State sanctioned kidnapping

‘Express & Star’  June 29^th 2001 (p 28)

 This is the first case of ‘child kidnap’ by Social Services that we became aware of.  FRM (Fathers Rights Movement) members from the Wolverhampton area joined together to provide legal advice, publicity and moral support to the entire family.

This case pre-dates the very good work done by John Hemming MP (Lib Dem)  in turning a searchlight into this dark and nasty recess.

A father who brought the M6 at Great Barr to a standstill for four hours by dangling from a gantry above the carriageway and threatening to jump has walked free from court.

Judge David McCarthy sentenced Jason Biddulph, aged 28, to eight months in prison but suspended it for two years after hearing of his sorry life.

• “I don’t think 1 have ever come across someone who has suffered so much exceptional misfortune in such a short period of time,” he said. 

The judge told the defendant he accepted that he had been ‘driven’ to stage his dramatic protest against society by a number of factors including having his children taken away from him.

Danger

Judge McCarthy said that he had read reports and letters submitted on Biddulph’s behalf and added:

• “I don’t think I have ever seen anything quite like it.”

Biddulph, of Whittington Oval, Stechford,Birmingham, had earlier pleaded guilty to putting something across the M6 which caused a danger to road users and appeared yesterdayatWolverhamptoncrown court to be sentenced.

Prosecuting counsel Mr. Richard Ace told the court thatthe M6 near junction seven had to be closed for four hours, causing chaos, when father-of-five Biddulph clambered onto the gantry on May 10 this year.

He put a rope in the form of a noose around his neck when police tried to talk him down then dropped himself over the edge, clinging on only by his fingertips [ an exaggeration and not true - Ed ].

Both carriageways of the motorway, the busiest stretch in Europe, were brought to a standstill during the police operation to rescue the defendant.

Judge McCarthy, who also imposed a two-year supervision order on Biddulph, told him:

• “You endangered people and you caused a huge number of people an enormous amount of inconvenience and frustration.”

Defending counsel Mr. Pardeep Tiwana said his client was in desperate need of help because of his many problems, including losing his children to care.

After the case, Biddulph said he was pleased that the proceedings had berm finalised and added:

• “The public were really unhappy because they were kept on the motorway for four hours.
• “But I bet there were a lot of people in that queue who also had a beef against social services and knew exactly why I was doing it.”

His mother Anne Biddulph, who had applauded when Judge McCarthy passed sentence, said:

• “I am not against social services keeping children in foster care, and neither is Jason if it’s the best thing for the children.”
• “When they are in foster care we can have visits with them. What I am against is social services going down the adoption road when there are so many other options.”

 

Postscript:

Sadly, the last word we had from Mrs. Biddulph, Jason’s mother, a few months later was that Social Services were indeed offering up the children for ‘permanent’ adoption agsint teh express wishes of the entire Biddulph famly.

Bearing in mind all the above, when the Dept of Constitutional Affairs invited submissions in res[ponse to it’s Green Paper and Questionnaire regarding how courts operated, we included the folowing comments:

 Transparency is the element lacking in all custody cases – public law and private law cases. If the judiciary is not doing anything to be ashamed of, it should not fear reporting and publicity. The benefits for government and the freedom from fending off persistent criticisms are obvious. Anonymity might be needed on occasions but can be used is absolutely vital but should be limited as we have specified above.

We hold this view following the first case we dealt with in May 2001 when the secrecy surrounding the enforced legal adoption by the courts of Mr & Mrs Biddulph’s  5 children came to our attention. Mr. Biddulph was driven to protesting on the M6 motorway and holding up rush hour traffic. He was given no real reason for the enforced adoption of all his children byBirmingham social services and his parents and relatives were not allowed to foster or adopt them. Instead his parents, and his wife’s parents who were in their  sixties or seventies were asked to collect any family memorabilia and place it in a tin box so that the children could be given the boxes when they reached their majority – by which time the grandparents would be dead. They would never again be seeing their grandchildren. They would have no idea where in the country the children would be living or even if they would be kept together.

This is not the conduct one expects from a ‘civilised’ state and we would do well to recall the consequences (and the shame) of the enforced ‘Germanisation‘ of Polish children during World War 2.

See:  http://www.dac.neu.edu/holocaust/Hitlers_Plans.htm#Germanizing%20action

See DCA Questionnaire Courts file – responses

The Link Between Wealth and Marriage

by Robert Whiston FRSA. July 2010

Based on “Gain and Loss: Marriage and Wealth Changes Over Time”, By Julie M. Zissimopoulos, RAND, September 2009

Public opinion holds that marriage, as an institution, is heading for the rocks. Politicians and the media recite the views of the chattering classes herding us, the general public, into the arms of cohabitation.

But is that such a good idea when the economy is not just heading for the rocks but crashed into them ?

Economic survival has overtaken personal preferences and political fashion. Pragmatism and the basic need to survive have dulled the attraction of alternative life styles and society has to re-appraise basic principles.

Why is cohabitation thought to be so good when since biblical times and before marriage has been the preferred option.

There must be more to this choice than custom.

This paper suggests there is – wealth and wealth creation, followed by wealth accumulation and inheritance.

For those who wish to have a family and see it flourish, all these factors bear on standards of living and progress as we commonly understand it.

This paper, by Julie M. Zissimopoulos, is not perfect, nor is it all that easy to understand but between the jargon it suggests there are clear reasons why marriage has always been the preferred option and why until the late 20^th century, divorce has never been encouraged by the state.

[Emphasis and italics added]

Abstract

Family composition has changed dramatically over the past 25 years. Divorce rates increased and remarriage rates declined.

While considerable research has established a link between marriage and earnings, far less is empirically understood about the effect of marriage on wealth although wealth is an important measure for older individuals because it represents resources available for consumption in retirement.

[It would also be fair to say that far less attention has been paid to the effect of divorce on, not income which has been covered to a fair degree, but wealth and wealth creation – otherwise known as “ asset worth” - RW].

In this paper we employ eight waves of panel data from the Health and Retirement Study to study the relationship between wealth changes and marital status among individuals over age 50.

This research advances understanding of the relationship by first, incorporating measures of current and lifetime earnings, mortality risk and other characteristics that vary by marital status into models of wealth change.

Secondly this paper measures the magnitude of wealth loss and gain associated with divorce, widowing and remarriage.

Thirdly, it estimates wealth change before and after marital status change so the change in wealth change is not the result of individuals entering or leaving the household and other sources of unobserved differences are removed from estimates of the effect of marriage on wealth.

Our results suggest no differences in wealth change over time among individuals that remain married, divorced, widowed, never married and partnered over 7 years.

In the short-run there are substantial wealth changes associated with marital status changes.

[ The ‘static state’, when measured, i.e. when married or divorced persons decide to remain in that marital status, shows little or no change (in this instance 7 years). The’ dynamic state’, i.e. when married or divorced persons decide to alter their marital status, however, does impact wealth and wealth creation considerably – RW]

Divorce at older ages is costly, remarriage is wealth enhancing and people appear to change their savings in response to changes in marital status.

NB. The research reported here in this paper was made possible by a grant from the U.S. Social Security Administration (SSA) funded as part of the Retirement Research Consortium (RRC).

The findings and conclusions expressed are solely those of the authors and do not represent the views of SSA, any agency of the Federal Government or the RRC. I thank Joanna Carroll for her excellent programming assistance.

1. Introduction

Family composition has changed dramatically over the past 25 years. Divorce rates rapidly increased from the late 1960’s through the 1980’s and remarriage rates have declined (Cherlin 1992).

Considerable research has established a correlation between marital status and socio-economic status, particularly a positive relationship between marriage and male earnings (Korenman and Neumark 1991; Lundberg and Rose 2002; Loughran and Zissimopoulos 2009).

Considerably less attention has been paid to the effect of marriage on women’s earnings because of the strong correlation of marriage and childbearing.

One exception is Loughran and Zissimopoulos (2009) and they find marriage lowers female wages the year of marriage and wage growth in subsequent years.

[ This view excludes the work done by George Gilder “Sexual Suicide” and “Garbage Generation” by Damiel Amneus, on pay differentials by sex – RW].

While income is a critical measure of well being, wealth is an important complementary measure and arguably the most important measure for older individuals because it represents resources available for consumption in retirement.

[ Divorce settlements, by focusing exclsuively on short term income- related compnrsation packages do not address the long term impovrishement caused by divorce – RW].

Far less is empirically understood about the effect of marriage on wealth compared to the effect of marriage on earnings although theory suggests it is likely to be important.

An important implication of economic models of savings with no uncertainty (or agents maximise expected utility) and perfect capital markets is that consumption is determined by permanent income.

This implies that changes in permanent income are consumed and temporary changes are saved. Relaxing these assumptions provides a role for both permanent and transitory income in consumption and savings decisions.

Changes in marital status that affect permanent income will change consumption levels.

Moreover, changes in marital status will affect wealth depending on whether the change is considered transitory or permanent. For example, the behavioral response to a separation or divorce expected to be temporary may be to lower savings to avoid a drop in consumption. Lupton and Smith (2002) find dis-saving is most common the shorter the duration in the non-marriage state as households attempt to maintain prior consumption levels. Consumption and savings behavior may change prior to the event. For example, Zagorsky (2005) found that savings declines begin prior to divorce.

Other hypotheses regarding the effect of marriage on wealth include economies of scale (Waite 1995), mortality risk (Lillard and Weiss 1996), children and inter-vivos transfers and bequests (Hurd, Smith, Zissimopoulos 2006), precautionary savings (Mincer 1978) and retirement planning.

Married couples may consume many goods and services jointly (entertainment, housing) for the same cost as a single person. These economies of scale may translate into additional wealth or additional consumption.

Marriage may produce better health, thus married couples will save more to protect against outliving their resources. On the other hand, marriage reduces risk associated with fluctuations in income and thus may lower precautionary savings against income shocks or other shocks.[1]

In sum, there are many pathways through which marriage and wealth are associated.

Moreover, the consistent empirical finding of a relationship between marriage and wealth suggests its importance as an area for further study.

Yet, challenging this estimation of the empirical relationship between marriage and wealth is the non-random sorting of individuals into marriage. For example, low-income families are more likely to divorce or experience widowhood than high-income families.

Prior empirical studies have been hindered by a lack of control measures for permanent income and by use of cross-sectional surveys and short panels that are ill-suited for distinguishing between selection and behavioral response.

In this paper we employ eight waves of panel data from the Health and Retirement Study to study the relationship between wealth changes and marital status among individuals over age 50. As stated above, this research advances understanding of the relationship by:

1. incorporating measures of current and lifetime earnings, mortality risk and other characteristics that vary by marital status into models of wealth change
2. measuring the magnitude of wealth loss and gain associated with divorce, widowing and remarriage
3. estimating wealth change before and after marital status change so the change in wealth change is not the result of individuals entering or leaving the household and other sources of unobserved differences are removed from estimates of the effect of marital status on wealth.

The remainder of this paper has the following structure. The next section summarizes describes the data and derivation of key variables. Section 3 presents main results for wealth levels and changes and for individuals that do and do not change marital status. The final section concludes.

2. Data

The research relies on longitudinal data from the Health and Retirement Study, a set of biennial surveys first fielded in 1992 and 1993 by the University of Michigan with the objective to monitor economic transitions in work, income and wealth, and changes in health among those over 50 years old.[2] We use data from survey waves 1992, 1993, 1994, 1995, 1996 and biennial thereafter to 2006. [3]

We use data including all cohorts with the exception of the 1948 to 1953 birth cohort added in year 2004 for which insufficient waves of data for this analysis have been collected.

In addition, we use restricted data on Social Security earnings to compute a measure of lifetime earnings. Marital history variables (all prior marriages, divorces and widowings) were derived based on the raw HRS files; most other variables used in the study are from the RAND HRS Data file, Version I [4]. Further details on key analytic variables follow.

Marital Status. Respondents are categorised at a point in time as being either married, divorced, widowed, partnered or never married. For some analyses we use respondents’ reports of past marital events to distinguish between married and remarried individuals. Changes over the panel are based on respondents’ report of any changes between waves and we group them into six categories: separated to divorced, married to divorced, married to widowed, divorced to married, widowed to married, other single (partnered or never married) to married.

Lifetime Earnings. We calculate lifetime earnings based on historical earnings reported to the Social Security Administration. We use earnings from 1951 to 1991 for 9,539 HRS respondents. [5]5 Earnings data for the War Babies cohort are available for 1,330 respondents for years 1951 to 1997.

The administrative records are accurate and less subject to measurement error than self-reported earnings from household surveys and cover a long history of earnings. They are however, limited in two ways. First, the level of earnings is reported only up to the Social Security maximum. This maximum changed over time as did the number of individuals whose earnings were above the maximum.

Second, individuals employed in a sector not covered by Social Security have no earnings records for the years he or she is employed in the uncovered sector.[6] Lifetime earnings are calculated as the present discounted value (3 percent real interest rate) of real Social Security earnings adjusted to 2006 dollars using the CPI-U-RS, and we adjust for the upper truncation of Social Security earnings.

Mortality Risk, Risk Aversion, Time Rate of Preference. Mortality risk is the respondent’s subjective survival assessment of living to age 75 (85) on a zero to 100 scale and we include it in empirical models as the deviation from lifetables based on sex and age.

The basis for categorising the level of risk aversion is a series of questions that ask respondents to choose between pairs of jobs where one job guarantees current family income and the other offers the chance to increase income and carries the risk of loss of income. From responses to these questions we categorize a respondent’s level of risk aversion into four groups. We measure respondents’ time rate of preference by their responses to the length of time they use for financial planning. The answers are categorical from a few months to over ten or more years.

Wealth. Our main outcome measures are wealth, change in wealth and the change in the change in wealth. Wealth is housing plus non-housing wealth and is computed as the sum of wealth from real estate, businesses, IRAs, stocks, bonds, checking accounts, CDs, and housing, less the value of the mortgage, home loans, and other debt. Missing data on wealth are imputed and the methods are described in RAND HRS Version I.

Some analysis use information on a respondent’s pension ownership and type (defined benefit, defined contribution, both).

3. Results

Changes in marital status occur over the lifespan, even at older ages. We examine current marital status and future changes in marital status over the next 14 years and present their distribution in Table 1.

Among the birth cohort 1931-1941, 84% are married in 1992, 10% are divorced and 6% are widowed. Over the next 14 years, 15% of this sample of respondents, on average 55 years old, change marital status. About 4% of married respondents divorce and 10% are widowed.

Just over 1% of individuals divorced or widowed remarries over this time period.

The level of wealth held in 1992 by this birth cohort varies with current marital status as well as future changes in marital status. The first three rows in Table 2 are groups that, as of 1992, have not experienced a marital disruption.

The data in Table 2 shows respondents that are married in 1992 and have no marital status changes over the next 14 years have higher mean and median wealth than married respondents that will eventually divorce or be widowed. This group of continuously married individuals has on average $363,814 in housing and non-housing wealth (not including pension wealth) compared to $278,365 for married respondents that will divorce and compared to $254,362 for married respondents that will be widowed.

Age differences by group are small and thus unlikely to account for the mean and median differences.

Remarried individuals that remain married through the 14 years have lower average wealth ($281,843) than married individuals who remain married over the panel, and at the mean and median, only marginally higher than those married that will go on to divorce or be widowed.

All not-married individuals have lower mean wealth than married individuals although at the median, not married individuals who remarry in panel have higher median wealth than some married individuals.

Among the not-married groups, mean wealth of divorced ($116,572) and widowed ($125,835) individuals that remain not-married is about 60% of the wealth that not married individuals that go on to remarry have ($188,366 and $199,769 respectively for divorced then remarried and widowed and then remarried).

The wealth differences at about age 55 by current marital status and future changes may be a result of wealth loss due to marital disruption or observable differences in for example, earnings or preferences for savings. For example, marital groups may save at similar rates but save out of lower levels of income.

Table 2 also shows lifetime earnings, current earnings and the ratio of wealth to lifetime earnings. Comparing individuals that are married and stay married with those that are married and go on to divorce, Table 2 shows that lifetime earnings and current earnings are similar and thus differences in earnings over the life-cycle is unlikely to account for the wealth differences.

Remarried individuals that stay remarried have slightly higher lifetime earnings, same current earnings and yet, their mean wealth is 77 percent of the wealth of individuals that are married (not remarried) and stay married over the panel. This is pattern is consistent with wealth loss due to marital disruption. Not married individuals have lower wealth than married individuals and indeed, their lifetime and current earnings are lower than married individuals.

In sum, the data in Table 2 emphasises the role of lifetime earnings, the role of selection on characteristics other than income and the role of wealth loss due to marital dissolution in explaining wealth level differences by marital status.

Changes in wealth among individuals with stable marital status.

The magnitude of wealth change over time among individuals that change marital status will be dominated by wealth change due to individuals leaving or entering the household. Thus we first examine wealth changes over two years (all data waves (t) and (t+1)) for individuals that do not change marital status over that same time period and results are shown in Table 3.[7] Wealth increases over two years for all groups.

Married and remarried individuals have larger wealth changes than divorced, widowed, never married and partnered individuals.

Compared to all other individuals wealth change is higher for married individuals by the following amounts: $3,222 compared to remarried, $10,142 compared to divorced, $17,317 compared to widowed, $11,627 compared to never married and $17,115 compared to partnered.

Wealth change as a percent of initial wealth level is slightly higher for divorced individuals (9%) than married, remarried and never married (7%).

Wealth change as a percent of initial wealth level is 3% among widowed and partnered individuals. Thus, overall levels of wealth change are highest for married individuals but rates are similar compared to divorced and never married individuals.

