Irish law – distinguishing ‘separation’ from ‘desertion’

Irish divorce information

Separation v Desertion. What’s the difference ?

 Facts about desertion; What everyone should know

By Roger Eldridge, Chairman, National Mens Council of Ireland and Executive Director, Family Rights and Responsibilities Institute of Ireland

 NB. This is not applicable to English law, however these words by David Hodson of the Centre for Social Justice are applicable to both the Irish and English experience:

  • “It might be said that it is perverse for a divorce lawyer and family court judge to be espousing laws and policies which will reduce family breakdown, and with it the need for such services. Like most family lawyers, I have seen at first hand too many of the consequences of family breakdown and too many consequences of the impact on children. If one result of these proposed reforms is less need for divorce lawyers then most in society will rejoice!”

CHAIRMAN’S FOREWORD – David Hodson, Chairman of the Family Law Review,
Centre for Social Justice, UK .

It is very clear when discussing their difficulties with callers to our help-line [National Mens Council of Ireland] that many Spouses – men in particular – are very confused about the difference between separation and desertion. This is not their fault as the legal profession have made it their business to eliminate the word and concept of “desertion” from all family law proceedings. I sat in with a member of Tréigthe – our Deserted Spouses & Marriage Reconciliation Self-Help Group – when he went to discuss with his solicitor what he could do.

Despite the facts supporting it, whenever he described himself as being “deserted” his own solicitor got very cross with him and told him that the judge would be very angry if he ever said anything like that in court. When he tried to talk about it further his solicitor told him that she will not represent him if he ever used the word again!

Hopefully the information given below which has been taken directly from three different legal sources will clear people’s heads and stop them mistakenly believing they are “separated” when really they are “deserted”.

The reason why solicitors create this confusion is because they have been assisting Spouses who are the deserter to profit at the expense of the actual deserted spouse for the past thirty years [in Ireland only].  They tell the deserted Spouse that the other Spouse – the actual deserter – is entitled to separate and tell them that they should just accept that they are now “separated” and deal with it. By doing this the deserted Spouse loses everything and especially is seen to be going along with the breakdown of the Marriage instead of getting help to reconcile it.

Some of the most important aspects of family Law are the provisions for maintenance. It is a duty of Spouses to maintain the Family home and the other Spouse and children living there. If one of the Spouses deserts the family they are still held to this duty and are forced to pay money for the maintenance of the deserted household. Logically and in the statute there is a bar to a deserter receiving such maintenance. 

However, the law is being operated by solicitors so that the Husband is always the one ordered to pay maintenance to his wife regardless of who is guilty of desertion. This creates an ever lengthening queue of wives outside solicitors’ offices who are led to believe that they can just walk out on their Marriage and still be kept in the style (or better!) they were when they were acting as a wife in the home. They are told to ensure they keep the kids with them and refuse to let them stay at home even though the law presumes that the children should be at home. This has been used for many years as a sort of “grey area” which is used to justify the “legitimise” the deserter and get money from the deserted spouse for the maintenance of the children. Solicitors advise their deserted clients to pay this money even though it is against their best interests and those of the children in the long run.

In all of this confusion and corruption of the law any chance of a Reconciliation of the Family is buried in anger and injustice. This has to stop.

Please pass the information below to anyone you know who is having problems in their family (i.e. by now almost everyone!) and let them know that we are available to talk to them and assist them to resist the worst practices of the courts. This is the necessary first step before moving on to the more important one of helping them to reconcile their Marriage. When leaving a marriage doesn’t bring instant rewards it gives people a chance to rethink their plans. It is this critical period of time that needs to be seized upon if we are ever to stop the wanton dismemberment of families and destruction of society.


See below for more references.

Roger Eldridge is Chairman, National Mens Council of Ireland (National Office: Knockvicar, Boyle, Co. Roscommon, Website:  Email:      Tel:: 00353 (0) 7196-67138           00353 (0) 83-3330256).


Desertion, known in some states as ‘abandonment,’ is considered grounds for divorce in states that have fault divorces. There are two types of desertion, actual desertion and constructive desertion. Both types of desertion must be continuous and uninterrupted for a specific period of time between one and five years depending on the state.

The most obvious situation which would constitute desertion is when one spouse leaves without a trace, never comes back and never again makes contact. However, there are other situations which constitute desertion.

Desertion vs. separation
Desertion is not the same as separation. In a separation both spouses consent to living apart. Desertion only occurs when one spouse does not consent to the separation.

The necessary elements to establish desertion include:

  •           No longer living in the same residence
  •           No longer having sexual relations
  •           Deserting spouse intends to end the marriage
  •           Deserting spouse was not justified in leaving the residence
  •           Deserted spouse did not consent to the desertion
  •           Desertion has been continuous and uninterrupted for the amount   of  time designated by law in your state

Actual desertion vs. constructive desertion
In actual desertion the deserting spouse leave the home. Constructive desertion occurs when the deserted spouse leaves due to unbearable conditions at home caused by the other spouse. Combined with the above elements of desertion, depending on the state, conditions for constructive desertion can include:

  1. Physical abuse
  2. Mental cruelty
  3.  Adultery
  4.  non-support
  5. Unjustified refusal to have sexual relations for a significant period of time
  6. Knowing transmission of a venereal disease

Couples contemplating divorce should be cautious about moving out of the residence in a manner which can be claimed as desertion. To avoid a claim of desertion both parties must agree to the separation and should provide each other with contact information.

The desertion period must be continuous and uninterrupted. One night spent under the same roof or one meeting for sexual relations can be considered an interruption in the desertion period, and the required length of time would start over after that date.

Unintentional abandonment is not considered desertion. If a spouse goes missing for a specified period of time, and efforts to find the spouse are unfruitful, the abandoned spouse may obtain a divorce. However, situations such as military personnel missing in action do not constitute desertion.

Desertion Grounds

Desertion must be proven by a preponderance of the evidence.  There are two main elements to prove to establish abandonment/desertion grounds for divorce; (1) the actual breaking off of the matrimonial cohabitation (abandoning the usual marital duties, not just sexual intercourse must be established), and (2) the intent to desert the marriage.

The breaking off of matrimonial cohabitation means that the couple must actually have separate addresses, and not just maintain separate sleeping arrangements.  Ceasing to engage in sexual intercourse, even without just cause, does not constitute desertion.  But where there is a significant abandonment of marital duties, which results in practical destruction of home life, a party may be guilty of desertion.

 The second element to establish abandonment/desertion is the intent to desert the marriage. The desire to separate is not necessarily synonymous with the intent to desert the marriage. Where the parties separate by “mutual consent,” neither party has established grounds for desertion.  If the person deserting cannot legally justify the desertion, then proof of the actual breaking off of the matrimonial relationship with the intent to desert entitles the other spouse to a divorce. 

“Constructive desertion” involves actions or conduct resulting in the other spouse’s forced separation.  To prove constructive desertion, the spouse leaving the home must prove that the misconduct by the spouse remaining in the home constitutes grounds for divorce. Traditionally, this spouse must show that the remaining spouse conducted himself/herself in such a manner as to provoke the leaving.

It should be noted that excessive alcohol consumption is not sufficient, standing alone, to constitute constructive desertion, nor is demanding that a spouse leave is not constructive desertion. Generally speaking, a spouse is not justified in leaving the other just because there has been a gradual breakdown in the marital relationship or because the parties are unable to live together in peace and harmony. The party claiming justification for leaving has the burden of proving it, unless the justification appears from the testimony given by the other party.

Defenses to desertion include (1) agreement, (2) recrimination, (3) justification, (4) pending divorce case, or (5) relocation of spouse.

Agreement:  When the separation is by consent or agreement, or is acquiesced to by the other spouse, there is a presumption that the separation by consent continues until a spouse withdraws the consent and offers to resume the cohabitation.  Refusal without justification will give rise to desertion.

Recrimination:  Where the deserted party as well as the deserting party is guilty of a fault ground, the deserted party is barred from a divorce on the grounds of the desertion.

Justification:  Where there is violence, even thought the acts do not amount to cruelty, there may be a sufficient basis to constitute a fault ground for divorce.

Pending divorce case:  A spouse is not guilty of desertion where the leaving takes place after the divorce case has been instituted and during the pendency of the case.

Relocation of spouse:  A spouse is no longer expected to follow the other spouse’s change of abode, and the refusal to follow to relocate is not desertion.



The act by which a person abandons and forsakes, without justification, a condition of public, social, or family life, renouncing its responsibilities and evading its duties. A willful Abandonment of an employment or duty in violation of a legal or moral obligation.

Criminal desertion is a husband’s or wife’s abandonment or willful failure without Just Cause to provide for the care, protection, or support of a spouse who is in ill-health or necessitous circumstances.

Desertion, which is called abandonment in some statues, is a Divorce ground in a majority of states. Most statutes mandate that the abandonment continue for a certain period of time before a divorce action may be commenced. The length of this period varies between one and five years; it is most commonly one year. The period of separation must be continuous and uninterrupted. In addition, proof that the departed spouse left without the consent of the other spouse is required in most states.

Ordinarily, proof of desertion is a clear-cut factual matter. Courts generally require evidence that the departure was voluntary and that the deserted husband or wife in no way provoked or agreed to the abandonment. Constructive desertion occurs when one party makes life so intolerable for his or her spouse that the spouse has no real choice but to leave the marital home. For an individual to have legal justification for departing, it is often required that the spouse act so wrongfully as to constitute grounds for divorce. For example, a wife might leave her husband if she finds that he is guilty of Adultery.

In desertion cases, it is not necessary to prove the emotional state of the abandoning spouse, but only the intent to break off matrimonial ties with no ‘animus  revertendi’, the intention to return.

Mere separation does not constitute desertion if a Husband and Wife agree that they cannot cohabit harmoniously. Sexual relations between the parties must be totally severed during the period of separation. If two people live apart from one another but meet on a regular basis for sex, this does not constitute desertion. State law dictates whether or not an infrequent meeting for sexual relations amounts to an interruption of the period required for desertion. Some statutes provide that an occasional act of sexual intercourse terminates the period only if the husband and wife are attempting reconciliation.

Unintentional abandonment is not desertion. For example, if a man is missing in action while serving in the Armed Services, his wife may not obtain a divorce on desertion grounds since her spouse did not intend to leave his family and flee the marital relationship. The Common Law allows an individual to presume that a spouse is dead if the spouse is inexplicably absent for a seven-year period. If the spouse returns at any time, the marriage remains intact under common law.

Laws that embody the Enoch Arden Doctrine grant a divorce if evidence establishes that an individual’s spouse has vanished and cannot be found through diligent efforts. A particular period of time must elapse. Sometimes, if conditions evidencing death can be exhibited, a divorce may be granted prior to the expiration of the time specified by law.

In some jurisdictions, the law is stringent regarding divorce grounds. In such instances, an Enoch Arden decree might be labeled a dissolution of the marriage rather than a divorce.

Upon the granting of an Enoch Arden decree, the marriage is terminated regardless of whether or not the absent spouse returns. Generally, the court provides that the plaintiff must show precisely what has been done to locate the missing person. Efforts to find the absent spouse might include inquiries made to friends or relatives to determine if they have had contact with the missing spouse, or checking public records for such documents as a marriage license, death certificate, tax returns, or application for Social Security in locations where the individual is known to have resided.


  • Desertion is frequently coupled with non-support, which is a failure to provide monetary resources for those to whom such an obligation is due. Non-support is a crime in a majority of states but prosecutions are uncommon. See “West’s Encyclopedia of American Law”, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
  • desertion n. the act of abandoning, particularly leaving one’s spouse and/or children without an intent to return. In desertion cases it is often expected that a deserter who is the family breadwinner may not intend to support the family he/she left. Such conduct is less significant legally in the present era of no-fault divorce and standardized rights to child support and alimony (spousal support). Desertion can influence a court in determining visitation, custody and other post-marital issues. – See  Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.
  • desertion noun abandonment, abandonment of allegiance, abjuration, absence without leave, act of   forsaking,  apostasy,  AWOL,  defection,  departure, dereliction,  disloyalty,  flight,  forsaking,  forswearing,  leaving,  mutiny,  quitting,  recreancy,  renouncement,  renunciation,  repudiation,  resignation, secession, unlawful departure, willful abandonment.
    Associated concepts: constructive desertion, willful desertion, See also: absence, dereliction, disloyalty, flight, infidelity, revolt, schism, sedition – See “Burton’s Legal Thesaurus,” 4E. Copyright © 2007 by William C. Burton.
  • DESERTION, torts. The act by which a man abandons his wife and children, or either of them. 
         2. On proof of desertion, the courts possess the power to grant the ‘Wife, or such children as have been deserted, alimony (q.v.)
  • DESERTION, MALICIOUS. The act of a husband or wife, in leaving a consort, without just cause, for the purpose of causing a perpetual separation. Vide Abandonment, malicious. – See “A Law Dictionary, Adapted to the Constitution and Laws of the United States.” by John Bouvier. Published 1856.



