Family laws and access to justice
By Patrick Parkinson
Professor of Law, University of Sydney, Australia; Immediate Past President, International Society of Family Law.
Paper for UN Experts Group, New York May 2015
The purpose of this paper is to provide a brief overview of some trends in family life and family law internationally, with a focus on North America, Europe and Australasia. As a shorthand, this will be referred to as ‘the western world’. These countries share a common legal tradition which has its origins in Roman, Greek and Judaeo-Christian thought.
This overview of trends then leads to some consideration of how family law systems can cope with the pressures that various demographic and social changes are creating.
The focus on countries with legal systems rooted in the western legal tradition necessarily offers only a very partial picture of family law internationally. Family law systems are profoundly influenced by religious and cultural factors, and so differences around the world are only to be expected. For example, family law in Islamic majority countries typically reflects Muslim traditions, values and religious precepts. Some countries allow adherents of different faiths or cultural backgrounds to have their own personal laws which govern their family life. This is so in India, Malaysia, and South Africa for example.
The trends identified in this paper concerning the western world are by no means universal; but at least some trends are evident in certain other parts of the world also. The decline in the importance of marriage is as much a feature of South American nations as of the post-Christian nations of Northern Europe; and divorce rates are beginning to climb significantly in some Asian countries such as Singapore.
Marriage, divorce and custody laws
In the last thirty-five years, profound changes have occurred in family law all around the western world, particularly in relation to parenting after separation.1 This may be seen in comparing the current situation with the model on which divorce reform was predicated in the late 1960s and early 1970s.
- 1 These international trends are reviewed in Patrick Parkinson, Family Law and the Indissolubility of Parenthood (Cambridge UP, New York, 2011).
A). Divorce as the dissolution of the family
The no-fault divorce model of that period was built upon a consensus that dead marriages should be given a decent burial and that it should be possible for the parties to get on with their lives and start afresh once decisions had been made about financial matters and custody. In the divorce law at that time, issues about property and custody were dealt with by a once-for-all process of allocation. If the parties could not reach their own agreement, then the court allocated the property. The court also allocated the children.2 Typically, the courts would award “custody” to one parent, usually the mother, and grant “access” or “visitation” to the other. There was little difference in this respect between common law countries and the civil law countries of Western Europe. “Custody” included virtually all the rights and powers that an adult needed to bring up a child, including the right to make decisions about a child’s education and religion.3
Custody law was thus binary in character. The assumption that was universally held at that time was that custody decisions involved a definitive choice between one home and another.
In this traditional conceptualization of what was involved in custody decision-making, visitation (or “access”) was simply a “legal concession to the loser.”4 Once this allocation had occurred, then people could get on with their lives with the past behind them and with only residual ties to their former spouses. Those ties were through child support obligations—which were poorly enforced—spousal maintenance where ordered, and ongoing access time with the children. The consequence of this view of custody decision-making was that divorce involved a clean break in terms of parental responsibility.
In a perceptive article written in 1986, Irène Théry, the French sociologist, characterized the original divorce reform model as the substitution model of post-divorce parenting.5 Under the substitute family model, the parents’ legal divorce necessarily required a divorce between them not only as partners but also as parents. Only one of the two parents could continue in that role after the divorce, and the other’s role would be no more than a visiting one in most cases. It followed that the marriage breakdown marked the dissolution of the nuclear family. 6 Parental authority was awarded to the sole custodial parent and there was a strong differentiation between the role of the custodial and non-custodial parent.
- 2 Andrew I. Schepard, Children, Courts and Custody (2004), at 3–4.
- 3 See, e.g. Lerner v. Superior Court of San Mateo Cnty, 242 P. 2d 321, 323 (Cal. 1952).
- 4 Lynne Halem, Divorce Reform: Changing Legal And Social Perspectives 213–14 (1980).
- 5 Irène Théry, ‘‘The Interest of the Child’ and the Regulation of the Post-Divorce Family’, (1986) 14 Int’l. J. Soc. L. 34.
- 6 Braiman v. Braiman, 378 N.E.2d 1019, 1022 (N.Y. 1978) (“Divorce dissolves the family as well as the marriage”).
B). The emergence of the enduring family
It was not long after the first flush of the divorce revolution that this idea of post-separation parenting began to change. Théry argued, in her 1986 article, that the substitution model of the post-separation family was gradually being displaced and that a new concept of post-separation parenting was emerging. This, she called the idea of the “enduring family”. In this conceptualization, divorce is a “transition between the original family unit and the re-organisation of the family which remains a unit, but a bipolar one.”7 She noted that this conceptualization of post-separation parenting implies the refusal of a choice between parents in favour of joint parental authority.
- 7 Théry, supra note 5, at 356.
- 8 Marygold S. Melli, ‘Whatever Happened to Divorce?’,  Wis. L. Rev. 637, 638; see also Bren Neale & Carol Smart, ‘In Whose Best Interests? Theorising Family Life Following Parental Separation or Divorce’, in Undercurrents Of Divorce 33, 35–37 (Shelley Day Sclater & Christine Piper eds., 1999).
- 9 Andrew Schepard, ‘The Evolving Judicial Role in Child Custody Disputes: From Fault Finder to Conflict Manager to Differential Case Management’, (2000) 22 University of Arkansas at Little Rock Law Review 395.
Change has occurred only very gradually in family law around the western world, but the relentless march of progress has been in the direction that Théry anticipated. A major theme in the history of family law reform in the last 40 years in Europe, North America and in other common law jurisdictions such as Australia and New Zealand has been the abandonment of the assumption that divorce could dissolve the family as well as the marriage when there are children. As Emeritus Prof. Margo Melli has written: “Today, divorce is not the end of a relationship but a restructuring of a continuing relationship.”8 Marriage may be freely dissoluble, but parenthood is not.
C). The transformation in custody law
Reforms began in a relatively mild and largely semantic way with the shift in the USA in particular from the notion of sole custody to joint legal custody.9 In Europe, the law reform process took a different form. Rather than making joint custody (in the sense of joint legal responsibility) an option, or even establishing a presumption in favour of this, many European countries made joint parental responsibility the default position in the absence of a court order to the contrary.
This was the position in England and Wales, for example, following the implementation of the Children Act 1989. Both parents retained parental responsibility after divorce, and the decision about what used to be called ‘custody’ and ‘access’ became, not a decision about the allocation of a bundle of rights, but about such practical issues as where the child would live and how much time he or she would spend with the other parent. When a child is living primarily with one parent, that diminishes the non-resident parent’s rights, powers, and responsibilities in a practical sense, to the extent that those rights, powers and responsibilities depend on the child living physically with that parent, but they are in all other respects unaffected by the parental separation. The philosophy of the Children Act 1989 is that parental responsibility continues after separation as it existed before the relationship breakdown, subject to any orders to the contrary by the Court.10
- 10 Carol Smart, ‘Wishful Thinking and Harmful Tinkering? Sociological Reflections on Family Policy’, (1997) 26 J. Soc. Policy 301, 315. Minor changes were made to the Children Act by the Children and Families Act 2014 which have further strengthened the idea that ordinarily, both parents ought to be able to remain involved in their children’s lives following separation.
- 11 Frédéric Vauvillé, ‘Du Principe de Coparentalité’, (2002) 209 Les Petites Affiches 4; Hugues Fulchiron, ‘L’ Autorité Parentale Renovée’, (2002) Répertoire Du Notariat Defrénois 959.
- 12 Föräldrabalken [FB] [Code Relating to Parents, Guardians, and Children] (Swed.) .
- 13 Custody of Children and Rights of Access Act 1983 (Lag angående vårdnad av barn och umgängesrätt 8.4 1983/361).
- 14 Kirsti Kurki-Suonio, ‘Joint Custody as an Interpretation of the Best Interest of the Child in a Critical and Comparative Perspective’, (2000) 14 Int’l J. L. Pol’y & Fam. 183, 188.
- 15 For Denmark, see the Custody and Access Act 1995, Lov nr 387 af 14 juni 1995 om foroeldremyndighed og samvoer. For Norway, see the Children and Parents Act 1981, Lov 1981-04-08 nr. 7 om barn og foreldre.
- 16 This legislation came into force on July 1, 1998. The provisions on parental responsibility are found in Book 4, chapter 5 of the BGB.
- 17 Bürgerliches Gesetbuch [BGB] [Civil Code] § 1626 (Ger.). This article provides that the declaration needs to be publicly recorded, either before the Youth Welfare Department (Jugendamt) or a notary, subpara (d)(I). Id.
In different ways, similar ideas came into the law throughout much of Europe within a decade. In France, for example, the law of parenting after separation was based upon the principle of coparentalité from 1993. 11 A common legislative approach which has had the effect of encouraging joint custody has been one of non-intervention. Instead of allocating custody as one of the matters to be dealt with in granting a divorce, joint custody is deemed to continue after separation unless one parent seeks a court order to the contrary. This was how joint custody became the norm in Sweden12 and Finland13 from the early 1980s onwards,14 and is now the position in the other Scandinavian countries as well.15 A similar approach was adopted in Germany by the Gesetz zur Reform des Kindschaftrechtes, 1997,16 which amended the Civil Code to provide that the parents have joint parental responsibility during the marriage and unmarried parents may agree to joint parental responsibility by formal declaration.17
This joint responsibility continues after separation unless the court orders otherwise on the application of one of the parties.18
- 18 Bürgerliches Gesetbuch [BGB] [Civil Code] § 1671. The applicant may seek that only part of the parental responsibility be conferred on them alone. Id. The change from joint parental responsibility to sole parental responsibility must be in the best interest of the child. Id.
- 19 Family Law Reform Act 1995.
- 20 Other aspects of the 2006 reforms are explained below at pp. 7-8.
Australia adopted similar reforms to England in 1995.19 The language of ‘custody’ was replaced with the language of residence and contact orders, and parental separation or divorce did not, of itself, result in any changes to parental responsibility except to the extent that the court so ordered. The position evolved further with the 2006 amendments to the Act. Now courts may make orders concerning with whom the child will live and how much time the other parent will spend with the child.20
The demise of the concept of sole custody was, however, only the beginning of the transition that has occurred in the law of parenting after separation in countries which share the western legal tradition. Increasingly, legislation around the western world is emphasising the importance of both parents being involved in children’s lives. Whereas previously there had been a choice between the mother and the father as the custodial parent, now a spectrum of choices is on offer to the courts. In most cases, there will still be a primary custodian, a parent with whom the child lives for the majority of the time. However, the significance of that allocation to one parent or the other is not as great as it once was. Contact, visitation or access, howsoever it is described, is no longer the order a parent receives as a consolation if he or she loses the prize of custody. Fathers, in particular, are no longer to be marginalised by post-separation parenting arrangements. Rather, the assumption is that the time that the secondary parent has with the child will be such as to allow him or her a meaningful, continuing involvement in the life of the child.
With the changes in legislative language about custody has come a profound change also in the nature of the question that courts are asked to decide in custody disputes. This new approach towards post-separation parenting would have seemed radical to the family lawyers of previous generations, who assumed that divorce required a clear differentiation between the rights of the custodial and non-custodial parent. The consequence of this major shift in the focus of family law is that the promise of freedom to begin afresh that was held out as the meaning of divorce in the divorce reform movements of the late 1960s and 1970s has proved to be somewhat empty where children are involved.
D). Encouraging the involvement of both parents
The demise of the concept of sole custody was, however, only the beginning of the transition that has occurred in the law of parenting after separation. Whereas under the old substitution 6 model of custody decision-making, the choice was typically a binary one—a choice between the mother and the father as the custodial parent—now a spectrum of choices is on offer to the courts. In most cases, there will still be a primary custodian, a parent with whom the child lives for the majority of the time. However, the significance of that allocation to one parent or the other is not as great as it once was. The question has changed from being about which parent the child will live with to being about how the child’s time will be shared between the parents. One way that involvement of non-resident parents has been supported has been by giving content to the notion of the “best interests of the child” by legislative findings or directions, or the statement of principles. An example of such a legislative direction is in the law in Missouri:21
To paraphrase: “The general assembly of the UN finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child, except for cases where the court specifically finds that such contact is not in the best interest of the child . . . etc., etc. ” The formula of “frequent, continuing and meaningful contact” has echoes in the laws of a number of other jurisdictions in the United States, and is a recurring theme in statements of objects and principles.22
- 21 Mo. Ann. Stat. §452.375.
- 22 See, e.g., Cal. Fam. Code § 3020.
- 23 Loi 2002-305, relative à l’autorité parentale [Parental Authority Act, 2002], available at http://www.legifrance.gouv.fr.
- 24 This was implicit in the text, since the principle of a primary or usual residence was maintained, but explicit in the legislative debates: Hugues Fulchiron, in L’autorité Parentale Renovée, Répertoire du Notariat Defrénois 959 (2002).
In most jurisdictions, legislatures have resisted the temptation to be too prescriptive about what time allocation between the parents will promote meaningful involvement. Courts have retained the flexibility to try to discern what will be in the best interests of the child in each case. Nonetheless, a common thread in legislation across America, and in other parts of the western world, has been towards the encouragement of shared parenting after divorce. A number of jurisdictions now have legislation which gives some encouragement to consider shared parenting arrangements, and the trend in terms of law reform is strongly in that direction in situations where there are no issues of violence or abuse.
France offers one example. The principle of “coparentalité,” established in 1993, was strengthened by legislation enacted in 2002.23 In particular, this legislation made clear that alternating residence (where the child spends an approximately equal amount of time with each parent) is an option. The background to this reform is that while amendments made in 1993 established the principle of joint parental authority after separation, the legislature, at that time, rejected the idea of alternating residence.24 However, some judges were persuaded to fix a primary residence, while allowing contact with the non-resident parent so extensive that the arrangements were equivalent, in practice, to an alternating residence system.25
Two commissions were established to advise the Government concerning possible reforms to the law of parental authority in the 1990s. One took a sociological view, under the presidency of Irène Théry.26 The other focused more on legal issues under the presidency of Françoise Dekeuwer-Défossez.27 The consequence of their proposals for reform, and subsequent governmental consideration, was legislation on parental authority passed in 2002. Article 373-2-9 of the Civil Code now provides that the residence of a child may be fixed alternately at the domicile of each of the parents or at the domicile of one of them. The listing of alternating residence first, before sole residence, was intended to indicate encouragement of this option.
- 25 See Hugues Fulchiron & Adeline Gouttenoire-Cornut, ‘Réformes Législatives et Permanence des Pratiques: à Propos de la Généralisation de L’exercice en Commun de L’autorité Parentale par la Loi du 8 Janvier 1993’,  Recueil Dalloz Chroniques 363 and the cases cited therein.
- 26 Irène Théry, Couple, Filiation et Parenté Aujourd’hui: Le Droit Face aux Mutations de la Famille et de la Vie Privée (1998).