We examine two-year wealth change by marital status controlling for basic demographic differences in sex, race and age and including year indicators. Results from the linear, multivariate model are reported in the first column of results in Table 4 (Model 1).

The second column of results in Table 4 (Model 2) are estimates of the marginal effects of marital status on wealth change over two-years from a model that along with basic demographics, includes in the specification many other covariates including lifetime earnings (a measure of permanent income), current earnings, education, number of children, ownership of pension wealth and type of pension, mortality risk, risk aversion, and financial planning horizon.

The marginal effects for all covariates are given in Appendix Table A.

The results from Model 1 show remarried and all not-married individuals have lower levels of wealth change over two years and the magnitude of difference is similar to the difference in Table 3. The inclusion of the additional covariates (Model 2) explains all of the difference in wealth change between married and remarried individual.

The covariates reduce the difference in wealth change between married and remarried in Model 1 and Model 2 by $1,192 (27%) and the difference is no longer statistically significant.

The additional covariates in Model 2 explain about 50% of the wealth change difference between married and either divorced or widowed individuals. That is, the marginal effect is reduced from $-9,792 in Model 1 to $-5,146 in Model 2 for divorced individuals and from $-15,886 to $-7,922 for widowed individuals.

The additional covariates in Model 2 explain about 30% of the wealth change difference between married and either never married or partnered individuals. Overall, measures of socio-economic status (lifetime and current earnings, education), pensions, and mortality risk explain between 30% and 50% of the difference in wealth between married and not-married individuals.

Table 5 presents results for the effect of marital status on wealth change separately for samples of men and women. For men, demographic characteristics (included in Model 1) explain all of the difference in wealth change between married, remarried and not married men with the exception of partnered men.

The inclusion of the additional covariates in Model 2 explains about 30% of the difference between married men and partnered men. For women, wealth change is lower for remarried and all not-married women compared to married women with the exception of never married women.

The inclusion of the additional covariates in Model 2 explains all of the difference between married and remarried or never-married women, 40% of the difference between married and divorced women, 49% of the difference between married and widowed women and 30% of the difference between partnered and married women.

In sum, basic demographics explain all of the difference in wealth change by marital status for men (exception is partnered men), but not so for women. For women, the inclusion of additional controls for socio-economic status and other household and individual characteristics explains all of the difference between married and remarried women and between one third and one half of the difference between married women and other not married women. Thus for women, some of the variation is left unexplained.

Changes in wealth among individuals that change marital status.

To study wealth change in panel among individuals that change marital status, we examine wealth levels and changes in the two waves prior to the marital status change (t-1 and t), the two years over which the marital status change occurred (t and t+1) and the two years after the marital status change occurred (t+1 and t+2).

Thus we limit our sample to individuals in four consecutive waves of data and exclude individuals with more than one marital change between survey waves.[8]

We also study wealth changes over the same time periods for individuals that do not change marital status. Results on wealth levels and changes are given in Table 6a and wealth changes as a percentage of the prior wave wealth level in Table 6b.

Among married and separated individuals that divorce between waves, wealth is already declining in the wave prior to the divorce (Table 6a). Married individuals that are divorced in time t+1 experienced a $39,918 wealth loss while married from time (t-1) to (t), or 14 percent of their time (t-1) wealth (Table 6b). Over the two years in which the divorced occurred, married individuals lost another $132,779 in wealth or about 53% of their time (t) wealth.

There is some wealth recovery after the divorce: wealth increased by $22,210 or 19%.

The dis-saving before the divorce and savings after the divorce lead to a wealth change of $62,128 from before ((t-1) to (t)), to after ((t+2)- (t+1)) the divorce.

Separated individuals have wealth declines of $42,858 over the two years they are separated ((t)-(t-1)) and prior to the divorce, which is 27% of their time (t-1) wealth.

Unlike married couples that divorce, separated individuals have wealth increases during the wave in which they divorce and the wave in which they are divorced.

Wealth change is positive for all groups that change marital status, after the change. In fact, the wealth change from t+1 to t+2 for married to divorced, divorced to married and married to married is similar and is between $22,000 and $25,000 but represents a larger percentage of wealth for divorced individuals who went from married to divorced.

The wealth change experience of married individuals who are widowed between time (t) and (t+1) is much different than those who divorced.

There is no significant wealth loss in the years before the widowing occurred, the widowing results in a wealth decline of $11,602 over two years or about 5 percent of their married (prewidowed) wealth at time (t).

Divorced individuals that remarry accumulate assets while divorced (change (t-1) to (t) is $35,565) at a higher level and rate than those who remain divorced ($11,019).

Assets enter the household with marriage: wealth levels increase $64,789 between waves

that individuals go from divorced to married and then level back to levels and rates similar to those individuals who remain married. Widow and other singles (never-married and partners) that marry also show substantial increases in wealth over the waves in which they get married and then a smaller increase in (in level and rate) the following waves in which they are married.

In sum, divorce is associated with wealth loss and the loss in wealth begins before the divorce occurs and wealth recovery in the form of increased savings after the divorce.

In contrast, a widowing is associated with much a smaller magnitude of wealth loss.

Remarriage and marriage (for never-married) is associated with increases in wealth at the time of remarriage consistent with the addition of an individual bringing wealth into the household followed by future wealth increases of lower levels.

Empirical models of the change in the change in wealth

Demographic controls, measure of lifetime and current earnings and other rich measures of characteristics accounted for all of the differences in wealth change by marital status among men (exception is partnered men) and some of the difference among women for samples of individuals that did not change marital status. If there is remaining unobserved heterogeneity correlated with marital status then the marginal effects of marital status on wealth change will be biased.

We eliminate unobserved heterogeneity fixed over time (e.g. prudence) and measure the effect of marital status and changes in income growth with additional controls for age and year by estimating models of the change in wealth change.

We estimate wealth change for individuals that change marital status, before and after the marital status change so measured wealth change is not primarily the result of individuals entering or leaving the household. That is, we use change in wealth change [(t+2)-(t+1)] – [(t)-(t-1)] and the change ((t+1)-(t)) is the wave in which marital status changed and is omitted from the calculation.

Our model of the change in wealth change, for a sample of respondents that are present in 4 consecutive waves, includes all possible marital statuses (excluded is married, no change over time), change in the change in income over this same time period, age, sex and year indicators. [9]

Estimation results are given in Table 7 for all respondents and separately for males and females. The top and bottom 2 percent of the dependent variable (change in wealth change) is trimmed. If there is no change in savings behavior, we would expect the change in the change to be small. The mean dependent variable is $4,188. We discuss the findings noting that the standard errors around most estimates are large so few statistically differences are found.

Consistent with our earlier findings from models of wealth change on a sample of individuals that do not change marital status, the magnitude of effect of marital status on the change in wealth change among individuals that remain divorced, widowed or single over the four waves is small and not different than for individuals that remain married.

For example the change in wealth change is $912 less among divorced individuals compared to married individuals and $3,266 less for widows compared to married individuals (Table 7).

The difference in the change in wealth change between widows and married individuals decrease from the mean difference (Table 6a) once age controls are added. Among women, there is no difference in the change in wealth change of women that stay divorced, widowed or other single women over the four waves (partnered or never married) compared to married women that remain married.

The marginal effects on marital status changes from married or separated to divorced or widowed are positive suggesting transition to a not married state is leading to higher savings relative to the change in savings of married couples.

As we saw in Table 6a, the large positive change in wealth change is due to dis-saving that occurs in the waves before the wave in which the divorce occurs and the ‘recovery’ of savings in the divorced state. The inclusion of the change in income change does reduce the magnitude from those reported in Table 6a. Individuals that divorce from a married state have a change in wealth change that is $46,858 higher than individuals that remain married.

The difference in the change in wealth change between married individuals that divorce and those that remain married is decreased by $15,270 from the mean difference ($62,128 in Table 6a) once controls are added.

This estimate is lower for men ($41,494) than women ($50,478).

Married individuals that are widowed have a slightly higher change in savings compared to individuals that remain married ($3,494). Widowed men have a small decline in savings and women a small increase relative to men and women that remain married.

Divorced individuals that remarry have a change in savings that is less ($-17,606) than individuals that remain married. Widowed men and women that marry have a change in wealth change that is more ($31,907) than individuals that remain married.

The estimates are imprecisely measured and the inclusion of change in income change and age does not change the magnitude of the difference relative to married couples reported in Table 6a. The effects are different for men and women. For divorced and widowed women, remarriage leads to a higher change in wealth change than married women while for men it leads to a lower change.

Change in savings is declining with age slowly ($-539) but more rapidly for men ($-712) than women ($-444). Savings increases with the change in income growth. For example, a $1,000 increase in income growth (change in change in income) increases the change in wealth change by $208 ($241 and $191 for men and women respectively).

We interpret these findings cautiously. Model estimates of the effects of marital status on change in wealth change are imprecisely measured. Moreover, the estimates on individuals that change marital status are based on short-term changes – changes in savings behavior immediately before and after a marital status event and not reflecting long-term savings behavior. Indeed we find no difference in the change in wealth change between individuals that remain divorced, widowed or single and married over the four waves of data.

Finally, throughout this analysis we measure wealth change and not active savings. That is, wealth change will include capital gains or losses and other transfers into the household through mechanisms such as pension and inheritance but not through the marital transition itself.

4. Conclusion

By comparing wealth levels and lifetime earnings at age 55 of married and remarried individuals by whether they go on to divorce over the next 14 years or not, we found patterns consistent with the role of both selection and wealth loss due to marital dissolution in explaining why married individuals around age 55 have higher wealth than not-married individuals.

Among individuals with a stable marital status over time, we find the higher savings of couples compared to not married men (except partners) is accounted for by observable differences in economic status, pensions and mortality risk.

Observable differences account for between a third and one-half (33% to 50%) of the mean savings differences between married and divorced, widowed and partnered women and all of the difference between couples and never married women.

Estimates from models that control for fixed and unobserved heterogeneity by modeling the change in wealth change reveal no difference in the change in wealth change for men and women that are not married consistently over four waves compared to men and women married consistently over four consecutive waves.

There is wealth change associated with changes in marital status. Divorce is associated with wealth loss beginning while married – between four and two years before the divorce occurs- substantially more wealth loss over the two years that the individual transitions from married to divorced, and wealth recovery in the form of increased savings after the divorce.

Remarriage is associated with increases in wealth at the time of marriage consistent with the addition of an individual bringing wealth into the household and followed by future wealth increases at rates similar to those who do not change marital status.

Divorce at older ages is costly and remarriage is wealth enhancing and people appear to respond to marital status changes by changing their savings behavior.

END

References

• Cherlin, A. 1992. Marriage, Divorce and Remarriage. Cambridge, MA: Harvard University Press.
• Haider, Steven and Gary Solon. 2000. Non-Response Bias in the HRS Social Security Files. RAND Working Paper DRU-2254-NIA, February.
• Korenman, Sanders and David Neumark. 1991. Does Marriage Really Make Men More Productive? The Journal of Human Resources 26(2): 282-307.
• Lillard, Lee and Yoram Weiss. 1996. Uncertain Health and Survival: Effect on End-of-Life Consumption. Journal of Business and Economic Statistics 15(2): 254-68.
• Loughran, David and Julie Zissimopoulos. 2009. Why Wait? The Effect of Marriage and Childbearing on the Wage Growth of Men and Women. The Journal of Human Resources 44(2): 326-349.
• Lundberg, Shelly and Elaina Rose. 2002. The Effects of Sons and Daughters on Men’s Labor Supply and Wages. Review of Economics and Statistics 84(2): 251-68.
• Lupton, Joseph and James Smith 200). ‘Marriage, Assets and Savings’, 129–52 in Shoshana Grossbard-Shechtman (ed.) Marriage and the Economy: Theory and Evidence from Advanced Industrial Societies. New York and Cambridge: Cambridge University Press.
• Mincer, Jacob. 1978. Family Migration Decisions. The Journal of Political Economy 86(5): 749-773.
• Waite, Linda. 1995. Does Marriage Matter? Demography 32(4): 483-507.
• Zagorsky, Jay. 2005. Marriage and divorce’s impact on wealth. Journal of Sociology
• 41(4): 406–424.

Table 1. Distribution of Marital Status in 1992 and Changes 1992-2006

1992 Marital Status and Any Change 1992-2006: No. Obs. Percent

Married in 1992 & no change 7,411 70.0

Married in 1992 & divorced 407 3.8

Married in 1992 & widowed 1,082 10.2

Divorced in 1992 & no change 962 9.1

Divorced in 1992 & remarried 106 1.0

Widowed in 1992 & no change 583 5.5

Widowed in 1992 & remarried 34 0.3

All 10,585 100.0

Source: HRS 1992-2006

Notes: Sample birth cohort 1931-1941 in 1992 (HRS wave 1). Excludes 47 observations with unknown

marital status.

---

[1] Children are one important reason for marriage and their presence may either increase savings (to leave as a bequest) or decrease savings because of the additional consumption associated with children.

[2] The first survey, the Health and Retirement Study (HRS) began as a national sample of about 7,600 households (12,654 individuals) with at least one person in the birth cohorts of 1931 through 1941 (about 51-61 years old at the wave 1 interview in 1992). The second, the Assets and Health Dynamics of the Oldest Old (AHEAD), began in 1993 and included 6,052 households (8,222 individuals) with at least one person born in 1923 or earlier (70 or over in 1993). In 1998, HRS was augmented with baseline interviews from at least one household member from the birth cohorts 1924-1930 and 1942-1947 and was representative of all birth cohorts born in 1947 or earlier. In 2004, the HRS was again augmented with interviews from the birth cohort 1948-1953.

[3] For the original HRS respondents from survey wave 1992, we use a total of 8 waves of data from 1992 to 2006. For the original AHEAD respondents from 1993, we have 7 waves of data. For respondents added in 1998, we have 5 survey waves from 1998 to 2006.

[4] RAND HRS is a longitudinal data set based on the HRS data and developed at RAND with funding from the National Institute on Aging and the Social Security Administration.

[5] See Haider and Solon (2000) for a discussion of characteristics of individuals with and without matched Social Security records.

[6] In 1996, 92% of non-self-employed wage and salary workers were covered by Social Security.

[7] We trim the top and bottom 2 percent of wealth change values.

[8] We analyze characteristics of this sample restricted to be in four consecutive waves and find no statistically significant differences in average age, education, number of children, mean and median wealth or earnings. Although the differences are not statistically different, the sample in four consecutive waves has slightly higher wealth and earnings.

[9] We include all respondents from birth cohorts 1947 or earlier. Restricting the sample to respondents in the 1931-1941 and 1942-1947 cohorts as we do in the model with results shown in Tables 4 and 5 does not change our findings.

Cohabitees – gifting them more property rights (Robert Whiston, March 31st 2009)

By Robert Whiston, March 31st 2009

(based on notes made at a meeting with MPs at Portcullis House)

The panel of MPs numbered six including Henry Belligham, Tim Loughton, Edward Timpson, Maria Millar, Eleanor Laing, and for a short time Dominic Grieve.

The meeting was addressed by several speakers including Derek Munn (?) from Stonewall, James Sandbach from Citizens Advice Bureau, Elisabeth Cooke from Reading Uni. who is also a Law Commissioner (together with 2 male colleagues), a Karen Mackay from Resolution (a family law solicitor grouping) and an Edwards Hess, a lawyer.

Discussion revolved around two main areas, 1/. pre and post nuptial contracts/agreements and 2/. giving female cohabitees more property rights as per a divorced spouse.

I missed most of what the representative (Derek Munn) from Stonewall had to say but in the short question time afterwards he replied to MPs that he saw nothing to object to in the Lord Lester proposals and didn’t see the Law Com proposals as compromising the position of gays.

http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090325/debtext/90325-0004.htm

See also Mary Creagh MP (Wakefield, Lab) proposals on cohabitation reform in a private members Bill (March 25^th).

I therefore asked him if he had considered the situation where homosexuals had a free choice of 3 marital conditions, namely, 1. a civil union, 2, cohabiting with restrictions/liabilities and 3, cohabiting without restrictions, when what was planned by the Law Comm. for heterosexuals was the abolition of option 3 leaving them with only option 1 or option 2, i.e. both with potentially punitive property confiscation implications.

In reply he reiterated that Stonewall saw nothing in the Lord Lester proposals that were objectionable and didn’t read into the Law Com proposals any such restrictions.

Elizabeth Cooke Professor, Reading Uni., became Law Commissioner in July 2008. She has responsibility for property, family and Trust law. Among her many publications are: ‘Land Law’; (Oxford, Oxford University Press); ‘Community of Property: a regime for England and Wales’, research report co-authored with A Barlow and T Callus (Nuffield Foundation, 2006); ‘Community of Property - A Study for England and Wales’, by A. Barlow, T Callus and E Cooke (2003)

Elisabeth Cooke from Reading Uni. and a Law Commissioner was the next speaker. She began with a long introduction about how the Law Commission was set up with a remit to have no political view or opinion (all very well but its Commissioners, oddly enough, all had very strong ideologies). The Law Commission, she said was assigned to look into, among other things, ‘pressing issues’ (which cannot be interpreted as including much of their work and certainly not reforming cohabitation).

She was very ‘wordy’ and seemed to take forever to say very little and even less of that was ‘concrete’. It was all very esoteric and hypothetical. What she did manage to be concrete about were rates and facts that she had obviously not checked – or thought her audience would not know.

For instance, she maintained that the number of women loosing out by not having rights after cohabiting for 20 years and having raised children was alarming high.

When asked to quantify this she could not. She could not even respond to whether such women, in terms of percentage of households, represented single of double digit figures. However, she was sure it was high and the trend was that it would become bigger.