The 14% father

 Response by Men’s Aid to the

Dept for Work Pensions Green Paper (Jan 2011)

(proposed changes to the Child Support payment structure)

“Strengthening families, promoting parental responsibility: the future of child maintenance” 


  • Men’s Aid is a registered charity supporting men’s and fathers’ civil rights and promoting equality before the law.
  • Men’s Aid values fatherhood and supports the concept of equal parenting allowing parents to work together for, and in the best interests of, their children.Germany_pic
  • Men’s Aid provides free information and advice to parents who are seeking to maintain a meaningful and responsible relationship with their children after family breakdown or divorce


  1. Executive Summary
  2. Introduction
  3. Question 1
  4. Question 2
  5. Question 3
  6. Conclusion
  7. Appendices

Executive Summary

We have been pleasantly surprised by the overall vision, tone and content in this consultation paper. There is much to commend and we sincerely trust that the ambitions outlined will reach fruition.

How we arrive at the 14% figure is the  typical amount of time the courts allow a  father to see his child per annum (14% of 365 days) and it is for this  reason that this article  is entitled “The 14% father” (see ref ‘Henshaw’s 2006’ below).

We freely admit that Men’s Aid, as an advocate of men’s and fathers’ rights, has previously felt reluctant to fully support other government measures. Principally, the reason was because we saw the legislation in question as benefiting only mothers (and only slightly children) and to the exclusion and disadvantage of fathers.

Compared with those earlier papers this 2011 paper appears to thrown open the shutters and partially redressed the imbalance.

The obstacle to a smooth resolution of CS difficulties is not money but has always been that of ‘custody’ with all its power ramifications (this is true of all counties).

Where a mother, upon divorce, is in effect ‘guaranteed’ custody then fathers are being discriminated against. Paying to be discriminated against (CSA) in unpleasant.

Footnote No 65 in Henshaw’s 2006 report states that

  • “Under the new scheme, shared care is when a non-resident parent has overnight care of their child for at least 52 nights a year. Maintenance is reduced accordingly.”

Fifty two nights amounts to 14% of a calendar year. If Henshaw is suggesting that 14% is the lowest threshold that will trigger maintenance credits for shared care one has to ask why ? We have always advocated true equality. For us, the goal must be that where it is possible, fathers should firstly enjoy 25% of their children’s time within the next few years with the longer term goal being 50%.

Single fathers with custody of children have found obstacles placed in their path. Payments of basic state benefits due to them are more difficult to achieve, e.g. the care component in Jobseekers’ Allowance (JSA). [1]

The payment of Child Benefits to fathers is also impossible. The head of the Child Benefit Policy section, Spawson, reported in 1999 that the DWP computer system (circa 1975) was the reason Child Benefit could not be paid to two parents when custody was shared. So ‘shared parenting’, legally possible since 1991, was defeated by an elderly computer. For the DWP’s 2011 vision to be realised these administrative shortcomings need to be addressed.

Fathers deserve the same level of consideration that is extended to mothers and in one or two areas it looks as if the present deficit will be addressed by the coalition government.

Governments have previously claimed that it was impractical to link ‘performance related contact’ by the mother with ‘performance related payment’ by the father, i.e. Child Support (CS).

As a result CS payments have been seen as largely separate from visitation (‘contact’), or visitation rights. In response to this bias Men’s Aid has, in the past, supported the link between child support payment and access as a means towards a quid pro quo for fathers.

All that has now changed with the promise of ‘shared parenting’ as the future default custody position. The freedom, given in this Green Paper, for parents to arrange their own CS free of state interference is also to be welcomed.

With the pre-condition of better custody and parenting time for fathers all but met and agreed, better progress can be made regarding CS.

The transformation will not be total and nor will it be overnight. We should be planning to reach the Swedish standard of father participation and care within 5 years. Swedish fathers account for 26% of single parents looking after children (see European Parliament, British MEP Marina Yannakoudakis). In England at present the figure is around 2%. If the figure does not reach 25% by 2016 this Green Paper will have failed

Paradigm shift

Where a universal statutory collection system no longer exists to subjugate either parent and no automatic sole custody exists to exclusively benefit one parent, a paradigm shift can be said to have occurred. Stripped of the procedural straight jacket, it suddenly becomes possible to de-couple child support from custody and for both parties to become ‘winners’ in a freer, more flexible market.

With shared parenting in place and agreed beforehand, the subsequent negotiations regarding levels of CS payments will be free of rancour and gamesmanship. Money the state now pays to finance court time will reduce as cases coming to court will already have been agreed by both parties. This is the experience of other governments, e.g. Australia, Sweden, Belgium.


The proposed introduction of the Universal Credit to replace the plethora of smaller state benefits will assist matters. It is proposed that benefits such as working tax credit, child tax credit, housing benefit, child benefit, income support, jobseeker’s allowance and income-related allowances will all be merged into one universal state credit.

Everyone will know what the value of the benefit will be and there will not be some mothers getting more than others. Under the proposed new CS scheme mothers will have access to additional income through private ‘informal payments’ that fathers make to them directly. In the past these were not counted for CSA purposes which aggrieved both mothers and fathers.

One of the worst features of the earlier regime has also been addressed, namely that of the government collecting money from fathers and pretending to the public that it was forwarded to the mother of the child when in fact it merely off-set the Treasury’s cost of benefits and running the CSA system.

In some areas the present Green Paper’s envisaged CS payment structure looks short on detail but if it encourages both parents to go out to work and be self-reliant it should be judged as more than reasonable.

Under the proposed changes we foresee the possibility where if one parent works full-time and the other part-time (yet they share the child’s time equally), the flexibility will allow CS to reflect this.

Enlightened view

Child maintenance payments have been used perniciously in the past and they have pushed fathers into long-term debt (10 to 15 years), suicide (permanent), and condemned them and their new families to lifelong poverty.

Governments and Whitehall Dept have preferred to remain deaf to pleas for them to urgently address policies that were diametrically opposed to one another and clashed with other government targets. Examples of contradictory messages and policies abound but three instances we cite include the Divorce Reform Act 1969, UNICEF and promoting families.[2]  The former was intended to increase remarriage but where numbers are stalled; child poverty meant to be eased by various state benefits has worsened in the last 10 years; and promoting families as the best option I n which to raise child has seen marriage rates at their lowest in living memory.

Is it enlightenment of simply an excuse to claim, whenever challenged, that a child’s best interests are paramount ? See how quickly the pretence is abandoned when a same sex couple or an unmarried couple apply for IVF treatment.

Where is the child’s right then to know both its parents ?


For many years fathers groups (the Fathers Rights Movement) have been lone voices demanding that “outcomes” alone should drive policy. So we welcome the adoption of the need to put ‘outcomes’ ahead of ideology or political dogma.

The best ‘outcomes’ for children is when they see their father and feel part of their father’s lives. The worst outcomes are when children are deprived of any input from their father.

For more than a decade our focus, in submissions to government, has been on the need to determine policies based on the proper interpretation of “outcomes” – not on a misuse of outcome where it is used to mean an immediate post-event ‘result’ The term ‘outcomes’ should be properly used to define downstream outcomes of, say, 10 or 15 years hence.

There is an indication that government is at last recognising this distinction (Para 3, “childhood is reflected in adulthood”). If this is now the Department’s definition then we fully endorse its approach to what is a difficult problem.

A 2007 Green Paper on joint birth registrations appeared to make the connection between fathers and children. [3] However, later in the present document the clarity of the connection appears to become blurred.


If there is a serious criticism to be made it is regarding the state’s continuing generosity to mothers and its paucity towards fathers. Whether married or divorce ‘parent-with-care’, i.e. mothers, still receive funding (via husbands or the state). When married the money paid by the fathers is subject to a married man’s tax allowance reflecting in part his child support obligations. However, a divorced father funding his children in the same way is not entitled to any tax reliefs and so the burden of funding is disproportionately greater.

There is no attempt to deal with the issue of travel costs. These can be considerable when a mother moves to the other end of the country. The CSA regime expects the father to pay to bring up the child and to pay again to actually see the child. There is no mechanism to deduct his fortnightly Glasgow to London rail fare from the rigid demands made by the CSA.

Having at last recognised the validity and value of ‘informal payments’ there is no hint of retrospective reimbursements. Informal payments were raised in the 2006 report but not acted upon.  The result is that 5 years have passed when punitive action has been taken against former husbands.

The Achilles heel of CS regimes the world over is the new boyfriend’s income conundrum. Policy appears to be still to ignore it and put the first family’s needs ahead of a subsequent family’s requirement.

In so doing it adds to the ‘trapped in aspic’ scenario of relationships today and perpetuates child poverty. The full impact is felt by second wives and the children of those subsequent unions.

The consequence of this lack of joined-up thinking is that marriage, divorce, illegitimacy (out of wedlock births), joint birth registrations, cohabitation, CSA, and custody matters are all misguidedly seen and dealt with as if they lived in discrete individual boxes.


We are in full agreement with the ambitions stated in the opening lines of the ministerial Foreword. The ambition of Men’s Aid and other pro-father groups map exactly on to the ideals expressed.

This is a radical Green Paper that re-shapes ‘statutory child maintenance’ into one that has a human face and is of human proportions. Rigid, centralised control characteristics are replaced by a model that recognises relationships and families are organic and though multifarious all share common elements. This Green Paper realises that lasting arrangements can only succeed where collaborative agreements are freely entered into by parents – not imposed from on high.

We therefore embrace the papers desire that families should be “empowered to take responsibility for the welfare of their children” – not the state – and that parental “responsibility is multi-faceted.”

We agree with the Foreword that “separation is a time when families are more likely to need support” and there is a need “to ensure that families receive the support they need through this difficult period.” One wonders what form such intervention will take once parliamentary approval is gained. We foresee this requiring special mediators and the need to recruit/train sufficient numbers – a situation faced when the ill-fated FLA 1996 (Family Law Act), was enacted.

We are fully behind the stated policy objectives of supporting parents so that they can continue to co-parent (but not if this means a sole custody environment). [4]

We have some reservations about the cost and effectiveness of a ‘mediation service’: how will it be funded and who will be qualified to be mediators ? Not all families need support and we would not like to see intervention made mandatory when (and where) it is not needed. This has implications for the number of mediators required.

Previous CS (child support) legislation has left no scope for the liable parent, i.e. the parent who has to make the financial payments. The liable parent can make no any decisions on how his CS is spent. We would like to see parents account for their spending and if the Green Paper achieves this it will be represent an equality milestone.

We agree that parental responsibility and obligations continue even when parents live apart or when their relationship breaks down. It is for this reason that we see shared parenting as the only guarantee of continuing parental responsibility and obligation. Shared parenting is shown to be a helpful and positive influence on a child’s growing up.  

For many years fathers groups worldwide (collectively known as the Fathers Rights Movement), have been the lone voice demanding that “outcomes” alone should drive policy. We therefore welcome the adoption in the paper of ‘outcomes’ replacing ideology or political dogma.

The best ‘outcome’ for children is when they see their father as often as their mother and feel part of both their father’s lives and their mother’s lives. The worst outcomes are where children are deprived of any input from their father.

For over a decade our focus in submissions to government has been on the need for policies to be based on the proper interpretation of “outcomes” and robust empirical research – not on a misuse of outcome where it is used to mean an immediate post-event ‘result’ or research that is ‘fashionable’.

The term “outcome” when properly used defines downstream measurable data of, say, 10 or 15 years hence, and which are unambiguous and objectively measureable.

Shared parenting will augment the medium to long term outcomes with enhanced longer term outcomes measured in better morbidity and mortality rates.

There are indications that government is recognising this distinction (Para 3, “childhood is reflected in adulthood”), but later in the document the definition appears more blurred.

If outcomes are now the Department’s new guiding light then we fully endorse its approach to what is a difficult problem.