- 27 Françoise Dekeuwer-Défossez, Rénover le Droit de la Famille: Propositions pour un Droit Adapté aux Réalités et aux Aspirations de Notre Temps (1999).
- 28 The Act of 18 July 2006 is entitled “Loi tendant à privilégier l’hébergement égalitaire de l’enfant dont les parents sont séparés et réglementant l’exécution forcée en matière d’hébergement d’enfant.” (“Law tending to favour equal residency for children of separated parents and regulating enforcement in child residency matters”).
In Belgium, the law was amended in 2006 to provide encouragement for alternating residence. Indeed that emphasis was expressed in the title of the legislation.28 The law provides that when parents are in dispute about residency, the court is required to examine “as a matter of priority”, the possibility of ordering equal residency if one of the parents requests it to do so. The proviso is that if the court considers that equal residency is not the most appropriate arrangement, it may decide to order unequal residency.
This is not the same as saying that there is a presumption in favour of equal time. An equal time arrangement is not presumed to be in the best interests of the child; nonetheless, according to Belgian law, it is the first option that ought to be considered when parents cannot agree on the arrangements.
The 2006 legislation in Australia reflected these international trends. One of the objectives of the Family Law Act, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, is to ensure that “children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.” This is importantly balanced by another object of the legislation, the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence which may necessitate restraints on contact by one parent. 8
Although this was not always understood by the general public, the emphasis on the meaningful involvement of both parents in the absence of violence or abuse does not translate into a presumption of shared care, and still less, equal time. The most that the legislation imposes by way of presumed outcome is a presumption in favour of equal shared parental responsibility. While equal shared parental responsibility says nothing, per se, about how time is allocated between parents—because the circumstances of separated families are so varied—there is at least strong encouragement in the legislation to consider shared care, and to do so positively. First of all, the court has a duty to consider whether an equal time arrangement is in the best interests of the child and reasonably practicable. If equal time is not appropriate, then the court must consider what is termed “substantial and significant time”.29
Amendments to the Act in 2011 modify this emphasis only a little. The requirement to consider equal time and substantial and significant time remains, but in the evaluation of what arrangements are in the best interests of the child, greater weight is to be given to the need to protect children from harm than to the benefit to the child of a meaningful relationship with both parents.30
This revolution in thinking about parenting after separation is also reflected in New Zealand’s Care of Children Act 2004, which emphasises the importance of children’s continuing relationships after parental separation not only in the nuclear family but beyond it.31
- 29 This is defined as time that the child spends with the parent which includes both days that fall on weekends and holidays; and days that do not fall on weekends or holidays, and which allows the parent to be involved in the child’s daily routine: Family Law Act 1975 s.65DAA.
- 30 Family Law Act 1975 s.60CC(2A).
- 31 See further, Bill Atkin, ‘Landmark Family Legislation’ in Andrew Bainham (ed), The International Survey of Family Law 2006 Edition (Jordan Publishing Ltd, Bristol, 2006) 305.
The principles relevant to children’s welfare and best interests (s.5) include the ideal that “there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents)”. Furthermore, “relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing”. This is a radically different understanding of divorce from its meaning 40 years ago.
Rights of women & gender equality
In many parts of the world, promoting the rights of women in family life remains a key human rights objective because family law systems are structurally patriarchal – that is, women are subordinated to men in terms of rights both as partners and parents. Typically, the subordination of women in the family reflects their subordination in the wider society.
English folklore has it that “the hand which rocks the cradle rules the world”; but in reality, in countries of the western legal tradition as well as elsewhere, these have in the past been two quite distinct roles and were assigned to different genders. Women were seen as the custodians of the hearth, and the notion that they could, or should, also play a role in public life was a quite alien one. While the western legal tradition emphasised the importance of the individual, the individuality of women and children was often hidden within the family unit, headed by the husband and father. The family was regarded largely as a private domain free from the law’s intrusion, while the law reinforced male headship of the domestic unit.32
While structural patriarchy has been all but eliminated from the law in countries which derive their heritage from the Judaeo-Christian tradition, cultural patriarchy remains an issue, and finds its most negative outworking in terms of coercive and controlling domestic violence.33 Dealing appropriately with the issue of domestic violence is one of the major challenges for countries, whatever their cultural history. The balance between an emphasis upon the continuing role of both parents, and the protection of women and children from family violence, has been at the heart of debates about shared parenting laws.34
To find solutions to the issues arising from violence in family relationships, it is first necessary to have an accurate understanding of the problem. There has been a very strong tendency in the past, to define domestic violence in a homogenous way as being perpetrated mainly or entirely by men, and characterised by a desire to control and oppress women. Undoubtedly, some male violence is characterised by desire for patriarchal domination, and is sometimes accompanied by other forms of abuse such as sexual abuse, verbal abuse, financial abuse and social isolation which together have the effect of subjugating and controlling women. Nonetheless, the statistics on the prevalence of violence, and the extent to which men report assaults upon them (albeit that the violence tends to be less serious) do not sit comfortably with such a one-size-fits-all characterization.35 Domestic violence cannot be understood only in terms of male control or patriarchal attitudes.
- 32 Katherine O’Donovan, Sexual Divisions in the Law (Weidenfeld and Nicolson, London, 1985).
- 33 Mary Ann Dutton & Lisa Goodman, ‘Coercion in Intimate Partner Violence: Toward a New Conceptualization’ (2005) 52 Sex Roles 743; Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (2007).
- 34 See Patrick Parkinson, ‘The Payoffs and Pitfalls of Laws that Encourage Shared Parenting: Lessons from the Australian Experience’ (2014) 37 Dalhousie Law Journal 301.
- 35 The research evidence from general population studies make it clear that both women and men engage in physically aggressive altercations in intimate relationships. In a meta-analysis of 82 studies, it was found that women were slightly more aggressive than men. John Archer, ‘Sex Differences in Aggression Between Heterosexual Partners: A Meta-analytic Review’, (2000) (2000) 126 Psychol. Bull. 651. While many of these studies rely on use of the Conflict Tactics Scale (Murray Straus, ‘Measuring Intrafamily Conflict and Violence: The Conflict Tactics (CT) Scales’, (1979) 41 J. Marriage & Fam. 75), the same patterns are discerned using other measures. This research has proven highly controversial for those committed to a single causal factor theory of domestic violence centred in patriarchy and male control. For a discussion of this topic, see Murray Straus, ‘Future Research on Gender Symmetry in Physical Assaults on Partners’, (2006) 12 Violence Against Women 1086. A single causal factor theory of domestic violence also does not take account of the perspectives of women from positions of difference, including indigenous women and lesbians. See Rosemary Hunter, ‘Narratives of Domestic Violence’, (2006) 28 Syd. L. Rev. 733, 744–49.
Even still, male violence remains the most serious issue from a public health perspective. Work on the typologies of family violence has begun to bridge the gulf between different perspectives, 36 leading to more nuanced and sophisticated assessments of how a history of violence should be considered relevant to post-separation parenting arrangements.37
Rights of children
There has been near universal acceptance of the UN Convention on the Rights of the Child. Article 12(1) of the Convention provides that States should “assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” Article 12(2) specifically concerns court proceedings. It provides that the “child shall in particular be provided an opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body.” This has been identified as one of four general principles which underpin the more specific rights provided by the Convention.38
- 36 Michael Johnson, ‘Patriarchal Terrorism and Common Couple Violence: Two Forms of Violence Against Women’ (1995) 57 Journal of Marriage & Family 283; Michael Johnson, ‘Conflict and Control: Gender Symmetry and Asymmetry in Domestic Violence’ (2006) 12 Violence Against Women 1003.
- 37 Peter Jaffe, Janet Johnston, Claire Crooks & Nicholas Bala, “Custody Disputes Involving Allegations of Domestic Violence: The Need for Differentiated Approaches to Parenting Plans” (2008) 46 Fam. Ct. Rev. 500; Joan Kelly & Michael Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’, (2008) 46 Fam. Ct. Rev. 476; Nancy Ver Steegh, ‘Differentiating Types of Domestic Violence: Implications for Child Custody’, (2005) 65 Louisiana. L. Rev. 1379.
- 38 Ursula Kilkelly, ‘Operationalising Children’s Rights: Lessons from Research’ (2006) 1 Journal of Children’s Services 35 at 40-41.
Article 12 does not specify how it is that children’s voices should be heard in proceedings that affect them. It does not dictate that children should give evidence, nor that they be separately represented – although those are possible ways in which Article 12 may be given effect. There is nothing inconsistent with Article 12 that the child’s voice should be heard through an appropriate social science trained professional, preparing a report for the Court. Nonetheless, Article 12 has acted as a stimulus to evaluate practices in those jurisdictions that have not hitherto given proper voice to children in parenting disputes as a matter of routine procedure. It has also acted as a rallying cry for children’s rights advocates who have been promoting children’s participation in various fori in any event, and who have been able to use this provision of international law to build a bridge to the lawmakers, judges and policy experts.
The focus on children’s participation rights in recent years is a consequence not only of the UN Convention but also a result of a distinct shift over the last few decades in thinking about children in both psychology and sociology.39 Children are no longer seen as the passive recipients of parental influence, the targets of socialization within and outside the family nor as ‘objects of concern’40 in relation to outside intervention. They are now seen as social actors who are shaping their own lives, and influencing the lives of those around them, particularly their parents and siblings.
In Europe, the issue of children’s participation has been given further momentum by the European Convention on the Exercise of Children’s Rights (ECECR).41 This Convention applies to family proceedings, and in particular to those proceedings involving the exercise of parental responsibilities such as residence and access to children. Article 3 of this Convention provides that a child of sufficient understanding shall be granted the right to receive all relevant information, to be consulted, to express his or her views and to be informed of the possible consequences of compliance with these views and the possible consequences of any decision.42 Article 4 provides that the child shall have the right to apply for a special representative where internal law precludes the holders of parental responsibilities from representing the child as a result of a conflict of interest with the latter. Article 5 requires Parties to the Convention to “consider granting” children additional procedural rights including the right to apply to be assisted by an appropriate person of their choice in order to help them express their views; the right to apply themselves, or through other persons or bodies, for the appointment of a separate representative, in appropriate cases a lawyer; the right to appoint their own representative; and the right to exercise some or all of the rights of parties to such proceedings. Other provisions of the Convention concern the roles of judges and separate representatives for children.
This has been operationalised in the domestic laws of numerous European countries. In France, for example, legislation was passed in 2007 which gives children the right to be heard by the judge if they so choose.43
- 39 Jeanette Lawrence, ‘The Developing Child and the Law’ in G Monahan and L Young (eds), Children and the Law in Australia (Lexis Nexis, 2008) p. 83.
- 40 Carol Smart, Amanda Wade and Bren Neale, ‘Objects of Concern’? – Children and Divorce’ (1999) 11 Child and Family Law Quarterly 365.
- 41 ETS 160. The Convention was made at Strasbourg on 25.1.1996. It is in force in 20 jurisdictions.
- 42 Caroline Sawyer, ‘One Step Forward, Two Steps Back – The European Convention on the Exercise of Children’s Rights’ (1999) 11 Child and Family Law Quarterly 151 argues that rather than being a step forward towards implementation of Article 12, the ECECR back-pedals on Article 12 because the rights are only secured to those who are considered by internal law to have sufficient understanding. This could be set at a very high age. See also Jane Fortin, Children’s Rights and the Developing Law (Lexis-Nexis, 2003; 2nd ed) pp. 200-202.
- 43 Loi n° 2007-293 of 5 March 2007.
This is intended to be the normal way in which a child will be heard, with an interview by another professional such as a child psychologist being utilised only if it is in the best interests of the child to be heard this way. The judge must also examine whether a refusal by the child to be heard is well founded.44
Family law jurisdictions in other parts of the world are also now exploring how children’s voices can better be heard in the legal process.45 In Australia, a variety of approaches have been trialled.46 In particular, there has been great interest in the practice of child-inclusive mediation, in which the views of the children, interviewed separately, are fed back to the parents.47 In an evaluation of a pilot project, McIntosh and colleagues showed that child inclusive mediation has greater benefits for parents and children than mediation in which the children’s voices were not heard.48 However, the cohort in that study were of a higher educational level than in the general population. Child inclusive mediation is in its infancy still in Australia and further research is needed on how well it works when operationalised in the resource-constrained environment of publicly subsidised mediation services and across the population. A small qualitative study of child-inclusive mediation in New South Wales has produced less encouraging findings than in the McIntosh et al pilot study.49
- 44 Article 388-1 of the Civil Code now provides following these amendments: “In all proceedings relating to him, a minor capable of discernment may, without prejudice to the provisions as to his intervention or consent, be heard by the judge or, where his welfare requires, by the person appointed by the judge for that purpose.
- This hearing is by way of right where the minor so requests. Where the minor refuses to be heard, the judge must determine whether such refusal is well founded. He may be heard alone, with a lawyer or a person of his choice. Where that choice does not appear to be consonant with the welfare of the child, the judge may appoint another person.”
- 45 There are a number of such provisions in European law. For an overview, see Andrew Moylan, ‘Children’s Participation in Proceedings- The View from Europe’ in Mathew Thorpe Justine Cadbury, and Elizabeth Butler-Sloss (eds), Hearing the Children pp. 171-185 (Family Law, 2004).
- 46 Lawrie Moloney and Jenn McIntosh, ‘Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71; Diana Bryant, ‘The Role of the Family Court in Promoting Child-Centred Practice’ (2006) 20 Australian Journal of Family Law 127.
- 47 Jenn McIntosh, ‘Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study’ (2000) 18 Mediation Quarterly 55; Anthony Grimes and Jenn McIntosh, ‘Emerging Practice in Child-Inclusive Divorce Mediation’ (2004) 10 Journal of Family Studies 113.
- 48 Jenn McIntosh, and Caroline Long, Children Beyond Dispute: A Prospective Study Of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution (Final Report to the Attorney-General’s Department, 2006). Jenn McIntosh, Yvonne Wells, Bruce Smyth, and Caroline Long, ‘Child-Focused and Child-Inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Postseparation Adjustment’ (2008) 46 Family Court Review 105; Jenn McIntosh, Caroline Long and Yvonne Wells, Children Beyond Dispute. A four year follow up study of outcomes from Child Focused and Child Inclusive Post-separation Family Dispute Resolution (Report to the Australian Government Attorney General’s Department, Canberra, 2009).
- 49 Felicity Bell, Judy Cashmore, Patrick Parkinson, and Judi Single, ‘Outcomes of child-inclusive mediation’, (2013) 27 International Journal of Law, Policy and the Family 116.