In actual fact, around 11% of households are of a cohabiting nature and one has to estimate from other data that cohabiting relationship of 20 or more years duration must be in the order of 1%. [1]

Figure 1, below, is taken from ONS statistics. Cohabiting mothers are easily outnumbered by SLM, i.e. single lone mothers, (1,412k v 2,829k) and while many of the SLM may be cohabiting, arranging legislation to suit the ‘musical chairs’ transience of their partners promises to be an administrative nightmare.

Fig 1. Dependant children and marital status

http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

Given that most things for cohabitees can be attained or resolved within the existing law, i.e. FLA 1996 (e.g. non-molestation and occupancy orders), the need for radical reform would seem to shrivel. The ability to enact such orders has been extended to not only cohabiting couples but to non-cohabiting couples too (Section 4, ‘associated person’, section 33, quote, “have never cohabited or have never been married”). An applicant, i.e. a female, in a cohabiting or non-cohabiting female relationship can apply for an occupation order not only where she has lived with the respondent but where they had intended to live !

Many of those cohabiting relationship will evolve over time into marriage with other younger people cohabiting to take their place and so the ratio will remain fairly constant.

This leads onto another technicality; what is not realised by almost everyone is that cohabiting relationships are not a ‘stock item’ implying permanence and measurability but a ‘flow variable’. To compare them with marriage is to compare coal to diamonds – similar in their carbon parts only.

Elisabeth Cooke made the point that a recent case had revived the argument about whether pre-nuptial agreements were valid. She referred to a Privy Council case in vague terms and I have since found out it is MacLeod v MacLeod decided by the Privy Council involving a North American couple who had not a pre nuptial but a post nuptial agreement (‘Family Lore’, Dec 18^th 2008 http://www.familylore.co.uk/2008/12/macleod-v-macleod-post-nups-valid.html

Both MacLeods were American, were married in1994. The husband was considerably wealthier than the wife. They had entered into a pre-nuptial agreement on their wedding day (valid in the US but not in Britain). It provided for each spouse to retain their separate properties brought into the marriage and property acquired post marriage to depend on legal title. If they divorce each party waived their right to claim any sort of maintenance. Properties owned jointly were to be divided equally between them.

The husband agreed to pay the wife a lump sum calculated as $25,000 for each full year that the couple had been married and regardless of time or location the agreement should be construed in accordance with the laws of Florida. The family moved to the Isle of Man; the marriage broke down, and the husband began divorce proceedings in 2003.

During the marriage, two further agreements were assigned that included a provision that, in the event of divorce or the husband’s death, the wife should receive £1,000,000 sterling, adjusted for inflation since February 2002.

The wife claimed full financial provision, asserting that the agreements should be disregarded, as “unfair pressure” had been put on her. The husband claimed that the third agreement should be upheld, which would have meant giving the wife £1.89m.

The Isle of Man court rejected the wife’s claim but agreed she should be given an additional £1.25m for accommodation, and said it should be paid directly to her rather than held in trust. The husband eventually appealed to the Privy Council (“the Board”), on the issue of whether the housing needs of the wife and children should be catered for by the lump sum, as ordered by the judge, or by a trust fund, as proposed by him, and the argument turned on the validity and effect of the 2002 agreement.

What this case highlights is the totally unrealistic demands of the family courts to hold a husband responsible for his ex-partners housing needs (costs) when she already has the ability to acquire it from the financial provisions he has already made – a demand insisted upon by family courts, day in day out, of men of far lesser financial means

Cooke also made the point that Scotland had already enacted cohabiting rights law and though it had run into a little difficulty – as was predicted by RW – it was a separate and distinct regime to that proposed for England and Wales (so it will be untried !).

To legitimise the concept of legalising cohabitation the Australian experience was cited more than once by speakers. They were of a view that it was working well.

(I do not understand why they emphasised the Australian experience when New Zealand has had such a law for much longer).

She was asked by one of the MPs (HB) if she thought the 1996 Act could be resurrected and made useful in this regard. Her reply was that she was unsure. (I then interrupted and asked for clarification that it was the Family Law Act 1996 and they confirmed it was. I then said that this particular Act carried within it a poison pill and HB thanked me for the warning).

I can see now – but I couldn’t then – why the FLA would be useful to pro-cohabitee activists. Although it is about marriage and how to dissolve it, it carries within it the creation of a new legal entirety known as an “Associated Person.”

Part 4 of the Family Law Act 1996 which is enacted and in operation (though Parts 1 and 2 are abandoned and inactive) empowers a court to intervene between not only married and formerly married couples but also cohabitees and former cohabitees.

It goes further and embraces those “living together” or having lived together in the same household (other than as employees, tenants, lodgers or boarders), or by simply being related, i.e. mother-in-law, uncles and aunts etc, having parental responsibility for a child, or ‘an agreement to marry’, which takes us back to the 1960s and the ludicrous situation of ‘breach of promise’ suits which the Law Comm. described at the time as a charter for “gold diggers”.

There are likely to be moves therefore to resurrect the concept of ‘associated person’ (see FLA 1996) in order to access and then confiscate property for the ‘vulnerable’ partner, i.e. the woman.

The same Act but in Schedule 10 places a duty on the court to consider making a non-molestation order. In order to make these effective Occupation Orders will be needed. Occupation orders regulate the occupation, so the owner of the house, invariably a man, will be legally excluded and the occupation rights of his own property might well be terminated or restricted (see also Ouster orders and 2004 amendments).

The question of why it was seen as perfectly reasonable for fathers and men to always fund such reforms was met with a chorus from her colleagues, who rejoined that “we” and the court must always put children first (the paramountcy mantra).

But must we put children’s alleged rights ahead of fathers ? Are those fatherly rights to be legitimately sacrificed on the CBI Altar (Child’s Best Interests) ?

Do millions of children want to know they are the cause for their father’s poverty? That his homelessness was the result of self-righteous solicitors carping on about female and children’s rights ?

How will they feel about that when they grow up ? Most of the nation’s homeless are men – and most of them are ex-servicemen. Is this the way a nation rewards its defenders ?

Several questions were then posed re: 1/. How could family courts cope when they were already creaking under the load of divorce cases and 2/. How could it be afforded given that 50% of cohabiting couples separate every 2 years on average and the great majority within 5 years the reply was that it would not affect courts and 3/. How could justice be assured when family court proceedings are held in secret ?

The benefits, in Cooke’s mind, were that arbitration would be transparent because if would be outside the court. It would be a cheap and quick option with no burden on court time – she envisaged a “do it outside the system” approach. How, and who would undertake this role was not outlined.

She then moved on to how the reforms would be enacted, the formulaic approach to male and female wealth and power versus vulnerability mantra, and the question of whether couples should be allowed to ‘Opt Out’ or ‘Opt In’. She, and the legal minds present, were at one in believing that all cohabiting couples should have to ‘Opt Out’ as this would protect the vulnerable cohabitee, i.e. the female, and should be the default position unless it could be shown otherwise.

To the objection to this last point and the proposal of adopting a purely ‘Opt In’ option came the reply that many women were put off marriage by its attendant costs (said to average £10,000 per wedding) and of genuinely not knowing they had no legal rights when their long term relationship ended.

To the proposition that perhaps money ought to be better spent on an education programme for women came the reply that this might be an adjunct but would not erase the problem.

IMO, having to ‘opt out’ would mean there was to be no vestige of property entitlement for the purchaser and no benefits accruing therefrom. This is a moot point with collateral implications that can only be speculated upon at this point in time.

Is there a conflict of human rights at stake here ?

Should the inalienable right to purchase, own and ‘enjoy’ property be comprised by an alleged ‘human right’ of another person to profit by controlling and enjoying that property upon separation ?

The Romans made the sharp distinction between formal marriage versus ‘free marriage’, cohabitation and concubinage. That distinction was in the acceptance into the family of the spouse (i.e. the wife) upon formal marriage only and no compensation was ever paid upon separation in the other forms of relationship which, from one epoch to another, were briefly fashionable and occasionally recognised by the state.

This brings us, if not to the crux, then certainly a significant branch in the road. If the Civil Partnership Act 2004 which will probably be used in conjunction with FLA 1996 as template, is examined the working in other jurisdictions implies a statutory nature of it being ‘registered’ and for ‘life’.

Fig 2. Meaning of overseas relationship: specified relationships, SCHEDULE 20

Source: Civil Partnership Act 2004, http://www.opsi.gov.uk/acts/acts2004/ukpga_20040033_en_1

Country or territory	Description
Belgium	cohabitation légale (statutory cohabitation)
Belgium	marriage
Canada: Nova Scotia	domestic partnership
Canada: Quebec	civil union
Denmark	registreret partnerskab (registered partnership)
Finland	rekisteröity parisuhde (registered partnership)
France	pacte civile de solidarité (civil solidarity pact)
Germany	Lebenspartnerschaft (life partnership)
Iceland	staðfesta samvist (confirmed cohabitation)
Netherlands	geregistreerd partnerschap (registered partnership)
Netherlands	marriage
Norway	registrert partnerskap (registered partnership)
Sweden	registrerat partnerskap (registered partnership)
United States of America:
- Vermont	civil union

What is being proposed for England & Wales is a non-registration system for heterosexuals (as I interpret the Law Comm.’s paper) but not for homosexuals.

Cohabitating heterosexuals will be treated as if they have registered but cohabitating homosexuals will not be so considered unless they utilise the Civil Partnership Act 2004. The above table shows how same-sex unions are legalised by registration. Why cannot the same be done for cohabitation ?

There will, in many practical circumstances, be no option for heterosexual men to opt in or out; it will simply be ‘deemed’, i.e. presumed, that the male cohabitees has opted in by the fact that he has not actually opted out. This default position will be an abuse of governmental power far in excess of the alleged abuse (of women) it intends to rectify.

If the argument is that marriage and all its ceremonial and catering costs are too great for most couples then there already exists the less expensive vehicle of marriage at a Registry Office. The logical extension would be to extend the use of the Registrar’s Office to encompass cohabiting agreements for heterosexual couples who want to opt in.

A vigorous exchange then took place regarding ‘welfare dependency’. The point was made that many SLM (single lone mothers) were in fact cohabiting and that the benefits regime encouraged cohabiting women to declare themselves to be SLM; this would not reduce if reforms were introduced and the drain on the Treasury or tax payer would not relent. In fact, it could be predicted that the burden on the tax payer would increase as low income SLMs would be entitled to Legal Aid upon separation whereas their male partners would not.

In addition, the state would have to allocate extra resources, i.e. buildings, staff, training, to deal with the number of cohabiting cases it presently did not have to consider. No reform comes free of ‘collateral damage’ which is what is being promised now. Previous experience shows us that the Law Comm. reforms have always had both expected and unexpected costs. And beyond that we only have to look at the changes of Morris Finer in the Finer Report intended, in order to realise the opposite is often triggered. (The Finer Report of the 1970s has brought us only more illegitimacy, not less, and more single mothers, not less, and more SLM and children living in poverty, not less. In fact it was the starting point for what is popularly called today the dependency culture).

Far from moving us away from a dependency culture the speaker was challenged to explain how legalising cohabitation would avoid creating yet another layer of the dependency culture and or of reinforcing the present one.

The reply was that no figures were available as to the cost of dependency, or of the number of families’ dependant on benefits, or the true extent and cost of divorce.

It was then pointed out that at least one parliamentary report had quantified the cost of divorce and that the ONS regularly quantified the impact of fatherless children and husbandless mothers (see Social Trends and Population Trends).

Her reply was that the Law Comm. was not aware of this, which earned her the immediate retort to the effect that surely the Law Comm. was obliged to examine and source this data before presenting its proposals ?

There was then an interruption from one of the MPs and the exchange was cut short.

What is clear from ONS produced statistics is that the increases in re-marriages promised by the Law Comm. plans in its build up to the reforms of 1969 just haven’t happened (‘Table 2.1 Marriages and divorces, 1996-2006′). In 1996 the number of re-marriages was 53,642 and in 2006 it had fallen to only 43,398. This is also true where it was a 2nd marriage for one of the parties; the numbers having fallen from 64,653 to 50,061 in 1996 and 2006 respectively. (ONS: http://www.statistics.gov.uk/downloads/theme_population/FM2no34/FM2_No34.pdf)

Is this telling us that the penalties of re-marriage are too great and that the knowledge of those penalties are seeping down to the divorce and to the never-married – where first-time marriage, at 145,995, is at a century low point ?

Is the emotional investment in marriage no longer worth the candle ? Are the population, birth and marriage rates falling because there is no incentive for men ?

In academic circles it seems the agreed currency is to assert that:

“ … The increase in cohabitation has occurred alongside other, related, major demographic shifts, including: rising levels of divorce; delay in entry into marriage and childbearing; and, a rise in the proportion of births taking place outside marriage. These are all characteristic of the second demographic transition (Van de Kaa, 1987; Lesthaeghe & Surkyn 2004), although rising levels of cohabitation in the UK have only partially offset declining marriage rates (Berrington & Diamond, 2000).” – By Ernestina Coast (Lecturer in Population Studies, London School of Economics), ‘Currently cohabiting: relationship expectations and outcomes in the British Household Panel Survey (BHPS).’

But isn’t this missing the point about cohabiting ?

She links both ‘major demographic shifts’ (but these are not explained) and divorce to cohabitation. But is the increase in cohabitation merely due to random and naturally occurring ‘major demographic shifts’ or a realisation by the population of the cost and pain of divorce as presently constructed ?Money, like pain, alters choice and therefore human behaviour.

What explains the slump in Roman Catholic marriage, an otherwise bastion of tradition and influence with a stronger adherence among its flock than other churches who have seen a less steep decline ? Fig 3 below show the decline from 1981 to 2001.

Fig 3. Summary of marriages, http://www.statistics.gov.uk/STATBASE/Expodata/Spreadsheets/D7951.xls

Summary of marriages, 1981, 1991, 1996, 1998-2002 England and Wales
Numbers/Year	1981	1991	1996	1998	1999	2000	2001	20021
Total marriages	351,973	306,756	278,975	267,303	263,515	267,961	249,227	254,400
Manner of solemnisation
- Civil ceremonies	172,514	151,333	164,158	163,072	162,679	170,800	160,238	168,530
Religious ceremonies	179,459	155,423	114,817	104,231	100,836	97,161	88,989	85,870
of which:
- Church of England and Church in Wales	118,435	102,840	75,147	69,494	67,219	65,536	60,878	58,710
- Roman Catholic	26,097	19,551	13,989	12,615	12,399	11,312	10,518	9,980
- Nonconformist 2	29,017	25,472	18,617	15,161	14,136	13,435	11,163	10,570
- Other Christian bodies	4,422	5,597	4,988	4,585	4,554	4,316	4,047	4,170

[As an aside, it has to be said that not only did the content of the Family Law Act 1996 arouse deep controversy at the time but the very procedural devise employed angered many. The abuse of the Jellicoe Rules to get it through parliament was interpreted as an attempt to avoid Parliamentary scrutiny and suppress public debate. If passed (and it was for a short time only) it would have recognised and legitimised for the first time in English Matrimonial Law so-called common-law-wives. Spousal rights, once the preserve of bona fide married women, were to be extended to women cohabitees (men would not gain only suffer). As a consequentially, the potential scope for litigation was substantially enlarged (see Trust law actions, below)].

Throughout the delivery Elisabeth Cooke seemed to be addressing the two men directly in front of her who seemed to nod and titter at the appropriate places.

The next speaker James Sandbach, was from the Citizen’s Advice Bureau (CAB). He was not a legal expect but brought everyday experiences of women left with nothing to the seminar. Even he had to admit it was not a huge problem numerically and that most of the cases involved impoverished couples anyway – a point conceded by Elisabeth Cooke when she earlier described the near impossible for the courts of spreading meagre household incomes across two households.

Asked about the implications to Land Law and the philosophy of property that stood behind it, he made no reply possibly because he had no technical experience.

There was not the opportunity to acquaint any of the speakers with the facts in the pubic domain and the implications their proposals would have on ordinary peoples lives, that is to say:-

• The ‘engine’ of wealth creation is the married man – not the cohabiting man (from US Pres’l advisor George Gilder, 1973. to Patricia Hewitt MP 1996 IPPR).
• Cohabiting men and single men are lower income earners and are more likely to be unemployed, work part time and/or to live on benefits.
• As far back as 1993 the divide between married and non-married men was noted by the ONS – an earnings divide replicated between married and non married mothers, i.e. SLMs.
• Single mothers pose the greatest avoidable burden to the Treasury. They require more subsidies, yet never provide commensurate/off-setting tax revenue.
• The escalating financial burden on the Exchequer, of these ‘alternative lifestyles’ i.e. SLMs, has seen Gov’t forced to create the £2 billion bureaucratic CSA, which collects a mere £15 million (Children First, Green paper).
• Lord Irvine, when Lord Chancellor, complained about the cost of divorce, put at £5 Bn pa.
• More recently the cost of divorce to the nation has been calculated to be in the realms of £30 billion (The Cost of Family Breakdown, Sept 2000, David Lindsay [assisted by R Whiston]).
• Additionally, the cost of subsidies to single lone mothers (SLM) in Social Security terms was put (at 1994-95 prices) at £31 billion pa (R Whiston, ManKind paper).

These calculations share some overlapping aspects and while it would be wrong to simply add them together (to give £61b), a figure greater than £30b is a more realistically true cost.

The last of the speakers was a young lawyer called Edward Hess, who was introduced as being well practiced in cases involving cohabiting women. He spoke of the large numbers and wide scope of cases he had handled. They were all forced to be settled in Trust Law cases and involved ‘proprietary estoppel’ or “resulting trusts” or “constructive trusts” etc.

Edward Hess saw this as entirely unsatisfactory, “Large numbers of cases ended up in Trust Law … and absorb a lot of legal time” because they could not be properly dealt with in matrimonial law or in the family courts.