Fathers are ‘family’ too

In seeking to promote best ‘outcomes’ for families and children Consultation Papers are increasingly realising that fathers are just as much a part of families as mothers. Much of the Consultation Paper talks about families and children but the subtext is that benefits mostly accrue to mothers and children who are referred to as ‘clients’ This is the first of a number of serious shortcomings in the language used and the approach of the Consultation Paper. If mothers are seen as clients of the CSA apparatus then we suggest fathers are the overall clients as they finance everything (they pay the piper).

It is revealing that in a field abutting Child Support (and hard by its implications for parents), is the matter of birth registration. Government has long seen the need to encourage joint birth registration as a means to “promoting parental responsibility” (DWP Paper Reference: Command 7160, Session 2007 ). In the past official documents have not been even handed; problems centered around women are described as ‘experiences’ to be shared and understood by the whole of society. Problems centered around men are never described in these benevolent and sympathetic terms. The result is a two tiered approach to problem solving.

Take as an instance the matter of registering a birth to a single mother. Nowhere is there the right or expectation of the putative father to register the birth (historically the father’s role). He has to do it in conjunction with the mother.

Further, a mother is not obliged to tell the father of his new fatherhood status. However, this does not obviate his obligation to pay CS at a later date (and at a time of her choosing ?).

The default position should be that it is solely the father’s responsibility to register a child’s birth within 14 days of its birth, subject to extenuating circumstances. Failure to tell a father of his new fatherhood status will forfeit the right to claim CS at a later date.

DNA & Paternity

Indeed, as the above 2007 DWP reference paper recognises, the whole process of birth registration and single mothers can get very complicated. Something very relevant to this Green Paper is one of the three options it outlined where the mother was unsure who the father actually was (“mother was unable to identify the father”).

There is no need to dwell on the reason why some mothers these days are unable to identify the father of their child but it has knock-on effects when demands for CS are made. The ability to question and seek proof of paternity through DNA at the father’s instigation is vital to any well run CS regime. Restricting that right to mothers and giving mothers a veto – as is presently the case – makes a mockery of the whole CS concept.

By omission (if not commission), the state is complicit in ‘taxing’ putative fathers when proof of liability has not been established. The mother’s right to ask for DNA testing should be extended to fathers. In possibly thousands of cases this would clear their name (and liability). This would also ‘decriminalise’ innocent men.

The third of the three options in the 2007 DWP reference paper is the deliberate decision of the mother to exclude the father from the birth certificate. [5] This should not be allowed or tolerated. A child has the right to know both of its parents.

Having accepted the importance that DNA can play in properly identifying the putative father it is extraordinary that its use is dictated by gender. There appears to be nothing in the Green Paper to rectify this continued discrimination against fathers.

Paternity mis-assignment remains a smouldering issue and has been mismanaged for over 20 years. It is the elephant in the room. Someone has to speak out sooner or later as the magnitude is truly shocking. As far back as the early 1970s, a schoolteacher in southern England asked his science class to work out their blood group by reference to their parents’ blood types. In 30% of cases the pupils discovered that their ‘fathers’ could not in fact be their biologically fathers. [6]

A British survey conducted between 1988 and 1996 by Robin Baker, a former professor at the University of Manchester, confirmed the more normally accepted figure of 10%. However, Dr. Lipton, a psychiatrist with the Swedish Medical Center in Washington stated in 2001 that:

  • “Between 30% and 50% of women cheat on their partners, compared with 50% to 80% of men.” [7] 

The American Association of Blood Banks reported, circa 2001, that 30% of men who ‘suspect’ they are not biological fathers are later proven to be correct. In Britain, with its National Blood Transfusion Service these manifest shortcomings are not as obvious as there is no need to use one’s own blood to reduce medical bills.

Given that there are literally millions of children in Britain aged between 1 and 16 years old, both a 10% and a 30% figure for false paternity represents a colossal number. By improperly deducting money from a named person who is not the biological fathers of the child the state is embezzling millions of pounds per annum.

As part of the Fathers Rights Movement, we have long argued, even when it was unfashionable, that children who grew up in stable families have a better start in life. We cited educational attainment, lower criminality, lower mental health disorders and better future employment prospects. In short, better morbidity and mortality expectations.

It is pleasing to see these factors being accepted by government departments as something they can encourage and support.

The spirit of the Foreword in its supportive attitude to the family environment in childhood is especially rewarding. The economic and societal benefits both to the individual and to the state we have long advocated. In short, supported families and stable children become tax contributors not tax recipients.

For that reason there will always be a role for government in creating the right climate both for marriage and in the post separation scenario. It is unfortunate that in the past 15 years Whitehall ministries have succumbed to advice to let marriage whither on the vine and instead focus on making the divorce process ever more efficient.

The present DWP Green Paper is perhaps a departure – the first of a new breed – that recognises that blunders have previously been made in the handling of marriage and divorce.

Everyone is anxious for Whitehall to reclaim its intellectual primacy and rebuild its reputation both of which have been battered by its flirtation with discredited ideologies. The present Green Paper is a big step in the right direction that gives a hint thatWhitehall is entering a new baggage free era.

 Specific questions posed by the DWP Green Paper

Question 1:

Do you agree that maintenance should be more effectively integrated with other types of advice and support provided to families experiencing relationship breakdown to enable them to make arrangements ?

Yes. We are willing to be convinced by the ambitions itemised in this Green Papers. In previous years we have been opposed to any state intervention or integration on the grounds that previous measures have tended to submerge and oppress the individual (especially those of the father).

Therefore, this support comes with the express condition that government’s stated policy of less state interference and more father custody or shared custody becomes a reality.

By ‘integrating’ the various processes and advice we trust that the importance of a child seeing its father will be part of the ‘education package’ aimed at mothers (too often it has been fathers that have been the target of education, censure or reprimand when in fact it is mothers who need to change their perspectives).

We have always lobbied for collaborative parenting in the form of shared parenting and shared residence as the default position, wherever appropriate, as the only way forward. We have always been appalled by the very negative impact that ‘sole custody’ has had on child ‘outcomes’ (ref. achievements, morbidity and mortality etc).

It has always been a disappointment to us that contact / access has been presumed or inferred and not made mandatory in law as other countries have done, e.g. Holland’s Article 377a which gives a NRP the right of contact and visitation arrangements (see|en ).

We are therefore very pleased to read that the Green Paper accepts that parenting should be jointly undertaken and to read the Dec. 2010 confirmation of future shared parenting legislation announcement by Tim Loughton MP (see Hansard).

It is also pleasing to read that the Green Paper accepts a “need to rebalance the system” (see also our responses in Q3 below). We have been reluctant to give our support to previous measures because the phrase support for families referred only to mothers and children and not to fathers in any way.

“Supporting families and relationships, and supporting children’s development” was also the theme of a Nov 1998 consultation paper (“Supporting Families”). [8] It was a misleading title for it dealt almost exclusively with ways of ‘funding fluid families’, i.e. transient serial partners, unmarried mothers and cohabitees (all of which might be described as alternative lifestyles). As was pointed out at the time:

We agree with the Consultation Paper that families have not had the sort of encouragement and support for many years now (and still do not), that other sectors of society have enjoyed – to which could be added marital contracts and family stability in general (Para 4.1). – Nov 1998

This 2011 paper, we are pleased to note, is different from all its predecessors – it speaks of fathers almost as equals in the triangle that is mother, father and child.

We have yet to see whether the vision promises given in this paper are lived up to; we shall have to wait and see how much of the adversarial route is removed and how much consideration is given to fathers who can be just as distressed as mothers. So we shall be looking for what support is extended to fathers compared with that extended to mothers.

We shall have to see if the tyranny of Lord Justice Thorpe in dealing badly with house husbands is brought to an end or allowed to persist. [9] (See also Appendix A).

We agree emphatically with the view (Para 3) that:

  • “ . . . support for families to make their own, family-based arrangements, at the earliest possible stage so they are able to address issues of finance as they address other issues around shared parenting.”

However, we feel this may prove a testing area for any reforms.

In the past, when sole mother custody was effectively the only option courts permitted (95% of custody awards were to mothers), it was felt necessary among fathers groups to argue about the legitimacy of CS and to argue that payment should result in a guarantee of access. This was an attempt to bring a sense of symmetry and democracy to the situation. If the mother upon divorce was, in effect, guaranteed custody then fathers deserved the same sort of consideration and leverage.

It was for that reason alone that in our January 2011 response to the email from David Norgrove (Chairman of the Family Justice Review), we supported the link between child support payment and access. However, with the proposals already outlined elsewhere and several others in the pipeline aimed at giving fathers a far better deal than in the past (ref; shared parenting and pre-nuptial contracts), this linkage is no longer so vital. In that response we stated:

  • “. . . Governments usually claim that it is impractical to link ‘performance related contact’ by the mother with Child Support (CS) payment performance by the father. As a result Child Support (CS) payments have been seen as largely separate from visitation (‘contact’), or visitation rights.
  • No strategy has therefore been seriously considered at official level to counter an obstructive parent and consequently denial of contact brings no penalties to the mother while CS is still demanded of the father.”

From our interpretation of the proposals for change and the public announcements regarding shared parenting the views expressed in the paragraph above to David Norgrove have been overtaken and no longer apply. By government adopting the shared parenting default position the hard decision about which strategy to adopt to enforce compliance among access-hostile mothers evaporates.

We also wrote to David Norgrove that:

  • “The two deterrents to counter contact being denied or withheld is firstly through judicial action by way of fines, withholding benefits or prison against the offending parent and secondly measures to reverse custody.
  • Regrettably, the judiciary has turned it back on these options on the basis that they are impractical or draconian and harmful to children’s well being while forgetting that a small number of exemplar cases and sentences is all that would be needed before the problem would fade.”

However, if shared parenting is to be adopted and each parent treated as equal with no presumption or automatic right to custody the above paragraph immediately becomes redundant. Directing the judiciary to always begin from a presumption of shared parenting for both parents after divorce obviates the immediate need to fine, imprison or reverse custody.

This new landscape of shared parenting might initially represent a culture shock for mothers but it should not prove insurmountable or long lasting.

What will now have to happen is the acceptance by women who divorce that they will not have automatic custody rights in the form they once might have expected. Both parents will only be seen to be fairly and equally dealt with when each parent has the same chance of sole custody.

In creating a level playing field, women will have to have the same likelihood of being awarded custody, or part-custody, as any man, and this should foster better post-divorce cooperation as each will wish to be seen putting the interests of their  child first.

Mediation, as envisaged in the Family Law Act 1996, would never have worked because the two parties were never placed on an equal footing, i.e. both in powerless positions (and there were never enough trained mediators). The default was always that if the mother argued and disagreed enough mediation would be ruled a failure and she would be rewarded with custody. In those circumstances why should she mediate or trade-in her superior status by sharing rights with a husband she was divorcing ?

If – but only if – shared parenting is to be the new default custody position there in no longer any need to seek a linkage between child support (CS) and custody. Shared parenting will erase difficulties over access or visitation rights by guaranteeing both parents the amount of time in days (rather than hours per week) that can be tailored to suit them.

Sometimes it is argued “What if there is disagreement; what happens then ?” The countries operating a shared parenting system have already crossed that bridge. They have developed means to overcome situations where the parties cannot find initial agreement, e.g. Sweden and Belgium.

We see shared parenting as an essential pre-condition to any integration which may include advice and support. Shared parenting, therefore, becomes a pre-condition to any proposed child support (CS) changes.

It also brings a step closer the ambition of many mothers (and all recent governments) to portray themselves in a positive light to their children as worthwhile working contributors to society and not as feckless women forever dependent on state hand-outs.

In a recent survey of over 11,000 mothers across Europe, MEPs found that women with children wanted more flexible working times and easier access to crèches and more flexible school hours.[10]

  • “Many participants stressed the importance of empowerment and that simple cash transfers from the State do not necessarily help.” –  Women’s Rights Committee debates, European Parliament.

There was no European Parliament survey of 11,000 fathers, but from British MEP Marina Yannakoudakis we discover that in one EU country (Sweden), fathers account for 26% of single parents looking after children. Britain needs to replicate that level of paternal involvement.

Where no statutory collection system exists to oppress either parent and no mandatory sole custody exists to benefit one parent, it suddenly becomes possible to de-couple child support from custody and both parties become winners.