Rights and obligations in non-marital cohabitation
One of the most difficult issues that governments around the world have had to consider is whether and how to recognise non-marital cohabitation. In some countries of Western Europe, marriage and cohabitation have now become almost interchangeable in terms of socially accepted forms of family formation.50 In some South American countries, more people of child-bearing age are living in cohabiting relationships than are married.51 In Peru for example, in 2012, 38% of all adults between the ages of 18 and 49 were living in cohabiting relationships; only 24% were married. In Columbia in 2009-10, the rates were 35% cohabiting and 20 percent married.52
Marriage remains the most common form of couple relationship within Western Europe, but the gap between marriage and cohabitation as a family form is narrowing. For example figures from 2006 show that in France, 26% of adults in the 18 to 49 age range were cohabiting, while 39% were married. In Sweden, 25% were cohabiting and 37 percent were married.53
If the growth in cohabitation were confined to childless couples it would not represent a major transformation in family life. Cohabitation could be seen then as a form of trial marriage or precursor to marriage. However increasingly, cohabitation is a context for childrearing. This can be seen in the increase in ex-nuptial births. In Britain, 47.5% of all births occurred outside of marriage in 2012.54 Half or more of all births are ex-nuptial in Belgium, Bulgaria, Estonia, France, Iceland, Slovenia, Norway, and Sweden. The highest rate is in Iceland at 65% of all births.55 More than half of these births across Europe are in cohabiting unions, although there are significant variations between countries.56
Rates of ex-nuptial births are particularly high in certain South American countries. According to one comparative study, 84% of births in Columbia occur outside marriage. In Peru, it is 76%, Nicaragua, 72% and in Brazil, 66%.57 Some cohabiting couples who have children will go on to marry (as the capstone to their committed relationship rather than the foundation stone); but many see no need to do so.
- 50 Kathleen Kiernan, ‘The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe’ (2001) 15 Int J Law Policy Family 1; Anne Barlow, Simon Duncan, Grace James & Alison Park, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Hart, 2005).
- 51 World Family Map, 2014: Mapping Family Change and Child Wellbeing Outcomes (ChildTrends, Washington DC, p.15, at http://worldfamilymap.org/2014/wp-content/uploads/2014/04/WFM-2014-Final-LoResWeb.pdf.
- 52 Ibid.
- 53 Ibid.
- 54 Office of National Statistics, Births in England and Wales, 2012, (2013).
- 55 Carl Haub, ‘Rising Trend of Births Outside Marriage’, Population Reference Bureau (2013) at http://www.prb.org/Publications/Articles/2013/nonmarital-births.aspx
- 56 Ibid.
- 57 World Family Map, 2014, above n.51 at 19.
These demographic changes create challenges for many jurisdictions because marriage has traditionally provided the structural framework for the family law system. Marital property and spousal maintenance rights are premised upon marriage, and remedies become available upon separation and divorce. Spousal maintenance, while it has more than one rationale, has traditionally been conceived as a remedy available to an innocent party in the event of a divorce for fault. Typically the guilty husband was held to his promise of lifelong support for his wife, a promise which was given effect through lifelong maintenance.
Cohabiting couples make no such promises of lifelong support to each other, and moving in with someone does not create the same kind of legal commitment as standing before a religious or civil celebrant and taking solemn vows in the presence of witnesses. Nor is there, in cohabitation, necessarily any justification for treating property acquired in the course of the parties’ cohabitation as shared, in the way that we understand marriage to be a socio-economic partnership.
Typically, jurisdictions have responded in three ways to this conundrum. The first is to adopt an assimilationist approach in which informal heterosexual and same-sex relationships are treated as equivalent to marriage after a certain time. This is the position, for example, in Australia and New Zealand. In Australia, with one or two minor exceptions, there are essentially no differences between marriage and informal cohabitation in any area of law, once the parties have lived together for more than two years or have a child. That means that the property and maintenance consequences of marriage apply to both heterosexual and same-sex cohabiting relationships.
The second approach is to allow people to register their partnerships without getting married. In the Netherlands for example, marriage is open to both heterosexual and homosexual couples, and registered partnerships have almost the same effects as marriages. They provide an option for both heterosexual and homosexual couples as well.58 The consequence of choosing neither to marry nor to register one’s partnership is that the relationship does not attract marriage-like consequences.
The third approach is to recognise cohabiting relationships for some purposes but to leave property rights on the breakdown of the relationship to the general law. Recognition of cohabiting relationships has long been a feature of social security law in many jurisdictions, for example. Governments have taken the view, understandably, that a person should not be able to claim unemployment or sickness benefits without taking account of the income of a cohabiting partner, just as would be the case if the couple were married. To do otherwise is to impose a marriage penalty. Such jurisdictions have ad hoc recognition for cohabiting relationships across a range of other areas of law, but stop well short of full assimilation.
- 58 Wendy Schrama, ‘Reforms in Dutch Family Law During the Course of 2001: Increased Pluriformity and Complexity,’ in International Survey of Family Law 2002, 277 (Andrew Baiham ed., 2002); Family Law Legislation of the Netherlands (Ian Sumner & Hans Warendorf eds., 2003).
One of the greatest problems for family law systems is the growth in the numbers of children whose parents live apart. This is not obvious from divorce statistics, because in many jurisdictions divorce rates are either stable or falling, in part due to the decline in the popularity of marriage. However, as more and more couples have children in the context of non-marital cohabitation, the divorce statistics become less and less relevant as a marker of relationship breakdown.
People cohabit outside marriage for a range of different reasons. Some people live together with the intention of getting married.59 Others may enter a cohabiting relationship with a hope or intention on the part of at least one of them,60 that they will marry, but the relationship does not survive long enough for this to occur. Others reject the idea of formal marriage entirely,61 but see themselves as being in a committed and ongoing relationship.62
Whatever the reason for entering into a cohabiting relationship, the evidence from many parts of the world is that cohabiting relationships which do not result in marriage break down at a very much faster rate than do marriages.63 This is not particularly surprising as regards childless couples, for the nature of much non-marital cohabitation is that either it is an intimate relationship for the time being, or a stage on the way to making a decision about marriage. Yet the pattern of instability persists even when there are children.
- 59 The Australian Bureau of Statistics reported that 42% of those in a de facto marriage in 2006-07, stated that they expected to enter into a registered marriage with their current partner: Australian Bureau of Statistics, Family Characteristics and Transitions, Australia, 2006-07 (26 May 2011).
- 60 On gender differences concerning cohabitation with a view to eventual marriage, see Penelope Huang, Pamela Smock, Wendy Manning, & Cara Bergstrom-Lynch, ‘He Says, She Says: Gender and Cohabitation’, (2011) 32 J. Fam. Issues 876; Sharon Sassier & James McNally, ‘Cohabiting Couples’ Economic Circumstances and Union Transitions: A Re-Examination Using Multiple Imputation Techniques’, (2003) 32 Social Science Research 553; Susan Brown, ‘Union Transitions among Cohabiters: The Significance of Relationship Assessment and Expectations’, (2000) 62 J. Marriage & Fam. 833.
- 61 For Australian evidence, see Sandra Buchler, Janeen Baxter, Michelle Haynes, & Mark Western, ‘The Social and Demographic Characteristics of Cohabiters in Australia: Towards a Typology of Cohabiting Couples’, (2009) Fam. Matters no 82, 22.
- 62 On the different meanings of commitment, see Jan Pryor & Josie Roberts, ‘What is Commitment? How Married and Cohabiting Parents Talk About Their Relationships’, (2005) Family Matters No 71, 24. Australian research indicates that people who are cohabiting but intend to marry (either as a first or subsequent marriage) are significantly less likely to separate compared to those who cohabit without having marriage plans. Sandra Buchler, Michelle Haynes, Janeen Baxter, & Mark Western, ‘Cohabitation Outcomes: The Effect of Fertility Intentions, Relationship Satisfaction and Union Length on Cohabitation Transitions’, Paper given at the HILDA Survey Research Conference, Melbourne, 14 (2009).
- 63 Renata Forste, ‘Prelude to Marriage or Alternative to Marriage? A Social Demographic Look at Cohabitation in the U.S.’, (2002) 4 J. L. & Fam. Stud. 91; Helen Glezer, ‘Cohabitation and Marriage Relationships in the 1990s’, (1997) Fam. Matters no 47, 5; Steve Nock, ‘A Comparison of Marriages and Cohabiting Relationships’, (1995) 16 J. Fam. Issues 53. In a study of 11 European countries, Kiernan found that cohabiting relationships which did not result in marriage were much more fragile than marriages either preceded by a period of cohabitation or without a prior period of cohabitation. In Britain, only 18% of such relationships survived for ten years. The levels of stability of cohabitation were higher in other countries, but in no country other than East Germany did the majority of cohabiting partnerships survive for ten years: Kathleen Kiernan, ‘Cohabitation in Western Europe’, 96 Population Trends 25 (1999).
Findings from the Millennium Cohort Study in Britain, initially comprising a cohort of more than 18,500 mothers who gave birth during 2000 or 2001, indicate that children born to cohabiting parents were almost three times as likely as those born to married parents to be no longer living with both these parents by the time they were 5 years old.64 In an Australian study, the odds of a cohabiting couple with children breaking up was more than seven times as high as a married couple who had not lived together before marriage, and more than four times as high as those who had lived together but went on to marry.65
Data from the Fragile Families study in the US (a major study of a cohort of unmarried and married mothers in 20 large cities66) found that parental separation by the time the child was 3 was five times greater for children born to cohabiting than married parents. Differences in financial wellbeing and family characteristics between cohabiting and married parents explained this to some extent, but after controlling for race, ethnicity, education, economic factors, family characteristics and an extensive set of other covariates, parents who were cohabiting at their child’s birth still had over two and a half times the risk of separating as compared with parents who were married at their child’s birth.67
Increasingly, children are born outside of cohabiting relationships entirely. For example in Ireland, 35% of all births are outside marriage. Of these, nearly half (45%) are to single mothers without the other parent in the home, that is nearly 16% of all births.68 The figure is the same in Britain.69 In the USA, between 2006 and 2010, 24% of first births were to women who were neither married nor cohabiting.70 From a family law perspective, these are children about whom there could be a parenting dispute from the day they are born.
Figures from Australia based upon population surveys provide clear evidence of the increase in family instability over time. The following Table charts the increase in the percentage of children born within certain years who experienced their parents living apart by the age of 15. Nearly three times as many children born in 1981-85 had experienced their parents’ separation by that age as had been the case for the cohort born after World War Two.
|Australia: likelihood of Living in Lone Mother Families (aka SMH)|
|Birth cohort||By age 15||At birth||Due to parental separation|
|1946 – 55||8.9||2.6||6.3|
|1956 – 62||11.0||3.2||7.8|
|1963 – 75||18.0||3.0||15.0|
|1976 – 80||22.2||3.8||18.4|
|1981 – 85||24.9||6.5||18.4|
|Source: D de Vaus and M Gray, ‘The Changing Living Arrangements of Children, 1946-2001’ (2004) 10 Journal of Family Studies 9.|
- 64 Kathleen Kiernan & Fiona Mensah, ‘Unmarried Parenthood, Family Trajectories, Parent and Child Well Being’ in Children of the 21st Century: From birth to age 5, p. 77 (K. Hansen, H. Joshi, S. Dex, eds, 2010) (28 per cent of cohabitees had broken up compared with 10 per cent of married couples). See also Ann Berrington, ‘Entry into Parenthood and the Outcome of Cohabiting Partnerships in Britain’, (2001) 63 J. Marriage & Fam. 80 (26% of all cohabiting partnerships dissolved within 5 years, 16% continued and 59% resulted in marriage. For women, the presence of children born within the partnership had no effect on either the probability that the couple marry or the rate of separation, compared to women without children, although for men, the birth of a child had a stabilizing effect on the partnership); Kathleen Kiernan, ‘Childbearing Outside Marriage in Western Europe’, (1999) 98 Population Trends 11, tbl 11 (probability of relationship surviving 3 and 5 years after birth of first child among women aged 20-45 lower for cohabiting relationships than marriage in 9 countries studied).
- 65 Peter Butterworth, Tamar Oz, Bryan Rodgers, & Helen Berry, ‘Factors Associated with Relationship Dissolution of Australian Families with Children’, Social Policy Research Paper No 37, 22 and 29, tbl 9 (2008).
- 66 The term ‘fragile-families’ refers to families in which the parents are unmarried at the time of the child’s birth, in order to ‘underscore that they are families and that they are at greater risk of breaking up and living in poverty than more traditional families.’ (The Fragile Families and Child Wellbeing Study, About Fragile Families at http://www.fragilefamilies.princeton.edu/about.asp).
- 67 Cynthia Osborne, Wendy Manning, & Pamela Smock, ‘Married and Cohabiting Parents’ Relationship Stability: A Focus on Race and Ethnicity’, (2007) 69 J. Marriage & Fam. 1345.
Data published earlier this year indicates how much family stability has deteriorated even since the 1980s. By the time that children in the latest study are 15-17 years old, 40% have parents living apart, up from 25% in the first half of the 1980s.71 The proportion of all adults in the population whose parents had divorced or separated before they turned 18 increased from 15% in 2006-07 to 18% in 2012-13. Across the population, that is a substantial increase in just 6 years.72
About 13% were born into single mother households in 2005, double the rate in the first half of the 1980s.73
It is quite likely that the position is the same in other nations across Europe, North America and South America which have seen similar dramatic rises in ex-nuptial births over the last two decades. As the ex-nuptial birth-rate continues to climb, it is reasonable to expect that the percentage of children who experience their parents’ separation before the age of 18 will keep climbing also, even if the divorce rate remains stable.
Pressures on the courts
Inevitably, a certain proportion of children whose parents live apart will have disputes which result in one parent filing court proceedings. Courts in many countries are overwhelmed by the number of cases that come before them. This is reflected in the available data on increases in litigation in a number of countries. In the United States, an indication of the increase in custody disputes can be seen in the data of the National Center for State Courts. Evidence from seven states indicates a 44% increase in custody filings between 1997 and 2006.74 In the same period, divorces had decreased nationally by 3%. There had previously been a 43% increase in custody filings nationally between 1988 and 1995.75 In Australia, the number of contact applications nearly doubled between 1994 and 2000,76 although this upward trend was evident long before 1995.77
- 71 ABS 4442.0 – Family Characteristics and Transitions, Australia, 2012-13 (released February 2015).
- 72 Ibid.
- 73 Paula Laws, Samanthi Abeywardana, Jane Walker and Elizabeth Sullivan, Australia’s mothers and babies 2005, National Perinatal Statistics No. 20, Australian Institute of Health and Welfare, Canberra, 2007.
- 74 Nat’l Center for State Courts, Examining the Work of State Courts 29 (2007).
- 75 Brian Ostrom & Neal Kauder, Examining the Work of State Courts, 1995: A National Perspective From the Court Statistics Project (1996); J. Pearson, ‘A Forum for Every Fuss: The Growth of Court Services and ADR Treatments for Family Law Cases in the United States’, in Cross Currents: Family Law and Policy in the US and England 513 (Sanford Katz, John Eekelaar & Mavis Maclean eds., 2000). See also Andrew I. Schepard, Children, Courts and Custody 38–40 (2004).