However, for the estate of a dead man to end up in a legal trust battle indicates that the estate was worth fighting over. It cannot be credibly envisaged that the estate of a cohabiting man of average income, or living on benefits, or living in a council flat would have an estate worthy of dispute by his cohabitee against his relatives each of them hiring their own set of solicitor and lawyers ?

One is reminded of Dickens’ great fictional (but based in fact) court case Jarndyce v Jarndyce:

The Jarndyce case concerned the fate of a large inheritance. It had dragged on for many generations prior to the action of the novel, so that, by the time it is resolved late in the narrative, legal costs have devoured nearly the entire estate. The case is thus a by-word for an interminable legal proceeding. Dickens used it to attack the Chancery Court system as being near totally worthless, as any “honourable man among its [Chancery's] practitioners” says, “Suffer any wrong that can be done you rather than come – ‘Bleak House’ by Charles Dickens.

Hess prefixed is comments by seemingly to disparage the genuinely held views of Melanie Phillips and Simon Heffer (?), “We don’t want any of that sort of thinking here today was the gist and acknowledged that the room contained one traditionalist voice that had opposed everything that had so far been proposed.

In common with Cooke, Hess made mention of the recent Scottish development (presumably the legalising of cohabitation) and of the MacLeod decision. However, it must be remembered that the Macleod’s had enough money to take it through all the Isle of Mann courts and then on to the Privy Council.

It is all very well and laudable for lawyers to reform the law but should it bring unpleasant or dire consequences it is the voter that has to live with the consequences. He is not I suspect from a political science background and this is pivotal aspect that is constantly overlooked when social reforms are afoot.

There was no time to pose questions and after the meeting broke up in conversation with the last speaker, Hess, he made light of Baroness Deech’s opposition to Lords Lester’s Bill. He didn’t see the validity of her points and so did not agree with them (though she made precisely the ones we made to the Law Commission in 1995 !).

The meeting broke up soon after 1 pm.

End Piece.

‘Common Law Marriage’, By Goran Lind (2008).

Few areas of Roman law have evinced as wide a range of opinions as classical matrimonial law. On the one end, it is considered “perhaps the most imposing Achievement on the Roman genius”. On the other, classical marriage has been thought to provide “the true explanation of how the formerly so powerful Roman Empire could easily overthrown once the foundation of society – the family – had been broken. Regardless of the accuracy of these views, it may be confidently said that Roman Matrimonial law was fundamentally different from it modern European equivalents, which in recent times have been subjected to alien influences, primarily canon law. [p 31]

…. Formless relationships [free marriages and cohabitation] were recognised as marriages and cohabitation was recognised.

Roman marriage..…. [was] seen as a total community of life … a life long companionship for the whole of life ….. not simply a liaison for the purpose of meeting a limited need, such as sexual urges or procreation of legitimate children. [pp 31 – 33]

It would appear that the concept of maintenance and post separation payments or property adjustments had completely by-passed Roman legal mind.

---

[1] ONS, “Living Arrangements: 9 in 10 lone parents are women”, UK Office for National Statistics; Focus on gender; 8 January 2004, “one in ten [couples] are cohabiting”

UK Minister of Justice bought herself feminist research to say: “Courts do not treat non-resident parents unfairly”(‘Report’)

Mother and child

An independent study published today shows that family courts are making great efforts with considerable success to secure child contact, following divorce or separation.Most contact arrangements are settled without going to court as the majority of parents agree these for their children between themselves. But around 10% of parents who cannot agree seek a court order for contact.

The study found no evidence that courts are biased against non-resident parents as a group. The courts start from the principle there should always be contact unless there are very good reasons why not. In most cases the courts were successful in securing contact for the non-resident parent. Court proceedings often start with no contact at all yet most cases end up with face-to-face contact.

Justice Minister Bridget Prentice said:

‘The well-being of children is at the heart of the family justice system. Courts should be the last resort for people involved in contact disputes, as mediation can be quicker and less stressful.

UK Justice Minister Bridget Prentice (Labour Party)

‘Where contact cases do come to court, the child’s welfare is always the paramount consideration. Clearly in some circumstances, such as where there is poor parenting or even abuse, contact can be very damaging.

‘The government firmly believes that children should not be denied meaningful contact with their other parent, where this is safe.’

The study, by the Oxford University Centre for Family Law and Policy, looked at the perception that non-resident parents who go to court over contact arrangements following divorce or separation are awarded little or no contact for insubstantial reasons.

However, the government has recognised that more needs to be done to help parents who cannot agree and who come to court to resolve their contact dispute. The Children and Adoption Act 2006, due to be implemented in the autumn, amends the Children Act 1989 to give new powers to the courts to help parents overcome barriers to contact and will give the courts further flexible powers to enforce contact orders.

Notes to editors

1) The study: Outcomes of applications to court for contact orders after parental separation or divorce and summary briefing note.

2) Approximately a quarter of the 12 million children in the UK are affected by their parents’ separation or divorce (DCA, DfES, DTI, 2004). Around 90% will reside mainly with one parent (the ‘resident parent’), typically the mother, (Peacey and Hunt, 2008). Only 10% choose to come to court over contact arrangements. Fathers, who are usually the non-resident parent, make the majority of contact applications.

3) Parents who cannot agree can apply to the court for a contact order under Section 8 of the Children Act 1989, which is governed by the welfare principle: section 1(1). This means that the child’s interests must be the paramount consideration.

4) In 2005, the government announced a range of practical measures to improve the handling of contact cases and the information, help and advice available to separating parents:

> <!Parental separation: children’s needs and parents’ responsibilities – next steps [PDF 0.96mb, 41 pages]

5) A key measure was new legislation: the Children and Adoption Act 2006

6) Family Mediation website

7) For further media enquiries please call the Ministry of Justice press office on 020 3334 3536 or email Alia Syed.

Press Office

• Press Office

Related links

• Outcomes of applications to court for contact orders after parental separation or divorce
• Children and Adoption Act 2006
• Family Mediation Helpline

Outcomes of applications to court for contact orders after parental separation or divorce

Source: UK – Ministry of Justice – by Joan Hunt and Alison Macleod, Oxford Centre for Family Law and Policy, Department of Social Policy and Social Work, University of Oxford – Published on: 25 September 2008

When divorced or separated parents cannot agree on contact arrangements for their children and come to court, the court must make a decision under the Children Act 1989 and give paramount consideration to the welfare of the child.

This study shows the outcomes of when parents go to court, how much contact they get, and how this compares to what they applied for. The study also addresses the perception that non-resident parents as a group are treated unfairly by the courts.

• Outcomes of applications to court for contact orders after parental separation or divorce [PDF 1.65mb, 271 pages]
• Briefing note [PDF 0.17mb, 13 pages]

Related links

• News release: Courts do not treat non-resident parents unfairly – report
• Relationship breakdown
• Children and Adoption Act 2006
• Parental separation: children’s needs and parents’ responsibilities – next steps
  [PDF 0.96mb, 41 pages]

Relationship breakdown

Source: Ministry of Justice

Parental separation is more common today than in the past. When contact disputes are handled badly, children can suffer. We are developing measures to improve information and advice to parents, promote alternative ways to resolve disputes, such as in-court conciliation, and mediation. We also aim to give the courts more flexible powers in contact cases through the Children and Adoption Act 2006.

We are responsible for family justice, while the Department for Children, Schools and Families (DCSF) has responsibility for children, young people and families. We are working jointly with them and a range of partners to deliver these policies.

Contact us: emailor telephone 020 7210 8523

Other helpful sites and services

• Directgov – Divorce and relationship breakdown information
• Directgov – Young people: divorce and separation
• Family Mediation Helpline
• Further information about the government’s relationship breakdown work
• The Children and Adoption Act 2006
• Research report – The process and outcomes of in-court conciliation
• Children and Family Court Advisory and Support Service (CAFCASS)
• CAFCASS – Putting Your Children First: A Guide for Separating Parents

Related links

• Outcomes of applications to court for contact orders after parental separation or divorce
• News release: Don’t lose out through holiday heartbreak
• Paternity testing
• The longer-term outcomes in-court conciliation

Outcomes of applications to court for contact orders after parental separation or divorce

Briefing Note

Joan Hunt and Alison Macleod

Oxford Centre for Family Law and Policy

Department of Social Policy and Social Work

University of Oxford

Family Law and Justice Division

September 2008

Acknowledgements

Eleven courts took part in this study. We are grateful to the court managers and other staff who, despite many other pressing demands on their time, assisted us in locating files; provided transcripts and made our visits to the courts productive and pleasant. Although we selected the courts the court service made the initial approach and secured participation, which was very helpful in getting the project underway. The support of the President of the Family Division was also of enormous assistance. Finally we would like to thank our interviewees – judges, district judges, magistrates and their legal advisors, solicitors and Cafcass staff – whose insights considerably enriched the study findings.

Authors

Joan Hunt is Senior Research Fellow in the Oxford Centre for Family Law and Policy, which is part of Oxford University’s Department of Social Policy and Social Work. She has conducted several empirical research studies on children and families subject to family court proceedings, undertaken a review of research on contact after parental separation and prepared two policy briefing papers on contact, the first providing an overview of the issues, the second examining innovative approaches used in other countries. She is currently working on a national survey of separated families, most of whom have not taken their disputes to court, and a review of research into parents’ experiences of the family justice system. Alison Macleod was a Research Associate in the Centre for Family Law and Policy for the duration of the study and prior to this was a senior researcher worked in the University of Bristol’s Socio-Legal Centre for Family Studies. A solicitor by profession, she has participated in, or directed, many research projects on families involved in court disputes in both public and private law.

Disclaimer

The views expressed are those of the authors and are not necessarily shared by the Ministry of Justice.

Outcomes of applications to court for contact orders after parental separation or divorce

Joan Hunt and Alison Macleod

Oxford University Centre for Family Law and Policy

Genesis of the study

The study was commissioned as the result of a commitment given by the government to Parliament in the course of the passage of the Children and Adoption Act, 2006. The aim of this legislation, as far as the contact-related provisions were concerned, was to provide courts with a greater range of powers to facilitate and enforce contact1. However much parliamentary time was devoted to debating proposed amendments which would introduce a statutory, rebuttable presumption of, under varying guises, minimum levels of contact, into the Children Act, 1989. At the heart of these attempts to change the law were concerns about non-resident parents who went to court for a contact order but ended up with little or no contact for insubstantial reasons.

The government strongly resisted all arguments for introducing a statutory presumption of contact, let alone any particular quantity of contact, on the grounds that a) the courts already started from the point that contact was to be promoted unless there were good reasons to the contrary and b) that a statutory presumption would undermine the fundamental basis of the Children Act, the paramountcy of the interests of the child. It was acknowledged, however, that there was little statistical data on the outcomes of court proceedings. As Baroness Ashton, for the government, put it,

I believe that the time has come for us to look very carefully at repudiating some of the anecdotal evidence and to consider carefully what has happened in the court. To understand more about the process we shall research what happens when the courts start with a desire for contact and see what the final orders are2.

And later:

I recognise the concern at the heart of many of the issues, that is, those parents, often non-resident fathers, who do not get a fair deal. I repeat the commitment I gave…during the previous stage of the Bill: I intend to commission new research to establish a proper evidence base. I will go further, if the research recognises the problem that noble Lords have raised with me anecdotally, I will take action to address it. I am at one with noble Lords in recognising the critical importance of establishing the evidence base3.

This study was commissioned to give effect to that commitment.

The issues

When parents separate or divorce less than one in 10 seek the assistance of the family courts in making decisions about contact arrangements for their children. In making such a decision the court under the Children Act 1989 must give paramount consideration to the welfare of the child.

What are the outcomes when parents do go to court? How many non-resident parents end up with no contact? When they get contact, how much do they get? How does this compare with what they were seeking? If there is a discrepancy what explains this?

Key points

Outcomes were typically agreed. It was rare for the court to have to make a final ruling.

Most cases ended with face to face contact. Where they did not this was usually because the applicant withdrew from proceedings.

Contact typically involved overnight stays, at least fortnightly, with some children having additional visiting contact. Visiting contact was usually weekly or more and was almost always unsupervised.

Non-resident parents were largely successful in getting direct contact where there had been none and in getting the type of contact sought.

Those who achieved staying contact usually got the amount they sought, those with visiting contact mainly did not. Applications to enforce previous orders were unusual and rarely wholly successful.

Non-resident parents were almost twice as likely to succeed in getting the type of contact they wanted as resident parents who initially opposed staying, unsupervised contact or any contact.

Four in five resident parents who opposed unsupervised contact raised serious welfare concerns.

The initial position of the resident parent and whether they raised serious welfare issues were significantly related to outcome, as were the age of the child, whether there was any contact at the point the application was made and the interval since the child was last seen.

There was no evidence that non resident parents as a group are systematically unreasonably treated by the family courts. On the contrary, the study shows that the courts start from the position that contact is generally in the interests of the child, they make great efforts to achieve this and in most instances they are successful. In a small minority of cases, however, it might be argued that the outcome was unfair to the non-resident parent

The study

The main element in the research was a detailed analysis of court files in 308 cases with a contact application in 2004. The applicants were almost all (289; 77%) nonresident parents, typically fathers (265). Where there was more than one child in the case full data was collected on only one, randomly selected. In 236 cases this was the first set of contact proceedings. The cases were drawn from five family proceedings courts and six county courts, distributed across all six court circuits, covering a mix of rural and urban areas, and courts which handled low, medium and high volumes of contact cases. The findings are therefore likely to reflect the national picture.

The file study was supplemented with an analysis of transcripts of 102 court hearings, covering 43 cases, in the county courts, plus interviews with solicitors (27), Cafcass officers (23) magistrates (8) legal advisors to the family proceedings courts (5) district judges (9) and circuit judges (4).

Findings

Outcomes 4

The court rarely had to make a final ruling on contact. Most outcomes were reached by agreement or by one party withdrawing.

A mere 32 cases (11% of 292) went to a contested final hearing of which at least 11 settled in the course of the hearing.

Almost three quarters of cases (213 of 288) were known to have ended by agreement. This included 25 of the 44 cases in which the application was withdrawn, 15 of the 21 with an order of no order and 173 of the 203 where a contact order was made. Only 19 cases were dismissed.

Applications which ended with no contact at all were most likely to be formally withdrawn (18 of 39) or effectively abandoned (17). Only four were dismissed after a contested hearing.

Non-resident parents typically began the proceedings having no contact and ended them with an order or agreement for direct contact.

At the start of the proceedings only 28% of non-resident parents (83 of 294) had direct contact with their children.

By the end of proceedings 79% of parents (225 of 286) had an order or agreement for face to face contact. In 7% there was to be indirect contact and in 14% no contact at all.

The most common outcome was staying contact, which rarely took place less than fortnightly and was sometimes supplemented with visiting contact.

139 cases (49% of 286 in which the outcome was known, and 62% of 225 in which there was to be direct contact) ended in staying contact.

In 89% of these (109 of 122 on which information was available), overnights were at least fortnightly, with 40 more frequent. Stays were typically for one (45% of 114) or two (43%) nights at a time with the average length of stay per fortnight being 51 hours fortnightly.

35% of children (48 of 139) also had visiting contact, adding an average of 8 more hours contact per fortnight.

Overall, in 59% of cases (66 of 111) children were expected to have direct contact on four or more days a fortnight with 32% having six or more contacts and only 5% less than two .

The average combined contact time was 55 hours per fortnight. Threequarters (70) were to have between 25 and 72 hours and 17% (16) more than this (range 14 to 137 hours).

The next most common outcome was unsupervised visiting contact, usually at least weekly.

58 cases (20% of all known outcomes and 28% of those allowing direct contact) ended in unsupervised visiting contact.

Frequencies varied from five times a week to four times a year, with an average of 2.2 a fortnight. 61% of children (31 of 51) had weekly (19) or more frequent contact (12); only three less than fortnightly.

The average length of a visit was 5.4 hours, ranging from one to 10 hours.

48% of visits (21 of 44) were between six and 10 hours.

The average contact time per fortnight was 10.3 hours, ranging from one exceptional case with contact for only one hour four times a year to just over 12 hours a week.

Supervised contact was very unusual as a final outcome (11; 4% of 286) and only two cases involved the use of a contact centre. In most cases contact was expected to be at least weekly.

The relationship between the contact sought and obtained 5.

Most non-resident parents succeeded in obtaining contact where they had had none before and getting the type of contact sought.

70% of those who sought to establish/re-establish direct contact (129 of 184) succeeded.

Where there was to be direct contact 78% of those who sought overnight stays (110 of 142) got them.

Where there was to be only visiting contact, 94% of those who wanted this on an unsupervised basis succeeded (60 of 64).

Those who achieved staying contact typically got the amounts sought.

67% achieved the desired frequency (41 of 62).

67% obtained the length of stay they asked for (26 of 39)

79% got the additional visiting sought (19 of 24)

Those who only obtained visiting contact mainly did not get as much as they wanted, although the data was very limited.

Only 5 (of 12) got the frequency wanted.

Only 2 (of 6) got the duration.

8 (of 12) did not get either.

Applications to give effect to previous orders or agreements rarely completely succeeded

Only 8 applicants (of 26) succeeded in getting the original arrangements reinstated and, where sought, a penal notice attached.

4 got the order confirmed but not the penal notice requested.

14 did not succeed in any respect, 10 getting no direct contact, two having their contact reduced and two getting defined orders changed to either reasonable contact or as and when the child wanted contact.

Overall, non-resident parent applicants stood an even chance of getting everything they had initially sought.

Just under a third (85; 32%) did not achieve the type of contact they had sought at the start of the case: 56 did not achieve direct contact; 25 got visiting rather than staying; four got visiting but only supervised.

