FIGURE 1 Numbers of one-parent families, Great Britain.
Taken from Family and Parenthood by David Utting. Figures are in
thousands
According to our estimates4
a young man has something like a 50 per cent chance of raising his own
children. These are poor odds, especially since (as this paper will
demonstrate) the circumstances causing this are largely beyond his control.
But this is only an average, and in some inner city schools some 80
per cent of the children come from divorced families, indicating that
a young man there has a mere 20 per cent chance of raising his own children.
Does this matter ? First it must matter simply because it represents
a 50 per cent failure rate of a system (marriage); also the serious
human suffering engendered indicates that this is clearly undesirable.
Divorce is strongly associated with a wide range of physical and mental
illnesses5.
Divorced men are eight times more likely to commit suicide than married
men. Divorce in children is associated with every known social pathology
from lowered self-esteem through to under-achievement and delinquency;
a third of children “worry a lot” about their parents’
splitting up6.
Single parenthood (two thirds of which is caused by divorce) is almost
synonymous with poverty and benefit dependency.
An important statistic, given the current concerns about child abuse,
is that a child, not living with its natural father, is fourteen times
more likely to be abused than a child living with its father7.
This is not surprising since a natural father is there for his children
whereas a father-figure (a boyfriend or step-father) is there for his
own sake. The presence of a natural father is the single most important
factor in protecting a family against poverty, physical injury and social
deprivation.
Not only does a father socialise his children, he is socialised by
them. Stable families are important for binding society together because,
as Bloom has pointed out8,
a family gives a parent a stake in society. As well as being motivated
to work, a parent is concerned that the society his children are growing
up in is a good one – that education works well, that crime is
low, that the environment is good and safe. Take all this away and you
have a rootless individual who, at best feels no wider concern, and
at worst feels bitter and resentful towards society.
I turn now to the second part of the thesis – that this matrilineal
society is caused, not by processes “deep in the fabric of society”
as the former Lord Chancellor would have us believe9,
but simply by Government policies – especially divorce law.
Divorce law practice vs divorce law statute
Statute in divorce has very little to say about what really goes on
in the divorce process. Scarman10,
in 1965 spoke (with seeming pride) of the “fictions, artificialities,
and subventions ….” that courts engaged in to ensure that
people got the divorce they wanted. The Law Commission reported in 198811
that “….. the law in practice is quite different from the
law on the statute book”. Davis and Murch12
referred to the “…… frustration and bewilderment which
flows from a law founded on principle being circumvented by procedures
and expediency”.
The legal reformers view this discrepancy, not as a motivation to
bring practice back into line with statute, but as a motivation to bring
statute into line with practice. This is surprising and undesirable
for two reasons. First, the lack of visibility of what is going on limits
the degree of control possible by democratic processes; second, judicial
practice is not being driven by a view of the impact that it has on
people’s lives, but solely by a view of procedural expediency.
Thus, the adoption of practice-led statutory change is the reason why
there is no close coupling between divorce rate changes and statutory
changes, but this has permitted reformers to claim (falsely) that the
state of the law can have nothing to do with divorce rates13.
The courts started creating a matrilineal society when they started
awarding custody of children to mothers regardless of their matrimonial
conduct. The last element of conduct to remain was adultery but this
was removed in the landmark case of Allen in 1948. Today, custody to
the mother regardless of her adultery, desertion or other matrimonial
offence is the powerful default which a father as to overturn. This,
largely pre-determined, outcome is probably the most important factor
motivating divorce, and it is unclear to fathers why such practices
(which seem bizarre and cruel to them) are regarded as reasonable or
in the interests of children.
Removing conduct from custody settlements set the scene for the removal
of conduct from financial settlements. This was accomplished by the
famous rulings by Ormrod and Denning over the Wachtel case in 1973.
These judgements were contentious, not only because they overturned
the case law which had stood since Ashcroft in 1902, but, because they
were in clear contempt of Parliaments’ wishes. These were clearly
demonstrated when they threw out such provisions at the committee stage
of the 1970 Act14.
Conduct was subsequently omitted from the so-called consolidating Act
of 197415.
Removing considerations of conduct from the things that really mattered
to people (their children, home and income) set the stage for introducing
divorce on unilateral demand16.
The judgement was made that what was deemed “unreasonable”
was a subjective and non-judiciable matter, so the behaviour ground
became simply a cynical means of manipulating judicial procedures to
produce the desired outcome – divorce on unilateral demand. Distressed
husbands, justifiably angry at being the object of trivial or false
allegations, were told by their own solicitors to simply go along with
the charade and that the divorce would have no consequences for the
so-called ancillary matters – children home and finances. The
spate of undefended divorces that ensued, of course gave grounds for
the introduction of the “special procedure” – currently
the normal procedure.