With shared parenting in place and agreed before hand, the subsequent negotiations regarding levels of Child Support payments will be free of rancour and gamesmanship. They will reflect the incomes of the two parties, tempered by the time each spends with the child(ren) and thus not be viewed as onerous or unfair on either.

It is gratifying to learn that the Green Paper recognises that “one of the most significant issues for non-resident parents is when contact with their children is denied or withheld.” In not previously accepting this fact of life, attempts to define a model acceptable to all have been defeated. By compromise, i.e. shared parenting, tension and hostility can be replaced by co-operation. It is notable that academic papers looking into this question often find that impotency (real or imagined) by both parties can lead to deep hostility.

Independent studies and the DWP own reports have underlined year after year how guaranteeing contact by the PWC brings more regular payments by the NRP, and with the changes now envisaged the PWC will have a tangible incentive to cooperate in parenting arrangements (re: informal payments etc).

Quintessentially this is the nub of CS and the CSA’s problems. We have always maintained that guaranteeing contact and custody rights will more or less eradicate CS problems and it would appear as if this simple, basic message has been taken on board.

Question 2:

How best can maintenance support be integrated within the network of support services to better support families experiencing relationship breakdown to make family-based arrangements ?

The question of how best maintenance support can be integrated is one we don’t feel qualified to answer. The setting up a support apparatus or system is not an area of our expertise. We would feel more confident in answering the question were alternatives given. We could then highlight zones that in our view might foreseeably be problematic.

Our lack of expertise in delivering generalised services to the public at large and the nebulous (to us) nature of the question leaves us asking what pre-existing support services are envisaged ?

We apologise if we misread the intent of this question but the lack of Plain English throughout the Green Paper is at times a barrier to the proper consideration, understanding and handsomeness of reply. If we have misread the intent then our responses to other Questions may well provide the answers you are seeking.

If we assume support services include some form of mediation service, help for parents in assessing child support (CS), help with ensuring a child’s life chances are not irreparably damaged, then the support services need to show a positive benefit for fathers. This has been entirely absent in previous CS papers – and it is none too clear what a father will gain from this new initiative.

Or is Question 2 asking something else ? Is it asking; “How can the setting of CS payments (i.e., pounds per week) be made part and parcel of advice given to divorcing couples (i.e. how much time with their child each parent should reasonably expect) ?”

If we assume that “make family-based arrangements” is shorthand for custody matters after divorce and that the form of custody is to be the promised shared parenting of Dec 2010 (Tim Loughton MP) we can easily work from that base.

The coalition government is everywhere giving power back to the individual, be it to individual local authorities or voters. The age of the Big Society is set to replace the Big Brother ‘statism’ of the past 50 years.

We see this as an essential move to give back to the citizen his rights and liberties and to treat him / her as an adult; a sentient being capable of making his / her own decisions (and of making binding contracts that will not be overridden by courts if they suspect they might be slightly unfair to one party).

A  new development  which we feel ties in with this ‘new thinking’ is the 2011 paper from the Law Commission which foresees pre-nuptial contracts not only becoming legally enforceable but capable of determination many aspects currently administered by the courts. It would not be unreasonable to suppose that pre-nuptial contracts might eventually contain some kind of limits to excessive CS.

At the beginning of February 2011, Ian Duncan Smith (minister at the DWP) announced a “£30 million programme of relationship support.”  The vision is that “British couples will in future be able to attend counselling sessions in Sure Start Children’s Centres.”

Cohabiting partners with children as well as married couples will be offered the sessions if they are going through “relationship stress,” with advice given on how to stay together. Is this part of the network of support services that Question 2 asks about ?

We suspect that most men and most women who divorce have some regrets and regardless of their superficial answers to post-divorce Questionnaires, mourn the fact they were not able to “make a go of it” [their marriage]. Some voluntary organisations have, for many years, run Marriage Enrichment courses to shore up flagging marriages. They are positive solutions that need government encouragement.

We are in favour of support advice to allow couples to stay together whenever possible. Principally this is because it is better for children to have a stable and continuous family life but also because it relieves the burden on the tax-payer of perennially funding fluid families.

The drawback to the approach of providing support and advice is the same as that highlighted in 1995 with regard the Family Law Act 1996 and the ‘saving of savable marriages’. Firstly, there were not enough counsellors and secondly, there were not enough counsellors who believed that rocky marriages could and should be saved. A fog of confusion hung over the definitions with ‘reconciliation’ representing support and counselling aimed at bringing estranged spouses back together again while conciliation was a fait accompli, defined as:

  • “ …. assisting the parties to deal with the consequences of the established breakdown of their marriage whether resulting in divorce or separation, by reaching agreement or giving comments or reducing the area of conflict upon custody, support, access to and. . .” – Source. Finer Committee.

This second definitions was the basis upon which the Marriage Guidance Council, London Marriage Guidance, and Relate operated. [11] (see Appendix B).

Are the ‘integration’ and the ‘network’ elements mentioned in Question 2, above, intended to be part of Iain Duncan Smith’s £30 million programme of relationship support ?  If not, could the scope of this intended programme be extended to embrace the demands of Question 2 ?

The newly announced switch to pro-active mediation (justice minister Jonathan Djanogly, Feb 2011), before any divorce court hearing is not only welcome but could form part of the integration and the ‘network’ elements already mentioned.

Under these new guidelines couples are to be urged, but not compelled, to use mediation (beginning in April 2011). We see enormous benefits for this change, except in a few percentages of cases where one or both parties are implacable. There should be concern that the present level of mediation which is said to be around 15,000 per annum will be expected to deal with over 120,000 divorces per annum when the system fully implemented. (See previous ref. to Family Law Act 1996).

The parties will have the ability to reach far more sensible and fair decisions about property and child care time than was ever possible in a divorce court. Legal Aid will be provided for these mediation sessions which because they can also deal with property and time with children coincide with the Law Commission work and this Green Paper regarding CS. Making Legal Aid unavailable for property and ancillary relief actions in divorce court is something we have long advocated.

The argument against these reforms is that a form of mediation has existed for many years in the form of a CAFCASS officer’s assessment (formerly CWOs, part of Probation Service).

However, CAFCASS has had a passive if not lame approach. It has not been interventionist in nature and has merely reflected the status quo, i.e. the mother leaves matrimonial home with both children, seeks divorce, CAFCASS officer assesses children to remain in new stable environment; court then hands matrimonial home to wife.

Surveys and studies of all persuasions have found – no matter what the preference of the researchers is known to be – that parents, regardless of self-interest in claiming custody, nonetheless want the best for their children.

Parents very often do not know that these ambitions for their children are actually sabotaged by sole custody decisions and continued squabbling. In the interests of swift decisions and the child’s life chances it would be necessary – in our opinion – to familiarise both parents with what will most likely happen to their child should they not work jointly.

We can provide, as no doubt can other organisations, in bullet point form, pages of the adverse side effects consequent upon sole custody (which have been known about since the 1960s) compared with the favorable consequences of shared custody.

We are confident that the change to settlements by mediation will be beneficial especially when the advantages of working jointly are drawn to their attention and the disadvantages to their children’s future of squabbling are itemised (see Appendices C and D).

In talks with the Lord Chancellors Dept in 2002 a delegation of fathers groups (Coalition for Equal Parenting or CEP), suggested reforms were framed around schemes such as those in Florida (run by Judge John Lendeman). Floridian parents are given information about the damaging impact of their conflict on their children and were invited to work out a parenting plan with the help of a mediator.

Other programmes, such as ACT (Assisting Children through Transition) based in New York, emphasised the learning of new skills ranging from anger management to cookery, while other states developed programmes to help and support parents by teaching about their new roles as collaborative mothers and fathers after separation.

We would press that this reservoir of information regarding psychological and physical well being, needs to be made available and actively used by all those agencies/mediators who will be advising parents at the support services stage. To date this key ingredient has been missing whenever mediation as an option has been considered.

Utilising this tool – among others – will enable more harmonious agreements to be reached more easily (parents want the best for their children). Once this has been achieved the question of CS can be more easily tackled. In talks with the LCD in 2001 all of this was already covered and agreed (see “Parenting Plans” below).

The needs and wants of children have in the past been viewed as unique. The well-rehearsed dogma is that each child is different and has to be treated as such. However, this view is false and has actually veiled key issues and delayed programmes of reform.

In truth, while each child is, indeed, unique (for example a unique DNA blend), the needs and wants of each child remains very much the same, i.e. they are ‘universal’. Each child needs water, food, shelter and a home etc. A child needs both parents and a secure environment in which to thrive.

Thereafter, needs merge into wants and into the superstructure we, as a society, have created. They might be more popularly termed ‘rights’, e.g. the right to an education, the right to vote, the right to gainful employment etc.

If we truly believed each child was ‘unique’ our court practice would reflect this but the mantra is merely a fig leaf to cover an embarrassing disregard for children’s life chances.

The law is essentially more interested in itself than other people’s welfare. For example, it rejected even in the 1960s what amounted to a ‘post-mortem’/ investigation into each divorce petition as being too time consuming even though it knew it would be shortchanging the parties concerned. [12]

Laying ones’ cards on the table in relation to how much time each parent wants – or, indeed, can afford to take, bearing in mind work commitments – must come after both parents realise they have to work together and that no one parent has a veto at any point. It is the veto power that has crippled custody matters since 1989.

As far back as 2001 the Lord Chancellors’ Dept (as it was known then) had copies of “Parenting Plans” gathering dust on its shelves.

Why were they there ? The reason is simple. We have been this close to ‘shared parenting’ before under the previous Labour government but nothing came of it. The format of those Parenting Plans was supported by fathers groups as representing the ideal way forward (see Coalition for Equal Parenting (CEP) meeting with LCD staff, Sally Field and Amanda Finlay 2002).

With the CSA prevented from intervening as before the amount of child support to be paid, will become self-evident. Each parent will know beforehand the other spouse’s income so there is little room for them to be misled.

When one parent who earns gross, say, £220 per week, receives a demand from the other parent for, say, £90 per week in maintenance support, it will (due to NI and income tax) be self-evidently unfair.

It would be equally unfair to demand, say £90 per week from the other parent (who might earn £350 gross), when the PWC actually has an income of £150 p/w (and or benefits), and has a boyfriend who earns £300 pw. Such boyfriend contributions have been overlooked for too long. They should be incorporated into and should affect the amounts to be agreed as child maintenance.

The present Green Paper’s envisaged CS payment structure looks reasonable but is short on detail when both parents go out to work. Similarly, when one parent works full-time and the other part-time yet they share the child’s time equally it is only fair that the CS should reflect the cost of looking after the child by the parent in full time employment.

Question 3:             

What information, advice and support services should be integrated to assist families in making family-based arrangements ?

Mention has already been made in Question 2 concerning the 2002 talks between the LCD (Lord Chancellors’ Dept), and the CEP (Coalition for Equal Parenting), delegation. The schemes and reform programmes outlined in Question 2, e.g.  Judge John Lendeman in Florida or those run in New York, are still valid today. Any proposed integration of services should include these pivotal elements.

A potentially important aspect affecting co-operation and compliance is that of ‘power and control’. We are reminded of this truism in a paper by Stuart Birks’ (Director of the Centre for Public Policy Evaluation at Massey University), when relating problems currently experienced by New Zealand’s child support system.[13]

Implicit in current models of CS is the lack of any visible controls on the use of funds. Money from fathers (CS), and money from the taxpayer (i.e. Gov’t welfare benefits) can be used without censure, regulation or condemnation (if profligate).

Implicit too in current models of CS is the notion that both parents make financial contributions towards the costs of children – which is a fiction. Only one parent pays, i.e. the NRP.

When we examine say the Judge Lendeman approach in Florida or the schemes run in New York, we see a more egalitarian system where one parent (the mother) no longer has an in-built advantage.

There is an assumption on behalf of both state and fathers of full trust in the recipient parents’ use of the designated funds from all sources correctly. However, choices and priorities, e.g. abnormal spending patterns, made by the PWC will impact on the child’s standard of living no matter how high the level of CS is set.. Abnormal spending patterns could and do see the PWC redirecting a large proportion of funds dedicated for the child’s use/benefit.

There are regulatory remedies for fathers who play fast and loose with CS money but not mothers. We would like to see this omission addressed.