A further 43 (16%) did not achieve everything they wanted in terms of frequency or duration.

Four more did not get the penal notice sought although they succeeded in getting the previous arrangements reinstated or even improved on.

In total 49% of non-resident parent applicants (132 of 269) did not get everything they had originally asked for.

Resident parent respondents were much less likely than non-resident parents to be successful in achieving their initial objectives6

60% (98 of 163) of resident parents initially opposed to staying, unsupervised or any direct contact did not achieve this: o 56% (55 of 99) failed to prevent direct contact. o 72% (26 of 36) failed to prevent unsupervised contact. o 61% (17 of 28) failed to prevent staying contact.

In contrast, only 32% of non-resident parents failed to achieve their objectives in terms of getting contact established and getting the type of contact they sought.

The prevalence of welfare concerns

Serious welfare issues were raised in the majority of cases.

In 54% of cases (167 of 308) the resident parent raised concerns over serious welfare issues: domestic violence (34%); child abuse or neglect (23%); parenting capacity affected by drug abuse (20%), alcohol abuse (21%), mental illness (13%) or learning difficulties(1%); fear of abduction (15%). The proportion rose to 82% of cases (89 of 108) where the resident parent initially opposed any direct contact.

In a further 27 cases there had been such welfare concerns in the past, although they were not raised as an impediment to contact in the sample proceedings, while in 41 cases there were past welfare concerns in addition to those being raised in these proceedings.

Only 114 cases (37% of 308) were entirely free of serious concerns. Allegations of domestic violence at some point featured in half the cases (154).

Explaining the outcomes

Certain key factors were linked 7 with the outcome in terms of whether

there would be any direct contact and the type of contact although none was invariably determinative.

1. Whether the resident parent had raised serious welfare concerns.

85% of cases ending in no contact involved such concerns compared with 81% with indirect contact; 73% with supervised visiting, 47% unsupervised visiting and 42% staying contact.

But, 60% of cases involving welfare concerns ended with staying or unsupervised visiting contact.

2. The position of the resident parent at the start of the case.

In 69% of cases ending with no contact and 76% of those with only indirect contact, the resident parent had opposed any contact (compared with 22% with staying contact).

But, 57% of cases in which the resident parent had opposed contact ended in direct contact, 32% in staying contact.

3. Whether there was any contact at the point the application was made.

In 46% of cases ending in staying contact there was some contact at the outset compared with none of those ending in indirect contact and 8% of those with no contact at all.

But, 65% of cases with no contact at the outset ended in direct contact.

4. The interval since the child was last seen.

76% of parents who got staying contact had seen their child within the past three months, compared with only 19% of those who got indirect contact and 24% of those with no contact at all.

But, 55% of parents who had not seen their child for more than six months ended up with direct contact.

5. The age of the child at the end of the proceedings

8 of the 13 cases involving teenagers and 30% of the 49 with children between 10 and 12, ended in no direct contact compared with only 16% of those with children aged 5-9. This was linked to the greater likelihood that the court would take more notice of the opposition of older children. All the teenagers opposing contact had their views respected, compared with just over half of those aged 5-9.

Where there was to be contact overnights usually involved older children. However 41% of children under 3 were to have overnight stays.

Those with supervised contact tended to be the youngest (mean 3.9 years).

Why did some non-resident parents not achieve what they had sought?

Those who did not achieve direct contact

These outcomes were rarely the result of a court decision (7 of 61; 11%). Typically (39; 64%) non-resident parents formally withdrew, dropped out partway through, did not turn up to the final hearing or, while not consenting to the outcome, did not actively oppose it. Several did not cooperate with the court process. We concluded there were at most 10 cases in which the outcome of no direct contact could be regarded as unfair to the non-resident parent in that there were no serious welfare concerns and they had cooperated with the process. Six involved children resolutely opposed to contact, four resident parents who might be seen as ‘implacably hostile’.

Those who did not achieve the type of contact they sought

There were many reasons why staying contact was not achieved, from the contact parent’s continuing use of drugs to the child’s or the resident parent’s refusal. There were some where contact restarted early in the proceedings and the contact parent may have decided not to ‘rock the boat’ by pursuing staying and others where achieving any contact had been so difficult they probably gave up the attempt and settled for what they could get.

Of these 20 cases (only one of which had a contested final hearing) there were two which were clearly unfair in terms of either process or outcome and three which were nearer that end of the spectrum. Three were patently not unfair, given the welfare issues. The rest were difficult to determine.

In nine cases the non-resident parent ended up with supervised contact having originally sought unsupervised or even staying contact. None went to adjudication. Only one outcome seemed to us to be unfair to the non-resident parent. In contrast six were clearly justified by the welfare concerns. In the two remaining cases there was insufficient information to make a judgement.

Those who did not achieve the amount of contact they sought

Thirty-five of those who achieved staying contact did not obtain everything they had sought. However all but eight were at least partially successful (getting either the frequency they wanted, duration, number of overnights, additional staying contact or overall hours). Indeed in 15 the total package probably represented a positive outcome in terms of the actual amount of staying contact, which probably explains why these non-resident parents did not persist with their original demands. Only eight cases went to a contested final hearing. While most tended to favour the resident parent on the narrow issues by then at stake, the picture looks rather different if one takes into account that in several cases the resident parent had originally opposed unsupervised contact. Non-resident parents may have lost the final ‘battle’ but they had generally won ‘the war’.

The yardstick used to assess ‘fairness’ was the arrangements typically made in other cases and whether there were circumstances which might have explained the outcome. This suggested a maximum of 10 cases in which the outcome might be seen as ‘unfair’: five in terms of frequency; seven duration, and two the refusal of midweek overnights.

None of the eight cases in which applicants achieved unsupervised visiting contact but not the amount they wanted went to a contested hearing. It was impossible to tell why these parents settled for less. However it seems probable that since in seven the resident parent had initially opposed either any contact at all or unsupervised contact they decided to be content with the considerable amount they had achieved. There was only one case in this group in which the outcome might be considered to be unfair.

Those who failed to get a previous order or agreement made effective

Although the circumstances in these cases were very varied there were two common factors: the resident parent had voiced serious welfare concerns and/or the child was refusing contact. A careful analysis of the data revealed only two in which we considered the court should have been more robust. .

Are non-resident parents treated fairly by the courts?

The views of our solicitor interviewees can be summed up as follows:

1. The courts and Cafcass are not biased against non-resident parents, who generally get a fair deal. But,

2. Resident parents start off from a position of strength and it is easy for them to spin things out; some applicants give up because the process is too long and costly, both financially and emotionally;

3. Some resident parents and children remain persistently opposed to contact and the court’s abilities to deal with this are limited, and

4. At the end of the day the court has to act in the interests of the children and sometimes that means the non-resident parent may lose out.

While generally giving a positive picture of the court process, our file data also indicated cases in which non-resident parents might have reason to feel aggrieved. However this is not because the courts are biased against them. It was clear from file, transcript, and interview data that courts, lawyers and Cafcass start from the principle that there should normally be contact and they make considerable efforts to bring this about. The fact that they are not always successful should not tempt us into accusing the system of favouring resident parents. Indeed it would be easier to make the opposite argument.

Solicitors, the judiciary and Cafcass officers saw the resistance of the resident parent and/or the child as the two main obstacles to achieving contact. Often these could be overcome; implacable hostility was considered to be quite rare. Our data supports this: there were only 10 cases in the sample in which non-resident parents ended up with no contact because of persistent hostility which did not appear to have any basis in the non-resident parent’s behaviour. This works out at under 4% of the 275 completed applications by non-resident parents.

The resident parent’s ‘unreasonable’ hostility is typically addressed initially through persuasion, with sterner measures coming into play if this fails. Most resident parents come round; a few do not. Eventually the non-resident parent gives up or the court, very reluctantly, has to acknowledge it can do no more with its current powers and resources. Dealing with the child’s hostility is even more testing. It may be very difficult to get at the root of the problem. It also poses two dilemmas. First, how to balance the obligations to take account of a child’s views and to act in the child’s long term interests. Second, how long to persist trying to get contact going when this may expose the child to the damaging effects of uncertainty and conflict.

The family justice system is not perfect. There are issues about delay, resources and services which need addressing in order to meet the needs of the troubled minority of families who resort to litigation most effectively. Adults have a right to a process which is as fair as possible. It is crucial, however, to focus on children and give effect to the overriding principle of the Children Act, the paramountcy of the interests of the child.

Footnotes

1 The Bill was the result of a lengthy process of consultation and consideration beginning with the work of the Children Act Sub-Committee on the Facilitation and Enforcement of Contact, followed by the Green Paper ‘Parental Separation: Children’s Needs and Parents’ Responsibilities and the Government’s Response ‘Next Steps’ . A draft bill was also issued for pre-legislative scrutiny and considered by a Joint Parliamentary Committee.

2 Lords Hansard Text 14 Nov, HL col 861

3 Lords Hansard Text 29 Nov, HL col 200

4 Of the sample of 308 cases 10 had not completed by the end of the data collection period. Six had to be excluded because either the contact parent had died or the parents had reconciled. In six there was no data on the outcome; in one there was to be no direct contact but it was unclear whether there would be indirect and in 17 either the type of face to face contact was not known (15) or this was left to the child (2). In some of the remaining cases detail was lacking. The numbers on which percentages are calculated, therefore, will vary.

5 Detailed information was not always available on both what the applicant sought and what they obtained. Numbers in relation to visiting contact were particularly small.

6 Information on the resident parent’s position at the start of the proceedings was generally limited to whether they were opposing a particular type of contact or any contact at all. It was unusual for their views on the amount or frequency of contact to be known at this point.

7 All the factors cited were statistically significant (ie the association was unlikely to be a matter of chance).

Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany (Peter Tromp, 2008)

Presentation by Peter Tromp MsC of the Father Knowledge Centre, Europe to cross party members of British parliament

The seminar was hosted by the Family Law Society at Portcullis House, Westminster, London on February 3, 2008

A PDF with an updated and more elaborated version of my presentation is to be found at: Presentation Benefits of post-divorce shared parenting and the situation in the Netherlands, Belgium and Germany (Peter Tromp, 2009)

1. Introduction

Good morning Mr. Chairman. Thank you for arranging this meeting and offering me an opportunity to speak.

Let me introduce myself. My name is Peter Tromp. I am a child-psychologist from the Netherlands and I represent the Vaderkenniscentrum (Father Knowledge Centre, Europe in English).

Father Knowledge Centre (Europe) was originally set up by Dutch voluntary-sector NGO “Stichting Kind en Omgangsrecht” (the Dutch Foundation for Children, Access and Equal Parenting), which was founded in 1989.

Father Knowledge Centre champions the cause of equal parenting and keeping both parents involved in children’s lives after divorce and separation. It works with policy makers, campaign groups, lobbyists and reformers. It aims to make knowledge and information available about the role, the contributions and the efforts men and fathers are making in children’s lives. particularly in raising and educating (their) children. Whether that is in the family – both before and after divorce – or in any of the other living environments where children grow up, like childcare and education. The aim is to have these contributions and efforts of fathers better acknowledged and supported on the social policy level. The mode of operation (to these effects) are on both the Pan-European as well as the national levels in Europe.

I would now like to speak of the benefits of post-divorce ‘shared parenting’ for children. I would also like to give you brief introductions to the situation of – and the developments in – shared parenting in Dutch, Belgian and German family law.

In Germany a post-divorce presumption of joint legal custody was already in effect in family law since 1998. Several years ago a family court judge Jurgen Rudolph – based in the German regional family court of Cochem was confronted time and again with two equally capable parents. Both were forced to fight each other – almost to the death – in adversarial court proceedings.

His radical solution will be detailed later in this paper.

Before detailing the various developments in family law within Europe I would like to apologise for any mistakes I make in my English so in that respect I would kindly like you to grant me some patience and immediately ask for clarification if anything is unclear or ambiguous because of the language used.

2. The benefits of post-divorce shared parenting

If we look at what available scientific research tells us about the best interests of children are after divorce or separation, then the picture cannot be clearer. If we look at what available scientific research tells us what the best interests of children are after divorce or separation, then the picture cannot be clearer. Comparing the outcomes for children growing up in shared parenting, having regular contact with and care from both parents after divorce or separation, with the outcomes for children growing up in sole care of only one of the parents, generally the mother, then children growing up in shared parenting do much better. After intact two-parent families, the outcomesfor children in post-divorce shared parenting families prove to be the next best situation for growing up.

Better outcomes for children
And those better outcomes for children also emerged in research that controlled for pre-existing levels of conflicts between the parents as self-selecting factor for shared parenting. From meta-analysis on 33 underlying separation researches Bauserman (American Psychological Association, 2002) concluded, that children growing up in a form of shared parenting with frequent contact with and care from both parents, had less behavioral – and emotional problems, exhibited higher levels of selfworth and self-confidence, were better capable of building and preserving social contacts and relations, both within and outside the family and performed better at school, then children who had grown up in sole care of one of the parents.

Children growing up in shared parenting of both parents after divorce and separation did so much better than children growing up under sole care of one of their parents, that shared parenting after separation by far proved to be “second best” for children and for them best approached the ideal situation of an intact family.

From a range of other researches it further became clear, that children growing up in shared parenting of both parents develop better, are more satisfied, prove to be better adapted and adjusted and have more self-confidence and selfworth in comparison with children who growing up in sole care of one of their parents (Nunan, 1980; Cowan, 1983; Pojman, 1982; Livingston, 1983; Noonan, 1984; Shiller, 1984.,1986; Handley, 1985; Wolchik, 1985; Bredfield, 1985; Öberg & Öberg, 1987).

From a Harvard study on 517 separation families over a period of 4 years wide, children growing up under post-divorce shared parenting proved to be less depressed, exhibited less unadjusted behaviours, and achieved better school results than children growing up in post-divorce sole care. (Buchanan, Maccoby, Dornbusch, 1996.)

Also boys growing up in shared parenting, proved to have less emotional problems than boys growing up in sole care (Pojman 1982; Shiler 1986).

Interest of the child
From a point of view of the interest of the child the current practice of sole care in family law should therefore be considered quite incomprehensible.

The available research shows that children growing up in sole care, mainly fatherless and with their mothers in mother-headed families, do much worse than children growing up in shared parenting.

Children growing up fatherless in single-parent families have more depression complaints, use more and earlier drugs and alcohol, get more accidents and more often commit suicide, than children growing up in the care and with the involvement of both parents. (Swedish population study into the consequences of single-parent families on children, Ringbäck Weitoft, Hjern, Haglund, Rosén, 2003).

Children (0-12) growing up in fatherless single-parent families have a greater risk to a life in poverty, run more risk on physical, emotional and sexual abuse, more often become runaways from home, have a greater risk of becoming homeless youth, have more risk on health complaints and have more problems at school and in their social contacts with others.

Teenagers growing up in fatherless single-parent families have a greater risk of teenage-pregnancy, to end up in (youth)crime, to smoke, to use alcohol and drugs, of playing truant, to be suspended, of becoming drop-outs and ending their school careers at an early age school, and of getting adaptation problems.

And young adults, having grown up in fatherless single-parent families, stand a greater risk of not having finished a proper vocational education, earning lower incomes, becoming jobless and in need of benefits, at risk of becoming homeless, or of getting involved in crime, of developing chronical emotional and mental-health problems, of developing general physical health complaints, and sooner have cohabiting relations, more often have extramarital children, only to end up in separation and divorce more often. (Meta-studie experimenting in living, The fatherless family, Civitas, O’Neill, 2002).

And recently also a consistency has now been determined between growing up in fatherless single-parent families and the prevalence of ADHD at children (Strohschein, 2007).

Less conflicts
Moreover, from the meta-study by Bauserman (APA, 2002) it became clear that, in contrast with what is frequently claimed about shared parenting, the number and levels of conflicts between the parents strongly diminished in comparison with the number of conflicts in situations of sole care with access arrangements. So also that highly contributes to better child welfare and well being.

British teenage-girls having grown up in sole care indicated themselves to get stressed out and overloaded by the separation problems of their parents, especially caused by the call on them by their caring parent, in 90% of the cases the mother, for support in the fight concerning the children, put up with the other parent after divorce and separation. (Bliss survey, 2005: Girls take strain or parents’ split)

Moreover, not only the parents prove to run into less mutual conflicts in shared parenting arrangements. Also children growing up in shared parenting appear to have less conflicts with their parents, then children growing up in sole care of one parent (Karp, 1982).

Children want it themselves
By antagonists of shared parenting it is further claimed, that proponents of shared parenting only argue from the point of view of the parents and do not take the interests and wishes of children concerned at heart. From child-research in which children themselves are questioned on their preferences however, it became clear that children themselves also most prefer shared parenting and care from both their parents after separation (Fabricius, 2003). Children themselves most want to preserve and maintain their relations with both parents after divorce and separation. They consider having narrow links and bonds with both their parents as being important to them, and growing up in shared parenting leaves them more satisfied then growing up in sole care. (Kelly, 1993).

Less allegiance conflicts (less loyalty conflicts)
It is frequently claimed that children growing up in shared parenting arrangements with both parents do not have a place and home of their own (do not take away the children’s home it is claimed). Children in shared parenting arrangements are pictured as being constantly underway between houses and as being continuously exposed to allegiance conflicts. Available research however also shows a different picture in this respect. Children are more flexible – within reason of course – then we think them to be. What is more important to them is keeping their relations with both parents. (Steinman, 1981, Luepnitz, 1986, Shiller, 1986, Coller, 1988, Tornstam, 2000).