- 76 In 1994-95, there were 14,144 applications in the Family Court of Australia. In 1999–2000, there were 27,307. Family Court of Australia Statistics 1999/00 Table 4.10. No figures are available after 2000 because of changes to the court system.
- 77 As a result of a transfer of powers from state governments to the Federal Government in 1987, the Family Court gained jurisdiction over custody and access disputes involving ex-nuptial children. In 1988–89, the first full year in which this expanded jurisdiction existed, there were 10,619 contact applications in the Family Court of Australia. In 1993–94, there were 16,256. Family Court of Australia Statistics 1989/90 Table 5 1999/00 Table 4.10. Indeed, the rise in the level of contact applications can be seen ever since 1981. In that year there were 4214 applications, and by 1986 it had risen to 7208. Family Court of Australia Statistics 1989/90 Table 5.
In England and Wales, contact (visitation) orders increased more than fourfold between 1992 and 2008.78 Nor are these increases confined to English-speaking countries. In France, new applications in relation to parenting and visitation arrangements following separation and divorce increased by 25% between 1996 and 2001.79 In Denmark, the total number of visitation applications nearly doubled between 1995 and 2000.80 After that time, the numbers remained relatively stable, even falling in 2006 to 10,184 cases. However in 2008 the numbers rose sharply again, to 13,412. This followed the enactment of the Danish Act on Parental Responsibility with effect from October 1, 2007.81
- 78 In 1992, there were 17,470 contact orders. In 2008, there were 76,759. This Table is derived from the statistics published annually by the Ministry of Justice and its predecessor departments. See e.g. Ministry of Justice, Judicial and Court Statistics 2008, ch 5; Lord Chancellor’s Dep’t, Judicial Statistics 1986–2000. See also Gwynn Davis & Julia Pearce, Privatising the Family?,  28 Family Law 614. For discussion of the explanations for this rise in litigation, see Gwynn Davis, ‘Love in a Cold Climate — Disputes about Children in the Aftermath of Parental Separation’, in Family Law: Essays for the New Millenium 127, 128-29 (Stephen Cretney ed., 2000).
- 79 Dep’t of Justice, France, Annuaire Statistique de la Justice, 1996–2000 and 1997–2001. The increase in applications in relation to children born to unmarried parents was even greater. They rose from 42,005 in 1996 to 62,201 in 2001. By 2006 the figure was 78,986, almost a 100% increase within ten years: Dep’t of Justice, France, Annuaire Statistique de la Justice, Édition 2008, p.49.
- 80 CivilRetsDirektoratet, Samvær Børnesagkyndig Rådgivning Konfliktmægling, Statistik 2001 (2002). 6,384 in 1995, 11,560 in 2000. In Denmark, any parent may apply for contact. It used to be the case that contact rights would only arise if the parents had lived together for most of the first year of the child’s life, usually at least 8 months in practice. This restriction was removed in 1995.
- 81 Personal communication from Mariam Khalil, Danish Department of Family Affairs, by email 15th December 2009.
These massive increases in litigation about parenting after separation have passed largely unnoticed even in the few jurisdictions that publish statistics, but their effects are certainly noticed in the courts. Family lawyers and judges in many countries bemoan the long delays in bringing the disputes that cannot be settled, to trial. Consequently, the call is for more resources; more judges, more courtrooms, more legal aid for poorer citizens to be able to litigate their claims. Children’s advocates call for more lawyers to represent children.
Yet there is another feature of family law systems in these countries that might be observed: the call for more resources is increasingly falling on deaf ears. Indeed at a time when the demand for resources is ever more intense, governments are cutting, rather than increasing supply. This is so, for example, in England and Wales which has seen massive cuts to legal aid for family law cases, in Australia, where retiring judges are not being replaced, and in New Zealand which has seen significant reductions in resources for its family law system. A Family Justice Working Group in Canada made this observation in 2013:82
Despite the pervasiveness of family justice problems, the general public, media and politicians are far more engaged with criminal law matters. This heightened interest fuels criminal law reform efforts and often translates into funding support for criminal justice as a priority over family law.
Three directions for reform may assist in reducing the pressures on the courts. 83
- 82 Family Justice Working Group (2013). Final Report of the Family Justice Working Group of the Action Committee on Access to Justice in Civil and Family Matters, Meaningful Change for Family Justice: Beyond Wise Words, p.3. Toronto: Canadian Forum on Civil Justice.
- 83 See further Patrick Parkinson, ‘The Challenge of Affordable Family Law’ in M Brinig ed, Selections from the Recife Congress p. 189 (ISFL, 2015), available at http://www.isflhome.org.
a) Rethinking the role of mediation
The first is to see parenting disputes at least, is first and foremost a relationship problem which requires therapeutic intervention, and only secondarily as a legal problem. That is, the first port of call in family law disputes involving children should not be lawyers, for the reality is that talk of rights in the context of parenting disputes is an inadequate discourse for the resolution of conflicts about children. Most lawyers will admit, if pressed, that there is relatively little law involved in determining parenting disputes about children, and talk of rights (other than children’s rights) is problematic. Certainly, there may be significant factual issues to be resolved in cases where the safety of parents or children would be significantly at risk unless protective court orders are made. Lawyers also pride themselves on their capacity for prediction: they are the keepers of the wisdom of “what the courts will do” if the matter is adjudicated, although in reality such confidence in knowing the minds of the judges is often misplaced.
Seeing parenting disputes as first and foremost a relationship problem obviously leads to exploration of the option of mediation as one way to resolve the dispute. However, it is not enough, to reduce the congestion in the courts, to encourage parties to go to mediation, as for example is the new strategy in England and Wales. It is important to develop a community understanding of alternative pathways to lawyers and courts in resolving family law disputes. This can be illustrated by recent research in the UK on Mediation Information and Assessment Meetings (MIAMs).84 The researchers reported that before the cuts to legal aid, solicitors referred the clients they believed could benefit from mediation, and those who needed to attend as a prerequisite to obtain legal aid funding for court representation, to MIAMs. After the legal aid cuts, mediators reported a substantial fall in the number of solicitor referrals to MIAMs, which they attributed to solicitors’ loss of incentive to refer publicly funded clients. It is important therefore to create alternative pathways to people to get the help they need if the known pathway – through lawyers – is no longer available to the same extent.
This requires a fundamental rethinking of the structural place of mediation within the family justice system. Mediation for families after separation developed first as an alternative to litigation. 85 However, because mediation is typically court-ordered and often court-annexed, the model still places lawyers and the courts at the centre of the process of dispute resolution about post-separation parenting, with pathways to settlement being created to divert people off the litigation pathway. Forty years on from the beginnings of the divorce revolution, this still remains the dominant paradigm for dispute resolution in family law in many parts of the western world.
- 84 Anna Bloch, Rosie McLeod & Ben Toombs, Mediation Information and Assessment Meetings (MIAMs) and mediation in private family law disputes: Qualitative research findings (London: Ministry of Justice, 2014).
- 85 On the development of family mediation in North America, see Connie Beck & Bruce Sales, ‘A Critical Reappraisal of Divorce Mediation Research and Policy’, (2000) 6 Psychology, Public Policy and the Law 989.
What is needed is to create different pathways for parents who have separated, with litigation being just one of those pathways.86 The creation of alternatives to the pathway of lawyers and courts in resolving disputes about children is however, not an easy one. It requires a new way of thinking about what it means to make decisions in the best interests of children and about the kinds of services that families need in the aftermath of parental separation.
This is the journey on which Australia has now embarked. In that country, there is now a coordinated approach led and funded by government, which has brought about a revolution in service provision to support families after separation. One of the key concepts is the availability of free, or heavily subsidised mediation in highly visible and accessible centres, known as Family Relationship Centres, located, for the most part, in the main business districts of urban and regional communities. Whereas the move in the United States has been in the direction of more in-court therapeutic services, with the court at the centre of a problem-solving team,87 in Australia, the move has been away from the courts into community-based services which are nonetheless systemically integrated with the family law system in a cohesive framework for service provision to families after separation.
The Family Relationship Centres (FRCs) emerged as a strategy for reform of the family law system in Australia in the mid-2000s following major debates about the future of that system.88 There are now 65 Centres all over the country, approximately one for every 300,000 of the population, in all the major population centres and regions. The first of them opened in July 2006.
FRCs are an early intervention initiative to help parents work out post-separation parenting arrangements in the aftermath of separation, managing the transition from parenting together to parenting apart. They are there to help resolve disputes not only in the aftermath of separation, but also in relation to ongoing conflicts and difficulties as circumstances change. The FRCs do not only have a role in helping parents after separation. They are not ‘divorce shops’. They are meant also to play a role in strengthening intact relationships by offering an accessible source for information and referral on relationship and parenting issues, and providing a gateway to other government and non-government services to support families. The FRC cannot possibly provide all the services that people need; but it is designed as a gateway to those services.
- 86 In Australia, see Family Law Pathways Advisory Group, Out Of The Maze: Pathways To The Future For Families Experiencing Separation (2001).
- 87 On American developments in court-annexed services, see e.g. James Bozzomo and Gregory Scolieri, ‘A Survey of Unified Family Courts: An Assessment of Different Jurisdictional Models’, (2004) 42 Family Court Review 12; Richard Boldt and Jana Singer, ‘Juristocracy in the Trenches: Problem-Solving Judges and Therapeutic Jurisprudence in Drug Treatment Courts and Unified Family Courts’, (2006) 65 Maryland Law Review 82.
- 88 See further, Patrick Parkinson, ‘The Idea of Family Relationship Centres’ (2013) 51 Family Court Review 195.
Most of the work of FRCs is concerned with helping parents who have separated. The FRCs provide an educational, support and counselling role to parents going through separation with the goal of helping parents to understand and focus upon children’s needs, and by giving initial information to them about such matters as child support and welfare benefits. They act as a gateway to a range of post-separation services, such as support programs for separated fathers. The FRCs are thus about organising post-separation parenting, but they are much more than this. They may be the gateway also to services which will help people cope with the emotional consequences of relationship breakdown.
The FRCs are funded by the Government and operate in accordance with guidelines set by the Government. However, they are actually run by non-government organisations with experience in counselling and mediation, selected on a tender basis, and staffed by professional counsellors and mediators. Although actually run by different service providers in different localities, the FRCs have a common identity and logo for the public.
It is a legal requirement to attempt mediation before a case can even be filed, subject to exceptions in relation to allegations of family violence or child abuse. If, following an intake session, the mediator considers that mediation unsuitable for the parties, or if mediation does not resolve the dispute, then the parties will get a certificate allowing them to file in court.
The FRCs achieved measurable success very quickly. There has been a reduction of about 32% in court filings in children’s cases in that five year period.89 In the three years following the introduction of the reforms to the family law system in 2006, the use of counselling and mediation services by parents during and after separation increased from 67% to 73%, while recourse to lawyers diminished to a corresponding degree. Contact with courts dropped from 40% before the reforms to 29% afterwards.90
The significant decline in the number of court applications over the five-year period since the introduction of the Family Relationship Centres shows how a well-organised and funded system of mediation and other family support, away from the court system, can have benefits for the courts. However, it would be a mistake to measure the success of the Family Relationship Centres only in these terms. It is apparent that they are meeting the needs of many people who would not have gone on to court at all, who would have given up, or joined the ranks of the disaffected. Many clients of FRCs would not have gone to court due to their lack of financial resources.91 This shows that the FRCs offer a means of assisting that large body of people who cannot realistically afford private lawyers but who also do not qualify for state-funded legal assistance or feel able to represent themselves in litigation. That is, for one group of people in the community, resources of this kind can provide affordable family law.
- 89 Patrick Parkinson, ‘The Idea of Family Relationship Centres’ (2013) 51 Family Court Review 195.
- 90 Rae Kaspiew, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand, Lixia Qu et al, Evaluation of the 2006 Family Law Reforms 50 (2009).
- 91 Australian National Audit Office, Implementation of the Family Relationship Centres Initiative. Auditor General Audit Report No 1, 2010-2011) (Canberra: Commonwealth of Australia, 2011), p. 68.
b) Reducing discretion
Mediation can only go so far. The pressures on governments, and the unaffordable costs for so many families, ought to cause some fundamental rethinking about the model of individualised, discretionary court-based family justice in common law countries.
While governments are increasingly encouraging people to settle their own disputes by alternative dispute resolution, and withdrawing legal aid for civil litigation, such efforts are likely to be of limited efficacy if laws remain centripetal. Centripetal laws are laws that have the effect of drawing parties inexorably towards a judicial resolution, rather than conferring upon them the clear bargaining endowments which would facilitate settlements.
Discretion is a particular feature of family law. The argument in favour of conferring broad discretions upon judges is that it gives them the necessary flexibility to tailor the relief awarded to the particular circumstances of each case, rather than being fettered by fixed rules. However, this presupposes that governments are willing to bear the costs of providing access to the courts so that judges are able to achieve fair outcomes in each case. The greater the degree of discretion, the more difficult it is to bargain in the shadow of the law,92 for where there is a broad discretion, the law casts only an uncertain shadow.
Centripetal laws assume that courts will make the decisions, and regulate the conduct and adjudication of cases within the court setting. Centrifugal laws send clear messages to people about their rights, obligations and entitlements, so that judicial resolution of disputes is made necessary only where the facts of the case or the scope of the rule are in dispute.93
Centrifugal laws will usually require general rules or principles which may not be sensitively attuned to all the different circumstances that might arise, but they simplify the messages the law gives, thereby reducing the numbers of disputes and assisting in the resolution of disputes by conferring bargaining chips. They provide a framework within which alternative dispute resolution may operate successfully. An emphasis upon private ordering, combined with the conferral of broad discretions on judges in the few cases which come to courts, is the worst of all worlds.
- 91 Australian National Audit Office, Implementation of the Family Relationship Centres Initiative. Auditor General Audit Report No 1, 2010-2011) (Canberra: Commonwealth of Australia, 2011), p. 68.
- 92 Robert Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: the Case of Divorce’, (1979) 88 Yale Law Journal 950.
- 93 The terminology of centripetal and centrifugal law is derived from Marc Galanter ‘Justice in Many Rooms: Courts, Private Ordering and Indigenous Law’ (1981) 19 J of Legal Pluralism & Unofficial Law 1.
Moving from centripetal to centrifugal laws in family law is not straightforward. It is, perhaps, easiest in child support which is well-suited to fixed formulae and limited discretion. The costs of litigating over child support usually far exceeds the amounts of money at stake. Australia moved, many years ago, to an administrative system for assessing child support, with very limited options for recourse to the courts. Britain has not had a happy experience with administrative mechanisms for calculating and collecting child support, but the overall success of the Australian system shows it is possible if well-designed.