There seems to be a false belief that linking child support to a liable parent’s income results in payments for the child, specifically, that then gives the child a commensurate standard of living. Many components of household expenditure cannot be separated out as benefiting some household members but not others. Consequently standards of living are interdependent. This means that child support will have an impact on the household as a whole, not just the relevant child(ren)

From other sources (the popular press) we are given clear indications that young people cannot budget their own personal finances, e.g. credit cards, student loans. It follows that to plan financially for themselves, their child or children and to meet households and utility demands, especially for those with restricted educational attainment, is to ask too much of them.

We suspect that government would ultimately benefit, albeit indirectly initially, from measures to educate parents with care (PWC) in the proper and prudent use of the limited funds available to PWC.

New Zealand, which has often been a proving ground for novel ideas in the social welfare sphere before their adoption by larger countries overseas, feels that their financial welfare package for lone parents, DPB (Domestic Purposes Benefit), is in need of amendment.

In Birks’ opinion, “An unbalanced child support regime can damage relations between parents and between parents and children.” We agree with that sentiment and therefore suggest this Green Paper (which also accepts this criticism), is the first step in addressing the problem.

If money is to be used by PWC (flowing weekly from fathers and welfare benefits), certain criteria should be set and met. There should be an expectation that such money is well-spent and well-directed. To achieve this, PWC need information of an educational nature and a good grounding in the effects of ignoring carefully researched (but simple to absorb) data, e.g. children do better at school when their fathers participate freely and actively.

The information and advice could take the form of warning of the consequences or it could take the form of educational classes and a ‘passing out’ exam – perhaps similar to ante-natal classes, though in deprived urban areas it has to be conceded that even attendance at anti natal-classes by teenage mothers (and thereby jeopardising their unborn child) is very low.

The Appendices attached to this response (see Appendix C and D).are drawn from US and UK sources. They are simple bullet points in plain English that would allow the cognitive disadvantages to be absorbed by parents regardless of their standard of education or IQ

This we see as a fairly reasonable trade-off, or quid pro quo, for state and paternal support and is the element (a quid pro quo) that is totally absent throughout the Green Paper.

The universal problem with child support, which ever way it is configured and irrespective of country where it is found, is the blatant bias in the underlying assumptions. These assumptions are that we can have full confidence and trust in the parent with care and absolutely no trust in the parent with the liability to pay (the father).

Even the benefit system under New Labour, reflects this with no child-related benefit payable to the father’s name whatsoever.

In business, indeed, in the commercial world generally, the party who pays – in this case the father  – is the customer, and in business ‘the customer is king’ meaning that if he wants gold plated bath fittings that is what is provided.

Where is this dynamic apparent in child support matters ?  Fathers are not only the direct paying customer but actually indirectly fund the payments, as taxpayers, made by government departments. The current and previous Green Papers treat and refer to the recipient (mothers) as the ‘client’ and not the payer of the money (the father).

Picking over the fine print as to what method of CS should be adopted (whether to chose gross income, flat rate, or sliding percentage), is, by comparison, a detail. Until such time as this dimension is tackled, namely, recognising and portraying separated fathers in a positive light, child support will represent a running sore for government.

The fall back position of draconian CS enforcement and the range of penalties will actually provide fathers and CS reformers of a different hue (let’s call them contra-reformers), with all the tools and ammunition they need to attack government (as history has shown in one country after another).

Those setting-up the CS system (the policy makers) have framed the issues in a way that is favourable only to recipient parents (mainly mothers). If this framing of the agenda is accepted by father groups then a major concession will have been made.

Policy makers are likely to find that most fathers groups will find some slight advantage over the previous regime and give the Green Paper a conditional endorsement. If this happens the policy makers will have succeed in ‘agenda denial’ and no debate will be permitted as to the legitimacy of a broader approach. It would have been more satisfactory to have found a tangible advantage.

The consistent failure of policy, be is CS or other areas such as child custody, is due largely to the failure of policy makers themselves. Policy makers have controlled the agenda setting, the agenda denial and the framing of key areas of analysis. This is why political success has eluded them. 

Take for instance the recent Rape Anonymity Review; no one in government knew the numbers of false allegations made. No one knew how many prosecutions for perjury or perverting the course of justice there had been. No one knew the age groups of those most likely to be falsely accused and put on trial or the reasons why some police forces did not enforce prosecutions for wasting police time (where costs ranged from £40,000 to £400,000 per case), or for the causing of a wrongful arrest (and the cost of resultant trails).

In other words, policy makers had created an artificial and biased world of data which was of absolutely no help whatsoever. They had emphasised one side of research at the expense of another.

Question 4:

What support around child maintenance is needed for the most vulnerable families to make family-based arrangements?

This is somewhat of an open-ended question. Again, we are a little confounded by the terminology. what are ‘family-based arrangements’?

Whitehall frequently bestows the term ‘vulnerable’ when it means women and low income earners. On other occasions vulnerable groups is a term extended to: the young; ethnic minorities, the disabled; the mentally challenged; those of poor schooling. those with low IQs; the elderly; the infirm, etc, etc.

Assuming ‘vulnerable’ means women and parents with low incomes, then something presently referred to as the Universal Credit, which emerged in Feb 2011, promises to revolutionise our by now overly complex and stuttering Benefit system. It appears to harmonise with the key elements contained in the Green Paper namely:

  1. Low paid workers to keep more of what they earn
  2. One Universal Credit replaces working tax credit, child tax credit, housing benefit, income support, jobseeker’s allowance and income-related allowances
  3. Benefits cut for three months if job offers refused – and for up to three years in the most “extreme” cases

‘Vulnerable’, i.e. women and women on low incomes will henceforth be able to budget accurately knowing what they will qualify for, how much it will be (in pounds per week), and for how long. In that regard it will bring a degree of certainty to proceedings.

‘Vulnerable fathers’, i.e. men and men on low incomes are not so clearly dealt with. This is a pity as 50% of all fathers who receive CS demands have, since 1996 to the present day, been either unemployed, or disabled, or unable to work (it is also a perpetual oversight) (see Appendix E).

When making ‘family-based arrangements’ the professionals advising must be aware of the statistics re: incomes and levels of unemployment. Expectations must not be allowed to billow out of control. Simply because there is a small amount of money available for CS this must not influence the amount of time a father can spend with his child or be a motive for a mother to be ‘difficult’ about this aspect. Custodial mothers with equally limited finances do not face such an implied constraint, so it is unfair to impose it on fathers.

Over the years government and Whitehall have not been averse to relentlessly promoting negative publicity towards fathers and CS. In future the ‘support around child maintenance’ must see a reversal of this characteristic.

To help CS subside as a perceived national problem requires a solution that embraces many aspects:

  • Firstly, the Media can play a big role in changing Public Awareness. this can be coordinated by government and Whitehall.
  • Secondly, proper Child Support guideline design based on accounting principles and capped amounts to remove perverse economic incentives that currently invite legal ‘game playing’ with children as economic pawns. In this regard the promises made in the Green Paper go some way to alleviate this problem.
  • Thirdly, a political awareness by all political parties that enforcement costs more in the long run than it’s worth and is actually counter productive. Threats to confiscate passports and driving licences etc do not encourage participation and cooperation. What has brought the current Arab uprisings is the ‘alienation’ suffered by the population imposed by a disliked / authoritarian regime.
  • Fourthly, the money presently spent on enforcement and bureaucracy would be more wisely spent topping up CS payments to families from fathers on low incomes. Policy planners would profit from looking at the EITC model (Earned Income Tax Credit), in the US.

In our opinion, Henshaw wrongly concludes that enforcement has been weak and “[had] led to an unacceptable situation. … . [where NRP] believe they can ignore the Agency”. If survey evidence suggests that forcing a mother ‘with care’ to use to use the CSA can result in jeopardising child welfare (Para 11), the same can be true for fathers forced to use the CSA. This would suggest to us that not only is the CSA a negative factor but so too is any form of enforcement or punitive action, e.g. removing passports or diving licences.

The focus should not be on punitive sanctions in the name of tax raising measures but on co-operation and incentivising the situation.

In part, this may already have happened if the Universal Credit announced in Feb 2011 consolidates the conflicting individual benefits or tax credits currently in play. EITC (item 4 above) has been shown not to be a disincentive to work for single mothers.  The effect of the EITC is not to drives recipients further into poverty as an unintended consequence of the resulting marginal tax rate effects (which in some cases exceeds the value of the additional benefit).

The proposed Universal Credit (in common with the EITC) will instead pool all applicable tax credits and Benefits for the recipient and apply a progressive marginal tax rate to the aggregated total with an increasing value from 0% at the low income end to more normal income tax rate at some of the upper limits.

Question 5:

Is the balance of burden of the proposed charges fair between the non-resident parent and the parent with care?

No, the burden is not fair.

It is unfair both in the treatment and opportunities the proposed charges offer each sex, and is unfair in what it demands of each sex by way of time, means and material.

It is unfair in expecting mothers to automatically be the child’s carer when she may seek to retain her career and income level. It is unfair that mothers should have to suborn their prospects to a custody regime ill-suited to our modern times where one-wage-households cannot survive.

The 2011 proposals to aggregate CS with other benefits and to allow mothers with care to keep more of the income they earn is welcome but can give rise to a situation recorded as long ago as 1834:

  • “ . . . .I find there are numbers [of women] in most parishes, who have from two to four children, receiving different sums of money with each, according to the ability of the putative fathers; so that the sum the woman receives with the whole of the children, and what the mother can earn, enables them to live as comfortable, or indeed more so, than most families in the neighborhood. It may be truly said that the money she receives is more than sufficient to repay her for the loss her misconduct has occasioned her, and it really becomes a source of emolument, and is looked upon by others as an encouragement to vice.” – Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 169 [emphasis added].

In Question 6 we go in some depth into how ‘poverty’ in families can arise and the effects it can cause. In Appendices E and F, we show how, using tables supplied by the CSA, unemployment and disability can account for half or all non-payments or zero payment of CS.

In Question 6 we also try to demonstrate how statute law passed by parliament has unintended consequences. We leave it for others to spell out the more usually acknowledge ramifications of redundancy, short-time working and a general economic recession which put pressures on the ability to make CS payments.

If child poverty has increased in the last 10 years it can only mean that parental poverty has also increased – and we suspect, given the Feb 2011 economic forecasts, it will continue to increase.

For fathers the CS burden (given the economic forecast), assumes rigidity unconnected with employment prospects. We have yet to be convinced that a sliding scale and a rapid response to income fluctuations is a real possibility.

Fairness is lacking in that there is no hint of a trade-off between care and providing CS. The only role expectation is one of wage earner (the proverbial walking wallet). We had hoped for better in this Green Paper. We would have like to seen a move away from father as permanent and automatic funder of ‘child and former wife.’

‘Allowing parents to make their own arrangements’ (as the National Survey of Child Support Agency Clients’ suggests is a superb idea and does, indeed, give parents flexibility to design their own models but there is no paradigm, no fall back position, no minimum standard to prevent a falling back into bad old ways, i.e. minimal contact of hours/days per month. If the promised shared parenting legislation (ref. Tim Loughton MP, Dec 2010), is forthcoming then this concern largely disappears.

It could be legitimately argued that by allowing parents to make their own arrangements the need for any state imposed framework is negated but if the aspirations of the share parenting legislation are to be realised then CS has to reflect that future scenario.

The study’s suggestion that ‘adjustments should be made to the standard calculation to take account of individual circumstances’, especially where both parents have some overnight care of their child(ren), is so much overdue that it should have been strongly highlighted in the Green Paper.

We very much welcome this proposal but wonder about the “How.” (See Footnote 18 and Appendix A , the Sprawson Report),

For fathers the proposed charges will bring are not equal and fair because they still favour the parent-with-care. Unless the interests of non-resident parent are dealt with in as much detail as PWC then NRPs face the likelihood of any changes being eroded or being ignored after a while.

There appears to be no serious effort made in the Green Paper to convey to the professionals who will be working with vulnerable (and the not-so-vulnerable) families the necessity of including fathers as an equal parent who can and should be allowed to care for his children.

Where is the imperative demanding thatprofessionals (including judges), permit fathers the right to care for their children when they request it ?

In our view it is these ‘professionals’ in the divorce and custody industries who will ‘make or break’ the Green Papers proposals. Arguably, and in the same mould as CWO and CAFCASS officers, if the same people are implementing the new legislation, there might not be much change.