Less divorces and separations
Finally, the more shared parenting arrangements are to be implemented instead of sole care after separation, the less parents are inclined to go for a divorce as post-divorce shared parenting also proves to be a valuable incentive for keeping two-parent families together when possible. (Brinig, all, 2000) And also that is in the best interest of children, as all of the available research shows that intact two-parent families are still the best and most ideal setting for children to grow up in and flourish.

To come to a first conclusion:

Overseeing the research one is inclined to ask therefore why sole care at present is, and shared parenting still isn’t, the preferred default presumption for post-divorce parenting arrangements in family law and family courts?
Because: If we really give priority and weight to the best interests of children, then shared parenting and keeping both parents involved in children’s lives seems to be the only way to go.

3. Some developments in family law and family courts in the Netherlands, Belgium and Germany

The Netherlands

- In 1996 > Joint legal custody law reform (Gezamenlijk Gezag) passed Dutch Parliament making joint legal custody the standard for post-divorce parenting in the Netherlands to oblige with EVRM Article 8 (rights to family life)
- However shortly after the introduction of the law, the family courts in conjunction with the Dutch High Court already made the intend of the law by Dutch Parliament to keep both parents involved in children’s lives undone by jurisprudence saying that joint legal custody could be awarded but that it did not automatically entitled to a contact and access arrangements.
- The past years Parliament took several new initiatives for introducing equal parenting as the presumption for post-divorce parenting arrangements by law.
- The first attempt was the law proposal initiative by parliament in 2004 (Law on administrative divorce and continued parenting, nr. 29676). It passed in the Dutch House of Commons in the winter of 2005 only to strand in the Dutch Senate in the summer of 2006, mainly caused by the “Administrative Divorce” made possible by the law as well, which hit on heavy resistance with the Dutch judiciary.
- This summer a new attempt for family law reform was made with the Law on Promoting Continued Parenting (Law Proposal nr. 30145). This law while it passed in the Dutch House of Commons in June 2006, was amended by a constitutional majority amendment introducing equal parenting as the presumption for post-divorce parenting. It is now in consideration with the Dutch Senate.
- This new law has the following features:
- Introducing a presumption of equal parenting after divorce
- Introducing a strong incentive for parents to come up with a mutually agreed parenting plan during the divorce proceeding (but not obligatory).
- Adding new but complicated reinforcement possibilities for court-ordered parenting arrangements to the toolbox of judges

Conclusion on family law reform in the Netherlands:
What this law will bring in practise for divorcing parents and their children remains to be seen, especially considering the long history of family court practise aimed at making the legislator’s intentions towards post-divorce equal parenting undone by jurisprudence.

Belgium: Presumption of Dual Location by Law (Wet op de Bilocatie, 2006)

Belgium already had a presumption of joint legal custody for several years when in September 2006 the Belgian federal family law reform on the presumption of “Dual Location” and “alternating residence” came into effect after having passed both houses in the Belgian federal Parliament.

In it was a presumption of joint physical custody as the norm for preferred post-divorce parenting arrangements to be ordered by the Belgian family courts.

Contrary to common belief the Belgian family law reform of September 2006 however did not introduce 50/50 joint physical care and residency as a result.

Instead it introduced the presumption of dual location which by law should be taken into consideration and investigated by Belgian family court judges with priority on the request of either one separately or both of the divorcing parents.

In effect the wishes with regard to the post-divorce residency, care and access arrangements of either parent parties involved were thus again acknowledged and reinstated at the core of Belgian family court proceedings regarding physical custody. By law Belgian family court judges were endowed with the need and obligation to explicitly motivate their decisions and orders with regard to the presumption of post-divorce alternating residence in writing.

Also when both parties put forward consensual residency, care and access proposals the law put judges under the obligation to accept those as leading in the orders to be made.

A further underestimated but most important additional element in the new Belgian family law was especially the introduction of immediate or priority access to the courts and judges to either one of the parties one-sidedly with requests on additional reinforcement orders when there were complaints about the other parent with regard to abiding by the specific arrangements laid down by the judge in the original case residency, care and access order given.

Although the law as a federal national framework is in effect for only 1,5 years now in Belgium, and it is still to early to evaluate it thoroughly, first impressions are that it has contributed strongly to the appeasement between divorcing parents in Belgium.

Germany – The Cochemer Model

Also in Germany a post-divorce presumption of joint legal custody was already in effect in family law since 1998, when several years ago the family court judge Jurgen Rudolph – residing at the German regional family court of the city of Cochem – in his courtroom bench was confronted time and again with capable parents fighting each other almost to death in adversarial court proceedings with the help of their lawyers (and to the detriment of their children) over post-divorce arrangements concerning the residency, care and access over their children and demanding from him as the judge to decide in favour of either of them. All parents and lawyers from both sides seemed to be involved in and doing during court proceedings was painting their adversarial ‘opponents’ as black and incapable as possible.

The position he took in this was that he considered post-divorce physical custody arrangements between principally fit and capable parents not a standard-decision for a family court and himself as the family judge to make and decide on by default over the heads of either one of the parents, as from the lawfully existing care-obligation for both parents over their children the making of physical custody arrangements over their children had by default to be considered primarily as a matter of responsibility for both divorcing parents themselves to decide on in the first place.

In the face of the resulting infights between parents and their lawyers taking place in adversarial divorce proceedings, the regional family court of Cochem then experimentally changed its family court practises. In the newly introduced family court practises divorcing parents were strongly encouraged by the court to first come up themselves with a mutually and consensually agreed parenting arrangement proposal or “parenting plan” for the residency, care and access to and over their children, as a necessary and prerogative preparatory part before being able to enter and finalise their divorce settlements in the Cochem family court.

As the parents now needed to come up with a mutually agreed parenting plan or parenting arrangement proposal, this prerogative demand of the court both not only resulted in a reinstatement of the equal level playing field and cooperation between the parents looking for divorce (instead of the previous court practises magnifying the differences and conflicts between the parents), but just as or may be even more importantly it also lead to a complete practise overhaul with the professionals around the divorce proceedings in the family court being involved with the divorcing parents.

Instead of helping the parents in (aggravating) their conflict, all professionals, including lawyers, social workers, youth welfare workers, etc., instead started cooperating with each other in order to offer mediatory and other support services to the divorcing parents who were in demand of support in making the parenting plan needed in order to finalise their divorce proceedings. In time the cooperation between professionals evolved from cooperation on the individual case levels to a more structured network cooperation of the involved professionals around the Cochem family court.

These changes in Cochem court practises and the resulting changes in practises by the surrounding professionals in the mean time have earned wide recognition in Germany and are nationally referred to in Germany as the Cochem court practises or the Cochem model. They are now also taken into evaluation and consideration in a future planned reform of family law by the German federal ministry of justice in Berlin.

Comparing Belgium and Germany

These two developments are interesting because of their congruency, as in Belgium they have started top-down so to speak from the federal political and legislational level with the introduction of a new family law creating a national framework and new guidelines for the functioning of family courts, while in Germany these same developments started bottom-up from the family courts themselves experimenting with less adversarial proceedings and court practises regarding post-divorce residency, care and access arrangements and orders.

Both developments share in their emphasis the concept of restoring an equal level playing field between both divorcing parents in either family law and/or family court practises as opposed to the single parenting presumption dominating family law and family court practises at present.

4. As for the second seminar-issue :: ‘Is the voice of the child heard in the Family Courts?’

As a starting point for a short statement on this issue I would like to draw on the children’s rights convention and the explicitly formulated rights of children in it to have family life and care from both their parents.

With regards to these basic rights of children I would like to issue warning for the dangers of institutionalising systemic child abuse when state agencies and family courts for their own legitimacy reasons further continue on the path of explicitly and deliberately bringing children into the conflict of continued adversarial divorce proceedings and single parent custody practises and are thus bringing children into a position in which they are solicited into publicly speaking out against one of their parents in favour of the other parent.

Not only do such family law and family court practices involve children directly in divorce conflicts, by doing so they are also exposing them to an immediate risk of emotional and physical abuse by social, psychological and physical pressure coming from incompetent temporary court appointed care parents and their family members, to choose for them and against the other parent.

Finally what is demanded of children, when solicited by adversarial family courts and family law to publicly speak out in favour or against one or the other of its parents for court and family law legitimacy reasons, is also threatening children’s longer term identity and depriving them of half of their identity by forcing children into expressing choices they are not naturally inclined to make and of which they cannot yet oversee the long lasting consequences when made. Further forwarding this course of action of directly involving children in the divorce conflict by family law and the family courts for solving their own legitimacy reasons, therefore creates severe risks for the identity and welfare of the children involved on the long run and well into their adult lives.
________________________________
Pieter Tromp MsC, Child psychologist, Father Knowledge Centre, Europe

References:

Abarbanel, A. (1979) Shared parenting after separation and divorce: A study of joint custody, American Journal of Orthopsychiatry, 49:320-329.

Braver, S. (1995) Paper delivered at Children’s Rights Council 9th Annual Conference, Bethseda, MD, March 30-April 2, 1995.

- G.M. Bredefeld, G.M. (1985) Joint Custody and Remarriage: its effects on marital adjustment and children, Doctoral Thesis, California School of Professional Psychology, Fresno. UMI No. 85-10926

Coller, D. (1988) Joint Custody: Research, Theory, and Policy, Family Processes 27:459-469.

- Cowan, D.B. (1982) Mother Custody versus Joint Custody: Children`s parental Relationship and Adjustment, Doctoral Thesis, University of Washington. UMI No. 82-18213.

Emery, R., Hetherington, E.M., DiLalla, L. (1984) Divorce, children, and social policy, in Stevenson, H.W., Siegel, A.E. (eds) Child development research and social policy, Chicago: University of Chicago Press.

Friedman, R. (1994) Joint Physical Custtody Really Can Work, Michigan Bar Journal, pp 650-652.

Furstenberg, F.F.,Jr., Nord, C.W. (1985) Parenting apart: Patterns of childrearing after marital disruption, Journal of Marriage and the family, 47:893-904.

Goldstein, J., et.al. (1973) Beyond the best interest of the child , New York; Free Press.

- Handley, S. (1985) The experience of the latency age child in sole and joint custody: A report on a comparative study, Doctoral dissertation. California Graduate School of Marriage and Family Therapy.

Hanson, S.M.H. (1985) Healthy single parent families, Family Relations 35:125-132.

Irving, H.H., Benjamin, M., Trocme, N. (1984) Shared Parenting: An empirical analysis utilizing a large data base, Family Processes, 23:561-569.

Karp, E.B. (1982) Children`s adjustment in joint and single custody: An Empirical Study. Doctoral thesis, California school of professional psychology, Berkeley. UMI No. 83-6977.

Kelly, J.B. (1981) Visiting after divorce: Research findings and clinical implications, in Abi, L.E., Stuarts, I.R. (eds) Children of separattion and divorce: Management and treatment, New York: Van Nostrand Reinhold.

Kline, M., Tschann, J.M, Johnston, J.R., Wallersttein, J.S. (1989) Children’s Adjustment in Joint and Sole Physical Custody Families, Developmental Psycholgy 25(3):430-438.

Lassbo, G. (1994) Enföräldersfamilj – utvecklingsmiljö, Socialvetenskaplig tidskrift 2-3:130-145.

Leff, R. (1995) Joint Custody: Implications For Women, Journal of the Phillips Graduate Institute, Vol 4.

Luepnitz, D.A. (1982) Child custody: A study of families after divorce, Lexington, M.A.: Lexington Books.

Luepnitz, D.A. (1986) A comparison of maternal, paternal, and joint custody: Understanding the varieties of post-divorce family life, Journal of Divorce, 9(3):1-12.

E.E. Maccoby, E.E., Mnookin, R.H., Depner, C.E. (1986) Post-divorce families: Custodial arrangements compared, American Association of Science, Philadelphia.

- Noonan, L.P. (1984) Effects of long-term conflict on personality functioning of children of divorce, Doctoral thesis, The Wright Institute Graduate School of Psychology, Berkeley. UMI No. 84- 17931.

- Nunan, S.A. (1980) Joint custody versus single custody effects on child development, Doctoral thesis, California School of Professional Psychology, Berkeley, UMI No. 81-10142.

- Öberg, Gunnar; Öberg, Bente (1985) Den delade familjen : samtal med 60 familjer om gemensam vårdnad, Stockholm Stockholms univ., Pedagogiska institutionen, Forskningsrapport nr 26

Parish, T.S. (1987) Are They Affected by Parental Divorce and Remarriage, Journal of Social Behavior and Personality, 4:559-562.

- Pojman, E. (1982) Emotional adjustment of boys in sole custody and joint custody compared with adjustment of boys in happy and unhappy marriages. Los Angeles: California Graduate Institute, Doctoral dissertation.

Risman, B. (1986) Can men mother? Life as a single father, Family Relations, 35:95-102.

Schildt, R. (1994) Fatherlessness, World Wide Web: Men’s Issues Page.

- Shiller, V. (1984) Joint and Maternal Custody: The outcome for boys aged 6-11 and their parents, Doctoral thesis, University of Delaware. UMI No. 85-11219.

- Shiller, V. (1986 a) Loyalty conflicts and family relationships in latency age boys: A comparison of joint and maternal custody, Journal of Divorce 9:17-38.

Shiller, V. (1986 b) Joint versus maternal custody for families with latency age boys: Parent characteristics and child adjustment, American Journal of Orthopsychiatry 56:486-489.

Steinman, S. (1981) The experience of children in a joint-custody arrangement, American Journal of Orthopsychiatry, 51:403-414.

Wallerstein, J., Kelly, J.B. (1980) Surviving the breakup: How children and parents cope with divorce, New York: Basic Books.

Warshak, R.A., Santrock, J.W. (1983) The impact on divorce in father-custody and mother-custody homes. The childs perspective, in Kurdek (ed.) Children and divorce, San Francisco: Jossey-Bass.

Welsh-Osga, B. (1981) The effects of custody arrangements on children of divorce, Doctoral thesis, University of South Dakota. UMI No. 82-6914.

- Wolchik, S. A., Braver S. L.,Sandler I.N. (1985) J. of Clinical Child Psych 14:5-10.

Vårdnadstvistutredningen: Vårdnad boende umgänge (SOU 1995:79).

- Öberg, B., Öberg, G. (1985) Den delade familjen, Stockholm: Pedagogiska institutionen, Stockholms universitet, Forskningsrapport nr 26.

- Öberg, B., Öberg, G. (1987) Skiljas – men inte från barnen, Stockholm: Natur och Kultur.

- Öberg, B., Öberg, G. (1992) Pappa, se mig! Om förnekade barn och maktlösa fäder. Stockholm: Förlagshuset Gothia. Utgiven i samarbete med Rädda Barnen.

20090103_Presentation_by_Peter_Tromp_in_Greece_Benefits_of_post-divorce_shared_parenting_and_the_Netherlands_Belgium_and_Germany

Soviet roots of todays family law and divorce system

1. The 1918 Soviet Russian “Family Code on Marriage, The Family, and Guardianship”
Answers.com – WENDY GOLDMAN

The Russian Central Executive Committee of Soviets ratified the Code on Marriage, the Family, and Guardianship in October 1918, one year after the Bolsheviks took power. Alexander Goikhbarg, the young author of the Code, expected that family law would soon be outmoded and “the fetters of husband and wife” unnecessary. Goikhbarg and other revolutionary jurists believed children, the elderly, and the disabled would be supported under socialism by the state; housework would be socialized and waged; and women would no longer be economically dependent on men. The family, stripped of its social functions, would “wither away,” replaced by “free unions” based on mutual love and respect. The Code aimed to provide a transitional legal framework for that short period in which legal duties and protections were still necessary.

Prerevolutionary jurists had attempted throughout the late nineteenth century to reform Russia’s strict laws on marriage and divorce, but achieved little success. Up to 1917, Russian law recognized the right of religious authorities to control marriage and divorce. Women were accorded few rights by either church or state. According to state law, a wife owed her husband complete obedience. She was compelled to live with him, take his name, and assume his social status. Up to 1914, a woman was unable to take a job, get an education, or execute a bill of exchange without her husband’s consent. A father held almost unconditional power over his children. Only children from a legally recognized marriage were considered legitimate, and illegitimate children had no legal rights or recourse. Up to 1902, when the state enacted limited reforms, a father could recognize an illegitimate child only by special imperial consent. The Russian Orthodox Church considered marriage a holy sacrament, and divorce was almost impossible. It was permissible only in cases of adultery (witnessed by two people), impotence, exile, or unexplained and prolonged absence. In cases of adultery or impotence, the responsible party was permanently forbidden to remarry.

The 1918 Code swept away centuries of patriarchal and ecclesiastical power and established a new vision based on individual rights and gender equality. It was predated by two brief decrees enacted in December 1917 that substituted civil for religious marriage and established divorce at the request of either spouse. The 1918 Code incorporated and elaborated on these two decrees. It abolished the inferior legal status of women and created equality under the law. It eliminated the validity of religious marriage and gave legal status to civil marriage only, creating a network of local statistical bureaus (ZAGS) for the registration of marriage, divorce, birth, and death. The Code established no-grounds divorce at the request of either spouse. It abolished the juridical concept of “illegitimacy” and entitled all children to parental support. If a woman could not identify the father of her child, a judge assigned paternal obligations to all the men she had sexual relations with, thus creating a “collective of fathers.” It forbade adoption of orphans by individual families in favor of state guardianship: jurists feared adoption, in a largely agrarian society, would allow peasants to exploit children as unpaid labor. The Code also sharply restricted the duties and obligations of the marital bond. Marriage did not create community of property between spouses: a woman retained full control of her earnings after marriage, and neither spouse had any claim on the property of the other. Although the Code provided an unlimited term of alimony for either gender, support was limited to the disabled poor. The Code presumed that both spouses, married or divorced, would support themselves.