In Canada, some degree of predictability in terms of spousal maintenance has also been achieved through the Spousal Support Advisory Guidelines.94
The division of family property on separation is also an area where there is limited need for discretion. The community property regimes, or deferred equal division systems such as in Germany, are at one end of the spectrum of certainty. Once it is determined whether the property is marital or non-marital, part of the community or separate, the issue of division or allocation is straightforward. That is not to deny the law’s potential for complexity; but complex laws can still be predictable laws. In some cases there may also be significant factual issues that require resolution, but that is true of discretionary regimes as well.
On the other end of the spectrum of certainty are highly discretionary systems such as in England and Wales and Australia. All property is available for distribution, not just marital property. The Court has a broad discretion about how to divide the property, based upon consideration of multiple factors. While the uncertainty may be reduced if there is sophisticated appellate guidance, usually the cases which reach the highest courts involve parties with substantial wealth.95 These cases are atypical. In Australia, the appeal division of the Family Court often stresses that each case turns on its own facts, and so strenuously avoids laying down guidelines for the exercise of discretion that ought to be followed by trial judges, or giving guidance on outcomes.96 That perpetuates the extremely discretionary nature of the jurisdiction.
It is not as straightforward to promote certainty in children’s cases as in financial matters. For the cases that go to trial, the best interests of the child must be the paramount consideration.
- 94 Carol Rogerson & Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa, Department of Justice Canada, July 2008). See also Carol Rogerson & Rollie Thompson, ‘The Canadian Experiment with Spousal Support Guidelines’, (2011) 45 Fam.L.Q. 241. These guidelines distinguish between cases where the spousal support is in addition to child support (with child support payments being the first priority) and those where the recipient is not also in receipt of child support. They address all the bases for making awards, including non-compensatory spousal support, based upon what judges do in practice.
- 95 In England and Wales, see e.g. White v White  1 AC 596; Miller v Miller; McFarlane v. McFarlane  2 AC 618.
- 96 See e.g. Bishop & Bishop  FamCAFC 138 at ; Bevan & Bevan  FamCAFC 19 at .
However, that does not mean that the legislature or courts cannot provide clear signalling to help parties without significant safety concerns to resolve their cases more easily. While some parents will make their own arrangements without reference to legal norms, others can be assisted to develop a well-functioning parenting arrangement if there is enough guidance in the legislation97 supported by opportunities for education and dispute resolution.
Children’s cases cannot be dealt with by rules, but there are general principles that can be articulated in legislation to provide a framework for discussions in mediation and negotiations between lawyers. Examples of general statements of principle that might usefully be included in legislation and which can also be referred to by the courts in deciding contested cases are that children have a right to maintain relationships with parents and other family members who are important to them, unless this is detrimental to their wellbeing; that children have a right to protection from harm; that children who have formed a close relationship with both parents prior to the parents’ separation will ordinarily benefit from having the substantial involvement of both parents in their lives, except when restrictions on contact are needed to protect them from abuse, violence or continuing high conflict; that parenting arrangements for children ought to be appropriate to their age and stage of development; and that parenting arrangements for children should not expose a parent or other family member to an unacceptable risk of family violence.
Beyond these statements of general principle, having an affordable family law system probably means having a series of standardised parenting regimes that can act as a concrete foundation for negotiation between parents. It is likely to be too prescriptive to put this in legislation, but published advisory booklets or sample parenting plans can help provide people with formulae for working out their own parenting arrangements. One way, for example, is by sample court orders that may be adopted by consent. Where the parties have agreed that the non-resident parent will have the children to stay every other weekend, standard clauses could be made available specifying contact arrangements from after school on Friday to the commencement of school on Monday; providing for school holiday contact by stipulating when holidays are deemed to begin and end; dealing with handovers (non-resident parent collects at the beginning of the holiday period and resident parent collects the children at the end of their stay with the other parent); options for Christmas and other important holidays. Lawyers have these templates for agreements readily available in their precedent folders. There is no reason why they should not be made available by a public body for use by parents who are trying to organise arrangements for themselves.
Sample parenting plans could be used also by mediators. There are only so many variations on the theme of parenting after separation; and where the parents are having difficulty agreeing, a rational response might be to get them just to try a suitable standardised package of parenting arrangements for a few months, and then to come back if it is not working well.
- 97 In the US context, see Margaret Brinig, ‘Substantive Parenting Arrangements: The Tragedy of the Snipe Hunt’ (2013). Notre Dame Legal Studies Paper No. 1321. Available at SSRN: http://ssrn.com/abstract=2233667.
The issues with infants and very young children are more complex, and not amenable to standardised packages or formulae. Yet even here, experts in the field have been able to offer some guidance. After a huge controversy in recent years concerning the issue of infants and young children staying overnight with non-resident parents,98 a consensus statement has been written reflecting a large body of expert opinion in the field.99 Researchers have put aside some of their differences to provide guidance on when it is contra-indicated for children under 4 to stay overnight with non-resident parents, based upon what is known from child development research.100
Relocation cases are another area where a greater consensus is emerging based upon research findings and the wider body of research knowledge on children’s wellbeing in the aftermath of parental separation. While there remain differences of view among researchers about how best to promote predictability in decision-making on relocation, that argument takes place within the context of much agreement on a range of issues.101
What about shared care? The evidence from much research is that equal time arrangements and other arrangements for substantially shared care can work well, but they are most likely to do so in the lower conflict cases where parents are able to co-operate and compromise, not the most high conflict cases characterised by rigid positions and proprietary notions of parenthood. Legislation can helpfully assist parents to work through the practicalities of shared care by providing a checklist of factors for when such an arrangement is likely to work. In Australia, there is some encouragement for shared care in the law. However, the Australian legislation sought to address the issue of deterring inappropriate shared care arrangements by requiring that a shared care arrangement must be ‘reasonably practicable’ and providing guidance on when that might be so. Judges are required to consider the proximity of the parents’ homes, the capacity of the parents to implement a shared care arrangement, their ability to communicate with one another, and the likely impact of the shared care arrangement on the child.102 This can be used by mediators and lawyers to ‘reality test’ the practicability of a proposed shared parenting arrangement.
- 98 See for example the Family Court Review special issue of 2011 edited by Jenn McIntosh and the responses published the following year: Michael Lamb, ‘A wasted opportunity to engage with the literature on the implications of attachment research for family court professionals’, (2012) 50 Family Court Review 481; Pamela Ludolph, ‘The Special Issue On Attachment: Overreaching Theory And Data’ (2012) 50 Family Court Review, 486. See also Pamela Ludolph & Milfred Dale, ‘Attachment in child custody: An additive factor, not a determinative one’ (2012) 46 Family Law Quarterly, 1; Linda Nielsen, ‘Woozles: their role in custody law reform, parenting plans and family court’ (2014) Psychology, Public Policy, and Law; Judy Cashmore and Patrick Parkinson,, ‘The Use and Abuse of Social Science Research Evidence in Children’s Cases’ Psychology, Public Policy and Law.
- 99 Richard Warshak, with the endorsement of 110 researchers and practitioners listed in the Appendix. ‘Social science and parenting plans for young children: A consensus report’. (2014) 20 Psychology, Public Policy, and Law, 46.
- 100 Marsha Pruett, Jenn McIntosh, & Joan Kelly, ‘Parental separation and overnight care of young children, Part I: Consensus through theoretical and empirical integration’ (2014) 52 Family Court Review 240; Jenn McIntosh, Marsha Pruett, & Joan Kelly, ‘Parental Separation and Overnight Care of Young Children, Part II: Putting theory into practice’ (2014) 52 Family Court Review 256.
- 101 See Patrick Parkinson and Judy Cashmore, ‘Reforming Relocation Law – An Evidence-based Approach’ (2015) 53 Family Court Review 23; Rollie Thompson, ‘Presumptions, Burdens And Best Interests In Relocation Law’(2015) 53 Family Court Review 40; Patrick Parkinson, & Judy Cashmore, ‘Reforming Relocation Law: A Reply To Prof. Thompson’ (2015) 53 Family Court Review 56.
- 102 Family Law Act 1975 (Cth) s.65DAA(5).
What must be avoided is having any presumption about time. There are too many variables. Some legislatures have sought to encourage shared care. That might be an optimal arrangement for some families if it can be managed, but the logistics and expense of doing so may mean it is out of the reach of many separated parents. There are many other situations where it is unsuitable, not least if parents live too far apart or there are concerns about the competence of one parent to provide a safe and nurturing environment for the child. There can be no one-size-fits-all policy for post-separation parenting.
c) Simplified procedures
There are useful models in some jurisdictions for simplified processes in some kinds of parenting cases that are cost-effective both for parents and for the government. Where the dispute is essentially about levels of contact and details of the arrangement rather than the issue of who should be primary carer, the dispute ought to be able to be resolved without another full-blown trial in court. A model for quick and inexpensive resolution of contact disputes is the Danish system.
The system for resolving contact (visitation) disputes in Denmark illustrates the possibilities for developing new forms of adjudication other than the traditional adversarial trial that are quick and inexpensive. Contact disputes are an example of where the remedy will only be reasonably effective if it is speedy and affordable. Yet typically, courts in common law jurisdictions adopt the same adversarial processes and legal structures to the resolution of contact disputes as they do for the major allocation decision of custody or primary residence.
In Denmark and Norway, certain functions have traditionally been exercised by the County Governors’ Offices. These are city/county administrative authorities. Their role in relation to family law is a historical one, which dates back hundreds of years to a time when the monarch was able to grant divorces as a matter of executive decision. That continued in Denmark and Norway into the modern age of divorce, so that the courts and the administrative authorities have a parallel jurisdiction in relation to divorce, and certain ancillary matters, e.g. child support.103
In Denmark, the County Governors’ Offices are given a lot of responsibility for resolving disputes and making orders.104 Consensual divorces are almost always handled by the County Governors’ Offices. They also deal with spousal maintenance, child support, contact arrangements and adoption. The courts resolve the major issue of who should have custodial responsibility, but cannot make contact orders. If there is a dispute about contact, it is left to the County Governors’ Offices to deal with.
- 103 Svend Danielsen, ‘The Scandinavian Approach: Administrative and Judicial Resolutions of Family Conflicts’, in Marie Thérèse Meulders-Klein (ed.), Familles et Justice 139 (1997).
- 104 The description of the Danish system for resolving contact disputes is derived from the author’s research in Denmark in 2002, and interviews with Prof. Svend Danielsen, a former senior family law judge in Denmark, senior members of the Ministry of Justice, and with a judge of the Sheriff’s Court.
The procedure for initiating the involvement of the County Governor’s Office in a contact problem is simple. If a father is having problems seeing his children, or is otherwise unhappy with the arrangements, he can write to the County Governor’s Office asking for it to get involved. There are no forms to fill in or applications to file and there is no fee payable.
The matter will be dealt with initially by a lawyer in the County Governor’s Office. He or she will contact the mother and seek her response. There will then be a meeting. The couple can be referred to counselling, paid for by the County Governor’s office, or to mediation. It used to be the case that counselling was only offered if both parties were willing to participate. Counselling may now be offered to one party even if the other is not willing to join in.
If the problems cannot be resolved by counselling or informally, then the lawyer in the County Governor’s office will proceed to make a determination. That takes effect as an order, which is enforceable in the courts.105 Normally, matters are resolved within 6 weeks. There is a right of appeal to the Ministry of Justice, Department of Private Law (CivilRetsDirektoratet) in Copenhagen. Normally these are dealt with on the papers, but a parent will never be denied a personal meeting if that is requested.
Another example of innovative practice is the Oregon informal domestic relations trial in Deschutes County, Oregon. This involves a form of trial in which the rules of evidence are excluded and the parties engage directly with the judge. Only the judge asks questions of each person. No testimony from witnesses except from the parties directly, unless special permission is granted by court for expert testimony. The role of lawyers is limited essentially to defining the issues and then presenting closing arguments.
These different ways of adjudicating disputes concerning children that cannot be resolved by mediation or negotiation demonstrate what might be possible in other countries with the support of legislatures.
105 The decisions of County Governors’ Offices are enforceable, and that enforcement occurs through the court system. The Danish have a special enforcement court for all kinds of court orders, including contact orders. It can be translated as either the Bailiff’s Court or the Sheriff’s Court.
This brief overview of developments around the world in countries with a Judaeo-Christian tradition indicates not only the pace of change in families and family law systems but also the challenges that demographic changes in family life pose for governments and courts. To draw an analogy, justice systems built on delivering a few quality products each year are now having to be transformed to provide for a mass market. Those systems were not designed for volume, and they have adapted only slowly and with difficulty to the level of demand now placed upon them to adjudicate disputes. Nor is the task any more to make a once-off decision about ‘custody’. In an age when the expectation is that both parents will ordinarily remain involved in children’s lives despite living apart, parenting orders must be adjusted as circumstances change: by agreement preferably, but if not, by a new adjudication. A certain proportion of family law litigants will keep coming back, unable to sort out any disputes for themselves.
The new challenges require imagination. They also require increased public funding. That itself is a challenge when there are so many other demands for public funding arising from family breakdown.
From a public policy perspective, the decline in acceptance of marriage as a foundation for long-term relationships and child-rearing has been a negative development. The pressures that the rise and rise of non-marital cohabitation and ex-nuptial childbirth have brought will challenge us, if not overwhelm us, for many decades to come.
- That States with high levels of family breakdown and births to single mothers actively develop policies and educational strategies to promote safe, stable and nurturing families.
- That States recognise the need for economic justice to be available to the primary caregiver of children following the breakdown of non-marital relationships, in addition to the provision of child support.
- That States develop community-based alternatives to the pathway of lawyers and courts in resolving disputes about children. These should include the development of highly visible and accessible sources of assistance to parents such as educational programs on parenting after separation and family mediation.
- That States reduce the level of judicial discretion in family justice systems in order to promote out of court resolution of disputes.
- That States with an adversarial tradition of civil litigation develop judicially managed short trials without the need for legal representation to resolve the disputes of impecunious litigants.
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Towards a Structure of Indifference: The Social Origins of Maternal Custody
[ A summary of Debra Friedman’s work ]
Note: Considering that this article was penned in 1995 it is remarkably penetrating. Friedman identifies what is only now being more widely accepted as the causal factor and stumbling block, namely, that ‘the state’ has now taken over from the father the paternal and guardianship role – the rhetoric cloak of concern, as she puts it, for “the child’s best interest” which enables the state to do whatsoever it pleases. Not only are her comments prescient but are still relevant to today’s experience. One can only imagine that in it’s year of publication it must have been seen as sheer heresy.