Second families are mentioned elsewhere in our response but no convincing provisions seem to have been made for Second Families and Second Wives in the Green Paper, and precious little in either Henshaw’s 2006 report or the 2001 DWP report (National Survey of Child Support Agency Clients).

Prioritising ‘finished’ empty marriages and the children thereof has dominated CS policy making for decades. We would like to see CS policy makers prioritise ‘new’ second marriages and deal with the problems true nature which is that of a two-sided coin.

If, as Henshaw envisages, his proposed changes will result in child welfare being “improved as maintenance is more likely to flow, and conflict between parents is likely to be reduced”, won’t this by the same token condemn second families to greater poverty ?

There is a great deal in Henshaw’s report that is plain common sense and with which we would entirely agree. However, while plans to lift children out of poverty are most laudable we remain concerned with those families which the new system will inadvertently push down into permanent poverty. These are not the ‘42,000 PWC on benefits’ but single women who are in work and who form a new household with a divorced father. Unlike PWC who will “receive a net increase in income” these women face a decrease in their disposable income.

With a CS compliancy rate of 77% Henshaw’s report – and the Green Paper – could, we feel have dealt in more detail with the differences and the cost to the tax-payer of married and unmarried mothers and for the CS issue to also be divide along those lines (if efficiencies were being looked for).

For as long as transient relationships are tolerated and even encouraged the resulting complicated relationships will ensure child support remains an issue (see 1834 reference above). The financial complications will mirror personal ones and multi-partnering will be multiplied by differing circumstances. The knock-on effects of complicated relationships will emerge in probate and the administering wills when female cohabitees will be induced to compete to benefit for the estate. [14]

‘Re-partnering’ (or remarriage) might once have been just about affordable for a man but repartnering 4 or 5 times becomes a financial impossibility. It could be argued that this level of repartnering is very unlikely but we would point out that this rate of repartnering is common among cohabitees.

Policy makers are essentially targeting the responsible “pillars of society” who are thus penalised and this is sending all the wrong messages to the next generation.

To add to the gloom the Law Commission has, within the last few years, proposed a compensation scheme for cohabiting women (but not for men) corresponding to that for divorcing spouses. Fathers who are divorced spouses currently prefer cohabiting as a means of protecting their remaining wealth and assets from further ‘thefts’.

Were the Law Commission’s proposals and the Green Papers ideas concerning CS ever to see the light of day a paralysis will most probably grip male / female relationships as their economic viability would be called into question.

Should another Law Commission initiative, that of MPAs (pre-nuptial contracts), be legalised then this danger will largely evaporate.

Much legislation since 1969 has had the single intention of facilitating divorce. Urgent consideration should now be given over to that programme being brought to an end ? Should government wish to continue on the same path it should take on the financial responsibility for what is has created (as it did during the 1970s), and fund any new directions in social policy.

In the alternative, the state can off-load its obligations onto the separating spouses, as per the pre-1969 structure. The criteria used prior to the 1969 divorce reforms was that divorce maintenance payable to the wife could be  ‘afforded’ by the husband without her becoming “a burden on the state.

The present divorce and child maintenance system is on that ‘saddles’ one parent (usually the father) with debt and condemns him or his new family to decades of poverty. In some cases he may never recover his original wealth no matter how hard he works.

Reasonable prosperity during the 1990s and early 2000s seemed attainable for all, yet these two decades saw approx 50% of fathers continually in no position to make financial CS contributions. Since 2008 that assured economic world has been reconfigured and it will be interesting to see whether and by how much that 50% of fathers increases (see CSA tables, Appendices E).

A prudent government would plan for unemployed fathers to be given preferential treatment in re-skilling and finding jobs. However, paying lip service to equality and / or being intimidated by political correctness will see no such initiative.

Instead, the low standard of living for over 2 million fathers plus 2 million PWC and plus 2 million children (approx. numbers), will be perpetuated.

Question 6:

Are parents being asked to make a fair contribution to the costs of delivering the statutory child maintenance system ?

The statement that; “Child support enforcement has a poor history” (Para 64) is one we would agree with. Not reforming the child maintenance system, therefore, is not an option. The present child maintenance system does not encourage collaboration nor does it ‘reward’ both parents equally. The new Green Paper recognizes this but our criticism is that this new Green Paper offers only improvements and some benefits to mothers but there are no tangible ‘rewards’ or gains for fathers.

We can only see that from the father’s perspective that he alone is still being asked to pay CS (child support) and is asked again to pay for setting up a new collection scheme.

When referring to “statutory child maintenance” – in the question and the text – we do not see any obvious contribution from the mother’s side that matches the father’s financial contribution.

If a financial contribution from the mother’s side is not possible then fathers need to see far better – radically better – custody arrangements. Sole custody must be erased and shared parenting or shared residence must become the default.

Under the proposals the PWC would appear to have an increase in her likely income because of the envisaged concessions. Where are the concessions for fathers ?

The proposals will probably see the NRP pay the same amount or more by way of ‘informal arrangements’ that are to be recognised (a good thing, in our view), but there is no quid pro quo.

If a NRP is prepared to pay a lump sum (an ‘informal’ amount) when he’s been working overtime or won some money on, say, the horses, does he benefit by a reduced CS tax levy ?

It is unhelpful – and fathers are again being treated unfairly – when government communicates the erroneous perception to the general public that £3 billion is owed by fathers in CS arrears. No serious attempt is made to educate the public that the £3 billion arrears is in fact the total built up since 1993 and carried forward to 2005. In like terms during the Irish “troubles” the outstanding Imperial Debt from 1921 owed by Ireland and payable if partition was challenged, was never mentioned.

No attempt is made to inform the public that 5 years later this arrears total has risen to £3.787 billion in 2010. The public are not informed that a total of £1.146 billion in child support payments was collected last year (2010) and that over the 17 year life time of the CSA a total of more than £19 billion has been paid over to the Treasury (£19.482 billion at 2010 levels).

But is the Total Arrears all that it appears ? In New Zealand the total given as “child support debt” is a massive figure for the size of the country but close to 60% is actually made up of artificially imposed penalties.

Any bank, hotel, retailer or manufacturer that collected £19½ billion worth of goods and services it had invoiced from its customers when 50% of them had no visible signs of support, might consider a bad debts of £3.7 bn more than a reasonable ratio (given the very adverse trading environment within which they were operating – see Appendix F). [15]

Those companies might consider it unseemly and repugnant to seek ‘their pound of flesh’ in full measure by pursuing a debtor beyond the grave, however, the present CSA has no such qualms (Appendix G). It is seeking to recover property and repossess homes from 600 dead fathers – and thus in the process inflict poverty on a second and unconnected level of wives and children.[16]  This has all the salient features of “Irregular Marriages” (circa 1689 to 1860), a practice where chicanery by an interloper left widows and children destitute.

The Consultation Paper speaks frequently of ‘clients’, i.e. parents with care, and a dozen times or more of ‘serving them better’.  Peppered too throughout the document are phrases like ‘better support’ aimed at both ‘families and children’. Government papers have had a tendency, historically, to speak of ‘families’ when they mean solely mother and child units (ref Supporting Families above).

If this is again the case, why is there no comparable and radical support for;

  • a) fathers who have to pay CS and
  • b) single fathers with custody of children who find the state benefits due to them are more difficult to attain, e.g. Jobseekers’ Allowance (JSA) [17] and Child Benefits. [18]

Equal Pay legislation should have meant that levels of CS payments from non-resident mothers to a male PWC should be equal but they have tended to be less. There is no acknowledgment of this. No where are there any measures proposed to better the situation for fathers.

Where is the equality ? Where is the ‘quid pro quo’ ?

Only the Henshaw Report speaks of benefits for fathers but these are limited to indirect incentives re: making payments easier:

  • “The redesigned system creates the right incentives for parents with care to make child support arrangements” – Para 40.
  • “Disregarding most maintenance in benefit calculations would also improve the incentives for parents with care and non-resident parents to co-operate with the system.”

If these CS reforms are to dovetail with other intended legislative changes giving fathers more and better rights to see their children after divorce, then they should have been categorically spelt out. 

It is clear that the two beneficiaries are mothers and government. Generally speaking, lone fathers are treated very differently from single mothers by, for instance, JobCentre staff so a ‘culture change’ and re-education will have to be comprehensive if it is to reach the judiciary, CAFCASS workers and JobCentre staff. [19]

The 1991 legislation (Child Support Act 1991) omitted the father element and immediately ran into difficulties. The 2003 legislation didn’t omit fathers’ altogether and it fared somewhat better.

Any legislation for 2011 or 2012 should include ample and specific provisions for fathers if it is to stand a reasonable chance of a trouble free launch and life thereafter.

The following two graphs are taken from a DWP paper dated 2001 and they highlight an issue that must be addressed for the successful execution of any new CS regime. [20]

The first graph (Figure 4.1) shows the response from PWC when asked whether NRF paid CS before the CSA became involved. The response among mothers shoots up from under 30% to over 70% yet the response from men hardly varies and actually goes in the opposite direction (51% down to 48%).

A similar skewed response was found by Bradshaw et al (University of York, 1997).  Bradshaw resolved the apparent contradiction as the need to ‘play the system’.

Figure_4.1It benefited PWC to under-state payments made by the NRF (in some instance this need coincided with an inclination to put all fathers in a bad light).

The skew in responses between the genders has since been found in other studies. The benefit structure gives the impetus to parents with care to understate their income whenever possible and this can have the perverse effect of maximising income.

By being meticulous and knowing the system the parent-with-care can arrange four theoretical income streams; 1. informal payments by the former spouse, 2. normal state benefits, 3. the new boyfriend / partner, 4. CSA payments.

At present the fourth (CSA) payment is a fiction as the amount paid by a former spouse is paid directly to the Treasury to off-set the costs of single mothers to the state. The proposed new regime (2011) will see this fourth revenue stream made a reality.


While the state is being more generous to mothers, i.e. the parent-with-care, there is no commensurate generosity towards fathers in the form of reduced CSA payments or tax deductible expenses, e.g. something comparable to a married man’s tax allowance reflecting child support obligations.

Henshaw and the DWP speak of ‘lifting children and PWC out of poverty’ but how many NRP (fathers) will be lifted out of poverty, how many ‘pushed’ into poverty (or simply left to remain in poverty ?)

How many NRP with second wives and children will be pushed (very firmly) into poverty by such policies ? When legislation was debated and then enacted for homosexual unions specific tax breaks and allowances were replicated as if they were a normal procreating couple with wealth and assets to pass on to their children. Don’t NRF have children who need to inherit ?

The state has a ‘conscience’ about women and poverty – but no scruples whatsoever when it comes to men and poverty. We see this again demonstrated in the wayGulf War Veterans are (mis) treated. Government appears not unduly concerned if they are homeless after serving in Iraq and Afghanistan and whether they sleep rough on our streets at night.

The perverse nature of the Benefit structure and the imperative for PWC (parents with care) to maximise their own income is shown in the second of the graphs (see Figure 9.11). These imperatives clash with the longer term vision of the Divorce Reform Act 1969 of making re-marriages more easily attainable.

Figure 9.11 (below) depicts what happens when PWCs were asked if their payments should decrease if, at a later stage, the NRP had a child by another women

Almost 70% of mothers (PWC) said ‘No’ and only about 18% agreed that CS payments should fall to reflect the new responsibilities and liabilities to the new family.

Figure_9.11Refusing to accept a lower CS payment might seem reasonable but this survey was taken at a time when a new partner’s income was not taken into account by the CSA (and most women had a ‘new friend’ within 6 months).

Any new CS system will have to bear this dynamic in mind (the cause of much friction in the past), and seek not to reward or encourage under or over-reporting of various aspects.

Which brings us to the underlying difficulties government face insofar that the state has not thought through, or logically reconciled, its own history of contradictory polices. It has been inconsistent and uncoordinated. In one breath the child’s best interests (CBI) are paramount and in the next breath the child’s interests are allowed to be jeopardised by encouraging divorce-on-demand.

The state is in a contradictory position. On the one hand all governments have long recognised that children are best brought up in two-parent households yet on the other hand governments since 1945 have facilitated marriage break-up. [21] In the matter of IVF – now available to all couples irrespective of sexual orientations – it is the child’s best interests, the child’s rights to both parents, which are abandoned.

State sponsored incongruities abound in every direction; the state has a poverty line and an anti-Graphic_1poverty programme for children yet ‘child poverty’ has increased in the last 10 years.