These claims are supported by the personal accounts given in our report
The Emperor’s New Clothes based on the experiences of 350
divorced men, and also the data in Figure 2 They reveal, not merely
the dramatic rise in divorce rates, but the fact that this rise was
almost exclusively due to petitions by wives, most of which were supported
by the behaviour ground. |
FIGURE 2 Numbers of Divorce Petitions. Husband and wife petition
rates compared (left) and wife petitions only, behaviour and adultery
grounds compared (right). Source: Facing the Future, Law Commission.
This situation, coupled with the fact that legal aid rules were
constructed so that defending a divorce would not attract legal aid
in the majority of cases, meant that defence for a husband became,
in practical terms, both irrelevant and impossible. This permitted
the Law Commission to claim17
that the failure of husbands to defend divorces indicated their acceptance
of the divorce as a fact; that the marriage had de facto broken down
so it only remained for the courts to proceed with post-divorce settlements
– an attitude strongly underpinning the Family Law Act of 1996.
But this is an intellectual “sleight-of-hand” on two counts.
First, the husband has not “accepted” the situation but
has been coerced into it by being rendered legally helpless;
second (and more perniciously) such a claim can only be true if one
adopts of the model of marriage as a love affair, a matter I shall
deal with later.
The final step in this unworthy charade was the removal of the husband
from his home through ouster orders which, through the 1980s, were
increasingly applied despite the fact that the husband had done nothing
wrong. Frequently the husband found his own solicitor encouraging
him to leave the home to “reduce tension”. It is probably
this measure – the most frightening and humiliating of all –
which creates the greatest degree of hostility. Former Law Commissioner
(and architect of the Family Law Act) Brenda Hoggett18
(now Lady Justice Hale) declared that
The courts’ ----- powers of adjustment of property interests
---- are now so extensive in the long term that ordering one spouse
from his own home in the short term no longer seems so drastic
This may not seem drastic to Hoggett and the legal professionals
who have never had to suffer such draconian encroachment of the State
into their lives. Such equanimity is seldom demonstrated by those
decent men forced in humiliation out of the homes they have worked
hard for to provide for their families.
Taking stock
Through the adoption of the practices described above, the State
has effectively abolished the State of legal marriage in all but name
(by abandoning the concept of “matrimonial obligations) and
opted instead for what Hoggett called “radical remedies”
for the protection of dependent spouses (i.e. wives). Her viewpoint
is instructive in pointing up the cavalier attitudes towards marriage
and fatherhood which exist within the legal world. Thus she argued
for the extension of the “radical remedies” to the unmarried
on two grounds; first because doing away with the concept of matrimonial
obligations made this acceptable in principle; second, because making
marriage thus unattractive to men, made this desirable in practice.
The Family Law Act is clearly part of this agenda by enshrining
divorce on unilateral demand in statute and further strengthening
the “radical remedies” available to wives. It encourages
more rapid child-care and financial settlements and makes ousters
easier through Part IV – the so-called domestic violence provisions.
It was the Law Commission’s perceived requirement for living
arrangements to be settled rapidly in the wife’s favour, which
formed one of the main motivations for the Act19.
The next item on the agenda will be the “home-sharers charter”
arising again from the Law Commission, which will bring the rights
of married and unmarried women still closer together.
Strong anti-marriage and anti-father attitudes seem, not only to
be endemic in the minds of policymakers, but also in the minds of
practitioners. The following are quotations from the so-called anti-sexism
policy document of the National Association of Probation Officers20
– the main professional body of Court Welfare
Officers (CWOs):
-
To develop and promote policies and strategies which strengthen
and enhance the ability of women to make and carry out choices
within separating families.
-
To develop and implement policies and strategies which challenge
the experience of oppression of women in separating families.
-
To support the rights of lesbians as mothers and carers.
-
To develop policies and strategies which challenge the discrimination
against women in contested residence and contact decision
The document, in some fifteen pages, contains not a single reference
to the rights or needs of children or fathers. This is disturbing
because the CWO effectively acts as judge and jury in custody disputes.
The recommendations made by the officer to the court are seldom overturned,
yet an officer following this policy document cannot act according
to the requirements of the Children Act – that is to put the
interests of children first.
Prospect
We urgently need a law which takes marriage seriously. This would,
by definition, be one which took fatherhood seriously because marriage
(in its traditional sense) is precisely that social structure, underpinned
by the law and other factors which signifies the status of the father
as the legitimate “owner” of his children. To me this
is the fundamental of marriage, and love and individual relationships
are mere incidentals. It is this social reinforcement of a father’s
legitimate “ownership” of his children which establishes
the important civilising process of harnessing the energy of the man
to support physically, economically and emotionally his family over
the long term. The fact that we need an expensive, inefficient and
intrusive bureaucracy in the form of the Child Support Agency to force
fathers to do what they were already doing voluntarily before they
were separated from their families, is surely testimony to the truth
of this claim.
It is also surely no coincidence that family breakdown has been
associated with wider social and economic decay. It is therefore instructive
to note the dismissive tone with which Hoggett and other feminists
treat this model of marriage. Hoggett, for example, speaks of the
“triumph of romantic love” over mere “dynastic ambition”.