- Abstract: In the forty years between 1880 and 1920, the presumption that divorced and separated fathers in normal circumstances should be granted the custody of their children was changed in all Western countries that permitted divorce. New laws where passed that soon gave way to the almost certain award of child custody to mothers. This book, a study of that change in presumption of custody, addresses two fundamental questions. The first, straightforwardly empirical, is: “Why has a shift of that magnitude and importance been lost to the public memory in less than a hundred years ?” The second is more abstract: “Why did the dominant group, the fathers, cede rights to the mothers without duress — indeed, without concerted political or collective action of any kind ?” Prior attempts to account for the change in custody failed because they underestimated the role played by the state in each instance, and ignored the class character of divorce of the period. Friedman’s own account begins by examining the considerable pressures brought to bear by rapidly rising divorce rates in England, France, and the United States. Maternal custody arose as a by-product of the state’s concerns about the potential for a vastly increased welfare burden imposed by financially dependent women following divorce. During the transition, responsibility for children’s welfare was diffused, with mothers becoming responsible for nurture, fathers for financial support, and states for schooling. Ultimately this led to a structure of indifference, with striking consequences for the welfare of children after divorce. (Published: 31 Dec 1995, 157 pages).
- [Not unlike the reaction of town halls to burdens placed ‘on the parish’ by widows and orphans in the 18th and 19th century and the need to ‘off-load’ them as promptly as possible – RW.]
Friedman’s analysis of this transition differs from those of other researchers whose work she summarizes. Most studies stress the impact of several concurrent trends – the development of separate spheres, the cult of domesticity, the invention of modern motherhood, and the rise of feminist activism – as causal factors.
Friedman maintains that the evolution of the presumption of maternal custody involved more than the substitution of one parent for the other and more than the conversion of paternal right to maternal right.
Fathers once had complete custody and control over children, but absolute parental rights were now assumed by the state and were exercised in custody disputes through a rhetoric of concern for the child’s best interest. Although that interest was increasingly interpreted to compel maternal custody, the state rather than the mother had effectively acquired the right of parenthood. Yet the displacement of the father as custodial parent did not relieve him of familial financial obligations.
Friedman explains the transformation in custody laws and practice in terms of the influence of “generic social forces that, in their sweep, were little affected by national variations” such as different legal and political traditions. (p. 59) She cites four such trends – the increasing divorce rate, the increased number of children affected by divorce, the increased life expectancy for privileged white women, and the decrease in maternal and neonatal death rates. The cumulative effect of these forces resulted in the creation of a potential welfare burden for the state which provided the impetus for the reconsideration of paternal preference in custody.
The development of maternalist ‘social welfare’ policies, particularly in the United States, addressed the economic plight of widows and their children. However, because those policies excluded divorced women and their offspring, they effectively encouraged maternal presumption in child custody cases.
The climate in other Western nations was generally unsympathetic to the extension of social welfare, and those states were also unwilling to meet the economic needs of the growing numbers of divorced women over a longer life span, as well as those of their offspring from childhood to adulthood. Hence the state’s economic interests favored the privatization of material support for both children and their divorced mothers through the maintenance of fathers’ financial obligations.
Custodial fathers provided only for their children while non-custodial fathers provided for two sets of dependents, mothers and children, a practice that removed a considerable financial burden from the state. At the same time, the state assumed the father’s earlier obligation to educate his children as compulsory public schooling expanded. Friedman suggests that this development eliminated the last impediment to maternal custody because it ensured that children would be educated even though their mothers could not afford to pay for expensive schools.
This study locates the custody question in the context of the more general issue of whether the laws, norms, and institutions surrounding divorce and custody work to the advantage or the detriment of children.
The author refutes the assumption that parents are intrinsically motivated toward altruistic and self-regulated behavior regarding their offspring, asserting that parent-child relations are “socially constructed inequalities” (p. 13) and as such, are subject to alteration and breakdown. When divorce occurs, the interests of parents often diverge from those of their children as well as those of the state.
Concern for children’s welfare has played a negligible role in the issues surrounding divorce legislation generally, as the evolution of the presumption of maternal custody illustrates. The unintended consequence of that evolution has been the creation of a structure of indifference. After a divorce, responsibility for a child’s well-being is diffused among three agents with three separate, often conflicting agendas. The transformation from paternal presumption to maternal presumption does not reflect a failure on the part of custodial fathers, a change in their feelings toward their children, or a revised interpretation of the best interests of the child. It represents a solution to several related social problems, none of which actually responds to the fundamental, enduring needs of children.
Friedman considers the possibility that those needs were better served when paternal custody prevailed and one agent had a definite obligation to provide support, protection, and education. Existing evidence suggests that contemporary custody arrangements generally do not produce beneficial effects for parents or children. The search for alternatives must acknowledge and address the structure of indifference.
Friedman’s approach to the evolution of child custody laws and practice is more sociological than historical. She stresses the impact of impersonal forces and effectively dismisses the role of individual agency, either male or female (with the exception of judges), in the rise of maternal presumption of custody. She also minimizes the possible significance of the changes in women’s lives during a period of major transformations in female roles and opportunities. Her insistence on the role of broad social trends versus national differences occasionally seems over-stated and contradictory, as in the following generalization:
- “Yet the sense of the period – in the United States, though not so much in France or England – is one in which the welfare obligations toward children and mothers were growing….” (p. 109)
Despite these imperfections, the book contributes a sophisticated, thoughtful analysis of the interaction between the family and the state to the growing body of literature on state and society. Both the subject matter and the argument will interest historians working on issues pertaining to women, childhood, and the family in late-nineteenth- and early-twentieth-century Western settings.
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by Robert Whiston FRSA
Based on a March 2014 article in the The Register Citizen (Connecticut), by Andy Thibault
The judiciary as a whole cannot abide being told they are doing a poor job or are falling down in the proper administration of the law. They cannot abide being criticised when the grotesqueness of their failings are as plain as the noses on their faces.
Can you believe, for example, that the official body in England with responsibility for judicial conduct handed out a formal warning to a High Court judge who they deemed ‘outspoken’ in his support of traditional marriage ?  Would that have happened even 10 years ago if a judge had spoken out in favour of same-sex marriage ? Of course not. That would have been viewed as quite acceptable and, indeed, it has been legalised this year.
No, the judiciary would rather blame others, or swear black is white rather than admit they have it wrong. So, if these shrinking violets are too sensitive to criticism and find these home truths too intimidating, let us help them to look overseas. To gauge whether “if the same hat fits” elsewhere as it does here in Britain, lets see if the bungling is any worse or the same.
If we look across to the New England state of Connecticut we find a realisation, at last, of the full denial, by the courts, of rights granted under their Constitution – in much the same way as our courts defeat the intention of Magna Carta and other bills of rights etc, such as UN Conventions.
With Putin’s thugs in the Ukraine aping Hitler’s government-by-thuggery of the 1930s in Czechoslovakia, and North Korea stomping its tiny feet this week in yet another trumped-up paddy (excuse the unintended pun), lets look at how not-very-different-from-them we really are when it comes to some human rights.
The main complaint in the UK is the dread secrecy surrounding anything to do with Family Courts.
- “The fact is, family courts are like North Korea. In North Korea they can deprive you of your freedom and your wealth without due process. In family court they can also deprive you of your freedom and your wealth without due process.”
Anyone who has been through the family courts knows how accurate this description is. But these aren’t the words of an English legislator – they wouldn’t have the temerity – no, they belong to State Representative Minnie Gonzalez and Edwin Vargas describing their Connecticut family courts regime – and both, coincidentally, are not lawyers.
As they point out, in North Korea citizens are murdered with impunity and while family courts don’t exactly ‘kill you’, they do crush the life out of parents on a regular basis as surely as north Koreans are starved to death. For a great number of parents not being able to see your child is as good as being starved to death.
For 20 years the English judiciary has, bit by bit, reluctantly acknowledged that all is not well. Greater progress than ever has been made in the last 12 month with the president of the family division, Lord Justice Munby’s pronouncements, though nothing tangible can be counted to date. ‘Transparency’ is the latest buzz word but is this another case of rhetoric over reason, of time-wasting by window dressing antics rather than solid action ?
How familiar does the following Connecticut assessment sound to English ears ?
- Aggrieved parents who have not been able to see their children for years put so much heat on the legislature and the judicial branch that even Chief Justice Chase Rogers has acknowledged some sort of reform is needed.
For her part, the near 60 year old Chief Justice Chase Rogers prefers to characterise the system as not quite “totally broken” – the obvious inference (which dare not speak its name) is that it is totally broken. As the famous riposte of Mandy Rice-Davies would have it, “He would say that, wouldn’t he.” (see Profumo Scandal, 1963). 
Left: Chief Justice Chase Rogers, born Nov 12th 1956.
And how familiar is the following complaint from parents ?
- Many of these parents trapped in the system have shelled out huge sums – tens and hundreds of thousands of dollars – not only to regular lawyers, but also to court-ordered and unsupervised guardians.
Some reporters are starting to wake up and in the vanguard is Connecticut based Andy Thibault who writes a weekly column for ‘The Register Citizen.’
Interesting parallels are drawn in Andy Thibault’s article between probate courts and family courts as both are, in effect, closed off from public scrutiny.
This ground is incredibly fertile for responsible legislators and reporters to uncover which court shafts citizens’ worse – probate or family. Both courts share the shield of doing much of their business out of public view.
In the aftermath of the 2008 banking crisis, financial institutions have continued their disgraceful behaviour by foreclosing on homes they don’t even own. Fraudulent papers have been presented to courts that in turn have not made the requisite enquiries and have rubber-stamped claims to repossess houses.
The inevitability of it all, its sheer momentum, is comparable to Gen. Sherman’s rape of the South and reminiscent of Atlanta’s Burning.
- “The system is broken … the system is letting these people down … they are losing their houses, they are losing their money,”
No matter that victims of family court have paid hundreds of thousands of dollars to lawyers they have virtually no hope of justice or relief from the onslaught.
Legal Aid has not been available in US custody cases and now it is no longer available in the UK, so we can expect the rise of the litigants in person (LiP). If justice is to be made available to all these comments are prescient: 
- “If the Judicial Branch will not take a step back to allow the flooded legal market to correct itself, perhaps what divorcing families really need is not an attorney, a therapist or mediator, but help from the FBI’s white-collar crime unit.”
Quite apart from divorce and custody issues but definitely linked to family courts is the matter of perjury. Courts almost encourage perjury in the obtaining of restraining orders and ouster / eviction notices. It has been a problem in England and Canada for many years and is clearly a problem in the US.
Perjury is at higher nominal levels because in custody hearings claims, often false, of domestic violence are common. These are made in order to ensure sole mother custody awards. In Sept 2000 the obstacle it caused was highlighted in a submission by Louise Malenfant entitled “Perjury in Family Courts” which asked, “Are we fueling violence ?” 
The conclusion is that on both sides of the Atlantic, family courts are in a sorry mess and the chances of obtaining any semblance of justice are slim. Not only is this clinically depressing for combatants but, and perhaps surprisingly, for judges too. More than a few in England have given up family court work altogether as it is too emotionally draining on them. And we have only to look at Mr. Justice Coleridge of the High Court to realise that many more are so dissatisfied (see reference above).
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 “Judge Sir Paul Coleridge disciplined for stating views on traditional marriage.” Official body with responsibility for judicial conduct hands outspoken High Court judge a formal warning. 17 Dec 2013 http://www.telegraph.co.uk/news/politics/10523138/Judge-Sir-Paul-Coleridge-disciplined-for-stating-views-on-traditional-marriage.html
 “Senior judge orders greater transparency in family court judgments”, Guardian, 16 Jan 2014. http://www.theguardian.com/law/2014/jan/16/judge-transparency-family-court-judgments , see also http://www.familylawweek.co.uk/site.aspx?i=ed61385
 ‘Opinion: In Defense Of Self-Represented Litigants’ 27/3/14
 Perjury in Family Courts – Alberta Submission to the Unified Family Court Task Force, September 2000 – Are We Fueling Violence ? http://sharedparenting.wordpress.com/2013/07/17/34/ . Presented by Louise Malenfant Family Advocate of Parents Helping Parents Edmonton, Alberta.
Have you ever been puzzled – even stunned – by events and why they either happen so rapidly or seem never to reflect the opinion of the general public ? The answer is the insidious power of “Agenda Setting.” It is an art form and when used skillfully can be devastating.
Let’s not kid ourselves – politics and reasoned debate stand no chance when “the fix is in.” But how does it work ? Stuart Birks, the Director of the Centre for Public Policy Evaluation, Massey University in New Zealand briefly lifted the skirt on this topic during a seminar in 2008.
Regardless of the specific subject (child custody, cohabitation, shared parenting, domestic violence etc), somewhere, someone’s ‘agenda’ lies behind it – and social policies seem forever to be the victim.
New Zealand Centre for Political Research (NZCPR)
(26 October 2008)
Guest Speaker : Stuart Birks (Massey Uni)
“It would be nice to believe that the current election campaign would consist of well-informed debate on important issues. Ideally, there would be a good airing of the best alternative policies. Politicians, armed with the facts, would debate openly without being tied to agendas, hidden or otherwise. Let’s be honest, though. That is not what is happening. Nevertheless, according to some theories, the world is rational, everyone is logical, and there is no false information!
If we were to go back two hundred years or so, we would find that logic, aiming to prove, and rhetoric, aiming to persuade, were given equal emphasis in education. Persuasion is central to the operation of politics and is actively pursued through the media.
There are large numbers of PR [public relations] people employed in the public sector. Political parties do their own polling to monitor public opinion, and ‘push polling’ is used in some countries to sway respondents. ‘Social marketing’ is growing as a specialist area, with numerous taxpayer-funded social marketing campaigns in New Zealand, especially in the area of health and violence (as with “It’s not OK”, http://www.areyouok.org.nz/).
Numerous theories have developed to describe this activity and to explain its effects. Some writers see politics as competition between groups which are aiming to set the policy agenda, promoting their issues and denying alternatives. Others consider ways in which agenda setting is done, ‘framing’ issues so that people see them from their preferred perspective. Here are three examples of prominent perspectives:
- Global warming is happening, and we must reduce carbon emissions.
- Maori social problems are a result of colonisation.
- Family violence is men’s use of force to control women and children.
The use of language can be important, promoting key words and phrases that trigger desired responses, such as Labour’s use of ‘hollow men’, ‘flip-flops’, ‘slippery’, and ‘trust’. All parties do this, but the Labour Party has drawn attention to the approach through a paper by Curran (details below).
There is a good reason why views can be influenced in these ways. Most policy issues relate to things about which people have little direct experience. Therefore they have to rely on others for their information. In addition, the issues are not ones that they can do something about individually. Owing to their complexity, the number of people affected, or the costs of intervention, co-ordinated action is needed.
So people begin by being poorly informed, and they generally have little incentive to put in much effort to become well informed.
Consequently, they rely on readily available information, such as that provided through the media and by politicians in election campaigns. They are in no position to accurately assess the quality of the information, and are likely to accept the commonly accepted views that they hear, including the views of the people around them.