These policies impinge on Child Support payments and having failed to ‘lift children out of poverty’, CS is the chosen vehicle to be the tow truck to rescue this policy.

It is expected that “between 80,000 and 90,000 additional children” will be lifted out of poverty by the proposed measures the Green Paper never asks, ‘Why are they there in the first place ?’

One in five UK children ‘is living in poverty’ says UNICEF report (19/06/2001). “A report published yesterday placed Britain 20th out of 23 countries in a league table of relative poverty. Unicef said one British child in five lived in poverty – a worse figure than in all but one of the other 14 EU countries.” . See also “Child poverty Up” The Independent, 24th April 2007.

When legislation is passed by parliament which demands that courts insist that the upkeep of two households (caused by the divorce) should be funded not by the legislators but the victim (the NRF), only unhappiness can ensue.

It was never going to be viable or practical for one income to pay for the upkeep of two households and the task become next to impossible for those who are middle to low incomes earners – particularly when the Equal Pay Act abolished by the concept of the family wage. Nor was it ever going to be practical for two wage earners but in the low income category to pay for two residences upon separation.

Page 21 of the Green Paper indicates that the average amount of CS paid is £1,800 per annum (approx. £35 per week). [22] It also reveals that ‘an average case’ can be expected to last nine years. Over the duration, i.e. of 9 years, more than £16,000 would be paid by the NRF.

A young man, paid the Minimum Wage, earns approx £11,500 pa. A person on slightly higher wages might earn in the region of £16,000. The effect, therefore, on low paid workers is that in a 10 year period they work one year for no pay. If anything this understates the problem, in terms of after-tax income because CS is not tax deductible for the paying parent.

The adjacent graph (see “Percentage increase” above), is based on the results of the 2010 Annual Survey of Hours and Earnings (ASHE).[23]  It shows thatmedian weekly pay for full-time employees in the UK grew by 2.1% in the year to April 2010, to reach £499 (or £25,948 pa). Costs, i.e. inflation, are currently at 4%.

Median earnings of full-time male employees were £538 per week in April 2010 (or £27,976 pa). For women the median was £439 (or £22,828 pa). Income tax, National Insurance and other payroll ‘stoppages’ effectively reduce Gross income by one third. An income of £22,000 or £27,000 soon drops perilously close to the £16,000 mentioned above.

But critically the graph shows that over the past 2 years increases in earnings among male earners have actually fallen and that overall since 1998 increases are getting smaller and smaller. Any new CS system will have to take these rises and falls into account and the system proposed looks as if it might meet this requirement.

The Green Paper states that:

  • “Given the long-term financial benefits of child maintenance we believe it is fair and in line with the principles of personal responsibility to ask parents to reallocate a small proportion of their spending so that they can afford an application charge.”

The reciprocal of that must be that given the long-term financial benefits to government of child maintenance payments made by fathers we believe it would be in line with the principles of fair play to make fiscal and financial concessions to fathers for easing the burden – an incentive to help government reach its goal.

The possible long-term “de-skilling” of the labour force is one of the interpretations that the Annual Survey of Hours and Earnings graph allows us to make. Others include the depressing effect of the entrance of the ‘college-educated’ young into workforce into an already recession-hit economy and the entrance of more women into workforce. The implications for future CS payments are obvious.

Easing the path

If the state wants divorce to be “easy”, inexpensive and available to all, it must accept the

consequential costs of that ambition and similarly recognise its role in the process must also include the funding of child maintenance payments.

The promised ‘liberation’ of easier divorce was purchased at the price of a fettered economic existence thereafter for both parties driving up poverty (see Conclusion, engine of wealth generation).

When the state fails to face up to the consequences of its own actions i.e. its obligation to pay for child maintenance because low income NRF cannot afford to pay CS, it stultifies other stated ambitions. For example, the aim of the Divorce Reform Act 1969, was that re-marriage should be made possible and more easily attainable. The fact that remarriage numbers have never reached their intended level would indicate a failure of policy

When relationships break down it is only natural that both partners will enter new ones to replace the old. The Divorce Reform Act 1969 recognised this. The strikingly and significant difference with all CSA legislation to date is the non-recognition of this fact.

Regrettably, both the Divorce Reform Act 1969 and the Child Support Act 1991 then conspire to deprive the NRP of any money, assets and wealth that might make remarriage a reality.

Between them they create the Second Wife Syndrome and the prospect of “debtor’s prisons” – made infamous by Dickens – is resuscitated when amendments to the Child Support Act 1991 made debts, which would otherwise be statute barred, legally enforceable in future. [24] The statute barred status of CS debts needs to be re-instated.

No CS regime to date has taken full consideration of a man’s obligations to his new wife and child.

Why should the first wife ‘beggar’ her replacement or the first born forever lower the standard of living (SOL) of the child in the second family ?  The first wife is perfectly capable of finding a new partner and raising her SOL.

There is a need to cut fathers some slack on behalf of second wives and their children (or cohabitee if cohabitees are now soon to be treated as if they were spouses). There should be some form of quid pro quo but again, there is none.

Any leeway or tolerance is centred on the mother-with-care. As discussed elsewhere the benefit regime encourages PWC to understate income and to declare themselves as ‘living alone’ when this is not the case. Living apart together (LAT) has become a phenomenon in recent years.

Not only does it absorb much needed housing but is a subterfuge to maximise Benefit payments which would otherwise decline if the authorities knew the woman was cohabiting. It is in the state’s interests to stem such haemorrhaging.

It would seen that if the state reserves the right to reduce payments when a new man enters the woman’s household it is only fair that CS payments paid by the NRP should fall when the former spouse finds a new partner and moves him in with her and the children.

We note too that the American TANF (Temporary Assistance for Needy Families, 1996), adopted as a model by the UK limits welfare payments to 5 years (see also Personal Responsibility and Work Opportunity Act, US). If the state reserves the right to limit payments to 5 years why should a NRP be forced to pay for 16 – 18 years ?

This Question asked about fairness and contribution. If the state believes it is unfair that taxpayers should be asked to pay when other sources of funds are available, the same question should be allowed to be asked by fathers.  

When a new man enters the woman’s household it is only fair that CS payments paid by the NRP should fall. The new man should not be able to enjoy the ‘comforts of home’ sound in the knowledge they are financed by someone who is not allowed to be there.

One hopes that this issue will be comprehensively dealt with in the forthcoming Law Commission’s paper on pre-nuptial agreements but past experience would tend to discount this expectation.

Frank Field MP, in a BBC ‘Panorama’ programme comes to the conclusion about modern fathers and child support, that; [25]

  • “The benefits system and high unemployment rates among young men means that they can walk away from their partner and children.“

He is wrong to conclude that young men ‘walk away’ when in all probability it is young women / mothers who push fathers away because of the way in which benefits are structured. Was it ever thus as a Commission of 1834 into the operation of the Poor Laws noted:

  • “The allowance made to the mother for the support of her child and secured to her by the parish in case of the putative father failing to pay the amount awarded is an encouragement to the offence it places such women in a better situation than many married women whatever may be the number of children.” – Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 170.

The issue of welfare dependency as the preferred household ‘wage’ is one we have raised many times in the past 10 to 20 years citing AFDC (Aid to Families with Dependant Families), and the TANF (Temporary Assistance for Needy Families, 1996). But as can be seen from the 1834 evidence, subsidies affecting personal behaviour patterns are not new phenomena.

We care less today about bastardy and the stigma of being an unmarried mother than was the case in the 19th century society but regardless of time and source of funding, the consequential marginalisation of fathers remains undimmed.

The state, in trying to help the needy, marginalises the father and inadvertently dispossessed many low income fathers (disproportionately Negro fathers in the US case) of their place in the family.

Frank Field MP also states, but incorrectly in our view, that:

  • “We’re the first generation in recorded history where society has not made the man who begets a child responsible for that child. We took the easy way out.”

Looking at marriage rates in the 18th and 19th century and how numbers have risen and fallen with good and bad harvest, Frank Field is correct in terms of external factors. However, he is not correct to assert that we are the first generation in recorded history where society has not made the man who fathers a child to be responsible for that child.

We would draw his attention to the recommendation of the 1834 Commission:

  • “We recommend therefore that the second section of the 18 ElIZ CAP 3 and all other Acts which punish or charge the putative father of a bastard shall as to all bastards born after the passing of the intended Act be repealed.” [26]

This perception of big the first generation might be true for the middle class, the cognoscenti, but literature abounds with examples of statute law and cultural code violations being impotent in the face of reality among the poor, e.g. Far from the Madding Crowd’, ‘Tess of the d’Urbervilles.’ Indeed, there would be no need for the Poor Laws, the workhouse, orphanages, or for foundling hospitals etc were Frank Field correct.

We join with Adrienne Burgess, of the Fatherhood Institute, when she warns that society should be careful when applying the “feckless” label to every absent dad:

  • “The vast majority of those men want to see their children.. . . Very often they’re unconfident, they feel they have no value. There are all kinds of barriers that they may not be strong enough or confident enough to overcome, but they’re not feckless in that sense of the word.”


There is a horrible mismatch between high-minded child welfare principles with stated principle of fairness on the one hand and the squalid reality on the other. What is ‘good for a child’ is often not what he or his parents want for him (or her) but what some 3rd party adult dictates (this is sometimes referred to as the price of welfarism). As a consequence, anomalies and double standards proliferate at every level.

The mismatch has now been recognised by government as financially no longer sustainable. We have a very expensive system that produces only bargain basement products.

Into this contradictory hotchpotch is parachuted a ray of hope in the form of this Green Paper and the much overlooked Henshaw Report.

Liberal aspirations are everywhere punctured by punitive retribution legitimised by the need to hit targets, ‘send signals’ and ‘do the right thing’. In this atmosphere where ‘surgery’ is deemed essential, the operation can be acclaimed a ‘success’ but the patient dies. This personifies our history of child support, of championing child care, and of callously claiming to make a child’s best interests (CBI) paramount. As a nation we need this Green Paper like dying man needs oxygen.

“Targeting” state benefits to sub-groups has been accepted by politicians of all persuasions as cost effective and an efficient means of delivery. This Green Paper accepts the need for targeting but this faith may be misplaced. Patricia Morgan has shown how target based programmes suffer ‘creep’ (into near universality), or fail to reach significant parts of the intended audience and can be more expensive to operate.

More than twenty years earlier George Gilder (1973) and Senator Moynihan identified the disadvantages in the ‘Aid to Families with Dependant Families’ (AFDC) programme. In both the US and the UK family poverty had been subject to detailed and sophisticated analysis. Targeted state benefits should have reduced poverty but instead drove out the male partner and thus lowering the overall family incomes and sucking in more state subsidies. What should have boosted family incomes actually decreased it and what should have strengthened families culminated in the double tragedy of social disintegration and accentuated class divisions.

Is child support, i.e. targeting children of separated parents, the way that is most efficient ? Is money spent targeting fathers in arrears productive ? Would a universal state funded benefit for the maintenance of all children be more advantageous ?

We note that; “In 2009/10 the cost for every £1 collected was 44p.” and it appears to cost around £460 million to run the existing scheme made up of 1.2 million cases.

The worsening UNICEF child poverty reports for England & Wales, could, we feel, reflect the increasing tendency by the state to target more benefits and, as Morgan highlights, results in actually failing to reach significant numbers.

Government has no choice but to be deeply involved in the lives of families and of poor single parents and their children if only because of the cost to the Treasury they represent. In this context, the absence of any government effort to support marriage does not represent neutrality and the lack of its encouragement as a valued first choice is an abrogation of responsibility. [27]

CS payments may sometimes be problematical among formerly married parents but we feel regularity of payment among unmarried parents is likely to be far worse. A statistical breakdown comparing payments made by formerly married fathers versus unmarried fathers would provide much insight. The only published number data available aggregates the two categories.

In the absence of such data it is perhaps noteworthy that in London single mothers make up 22% of all families (the largest proportion for any UK region). A breakdown of London data shows single mothers in Lambeth represent  48% of all families, in Hackney 43%, in Southwark 45%, and City of London 42%.

It has always been our contention that it is wholly unfair to inflict by legislation on the majority of fathers (who routinely pay CS), a set of rules and sanctions for a truculent minority (and who might be confined to regional or city sub-groups, e.g. Lambeth, Southwark).