The 1918 Code was very advanced for its time. Comparable legislation on equal rights and divorce would not be passed in Europe or the United States until the end of the twentieth century. Yet many Soviet jurists believed that the Code was not “socialist” but “transitional” legislation. Goikhbarg, like many revolutionary jurists, expected that law, like marriage, the family, and the state, would soon “wither away.

The Code had a significant effect on the population, both rural and urban. By 1925, Soviet citizens had widely adopted civil marriage and divorce. The USSR displayed a higher divorce rate than any European country, with fifteen divorces for every one hundred marriages. The divorce rate was higher in the cities than in the rural areas, and highest in Moscow and Leningrad. In Moscow, there was one divorce for every two marriages. Soviet workers, women in particular, suffered high unemployment during the 1920s, and divorce proved a special hardship for women who were unable to find work. Peasant families found it difficult to reconcile customary law with the autonomous property provisions of the Code. After extensive debate, Soviet jurists enacted a new Family Code in 1926 to redress these and other problems.

Bibliography

• Berman, Harold. (1963). Justice in the USSR: An Interpretation of Soviet Law. Cambridge, MA: Harvard University Press.
• Goldman, Wendy. (1993). Women, the State and Revolution: Soviet Family Policy, 1917 – 1936. New York: Cambridge University Press.
• Hazard, John. (1969). Communists and Their Law. Chicago: University of Chicago Press.
• Stites, Richard. (1978). The Women’s Liberation Movement in Russia: Feminism, Nihilism and Bolshevism, 1860 – 1930. Princeton, NJ: Princeton University Press.
• Wood, Elizabeth. (1997). The Baba and the Comrade: Gender and Politics in Revolutionary Russia. Bloomington: Indiana University Press.

2. Soviet Russian Family Code of 1926
Answers.com—WENDY GOLDMAN

In 1926 the Soviet government affirmed a new Code on Marriage, the Family, and Guardianship to replace the 1918 version. Adopted after extensive and often heated nationwide debate, the new Code addressed several social issues: the lack of protection for women after divorce; the large number of homeless orphans (besprizorniki); the incompatibility of divorce and common property within the peasant household; and the mutual obligations of cohabiting, unmarried partners.

The new Code promoted both individual freedom and greater protection for the vulnerable. It simplified the divorce procedure in the 1918 version even further by transferring contested divorces from the courts to local statistical bureaus. Either spouse could register a divorce without the partner’s consent or even knowledge. This provision removed the law’s last vestige of authority over the dissolution of marriage, circumscribing both the power of law and the marital tie. The Code recognized de facto marriage (cohabitation) as the juridical equal of civil (registered) marriage, thus undercutting the need to marry “legally.” It provided a definition of de facto “marriage” based on cohabitation, a joint household, mutual upbringing of children, and third party recognition. It established joint property between spouses, thus providing housewives material protection after divorce. It abolished the controversial practice of “collective” paternity featured in the 1918 Family Code. If a woman had sexual relations with several men and could not identify the father of her child, a judge would assign paternity (and future child support payments) to one man only. The Code incorporated an April 1926 decree that reversed the prohibition on adoption and encouraged peasant families to adopt homeless orphans, who were to be fully integrated into the peasant household and entitled to land. It set a time limit on alimony to one year for the disabled and provided six months of alimony for the needy or unemployed. It also created a wider circle of family obligations by expanding the base of alimony recipients to include children, parents, siblings, and grandparents.

Bibliography

• Farnsworth, Beatrice. (1978). “Bolshevik Alternatives and the Soviet Family: The 1926 Marriage Law Debate.” In Women in Russia, eds. Dorothy Atkinson, Alexander Dallin, Gail Warshovsky Lapidus. Sussex, UK: Harvester Press.
• Goldman, Wendy. (1984). “Freedom and Its Consequences: The Debate on the Soviet Family Code of 1926.” Russian History 11(4):362 – 388.
• Goldman, Wendy. (1991). “Working-Class Women and the ‘Withering-Away’ of the Family: Popular Responses to Family Policy.” In Russia in the Era of NEP: Explorations in Soviet Society and Culture, eds. Sheila Fitzpatrick, Alexander Rabinowitch, Richard Stites. Bloomington: Indiana University Press.
• Lapidus, Gail Warshovsky. (1978). Women in Soviet Society. Berkeley: University of California Press.
• Quigley, John. (1979). “The 1926 Soviet Family Code: Retreat from Free Love.” Soviet Union 6(2):166 – 74.

3. Soviet Russian Family Laws of 1936
Answers.com—WENDY GOLDMAN

In 1936, the Soviet state enacted several laws that sharply departed from previous legislation. The Soviet Union had been the first country in the world to legalize abortion in 1920, offering women free abortion services in certified hospitals. In 1936, however, the Central Executive Committee outlawed abortion. Anyone who performed the operation was liable to a minimum of two years in prison, and a woman who received an abortion was subject to high fines after the first offense. The new law offered monetary incentives for childbearing, providing stipends for new mothers, progressive bonuses for women with many children, and longer maternity leave for white-collar workers. The criminalization of abortion reflected growing anxiety among health workers, managers, and state officials over the rising number of abortions, the falling birth rate, the shortage of labor, and the possibility of war.

The law also made divorce more difficult and stiffened criminal penalties for men who refused to pay alimony or child support. It required both spouses to appear to register a divorce and increased costs for the first divorce to fifty rubles, 150 rubles for the second, and three hundred rubles for the third. It set minimum levels for child support at one – third of a defendant’s salary for one child, fifty percent for two children, and sixty percent for three or more, increasing the penalty for nonpayment to two years in prison.

The law was part of a longer and larger public campaign to promote “family responsibility” and to reverse almost two decades of revolutionary juridical thinking. In April 1935, the Council of People’s Commissars (Sovnarkom) granted the courts sweeping new powers to try and sentence children aged twelve and older as adults; this resulted in mass arrests and imprisonment of teenagers, mostly for petty theft. In May 1935 the local Commissions on the Affairs of Minors were abolished, and responsibility for all juvenile crime was shifted to the courts. Punishment replaced an earlier commitment to pedagogical correction. The 1936 laws also marked a turn in attitudes toward law and family. Jurists condemned as “legal nihilism” earlier notions that the law and the family would “wither away.” Many legal theorists of the 1920s, including Yevgeny Pashukanis and Nikolai Krylenko, were arrested and shot.

Bibliography

• Goldman, Wendy. (1991). “Women, Abortion, and the State, 1917 – 1936.” In Russia’s Women: Accommodation, Resistance, Transformation, eds. Barbara Clements, Barbara Engel, Christine Worobec. Berkeley: University of California Press.
• Goldman, Wendy. (1993). Women, the State, and Revolution: Soviet Family Policy and Social Life, 1917 – 1936. New York: Cambridge University Press.
• Sharlet, Robert. (1984). “Pashukanis and the Withering-Away of Law in the USSR.” In Cultural Revolution in Russia, 1928 – 31, ed. Sheila Fitzpatrick. Bloomington: Indiana University Press.

4. Soviet Russian Family Edict of 1944
Answers.com—REBECCA BALMAS NEARY

This decree of the Presidium of the Supreme Soviet claimed to “protect motherhood and childhood.” Amid deep concern for wartime manpower losses and social dislocation, the decree sought to increase natality and reinforce marriage.

The law’s best – known provisions rewarded prolific mothers and made divorce more difficult to obtain; its pro – natalism and support for marriage reinforced prewar trends apparent in the Family Laws of 1936. Pro – natalist measures included family allowances paid to mothers regardless of marital status, extended maternity leave, protective labor legislation for pregnant and nursing women, and an ambitious plan to expand the network of childcare services and consumer products for children. Bearers of ten or more living children were honored as “Mother – heroines.”

Other provisions tightened marital bonds by making divorce more onerous. Proceedings now took place in open court, with both parties present and the court obligated to attempt reconciliation. The intent to divorce was published in the newspaper, and fines increased substantially. Reversing the 1926 Family Code, only registered (not common – law) marriages were now officially recognized. The state also reestablished the notion of illegitimacy: only children of registered marriages could take their father’s name and receive paternal child support.

The legislation had no significant lasting effect on birth or divorce rates. Despite its ambitious goals, promises of augmented childcare services and consumer goods went unfulfilled, given postwar economic devastation and prioritization of defense and heavy industries. The law’s greatest significance was perhaps as a manifestation of the ongoing Soviet effort to imbue private life with public priorities.

Bibliography

• Bucher, Greta. (2000). “Struggling to Survive: Soviet Women in the Postwar Years.” Journal of Women’s History 12(1):137 – 159.
• Field, Deborah. (1998). “Irreconcilable Differences: Divorce and Conceptions of Private Life in the Khrushchev Era.” Russian Review 57(4):599 – 613.

5. Overview of Marriage and Family Life in Russia
Answers.com—WILLIAM G. WAGNER

As elsewhere in Europe, marriage and family life in Russia have varied across time and by social group, reflecting the complex interplay of competing ideals, changing patterns of social and economic organization, differing forms of political organization and levels of state intrusiveness, and the effects of cataclysmic events. If in the long run the outcome of this interplay of forces has been a family structure and dynamic that conform essentially with those found in modern European societies, the development of marriage and the family in Russia nevertheless has followed a distinctive path. This development can be divided into three broad periods: the centuries preceding the formation of the Russian Empire during the early eighteenth century, the imperial period (1698 – 1917), and the period following the Bolshevik Revolution and establishment of the Soviet state in October 1917. While the pace of development and change varied significantly between different social groups during each of these periods, each period nonetheless was characterized by a distinctive combination of forces that shaped marital and family life and family structures. In Russia’s successive empires, moreover, important differences also often existed between the many ethno-cultural and religious groups included in these empires. The discussion that follows therefore concerns principally the Slavic Christian population.

Pre-Imperial Russia

Although only limited sources are available for the reconstruction of marital and family life in medieval Russia, especially for nonelite social groups, there appears to have been broad continuity in the structure and functioning of the family throughout the medieval and early modern periods. Family structures and interpersonal relations within marriage and the family were strongly shaped by the forms of social organization and patterns of economic activity evolved to secure survival in a harsh natural as well as political environment. Hence, constituting the primary unit of production and reproduction, and providing the main source of welfare, personal status, and identity, families in most instances were multigenerational and structured hierarchically, with authority and economic and familial roles distributed within the family on the basis of gender and seniority. While scholars disagree over whether already by 1600 the nuclear family had begun to displace the multi-generational family among the urban population, this development did not affect the patriarchal character or the social and economic functions of either marriage or the family. Reflecting and reinforcing these structures and functions, the marriage of children was arranged by senior family members, with the economic, social, and political interests of the family taking precedence over individual preference. Land and other significant assets, too, generally were considered to belong to the family as a whole, with males enjoying preferential treatment in inheritance. Marriage appears to have been universal among all social groups, with children marrying at a young age, and for married women, childbirth was frequent.

After the conversion of Grand Prince Vladimir of Kievan Rus to Christianity in 988, normative rules governing marriage and the family also were shaped and enforced by the Orthodox Church, although the effective influence of the Church spread slowly from urban to rural areas. Granted extensive jurisdiction over marital and family matters first by Kievan and then by Muscovite grand princes, the Church used its authority to establish marriage as a religious institution and to attempt to bring marital and family life into conformity with its doctrines and canons. For example, the Church sought – with varying degrees of success – to limit the formation of marriages through restrictions based on consanguinity and age, to restrict marital dissolution to the instances defined by canon law, to limit the possibility of remarriage, and to confine sexual activity to relations between spouses within marriage for the purpose of procreation. At the same time, through its teachings, canonical rules, and ecclesiastical activities, the Church reinforced the patriarchal order within marriage and the family, thereby providing a religious sanction for established social structures and practices. Hence the extent to which the Church transformed or merely reinforced existing ideals of and relationships within marriage and the family remains disputed.

Although patriarchal attitudes and structures and a gendered division of labor also prevailed within elite households, the role of family and lineage in determining relative status within and between elite groups, access to beneficial appointments and the material rewards that followed from them, and the prospects for forming advantageous marriage alliances between families imparted distinctive characteristics to elite family life, especially after the late fifteenth century. The practice among the Muscovite elite of secluding women in separate quarters (the terem), for example, which reached its greatest intensity during the seventeenth century, appears to have been due largely to the desire to protect family honor and ensure the marriage utility of daughters in a context in which the elite was growing in size and complexity. Seclusion itself, however, considerably increased the politically important role of married women in arranging and maintaining family alliances. Similarly, the development of a system of service tenements in land to support the expansion especially of military servitors after the late fifteenth century led initially to a deterioration in the property and inheritance rights of elite women. Yet such women also often had principal responsibility for managing the estates and other affairs of husbands who frequently were away on military campaigns or carrying out other service assignments. Hence within the Muscovite elite, and quite likely among other social groups in pre-Petrine Russia as well, the normative ideal and legal rules supporting the patriarchal family often concealed a more complex reality. This ideal nonetheless provided a powerful metaphor that helped to legitimize and integrate the familial, social, and political orders.

Imperial Russia

The history of marriage and the family during the imperial period was marked both by a complex pattern of continuity and change and by sharp diversity between social groups, as the exposure of different groups to the forces of change varied significantly. Nonetheless, by the early twentieth century the long-term trend across the social spectrum was toward smaller families, the displacement of the multigenerational family by the nuclear family, a higher age at the time of first marriage for both men and women, declining birth rates, an increased incidence of marital dissolution, and, in urban areas, a decline in the frequency of marriage. Within the family, the structure of patriarchal authority was eroding and the ideal itself was under attack.

The groups that were exposed earliest and most intensively to the combination of forces lying behind these trends were the nobility, state officialdom, the clergy, and a newly emergent intelligentsia and largely urban bourgeoisie. During the eighteenth century, for example, the nobility represented the main target and then chief ally of the state in its efforts to inculcate European cultural forms and modes of behavior and to promote formal education and literacy. Among the effects of such efforts was a new public role for women and the dissemination of ideals of marriage, family, and the self that eventually came to challenge the patriarchal ideal. By helping to produce by the first half of the nineteenth century a more professionalized, predominantly landless, and largely urban civil officialdom, as well as a chiefly urban cultural intelligentsia and professional bourgeoisie, changes in the terms of state service and the expansion of secondary and higher education both provided a receptive audience for new ideals of marriage and the family and eroded dependency on the extended family. By expanding the occupational opportunities not only for men but also for women outside the home, the development of trade, industry, publishing, and the professions had similar effects. Most of these new employment opportunities were concentrated in Russia’s rapidly growing cities, where material and physical as well as cultural conditions worked to alter the family’s role, structures, and demographic characteristics. For this reason, the marital and demographic behavior and family structures of urban workers also exhibited early change.

At least until after the late 1850s, by contrast, marriage and family life among the peasantry, poorer urban groups, and the merchantry displayed greater continuity with the past. This continuity resulted in large part from the strength of custom and the continued economic, social, and welfare roles of the multigenerational, patriarchal family among these social groups and, at least among the peasantry, from the operation of communal institutions and the coincident interests of family patriarchs (who dominated village assemblies), noble landowners, and the state in preserving existing family structures. Facilitated by the abolition of serfdom in 1861, however, family structures and demographic behavior even among the peasantry began slowly to change, especially outside of the more heavily agricultural central black earth region. In particular, the increased frequency of household division occurring after the emancipation contributed to a noticeable reduction in family size and a decline in the incidence of the multigenerational family by the last third of the century, although most families still passed through a cycle of growth and division that included a multigenerational stage. While marriage remained nearly universal, the age at first marriage also rose for both men and women, with the result that birth rates declined somewhat. The growth of income from local and regional wage labor, trade, and craft production and the rapid expansion of migratory labor contributed to all these trends, while also helping to weaken patriarchal structures of authority within the family, a process given further impetus by the exposure of peasants to urban culture through migratory labor, military service, and rising literacy. Although most peasant migrants to cities, especially males, retained ties with their native village and household, and consequently continued to be influenced by peasant culture, a significant number became permanent urban residents, adopting different family forms and cultural attitudes as a result. With the rapid growth of Russian cities and the transformation of the urban environment that took place after the late 1850s, family forms and demographic behavior among the poorer urban social groups and the merchantry also began to change in ways similar to other urban groups.

Normative ideals of marriage and the family likewise exhibited significant diversification and change during the imperial period, a process that accelerated after the late 1850s. If closer integration into European culture exposed Russians to a wider and shifting variety of ideals of marriage, the family, and sexual behavior, the development of a culture of literacy, journalism and a publishing industry, and an ethos of civic activism and professionalism based on faith in the rational use of specialized expertise broadened claims to the authority to define such ideals. These developments culminated in an intense public debate over reform of family law – and of the family and society through law – after the late 1850s. Very broadly, emphasizing a companionate ideal of marriage, the need to balance individual rights with collective responsibilities and limited authority within marriage and the family, and the necessity of adapting state law and religious doctrines to changing social and historical conditions, advocates of reform favored the facilitation of marital dissolution, equality between spouses in marriage, greater rights for children born out of wedlock, the recasting of inheritance rights based on sexual equality and the nuclear family, and the decriminalization of various sexual practices as well as of abortion. Many of these principles in fact were embodied in draft civil and criminal codes prepared by government reform commissions between 1883 and 1906, neither of which was adopted, and proposals to expand the grounds for divorce made by a series of committees formed within the Orthodox Church between 1906 and 1916 proved similarly unsuccessful. Socialist activists adopted an even more radical position on the reconstitution of marriage and the family, in some cases advocating the socialization of the latter. Opponents of reform, by contrast, stressed the social utility, naturalness, and divine basis of strong patriarchal authority within marriage and the family, the congruence of this family structure with Russian cultural traditions, and the role of the family in upholding the autocratic social and political orders. Although significant reforms affecting illegitimate children, inheritance rights, and marital separation were enacted in 1902, 1912, and 1914, respectively, deep divisions within and between the state, the Orthodox Church, and society ensured that reform of marriage and the family remained a contentious issue until the very end of the autocracy, and beyond.