This is what Hardin has called ‘street-level epistemology’. People’s understanding is simply what has been passed on by others, generally with little attempt at verification. This is natural enough. After all, even so-called experts begin by learning what others tell them. However, it does mean that we can be misled.
Language and lexicon
We can speculate by considering the current election in terms of actions by people who subscribe to these theories about framing, use of language, and setting agendas. What if political strategies were chosen as if it were a game of thatnature? Anthony Downs, in his book, ‘An Economic Theory of Democracy’, specified a set of propositions based on rational individuals and only accurate information.
We could present alternative propositions based on agendas and shaping views. I summarise some possible propositions here. They are discussed in more detail in my paper at: http://ssrn.com/abstract=1257860. There is a key term, ‘traction’, that you will hear in political debate. An issue or idea has traction when sufficient people consider it deserving of attention. It gets media coverage and others respond. There may be enough support to result in a policy response.
So what are the implications? Only so many issues can be on the agenda. There is a limit to the attention people can give, and news bulletins include only a few stories. Politicians can only consider so much new legislation, and the more they consider, the more superficial the assessment. So there a limited number of issues have traction at any one time. Parties aim to achieve traction on their issues and prevent traction on others, and they are more likely to invest in an issue with traction than to generate traction for a new issue. Perspectives can be narrow, with ‘quick fix’ simple solutions.
If traction is so important, we should be concerned about how it is determined. The media play an important role. They are more suited to some kinds of coverage than others. Image tends to dominate over substance, and there is effective imagery thatcan ‘push buttons’. It is easier to generate traction through celebrity support than through detailed, informed presentation of information. In general, the media are not aiming to change views. Rather, they tend to reinforce the prevailing pattern of issues with traction. [However, the recent Murdoch/ News of the World scandal of 2012 might re-write that aspect – Ed].
If propositions such as these describe the political scene, there is unlikely to be detailed policy analysis or monitoring, and many problems will only be recognised and addressed when they are too serious to ignore. While it is often said thatwe get the government that we deserve, there are institutional biases thatwork against good, reasoned government. These limit the quality of government that can be expected. It may be possible to moderate their effect, but nevertheless, there is a strong likelihood that politics will be dominated by crises. This might help to explain the sub-prime mortgage crisis that is affecting the whole world.
E N D
Birks, S. (2008) An Economic Theory of Democracy Revisited – Downs with Traction Available at SSRN: http://ssrn.com/abstract=1257860
Curran, C. (2006). Language matters; Setting agendas – taking charge of the language Paper presented at the Otago/Southland Labour Party regional conference. from http://www.whaleoil.co.nz/Files/Language_Matters.pdf.pdf.
See also http://www.nzcpr.com/guest121.htm
Note: Stuart Birks is the director of the Centre for Public Policy Evaluation at Massey University, Palmerston North. He is an economist with a focus on policy formulation and implementation.
An extract from Men’s Aid response to the latest Law Commission Report, No.198 ( March 24th 2011).
“The people and the pursuit of happiness” versus “an elite and state-planned misery”
In Jan 2011 the Law Commission published Report No.198 “MARITAL PROPERTY AGREEMENTS.” The report examined the future of pre-nuptial agreements and whether they have a role to play in the British legal system. Hitherto, pre-nuptial had been illegal and non-binding because they were considered “contrary to public policy.” The followuing is an excerpt from a response submitted by Men’s Aid comprising the Executive Summary and Conclusion. Men’s Aid’s full submission wil be made available shortly. The Law Commission’s full report can be acessed at: http://www.lawcom.gov.uk/docs/cp198_press.pdf
What is ‘contrary to public policy’ ? It might be helpful to begin by explaining this term in Englsih law. For a marraige contract (or any contract) to be valid and not void it must be freely entered into and not be the result of, for example, coersion, blackmail, duress or bribery. These are “defective formalities.” Prior to Lord Hardwicke’s Marriage Act 1753 there were no formalities (pre-conditions) for a valid marraige. Public policy after 1753 included the requirement of ‘publicity’and free consent so that secret weddings and kidnap weddings would cease to be valid. Over time it has been ruled that an agreement between the parties not to consummate their marriage is void and ‘contrary to public policy’ (see Brodie v Brodie  P 271). Similarly, polygamy is not valid (see also Postscript at foot of page).
The vision and the boldness of the Law Commission is to be commended. It is obviously adhering to its 1965 remit of clearing out obsolete and cluttering laws
The preceding decade has seen a variety of high profile celebrity cases where settlements have reached astronomical proportions (millions of pounds) which are quite unrelated to any reasonable want or need of the (usually) female spouse.
Divorce lawyers and the judiciary have realised this unedifying sight is not bringing them any public respect or admiration. It is lawyers and family solicitors who, since about 2007, have been calling for change (‘Overhauling of our divorce laws’, The Times, Oct 5th 2007).
Conventional legal advice was that if you wanted to protect yourself by entering into a pre-nuptial agreement you could do so, but there was no guarantee that your divorcing spouse would be held to it, or that the court wouldn’t set it aside.
The introduction of Marital Property Agreements (MPA) and nuptial agreement would appear to signal the end or at least negate the need for the Matrimonial Causes Act of 1973 (MCA). The raison d’être for the MCA to continue bearing down on, and being enforced against, divorcing couples falls apart.
In that regard nuptial agreement must represent a step change from Sect 25 of the MCA 1973 (the ‘ancillary relief’ obstacle course).
It is intended that a pre-nuptial contract will override, or usurp, the normal powers of the Family court. The Law Commission refers to them as Marital Property Agreements or MPAs. They have the ability to place a ringfence around named assets and monies which the courts and divorce settlements cannot touch. The scope of this protection could be enormous. It could limit, for instance, the savagery of ancillary relief ‘larceny. It is envisaged that couples could enter into asset/property protective agreements before their wedding (pre-nuptial) and that already married couples would also be free to enter into similar agreements (post-nuptial).
The major question asked in the Report is whether or not ancillary relief should be reformed as a result ? Our answer is ‘yes’ it should and must. We would go further and support the argument for the ousting of courts from the whole process, i.e. adopt marital property agreements for ancillary relief, etc.
Couples are currently constrained to work with the shadow of the law looming over them. This situation would be transformed with the introduction of Marital Property Agreements. ‘Certainty’ would be restored to an area of the law where confusion has reigned for too long.
Marital Property Agreements (more commonly known as ‘pre-nuptial contracts’) are a comparative novelty in the 20th and 21st century but were previously not uncommon, e.g. in the 19th century.
As a consequence there will be a ‘learning curve’ for all concerned (inc. professionals and divorcing couples). Not all the contingencies can be predicted. We must be prepared to make minor alterations and expect to firm-up criteria, not initially but as experience is gained.
We must also be prepared to let go of administering people’s lives in detail (micro-management), which has been the hallmark and mindset of institutions in the late 20th century.
Mediaeval ecclesiastical sources corroborate that it was not uncommon for a wealthy man to agree to settle around one third of his wealth on a former wife. Spousal separation – but by death – gave rise to the dowager’s share as her son inherited the title and estates and was again about 30% of the dead man’s estate or rents in lieu thereof as ‘maintenance’.
This rule of thumb apportionment was used up until the 1960s and was only changed by the MCA 1973 which increased the proportion due a divorced woman to 50% or any reasonable figure above that figure which it was thought was needed to maintain her.
The dowager share was, of course, of little consequence to field hands and the urban poor for over 600 years since 30% of what they possessed amounted to pennies. However, the material affluence of the post 1945 era changed all that.
Pre-nuptial contracts offer the citizen an unprecedented opportunity to seize back control of his and her own destiny. They epitomise free will and the free choice of both parties to form a binding pre or post-nuptial agreement that will apply to them and them alone. It is vital that this free choice smash any fetters from the previous era of centralised administration.
In conjunction with the Consultation Paper’s view, we can envisage Matrimonial Causes Act 1973 especially Sect 25, Sect 34 and Sect 34 becoming obsolete overnight. The ability to control and determine maintenance agreements (MCA, Sect 34), would fall into line with DWP thinking concerning individual couples negotiating levels of child support payments. In the case of the DWP it is heeding the Henshaw Report’s recommendations and in the case of the latter it would be complying with the aspirations of the Law Commission for “autonomy.” (See also XXX).
The Law Commission always refers to nuptial agreement as “Qualifying Nuptial Agreement” meaning that they must contain certain elements. In our opnion, qualifying nuptial agreement should not be hamstrung in any way. It will be logical for a qualifying nuptial agreement to contain a range of assets including a marital property agreement and for such agreement to span the post-marital disposition of assets, money and wealth.
Freely entered into contracts should also be capable of determining the level of spousal and children support /maintenance together with qualifying conditions. The content of the agreement can / should also incorporate dissolution provisions.
The point is well made by the Law Commission regarding protecting family companies from the ravages of ancillary relief. They have suffered disproportionately in divorce settlements with some going into liquidation and others being forced heavily into debt.
Some fears have been expressed regarding non-disclosure, accuracy of disclosure, and the waiver of rights to disclosure. However, we feel the Law Commission has dealt comprehensively with these different fears.
The Law Commission points out that the management of disclosure – as already experienced by those practitioners currently engaged in pre-nuptial agreements – closely resembles current negotiations for ancillary relief. This departure into pre-nuptial contracts should, therefore, not impose requirements for a new skill set or represent a new cost disincentive.
The single biggest change will be that pre-nuptial contracts will no longer be of questionable validity in the family courts – as had hitherto been the case. Under ordinary ‘contract law’, the contract freely entered into (MPA) will be binding on both the parties and not (ordinarily) subject to court interference. Where one party is handicapped or disadvantaged in some way, i.e. did not receive legal advice, then again under ordinary ‘contract law’, a binding contract will not have been formed.
Disquiet can be detected and is felt keenest among those of limited income if they each have to seek out their own ‘legal advisor.’ This ‘unnecessary’ (meaning avoidable) cost may well put a brake on the ‘take up’ of nuptial agreements but this is not insurmountable.
We can see the argument for a qualifying time period which could allow parties to reflect and consider their agreement clauses. However, if the Law Commission believes this serves no useful purpose we would acquiesce on the matter.
Allowing nuptial agreements to be set aside or varied as the Law Commission implies on several occasions, defeats the purpose of nuptial agreements and kills off “certainty.” Only in extremis should courts have the power to set aside or vary clauses. Society and the Law Commission must reject the presumption that life is risk-free. It is not. With or without contracts, risk and hardship occur.
Safeguards should be explicitly defined in any pre-nuptial contract to minimise the need for court intervention, specifically, provisions agreed by the parties for fairness and equality provisions.
Overall, the Law Commission has set out a paper with such eminently sensible proposals that it commands our support.
There is one complication that has not been mentioned so far and which may have severe implications on the how the Consultation Paper turns out. The complication is Elizabeth Cooke (pictured below), who has recently been appointed to the Law Commission. Ominously, she has responsibility for property, family and Trust law (http://www.lawcom.gov.uk/property.htm). Formerly of Reading Uni. she has co-authored books with Anne Barlow and Brenda Hoggett (now Baroness Hale).
- “The Land Registration Act 2002 and the nature of title”
- “Cohabitants, Common Intention and Contributions”
- “Community of Property – A Study for England & Wales” by A. Barlow, T Callus and E Cooke (2003)
- “Land Law” (Oxford UniversityPress, 2006)
- ‘Community of Property: a regime forEngland & Wales’ (Nuffield Foundation, 2006): research report co-authored with A Barlow and T Callus)
At meeting held atPortcullis House, on March 31st 2009 between MPs and legal professionals ‘community property’ laws of the sort operating in the US were mentioned as an alternative to our present Land Law system. The one reformist speaker, Elizabeth Cooke, with most experience of land law and community property laws was not at all enthusiastic towards the latter.
Questioned as to the reasons for her reluctance she never stated the nature of her reservations but she accepted it brought with it other “complications.” Could it be that property division along community property lines would actually limit larceny by the courts and leave divorced men with some/more assets than at present ?
The vision and the potential to recast the future contained within Report No. 198 puts it head and shoulders above all other recent Law Commission reports.
With this in mind 2011 might well prove be the year when the philosophy of statism, the monolithic straightjacket of the state inflicted on a passive (or resisting) society is finally broken not only across the Arab world but in Britain too.
Georg Wilhelm Hegel’s view (b.1770 – d.1831), of the historical inevitability of modern institutions personifying the modern nation state is an ideal overturned by this Report. The Hegelian ideal that sovereignty and idealism ranks above the people who constitute the nation is coming to an end.
In matters matrimonial and dissolution we have not, in the past, been overly impressed by the Law Commission’s approach or its moral value systems. We recall the destructive influence exerted by self-confessed feminist Brenda Hoggett in the 1980s and 1990s as the Law Commissioner in charge of family law.
However, on this occasion we have to concede that the ideas contained in Report 198 sets it on a par with the repeal of ‘breach of promise’ (HC 453), Report No 26.
Messianic views, which on occasion had appeared to overtake the family law section of the Law Commission during the 1980s, now appear to be repudiated by this latest Report (No 198) into MPA, specifically we cite this as one of many examples that used to influence policy:
- “Family Law no longer makes any attempt to buttress the stability of marriage or any other union …. Logically we have already reached a point atwhich, rather than discussing which remedies should be extended to the unmarried, we should now be considering whether the legal institution of marriage continues to serve any useful purpose”.  – Brenda Hoggett.
In our view it is commendable that the Law Commission has gone back to its 1965 roots, namely that of clearing out clutter and obsolete legislation that is no longer relevant or useful to society. The Law Commission should be applauded for its bravery.
We therefore welcome the introduction of nuptial agreements.
But is this a lasting epiphany ? We suggest that literally millions of men, and (we suspect) millions of women, would appreciate knowing where exactly they stand with regards matrimonial separation.
There will be those for whom the concept of nuptial agreements is so new that it will induce trepidation or even rejection. It will be difficult for some to throw off the shackles they have become so accustomed to wearing. However, the advantages of pre and post-nuptial contracts will soon become evident and the reservations will thus fade.
The onus is on the Law Commission to make laws simple, straightforward and understood by the great majority of the population. Pre-nuptial agreements (contracts) achieve this aim.
Should this Consultation Paper fails on every aspect but one in its endeavour, let it succeed in the abolition of ancillary relief (section 25) hearings in their present format.
It is a pity that reform of ancillary relief and a review of Sect 25 is not fully within the scope of the present Consultation Paper (Para 5.64 and 5.65). In our view reform or abolition of Sect 25 for it is long overdue. However, it is so contentious an issue that it is perhaps better to let sleeping dogs lie.
With nuptial agreements legalised and/or recognised by the courts then de facto Sect 25 falls by the wayside.
