’. ‘This is a book which every woman will want to read – and which no man will want his wife to miss!’ Dorothy was, in fact – as browsers were no doubt intended immediately to suspect – the wife of Dale Carnegie, the American motivational speaker and author of How to Win Friends and Influence People. He is significantly to blame for America’s $12-billion-a-year self-help book addiction, but that is hardly his wife’s fault.

  Mrs Carnegie’s own tome is a handbook of the wifely arts, over the course of which she enjoins her readers to work with their husbands, rather than against them, reminding women that if he fails, so does she. ‘Make mountains of his virtues, and molehills of his faults!’ is one of her chirpier pieces of advice, along with quite a lot of prescriptive material about how you should always put makeup and a nice dress on in the afternoons, and not start banging on about everything in the house that’s broken the minute he’s walked in the door.

  ‘Helping a man attain success is a full-time career in itself,’ Mrs Carnegie advises. ‘You just can’t hope to do it unless it is important enough to claim all your attention.’

  Most of Mrs Carnegie’s recommendations are about careful handling of one’s husband’s fortunes and psyche: be interested in his work, but not too interested. Be a social asset. Also, make friends with his secretary (this last is especially authoritative seeing as the author, before she was Mrs Carnegie, was employed as Mr Carnegie’s secretary).

  It’s a very funny, quaint old book, soaked in the assumptions of a 1950s-era domestic apartheid. The world of home and the world of work are almost entirely separate, joined only by the sinew of marriage and obligation. Are a wife’s efforts of value? Only to the extent that she enables and invigorates her husband’s professional capacity. The only thing that slightly crimps one’s ironic enjoyment of such a volume is the deep and not-quite-unfounded suspicion that it is not yet entirely out of date.

  7

  PUBLIC LIFE? NEED A WIFE!

  One winter morning in 2012, I ran into Tanya Plibersek in a Manuka coffee shop. It was about 7 am. She was having a breakfast meeting with Greg Combet. I was finding new and diverting ways of entertaining my son, who at age two was accompanying me on this trip to Canberra, and had decided to respond energetically to his new environment by waking up at 4 am.

  Combet left, and we sat down with Tanya. My boy is the same age as her youngest, and I could see, on her face, that look so common to the separated-from-child parent, which is to say I could see she was performing the mental calculation of how weird it would be for her to actually sniff my kid’s hair.

  We had the usual ‘how do you manage it’ exchange. ‘I guess we’re both pretty lucky to have partners who pull their weight in the parenting stakes,’ I concluded, as my son lovingly inserted a croissant into my left ear. ‘Yes,’ Tanya said, knitting her brows in that serene, reflective way she has. ‘I really hope, though, that we’re the last generation of women who have to feel lucky about that.’

  I’ve thought about that observation many times since. She was right. Why do women with a helpful spouse often feel like they’ve won the lottery, while men with a helpful spouse seem unremarkable?

  Helpful spouses are useful in any circumstance, of course, but nowhere are they more useful than in federal politics, which involves compulsory travel to Canberra for up to eighteen weeks a year.

  Every time the nation lurches into a new bout of head-scratching about why there aren’t more women in federal politics (this sort of spasmodic debate receded while Julia Gillard was prime minister because with a lady in the Lodge it was generally assumed, and fair enough, that we might have sorted it out; it resumed smoothly the day that Tony Abbott hammered into place a Cabinet with just one woman) I genuinely feel like sta
bbing myself in the eye with a rusty fork.

  Seriously, if I have to hear one more expert talk on radio about how Question Time is blokey or how women don’t put themselves forward for preselection, I shall begin to scream and never stop. It’s perfectly obvious why there aren’t more women in federal Parliament. Sure, it’s got to do with political culture and factions and preselections and so on, but to a large and understated yet sky-writingly self-evident extent it’s because if you are a person who wants to use your productive years pursuing a political career with energy and rigour, but you don’t want to sacrifice the idea of having a family, then you will usually need a wife. And female politicians don’t get wives, on the whole. They tend to make do with husbands, instead, who are in many cases lovely and accommodating and very, very helpful, but are almost never the practical equal of the political wives who have for so long been an invisible suspension bridge under the Parliament of our nation. Women who have raised children largely unaided by their husbands. Women who have tolerated that awful domestic pincer-movement in which the more successful her husband becomes at work, the less help he will be at home, and the more deeply he belongs to the nation, the less he will belong to her. Women who are so used to being the only parent at the parent–teacher interview that they don’t even bother to check the dates any more. Women for whom spousal success brings not only even more prolonged absences, but sometimes the kind of scrutiny that is heartbreaking and traumatic, and all the more so because she must endure so much of it on her own.

  Women like Margie Abbott, a private person with her own career who raised three lovely girls and then was forced, simply by virtue of her husband’s career, to endure months of thrilling public discussion of the child that husband believed he had conceived in his teens.

  The online dating profile of your average MP would read like this:

  Hi! I’m an ambitious 40-year-old who enjoys walks on the beach, factional backbiting and micro-economic reform. I’m looking for that special someone to settle down and have kids with. I will be away for about half of every year, so it would be great if you could either not work at all, or restructure your entire life so that you can be responsible for pretty much everything to do with the kids, while also having to explain to their tear-streaked little faces why I’m never there and then also not being resentful when they’re all over me like a rash when I do drop in and give them lollies and bugger up their sleep patterns and so on.