Soviet Russia

With respect to marriage and the family, the long-term effect of the Soviet attempt to create a modern socialist society was to accelerate trends already present in the early twentieth century. Hence, by the end of the Soviet period, among all social groups family size had declined sharply and the nuclear family had become nearly universal, the birth rate had dropped significantly, marriage no longer was universal, and the incidence of marital dissolution had risen substantially. But if by the 1980s the structure and demographic characteristics of the Russian family had come essentially to resemble those found in contemporary European societies, the process of development was shaped by the distinctive political and economic structures and policies of Soviet-style socialism.

Soviet policies with respect to marriage and the family were shaped initially by a combination of radical ideological beliefs and political considerations. Hence, in a series of decrees and other enactments promulgated between October 1917 and 1920, the new Soviet government introduced formal sexual equality in marriage, established divorce on demand, secularized marriage, drastically curtailed inheritance and recast inheritance rights on the basis of sexual equality and the nuclear family, and legalized abortion. The party-state leadership also proclaimed the long-term goal of the socialization of the family through the development of an extensive network of social services and communal dining. These measures in part reflected an ideological commitment to both the liberation of women and the creation of a socialist society. But they also were motivated by the political goals of attracting the support of women for the new regime and of undermining the sources of opposition to it believed to lie in patriarchal family structures and attitudes and in marriage as a religious institution. In practice, however, the policies added to the problems of family instability, homelessness, and child abandonment caused mainly by the harsh and disruptive effects of several years of war, revolution, civil war, and famine. For this reason, while welcomed by radical activists and some parts of the population, Soviet policies with respect to marriage and the family also provoked considerable opposition, especially among women and the peasantry, who for overlapping but also somewhat different reasons saw in these policies a threat to their security and self-identity during a period of severe dislocation. In important respects, Soviet propaganda and policies in fact reinforced the self-image that partly underlay the opposition of women to its policies by stressing the ideal and duties of motherhood. Yet the direction of Soviet policies remained consistent through the 1920s, albeit not without controversy and dissent even within the party, with these policies being embodied in the family codes of 1922 and 1926.

The severe social disruptions, strain on resources, and deterioration of already limited social services caused by the collectivization of agriculture, the rapid development of industry, the abolition of private trade, and the reconstruction of the economy between the late 1920s and the outbreak of war in 1941, however, led to a fundamental shift in Soviet policies with respect to marriage and the family. With its priorities now being economic growth and social stabilization, the Soviet state idealized the socialist family (which in essence closely resembled the family ideal of prerevolutionary liberal and feminist reformers), which was proclaimed to be part of the essential foundation of a socialist society. A series of laws and new codes enacted between 1936 and 1944 therefore attempted both to strengthen marriage and the family and to encourage women to give birth more frequently: Divorce was severely restricted, children born out of wedlock were deprived of any rights with respect to their father, thus reestablishing illegitimacy of birth, abortion was outlawed, and a schedule of rewards for mothers who bore additional children was established. Although the goals of women’s liberation and sexual equality remained official policy, they were redefined to accommodate a married woman’s dual burden of employment outside the home and primary responsibility for domestic work. Economic necessity in fact compelled most women to enter the workforce, regardless of their marital status, with only the wives of the party-state elite being able to choose not to do so. Despite the changes in normative ideals and the law, however, the effects of Soviet social and economic policies in general and of the difficult material conditions resulting from them were a further reduction in average family size and decline in the birth rate and the disruption especially of peasant households, as family members were arrested, migrated to cities in massive numbers, or died as a result of persecution or famine. The huge losses sustained by the Soviet population during World War II gave further impetus to these trends and, by creating a significant imbalance between men and women in the marriage-age population, considerably reduced the rate of marriage and complicated the formation of families for several decades after the war.

The relaxation of political controls on the discussion of public policy by relevant specialists after the death of Josef Stalin in 1953 contributed to another shift in Soviet policies toward marriage and the family during the mid-1960s. Divorce again became more accessible, fathers could be required to provide financial support for their children born out of wedlock, and abortion was re-legalized and, given the scarcity of reliable alternatives, quickly became the most common form of birth control practiced by Russian women. Partly as a result of these measures, the divorce rate within the Russian population rose steadily after the mid-1960s, with more than 40 percent of all marriages ending in divorce by the 1980s, and the birth rate continued to decline. But these trends also gained impetus from the growth of the percentage of the Russian population, women as well as men, receiving secondary and tertiary education, from the nearly universal participation of women in the workforce, from the continued shift of the population from the countryside to cities (the Russian population became predominantly urban only after the late 1950s), and from the limited availability of adequate housing and social services in a context in which women continued to bear the chief responsibilities for child-rearing and domestic work. These latter problems contributed to the reemergence in the urban population of a modified form of the multigenerational family, as the practices of a young couple living with the parents of one partner while waiting for their own apartment and of a single parent living especially with his or usually her mother appear to have increased. In the countryside, the improvement in the living conditions of the rural population following Stalin’s death, their inclusion in the social welfare system, yet the continued out-migration especially of young males seeking a better life in the city also led to a decline in family size, as well as to a disproportionately female and aging population, which affected both the structure of rural families and the rate of their formation. Nonetheless, the ideals of the nuclear family, marriage, and natural motherhood remained firmly in place, both in official policy and among the population.

Bibliography

• Clements, Barbara Evans; Engel, Barbara Alpern; and Worobec, Christine D., eds. (1991). Russia’s Women: Accommodation, Resistance, Transformation. Berkeley: University of California Press.
• Engel, Barbara Alpern. (1994). Between the Fields and the City: Women, Work, and Family in Russia, 1861 – 1914. New York: Cambridge University Press.
• Freeze, ChaeRan Y. (2002). Jewish Marriage and Divorce in Imperial Russia. Hanover, NH: Brandeis University Press.
• Goldman, Wendy Z. (1993). Women, the State, and Revolution: Soviet Family Policy and Social Life, 1917 – 1936. New York: Cambridge University Press.
• Hubbs, Joanna. (1988). Mother Russia: The Feminine Myth in Russian Culture. Bloomington: Indiana University Press.
• Lapidus, Gail Warshofsky. (1978). Women in Soviet Society: Equality, Development, and Social Change. Berkeley: University of California Press.
• Levin, Eve. (1989). Sex and Society in the World of the Orthodox Slavs, 900 – 1700. Ithaca, NY: Cornell University Press.
• Marrese, Michelle Lamarche. (2002). A Woman’s Kingdom. Noblewomen and the Control of Property in Russia, 1700 – 1861. Ithaca, NY: Cornell University Press.
• Mironov, Boris N., with Eklof, Ben. (2000). The Social History of Imperial Russia, 1700-1917. 2 vols. Boulder, CO: Westview Press.
• Pouncy, Carolyn J., ed. and tr. (1994). The “Domostroi”: Rules for Russian Households in the Time of Ivan the Terrible. Ithaca, NY: Cornell University Press.
• Ransel, David L., ed. (1978). The Family in Imperial Russia: New Lines of Historical Research. Urbana: University of Illinois Press.
• Ransel, David L. (2000). Village Mothers: Three Generations of Change in Russia and Tataria. Bloomington: Indiana University Press.
• Schlesinger, Rudolf, comp. (1949). Changing Attitudes in Soviet Russia: The Family in the USSR. London: Routledge and Paul.
• Wagner, William G. (1994). Marriage, Property, and Law in Late Imperial Russia. Oxford: Clarendon Press.
• Worobec, Christine D. (1991). Peasant Russia: Family and Community in the Post-Emancipation Period. Princeton, NJ: Princeton University Press.

6. Soviet Russian Abortion Policy
Answers.com—SHARON A. KOWALSKY

The Soviet Union was the first country in the world to legalize abortion, but its goal was to protect women’s health and promote motherhood, not to advance women’s rights.

Abortion was a criminal offense punishable by exile or long prison sentences before the Bolshevik Revolution. As part of its effort to reform Russian society, the Soviet government legalized abortion in a decree issued November 18, 1920. Supporters of the decree believed legal abortions were a necessary evil to prevent women from turning to dangerous and unsanitary back-alley abortions. Their goal was not to protect a woman’s individual reproductive rights, but to preserve the health of the mother for the common good. Furthermore, the legalization only applied to abortions performed by trained medical personnel, and in 1924 a system was established that prioritized access to legal abortions according to class position and social vulnerability (unemployed and unmarried working women topped the list).

In 1936, the state recriminalized abortion in an attempt to increase the birth rate and to emphasize the value of motherhood. Although the policy shift temporarily reduced the number of abortions, in the long term repression failed to have the desired effect and abortion rates increased. Abortion was again legalized in 1955 on the premise that women had become sufficiently aware of the importance of their maternal roles. Despite the changes over time, Soviet abortion policy consistently focused on protecting women’s health and encouraging motherhood. A lack of alternative methods of contraception, however, ensured that Soviet women relied on abortion as their primary means to control reproduction throughout the Soviet period.

Bibliography

• Buckley, Mary. (1989). Women and Ideology in the Soviet Union. Ann Arbor: University of Michigan Press.
• Goldman, Wendy Z. (1993). Women, the State, and Revolution: Soviet Family Policy and Social Life, 1917 – 1936. Cambridge, UK: Cambridge University Press.

What Adrienne Burgess thinks about fathers

‘Bringing fathers in’: International perspectives on father-inclusive practice

Excerpts from the address by Adrienne Burgess on “bringing fathers in” at the International Forum on Family Relationships in Transition at the Australian Institute of Family Studies, 15 May 2007

It’s good to be here this afternoon and it’s very nice not to have to tell you (but I will!) that, although I am from the UK, I am nothing to do with Batman climbing Buckingham Palace or other widely reported antics of ‘fathers’ rights’ groups.

It’s really interesting that the word ‘father’ has become so colonised by the separated fathers discourse that I have constantly to explain that we at Fathers Direct have a much broader brief. That we do not focus on separated fathers at all, but look much more at the wider family services, starting with antenatal services, looking at how to help them be more inclusive of fathers.

As I listened this morning to the description of the new family law system emerging in Australia and where it came from and what was driving it, two big worries crossed my mind. The first was that it seemed that the courts were being asked to operate much more of a kind of shared parenting model, and they were being asked to do this in isolation from other services, because all the other services don’t operate in that model. These other services may say they are ‘parenting’ services or ‘family’ services, but really they are services for mothers and ‘their’ children. Now there is nothing wrong with that. It’s perfectly fine to be operating as a service for mothers and children (if that’s what you are), but what is not fine is to be kidding yourself and kidding other people, through the widespread use of gender-neutral words like ‘parent’ or ‘family’, that you are doing something different—that what you are offering is a truly inclusive model that embraces both parents as important figures in children’s lives.

My worry is not that operating a shared parenting model is, in itself, wrong. The evidence is clear that it is immensely to the advantage of children whose parents separate (as to those whose parents stay together), to forge and maintain rich, complex and substantial relationships with both of them. And it is clear that in a post-industrial economy, family services must provide support for both parents as carers and providers. No, what worries me is that if the new family law system is to be linking into community programs (which has been mentioned several times), what will be happening is that they will be trying to operate a ‘shared care’ model while linking into programs that really have no idea how to work with men, or with couples; that often feel very hostile to men; or even if they are not hostile, are really sort of embarrassed. They think, ‘Well what will I talk to him about if I have to talk to him? I don’t know about football. What am I going to talk to him about?’ So they grab the child off him at the nursery gate, say, ‘Thanks very much’, and take the child inside, away from him. Whereas when they are confronted with a mother, they look her in the face, smile at her, learn her name, and bring her inside the ‘family’ service alongside ‘her’ child.

The other thing that worried me was what seems to me to be a widespread perception that what’s been brought in with regard to this new family law system has been riding on the back of the fathers’ rights discourse—a discourse that often adopts the language of the ‘gender-war’ and, understandably, frightens and alienates a lot of people. Many people also associate it with conservative family values, and my fear is that anything that is perceived to be forced upon the family law system only or mainly from such a discourse is in for a rough ride. It’s going to be very hard to make it ‘stick’. And we have to be clear that no new family law system is going to work unless it has wide buy-in from a lot of people.

So then I thought, ‘Well, what are the solutions to this?’ Well there are no easy solutions, but I thought I could talk a little bit about the innovative practice that is happening in the UK. You see, I think we all know that policy makers in the UK have historically found it difficult to tackle issues relating to separation and divorce. There has been no real political will in the UK, under either Conservative or Labour governments, to tackle this area. And, even today, there is no substantial and systematic funding coming from government and being directed into this area in the way there is here. The money has been going somewhere else. It has been going into early intervention. It has been going to the hugely well-funded Sure Start program, based on the US Head Start program, which is now evolving into a whole new network of centres across Britain, called Sure Start Children’s Centres, which are drawing together maternity and early years services—health, education, everything—to try to make a difference in families very early on.

Interestingly, it is here that in Britain we have been really innovating around engaging with fathers and developing a much more inclusive model for services to address both parents as both earners and carers, in intact and in separated families.

…………………..

What we need are services that also, perhaps most importantly, learn to engage with fathers who are not ‘good enough’ parents, and help them to develop their skills; services that don’t just look at fathers as ‘goodies’ or ‘baddies’ (which is the paradigm that the fathers’ rights discourse carries with it), but which see fathers as human men, who have relationships with women and children that are characterised by strengths and vulnerabilities; services that see fathers as both a risk and a resource (as they do with mothers), and do their very best to sustain relationships between men and their children in as positive a way as possible (as they do with mothers).

What this means is that they, and we, learn to have high expectations of the father role (as we do of the mother role) and that means not giving up on fathers who disengage or behave abusively until we’ve done everything we can to bring about change (as we do with mothers). So whatever kind of service you are, and wherever you engage with families, you learn to look at these men as real people, not as villains or heroes, and you try to build on their strengths and help them with their challenging behaviour.

But what this means is that services need help to change—and this will be the case with the new family law system here in Australia. It is no good just setting out these structures and saying, ‘You will engage with fathers’, because they simply don’t know how. So you have to have a national system that develops standards and targets, and develops techniques, and builds capacity in the field, and helps family service providers learn how to engage effectively with fathers—and also with mothers on the subject of fatherhood, because some of the most important work you will ever do around fatherhood, you do with mothers.

The other thing that I think is really important is that we need to tap into discourses emerging all over the world which have nothing to do with ‘fathers’ rights’, but everything to do with involved fatherhood. So I thought I would mention some international agencies for whom fatherhood is rising up the agenda in a manner that is completely foreign to discussions of fatherhood in Australia. I have been here a lot over the past three years, and I have observed this to be the case.

The first of the international agencies is the Commission on the Status of Women. The Commission meets every couple of years, and it met in New York in 2004. At the end of its deliberations, it urged governments, other organisations, civil society, the UN system—they left nobody out!—to promote, among other things, an understanding of the importance of fathers to the wellbeing of children and to the promotion of gender equity.

……………………

---

In the above address Adrienne Burgess has nothing positive to say and no solutions to offer for separated (excluded) fathers. Any future participation of fathers in society appears to be premised on the permission granted by the “caring professions”. That she is very much aware of the exclusion she practises on separated fathers is shown by her quotes below, where she elaborates on the same feminist-like exclusion sentiments being operational on fathers in general:

“Despite widespread worries about unemployment among young males, it wasn’t possible to find a single school initiative, let alone a local or national policy, directing boys into careers in education or welfare, although girls are still enthusiastically directed towards careers in science and engineering. When the no-go areas for boys include, as is the case today, family services (primary schools, nurseries, social work) this can have a negative impact on ordinary father-child relationships. …. Soon it is thought that only abusers will choose this career and, by extension, it begins to appear as if every man with an interest in children, including fathers in their own homes, is an abuser. …. the more ordinary fathers back away. …. Female professionals usually have little inclination and less understanding of how to engage men….

“In autumn 1990, I was walking up the Holloway Road with my mate, and we were both carrying our babies in slings on our chests. This car went past with these young blokes in it, and they slowed right down, rolled down the windows, and yelled “Child-abusers!” Nothing like that happened 16 years ago when I was going round with my first son, doing much the same things. I think attitudes have changed. I think some men are scared to be seen being intimate with their children.’ – Phil, 43, father of two (two families)“

- Adrienne Burgess, “Fatherhood Reclaimed”, pub. Vermillion 1997, p171.

---

British men fear to touch children
The Observer, Richard Reeves and Martin Bright, 25july99, p6

“….based on interviews with 1,000 men…. Such is the obsession with, and fear of, paedophilia in the UK that advertisers are being warned off using images of men with children. …. ….

“Adrienne Burgess, …., said the report confirmed the British ‘obsession’ with child abuse. “The impact of some feminist critiques in the early 1960s, which said all men were rapists, was greater here than elsewhere. …. which makes it seem abnormal when a man does touch a child, sometimes even his own. ….’”

---

Who is Adrienne Burgess from Fathers Direct, United Kingdom?

Adrienne Burgess is the Research and Policy Officer for the United Kingdom’s Fathers Direct: The National Information Centre on Fatherhood, and has written widely on fatherhood and on couple relationships for more than twenty years, in publications as diverse as Cosmopolitan and Child Development. She trains family service providers, including some court personnel, in engaging effectively with fathers, and writes books, practice guides and policy documents. Recent publications include Working with fathers: A guide for everyone working with families (London: Fathers Direct, 2004) and ‘Fathers and public services’ in Daddy dearest? Active fatherhood and public policy (London: Institute for Public Policy Research, 2005).