Divorcing adults are constrained to work with the shadow of the law looming over them. Reminiscent of poker players neither party is likely to voluntarily show their hand knowing that the Matrimonial Causes Act 1973 applies. Each is under duress not to settle for anything less than is theoretically obtainable under law.
‘Gambling’ in these circumstances is, we suggest, more likely to bring forth the “unconscionability” and “unfairness” element that the Law Commission appears to fear. We suggest adopting Marital Property Agreements (MPA), would actually put an end to this scenario.
We also share the alternative viewpoint that adopting MPAs (Marital Property Agreements) avoids the need for a structured formal review of ancillary relief at a later date (and avoid the tax-payer further expense).
The private ordering of one’s own life (free of state intervention), we see as a monumental departure from previous invocations (see Hegelism above). The ability to exercise a degree of latitude in one’s own destiny is a very mature acceptance that Society today bears little resemblance to immediate post war period of regulation by the state.
We see direct parallels between nuptial agreements and the marriage ceremony. The latter has to be freely – but not lightly – entered into by couples. We, therefore, see no need for special protection for the same couple to enter into pre or post nuptial contracts (versus a marriage ceremony), given that it is governed by contractual law and the caveats of disclosure, frauds and coercion – all of which have been thoroughly dealt with by the Report.
Theoretically, there are a million possible pitfalls when contemplating marriage but the reality is that few of them ever materialise. Equally, there are theoretically a million possible reasons to seek a divorce but, in actualtie, again there are but a handful of void and voidable marriages.
Hardly a social or legal reform document passes, it would appear, without the inclusion of the Married Women’s Property Act 1882 (or the preceding Acts). This consolidation Act benefited only a handful of wealthier women in England at the time, say 10%. It was, therefore, more symbolic and not the great breakthrough it has always been portrayed as representing. The Law Commission is, therefore, not alone in perpetuating this mis-information and of making the fundamental error in wrongly concluding that “relatively few married women were in employment” (see Fig 3).
That might have been true of 19th century middle class women but never working class women, i.e. the majority of women in the population. One has only to recall the Coal Mining Act 1842 which removed all women from mines – or the Liberal government of Asquith which introduced a series of social reforms prior to 1914. Asserting that relatively few married women were in employment is, at best, misleading.
We are accustomed today for 50% of the workforce to be composed of women. In 1939, whenBritainhad a population of 47.7 million (47,762,000), there were about 24 million of men and women of all ages (0 to 80+). Of these, 11 million men and 4 million women were paid employees. This ratio, as can be seen in the Table above (Fig 3), altered from 1 woman for every 3 men employed to 1 in 2 by 1952 (7 million women v 13 million men).
Women in domestic service are not shown in Fig 3 but would represent in 1882 approx. 1 million additional lower class but uninsured women employees. The decades leading up to 1939 saw numbers fall and almost disappear by 1945.
In the vein of the 1882 reforms, the Law Commission runs the risk of focusing too much on those with property and ignoring those with little or none. There is a danger of playing to a perceived audience without first checking the facts.
The Married Women’s Property Acts 1882 may only have been useful or addressed the needs of 10% of British women. The reforms outlined in Report No 198 – though desperately needed – may fall foul of a similar criticism. Reform comes on the back of high profile cases involving millions of pounds. We therefore reject the remarks contained in Para 2.11 as not only inaccurate but unfounded.
The opinion that, “marriage, by itself, has no effect at all upon property ownership”, does not appear to have impacted on the way in which courts deal with matrimonial property. To many this will come as a revelation because it is not how the courts have conducted themselves or justified their behaviour.
Are we to now believe that family courts have been misappropriating property, acting ultra vires, or confiscating it under the guise of legally, all along ? If this is the implication it seems too late and a moot point for millions of citizens.
The other revelation by the Law Commission, namely that maintenance has not been overhauled since 1857 is a damning indictment and should give every impetus to the acquisition and implementation of pre-nuptial contractsat the earliest possible moment.
A modern society cannot be burdened with an 1857 mindset.
The clinching arguments for switching to pre and post nuptial agreements and away from MCA 1973 are that it would; a).provide for certainty, b). autonomy and c). bolster marriage, ata time when it is realised that the falling marriage levels do not bode well. 
However, we should not forget thatin “The Field of Choice” (Cmnd 3123), the Law Commission proposed that its reforms had the following seven attainable objectives:- 
Marriage has been everything but buttressed. Critics would say the Law Commission failed in all its objectives and the only ones to have enjoyed relative success were, 2/. to enable the ‘dispatch’ of empty marriages, and 6/. to protect the economically vulnerable wife.
So should we, as a consequence, be wary of future Law Commission objectives / proposals ?
Is the 1857 mindset, or the Hegelism mentioned above, in evidenceat item 6 above which presumptively seeks to protect the economically vulnerable wife ? If it is, then it has crushed item 7 which seeks the respect of the public.
“Putting Asunder”, (pub. 1966), was the Archbishop of Canterbury’s alternative view to the Law Commission’s paper (The Field of Choice). The church sought a ‘post mortem’ for each divorce. The Law Commission, perhaps predicting the high level of demand, resisted any meaningful ‘inquiry’.
With hindsight we can see that the Law Commission won the day but in advancing pre-nuptial agreements which could contain clauses relating to dissolution (the when, why and how etc), we could be adopting the rejected conditions alluded to in “Putting Asunder.”
We are pleased to see that vulnerable family companies are now able to protect themselves from gold diggers (Para 6.71 and 5.53). Firmer steps may be required to close off attacks which might allow a party to profit from any future income increase.
A prime but non-company example of this is that of Ray Parlour the footballer. How can it be ‘equitable’ that a non-family member should share in his talents and success after divorce ?
Only Thorpe LJ (2004) could have concluded it was, “wrong for the earner to have sole control over that surplus during the next four years.” More Hegelism ?
Divorce should carry with it a degree of certainty if it is a legal process that is to remain respected. The state and their servants, i.e. the courts, must cease infantilising citizens. The autonomy of the common man must be respected.
a). Certainty – We have been a long-standing commentator of ancillary relief, complaining that it was such a hit-and-miss affair and so uncertain that a better regime needed to be found.
Reaching an agreement by use of an agreement seemed to us better and less stressful to both parties concerned. We estimated it might also be much quicker and cheaper. This, we are pleased to report, is what the Report now seems to accept.
When a relationship ends it is vital that certainty exists and that prior to that divorce certainty also exists in advance of the event. Pre-nuptial agreements, we feel, can supply that certainty. When there is no certainty (as under the MCA 1973 provisions), a cat and dog fight is always on the cards.
It is in no one’s interests to have open ended financial liabilities or be subject to financial agreement that can be re-opened at will. Divorce is already a costly exercise and the idea of avoiding protracted litigation costs is to be embraced whenever possible. Similarly for custody, where legal fees and court time can sometimes exceed divorce costs. The need for certainty is essential and a timely reccomendation.
Pre-nuptial agreements can stipulate the ‘why’ and the ‘wherefores’ – how much time is spent with each parent and rotas agreed. Decisions such as sole or shared parenting can be agreed and the sharing, or not, of Child Benefit payment can also be encapsulated within MPAs.
A number of cases have, since 2006, set new precedents and undermined the received wisdom vis-à-vis property and maintenance. The once sturdy principles governing ancillary relief today look decidedly shaky. The unresolved issues arising form recent cases can be adequately and fairly dealt with by introducing pre and post-nuptial contracts.
The vast majority of divorces (as the Law Commission’s report states) involve couples with either no assets or very few. The Law Commission’s attitude (Para 5.36), might be interpreted as letting the poor fend for themselves and of concerning themselves only with the wealthiest 10% in society.
On that basis we have to disagree with the Law Commission in its appraisal of how money and assets of the poor (those on low incomes) should be allocated. It is too simplistic and too onerous on low income earners to leave the matter at presuming the bulk of any ‘wealth’ will go to the former wife and children, or that the children should be prioritised.
The Law Commission perhaps forgets that arguably this perpetuate the encouragement to divorce -bearing in mind that in most countries including Britain, over 70% of divorce petitions are brought by women (see also age / divoerce expectations in Japan, ref. graph above).
“To meet the needs of the parties insofar as that is possible” (Para 5.36), is code for money transfers and wealth re-distribution from the man to the woman. Put another way, husbands are to be cashed-in as if they were a maturing insurance policy.
Wealthy women tend not have their assets and money ‘re-distributed’ to the man they are divorcing and one has to ask why ? A husband wanting to cash-in his wealthy wife meets with little success. Is this just a coincidence ?
This MPA (Marital Property Agreements), paper No 198 has given due consideration to matters related to conduct, fairness, disclosure, injustice, etc. It is therefore only fitting that the reciprocal be advanced as to whether or not the children should be prioritised ?
This question has never been fully answered or justified given that the poverty of second marriages is worse than for the first family and that the whole purpose of the 1969 divorce reforms was to make remarriages not only possible but attractive. Ironically, as the graph below depicts, remarriages were running ahead of divorces before the 1969 reforms and the upward swing from 1956 to 1969 became a stuttering plateau.
The thinking of behind prioritising the first family does not reflect the fact that the DHSS criteria in the 1970s switched from ‘contributions’ based benefits to ‘needs’ based benefits. Post-Finer Report, a woman no longer had to show a contributions record but simply show she was ‘in need’ of support.
The thinking also does not reflect the popularity, following the 1969 reforms, of cohabiting or serial monogamy after divorce.
Government and the Law Commission must come to realise that expecting a working mother not to go out to work simply because she is now divorced is incongruous when she went out to work and supported herself prior to the divorce. Fortunately, government at least has adjusted its position on this.
With shared parenting on the legislative drawing board and thus day-to-day care of children split, the need for prioritising the first family’s needs diminishes. The first wife will find she can more easily go out to work. We therefore forcefully reject the statement that, “There are no other possibilities” as ill-founded.
b). Autonomy – We find ourselves fully in agreement with the Law Commission’s proposals validating the right of the individual to self-determination. We see this as step change in how the state treats its citizens (Para 5.24 – 5.26).
We strongly support the argument cited in the Law Commission’s proposals that the most frequently heard reason in favour of reform is the ‘autonomy’ aspect.
We can add nothing to the views contained in Para 5.24 (i.e. ‘husband and wife are stuck with equality, however inappropriate they may both agree it to be and you must leave it to the judge who dissolves the partnership’).
If the proposal to validate pre and post-nuptial contracts provisions is adopted then society irrevocably moves into the secular world where marriage is no longer a covenant but a contract.
We share the judicial and Law Commission view that the law of ancillary relief is paternalistic and that not only is it “inappropriate in a modern world” but it doesn’t work.
It has long been our view that ancillary relief is, indeed, “patronising, in particular to women” and we agree with Lord Justice Wilson’s observations regarding ‘starting point’ and accepting the consequences.
Reservations centered on undue pressure or coercion which occur constantly in the text can be counteracted by imposing certain pre-conditions for the validity of a nuptial agreement to be binding. The taking of legal advice (Para5.30), for instance, should assuage many of these reservations.
c). Bolster marriage – It is interesting to learn that both advocates of reform as well as those opposed to it argue that ‘their position’ supports the institution of marriage. Can both be right ? In our view, certainty together with autonomy can only have a beneficial influence.
A rapid travel back in time using statistics might reveal the truth of the claims. The graphs below show whathappened to marriage numbers when the new divorce legislation was enacted.
Following the 1969 reforms – which at the time were said to have only a short term effect on both marriage and the numbers divorcing – divorce was immediately impacted and but so too was marriage and arguably it has also never recovered since (Fig 5).
The Divorce Reform Act 1969 was enacted in 1971 and that year saw a significant fall in marriages and the setting of a long lasting downward trend.
The onset of disillusionment and distrust of the judiciary appears to begun very early and gained pace. To this end the confiscatory examples set by Ormrod and Denning (manipulation of the Land Charges Act 1972, the creation of a beneficial interest etc) were unhelpful.
We agree with proponents who believe couples are dissuaded from entering marriage because only disincentives exist. The pernicious nature of ancillary relief has by now passed into urban folk lore and acts as a powerful deterrent.
We are not convinced by the line of argument that there is nothing to prevent open discussion of property matters before marriage (Para5.21). The telling time is when the relationship falls apart.
Promises and agreements reached in an idyll stand little chance of being complied with in ancillary relief hearings (or similar), unless they have been committed to in writing.
Were the family courts to operate in the manner the Law Commission’s paper envisages there would be less room to manoeuvre but the fact is the courts are secret and immediately that proceedings begin both the spirit and the letter of the law are abandoned.
Denning made a useful contribution when he said in any court case it was the judge who was on trial and not simply the defendant. Making transcripts available to the public would reveal how derelict the family courts have been in their lack of reasonableness, fairness, equality and justice required under Sect 25 (ref. ‘reasonable requirements’), e.g. Thorpe bizarrely ruling that bigamy laws were to protect only women and could not be relied on by men as a defence against a bigamous wife.
We have not differed with the Law Commission’s overall views in this Consultation exercise but we strongly disagree with the suggestion that pre-nuptial contracts will deter marriage and / or encourage divorce.
Given the high status of marriage in the 19th century, when pre-nuptial contracts were more widely used, we do not see their use leading to a devaluing of marriage. Indeed, quite the reverse.
To conclude: professor J K Galbraith’s book The Affluent Society (1958), became both a best seller and a classic. Galbraith traced the major currents of American economic thought in the 20th century, particularly the influence of Social Darwinism and Marxism.
The relative elimination of extremes of economic insecurity, Galbraith argued, led irrationally to production becoming the foremost concern in economic thought.
The advent of quick, cheap and painless divorce as the foremost concern of the 1970s mirrors closed economic thinking after 1945. Re-distribution of wealth through divorce is not a panacea without consequences in the same way that Galbraith pointed out that the dash for production carried with it a substantial price tag penalty.
The court will weigh up any financial hardship arising upon divorce against the public policy of dissolving a marriage that has clearly broken down. See Mathias v Mathias  Fam 287.
Grave financial hardship may be offset by a consideration of social security entitlements available to the respondent. See Reiterbund v Reiterbund  Fam 99. – ‘Family Law’ Robert Jago, http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/family/family_ch1to4.pdf
 The Times, October 5, 2007 http://business.timesonline.co.uk/tol/business/law/article2595064.ece
 ‘Ends & Means: The Utility of Marriage’ Hoggett B, 1980 (aka Lady Justice Hale, and later a Law Commissioner responsible for ‘family matters’).
 The consequences of non-marital living (because of low fertility rates v married couples), are increased social service costs in old age, lower living standards, a lower ‘tax take’, an increased NHS burden, a pensions dilemma and greater Treasury expenditure.
 Law Commission Report No 6 (1966) and the Royal Commission, aka the Morton Report, 1956.
 See ‘Sword and Wig’ by Lord Justice Robin Dunn for a commentary of these manoeuvrings.