In layman’s language the phrase “dynastic ambition”
may be replaced by “the wish to love your children, bring them
up in security and with decent values and to have a stake in their
future”.
This brings us to the crux of the matter, which is that underlying
all of this, two quite different models of marriage are at issue.
These are, respectively, marriage as a love affair between two people
(Type L marriage) and marriage as a permanent and mutual commitment
for the purposes of raising children (Type C marriage). These two
models stand in direct contrast to each other. Thus in Type L marriage
the degree of commitment arises from the dictates of human emotion
whereas in Type C marriage the emotional feelings arise from the degree
of commitment. The charge of this paper is that society has had foisted
on it surreptitiously a Type L model of marriage by the legal and
social science communities.
Although it is common within the socio-legal community to suggest
that the values underpinning Type C marriage are arbitrary and not
fitting for a modern “secular and pluralistic society”21,
this is demonstrably false. As any parent will know, one could not
bring up children, with the deep love and long term serious commitment
that that entails, if one were to anticipate their being taken away,
and one’s relationship with them destroyed, at some unpredictable
time in the future. It is significant to note that, although a third
of children are born outside of marriage, the parents of the great
majority of these children end up getting married22.
This can only indicate that parents realise that they need to enter
into some more serious and permanent arrangement at this time. Marriage
(that is Type C marriage) is a powerful “instinct” when
children are born.
But, tragically, although people believe they are entering into
a Type C marriage, they are actually entering into a Type L marriage
as I have demonstrated. Type C declarations are made but they have
no legal substance to them. The system only works on the basis of
systematic deceit. What is more important, though, is that the Type
L model has been adopted (and justified) largely by reference to the
pragmatics of legal proceedings and not by reference to any principle
relating to social need. This is a serious deficiency because, given
the pragmatics of legal proceedings, the two models would lead to
quite different types of judicial practice. Thus the following practices
would all be compatible with a Type C model of marriage and the suitability
of each would be determined by a number of pragmatic factors such
as the resources the courts were prepared to put into proceedings.
-
Divorce and consequences based on matrimonial conduct –
the Christian or traditional solution.
-
Shared residence in all cases – the liberal or Families
Need Fathers solution
-
Custody to the father as a default – the Daniel Amneus
solution23
-
Covenant marriage – the US solution
The current system of no-fault divorce, coupled with mother custody
as the default, is however incompatible with a Type C model. It is
based on a Type L model of marriage, underpinned by what look like
animal models of parenthood and Marxist models of human need.
It is unclear where these models in the minds of policy makers and
practitioners arose, but they are unlikely to have arisen from an
understanding of human values and needs as I have tried to demonstrate.
If we can’t return to practices based on models which do reflect
the values and needs of humans, then the outlook is bleak indeed.
I can only see a world in which fewer and fewer people get married
and partnerships become increasingly strained and based on self-interest,
protectionism and suspicion rather than on mutual commitment, mutual
benefit and trust. Marriage rates are at an all-time low and are still
falling. This is only to be expected as the consequences of current
divorce practice become increasingly visible to the wider community
and it becomes apparent that marriage has nothing to offer a young
man except the prospect of heart-break and effective slavery.
Notes
- Based on a paper presented at the Society of Professional
Teachers of Law Conference, 31 January 1998, Stafford University,
Stoke-on-Trent.
- The family policy wing of the United Kingdom Men's
Movement.
- The Relationship Revolution, Duncan Dormor,
One-Plus-One, 1992.
- The Emperor's New Clothes, The Cheltenham Group,
1996.
- Marital Breakdown and the Health of the Nation,
Jack Dominian. One plus One, 1991 & 1997.
- Mori poll commissioned by Readers Digest, 1996.
- Robert Whelan, Broken Homes and Batterd Children,
Family Education Trust, 1994.
- Allan Bloom, The Closing of the American Mind,
Simon & Schuster, 1987.
- Looking to the Future: The Green Paper leading
to the Family Law Bill.
- Mr. Justice Scarman, 1965, Talk presented at the
University of Bristol.
- Facing the Future, Law Commission, 1988.
- Grounds for Divorce, Davis and Murch, Clarendon
Press, 1988.
- A point made to us by Minister Jonathan Evans
during the passage of the Family Law Act.
- Matrimonial Proceedings and Property Act
of 1970.
- Matrimonial Causes Act, 1974.
- Reformers have consistently obscured the different
(sic) between divorce on bilateral and unilateral demand although
the difference between them is equivalent to the difference between
consensual sex and rape.
- Law Com 192, for example.
- Ends and Means -- The Utility of Marriage
as a Legal Institution, 1980.
- See Facing the Future.
- Equal Rights -- napo anti-sexism policy document.
- See Facing the Future.
- Duncan Dormer noted that cohabitation was
an "essentially childless phenomenon".
- Daniel Amneus in his book The Garbage
Generation argues for father custody as an effecive solution for
stabilising marriages because deserting fathers never remove children
from the home.
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