1. Income levels

No new initiative will work without income levels being sufficient to meet what is required of them. Most households these days need to have two, not one, wage earner – just to survive. Fifty percent of the work force is now female. The family wage as a concept was destroyed by Equal Pay Act. Yet this fundamental change seems not to have penetrated judicial thinking as witnessed by the way they handle reality in divorce and custody cases.

Households can no longer survive on just one income. Yet this is overlooked by CMEC and government in their plans to double tax the income of the divorced father. Indeed, the whole area of income levels (and the lack thereof in many instances) is almost glossed over in the Green Paper.

The married man is the engine of wealth generation. Married men create more wealth than single men – and single men create only the same amount of wealth as single women. The reason for this is obvious – he has an investment in his children and advancing their interests.

Yet what has legislation sought to achieve since 1969 ? The break up of the family, place obstacles between fathers and their children and penalised not incentivize the care of children. No wonder child poverty is now so acute.

For the divorce father there is no commensurate off-set by way of Married Couple’s Allowance (this is worth an additional £2,800 pa), or a share in Family Credits. Instead, he is expected to pay for his family obligations after his divorce at a time when he suddenly finds himself also paying for a second home.

The gravity of the injustice is only compounded when it is realised that 80% of fathers are divorced against their will. In itself that is reason enough to consider the abolition of the CSA, the questioning of the concept of Child Support, and review of returning to pre-CSA provisions.

2. Custody is key

Almost 10 years ago another Green Paper ‘Making Contact Work’ floated the idea of reversing custody in difficult cases which would have been a move we would have supported. Nothing came of this idea, of course, but it confirmed in print what was patently wrong with the custody regime.

The years 2000 – 2002 represent the point in time when it was recognised in official circles that de facto the  divorce and custody structure treated children as ‘cash cows’.

The pretence that children were real people needing both real parents fell away revealing them to be mere pawns in a bigger game. There was clear evidence that a sharing of custody and parental rights was a fiction in the Oct 2002 meeting between the ‘Coalition for Equal Parenting’ (CEP) and Amanda Finlay and Sally Field of LCD.

The transcript of LCD meeting shows Sally Field referring to the Children Act 1989 and suggesting that:

  • “ . . . .it might be useful at this juncture to look at the history of the Act. The Bill had started in the Lords and then progressed to the Commons. . . . in Nov 1988. Notes on Clauses produced at the time the Bill was progressing through the Lords recorded that ‘joint custody ’ had been the norm prior to the Bill, with an order being made in every case. The Bill sought to change this so that an order should only be made if it were better than no order being made – i.e. a less interventionist approach.

The inability (or preference) in official circles to take on board the implications of custody as an deal-breaker, as an issue of principle or simply as a totem, displays Whitehall’s rigidity. The view of the CEP (Coalition for Equal Parenting) was that shared parenting was not only the only way forward out of the impasse but would provided a route to lower legal fees for both clients and government. Further, if this route was not adopted the CEP warned that the Treasury would face ever larger bills for the social consequences which would reach a point where would prove unsustainable.

All 3 of these predictions have now come about (shared parenting; lower government legal fees; Treasury worries).

The Green Paper has indirectly lifted the pressure off custody as an issue by allowing separated spouses to negotiate freely and individually. This is the essential pre-condition that we suspect will now allow resolutions in other related fields. This can be seen as an expression of the new ‘Localism’ agenda announced by government

The Green Paper continues to disappoint in its propensity to resolve matters by punitive and malicious action against fathers while not uttering a word of sanction aimed at mothers.

Jailing a father for ‘non-compliance’ bends no one out of shape but jailing a mother for non-compliance appears to hit a raw nerve. Is one human being more valuable than another ?

We suggest that such punitive action aimed at fathers is highly counter-productive. Not only does it prove sexual discrimination but he will lose his job – the source of CS payments – jeopardises his standard of living, compromises his liberty and his right to contact his children

If it is the “accepted duty of government is to provide a framework for people to discharge their responsibilities” why has custody not been addressed ?  [28]  Particularly when “Failure to deliver financial responsibility can have widespread negative consequences.” [29]

Why have only the peripherals (in the form of CSA and ancillary relief) been addressed with the latter merely criticised as being ‘vindictive’ ?

The Green Paper skirts around the veto powers of custodial mothers and gate-keeping antics that prevent proper contact visits. Nothing is said of the waste this produces in time and money spent travelling to the appointment

The map shown below is the custody ‘geo divide’ that emerged from a 1987 study by the Law Commission. In the north joint custody levels (comparable with today’s shared parenting) were very low, while in the midlands and south joint custody awards were significantly higher.

Geo_divideIn 2012 should we expect to see a similar ‘geo divide’ in payment patterns and custody awards ? Will fathers in the north pay lesser amounts and less frequently ?

The ‘geo divide’ has another dimension. Rail fares on, for example, the East Coast Mainline can cost £200 to £300 for a return ticket (say, London to Newcastle), and even commuters in the South Legend_1East regularly paying £3,000 for a season ticket. They often take out a loan to pay for such season tickets or their employer builds it in to the remuneration package. How can divorced fathers be reasonably expected to see their children when disposable income is at such a premium and no one to offer a ‘package’ ?

Because of the sheer distances involved, in the US and Australia, the costs posed by mothers who move away after divorce has to some extent been addressed. Court restrictions on how far away they can move are not uncommon. To offset the greater distances the fuel costs in the USA and Australia are significantly lower than in the UK, e.g. £4 per gallon of petrol and not £8.

3. Paternity

DNA testing is another veto right given to mothers and not to fathers – gate-keeping and custody being the other major veto rights. In our opening g remarks we pointed to the imbalance between mothers and fathers and between those that receive payment and those that are obliged to pay.

It was, in our view, a retrogressive step to align English law with that of Scotland so that a father in a household is automatically deemed to be the biological father of any child produced and therefore financially liable as well as criminally liable for CS default.

Our opening g remarks also quantified a problem re: false paternity which no one in officialdom seems to address seriously. We tentatively put the number of false paternity claims at tens of hundreds but until research is undertaken it could be tens of thousands or hundreds of thousands

The possibility of hundreds of thousands and the American Wise case, has spurred legal minds and ethicists to refocus and re-define ‘fatherhood’.

The prevailing view now appears to be that a father is the man who reads children their bedtime stories, and not the man who necessarily shares his DNA.

The abrogation of the human right to determine who one’s own children are is yet another layer of injustice thrust upon fathers who have already had to contend with divorce bias, custody discrimination, confiscation of assets, and mandatory CS paying, all situations that may not have been of his choosing. The Green Paper could be optimistically viewed as representing in its subtext less state intrusion into private lives but it is too early to say. On the other hand, there appears to be nothing in the Green Paper to prevent further state intrusion or the continued discrimination against fathers.

4. Pre-Nuptial Agreements

Once frowned upon as contrary to public policy, the reluctant acceptance that Pre-Nuptial and Post Nuptial contracts can bring benefits demonstrates how far policy makers have grudgingly moved. It also tells us we are in a mess. The changes would not be needed if the primary components of marriage and law had not been adulterated by persistent interference.

In our opinion the publication by the Law Commission of “The future for pre-nuptial agreements”, is a significant step forwards and in one blow could solve several difficulties. [30]

A 1998 consultation paper, “Supporting Families” devoted a chapter to “Strengthening Marriage” and also embraced Pre-Nuptial Contracts (Para. 4.20) together with marriage preparation.

Pre-nuptial agreements as an idea were of very limited use in 1998. They were symbolic in value as that they became null and void once children were born to the family.

However, if the Law Commission’s most recent proposals (Jan 2011) regarding pre-nuptial agreements bear a close resemblance to newspaper reports, then a new chapter will be opened.

Firstly, it will overcome the blatant sexism and dire consequences contained in their May 2006 report into cohabitation compensation (“Cohabitation: the Financial Consequences of Relationship Breakdown”, Law Commission Consultation Paper No 179, ). [31]

Secondly, some of the problems highlighted in our comments regarding DNA / paternity listed above will be negated. Pre-Nuptial Contracts could shield fathers from unscrupulous gold diggers, and will allow them to counter claim and prevent injustices.

To illustrate the perennial nature of this danger we cite a Parliamentary Commission of 1834:

  •  “(The Commissioners ). . .. thought that poor men were at the mercy of blackmail and perjury by unscrupulous women…. The bastardy clauses of the Act of 1834 were in line with the opinions of the Poor Law Commissioners. The laws which had enabled a mother to charge a putative father before the magistrates were repealed”.

The more thing change the more they stay the same. The following is quote from a Commissioner from the same 1834 report:

  • “I find there are in most parishes, [women] who have from two to four children, receiving different sums of money with each, according to the ability of the putative fathers; so that the sum the woman receives with the whole of the children, and what the mother can earn, enables them to live as comfortable, or indeed more so, than most families in the neighborhood.
  • It may be truly said that the money she receives is more than sufficient to repay her for the loss her misconduct has occasioned her, and it really becomes a source of emolument, and is looked upon by others as an encouragement to vice.” – Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 351

If the state is today minded to create all manner of relationships between heterosexual and homosexual couples, it is only fitting that the state should also provide the individual with the means to protect himself against unwarranted attacks, profiteering and intrusions.

5. Second wives’ club

One category of women have been made into victims since the Divorce Reform Act 1969 and their position worsened after the Child Support Act 1991.

CS (child support)  legislation has made no allowance for these women and the present Green paper makes the same omission. All that can be said is that individual engaged in negotiations regarding payments CS will in future e able to take a broader view of their liabilities and abate them if the need later arises, i.e. they find a new female partner.

What is perennially not addresses is the income of the interloper ‘second would-be husband’ or subsequent partner. For this eventuality no deduction for his sizeable contribution to the divorced woman’s income is envisaged. This is wrong and unfair.

The only other recourse to a fairer system for citizens is the legalisation of pre-nuptials and post-nuptials contracts. Should it ever come to pass, the barbs and razor wire that now characterises the CS system will be blunted. Poverty will be aggregated not localised or concentrated on second wives. Assumptions of a guaranteed SOL (standard of living) presently held by first wives will come into question and will need to be assessed before they decide to divorce their husband.

  • 6. The Universal Credit

Welfare reform as a modern political issue in the US began in the Clinton era. There was a ground swell of opinion that the national (or federally funded) system was becoming too complex to control and in some instances counter productive.

In the beginning there was AFDC (Aid to Families with Dependant Children) created in 1935. But by 1996 recipients of AFDC were “1,700% more frequent among illegitimate children of never-married mothers than among legitimate children raised by intact married couples.” [32]

TANF (Temporary Assistance for Needy Families) replaced AFDC but failed to drive down poverty. Instead, it drove out the male partner thus lowering family incomes still further and promoted the double tragedy of social disintegration and accentuated class divisions (today, there are fewer Black Americans who are married than in 1900).

Supplementing the federally funded benefits are state programmes. There are many variants and the degree of generosity varies but each state essentially has some sort of mix, i.e. a ‘retraining’ programmes; “workfare”(i.e. mandatory work for government money such as street cleaning; private sector work; re-entry programme; certified not-for-profit sector hours; etc.

The Minnesota Family Investment Program (MFIP) is one typical example embracing all of the above. [33]Quote:

  • “ . . . MFIP helps families move to work and focuses on helping families. It includes both cash and food assistance. When most families first apply for cash assistance, they will participate in the Diversionary Work Program, or DWP. This is a four month program that helps parents go immediately to work rather than receive welfare.”

If we compare the ideals announced by Iain Duncan Smith, when introducing his Universal Credit (Feb 2011), there appears to be much that is borrowed.

It is too early to say with certainty but the Universal Credit does have the potential of helping resolve protracted CS payment difficulties.

9. Abolish Child Support altogether

Radical and painful views have traditionally tended to come from one direction and impacted on one group more than any other. Fathers, and men generally, are usually expected to finance whatever exotic legislation is planned.

To return the compliment, let serious consideration be given to abolishing child support altogether – if not now, then in 5 years time.  CS in the UK has a long and chequered history. Ten years ago we were counting the cost in the number of fathers committing suicide. As we have seen from the above reference to the 1834 Commission, one generation after another have thought that they alone have found the answer to CS.

However, only this generation has sought to legally de-couple a father from his biological child. Legislation now in force makes it clear that a father has no automatic, natural or legal obligations to his child since the father’s role as guardian has been abolished. [34]

If the time honoured right of a father to look after his legitimate children has been abolished one has to conclude that the mother and the state are the only parties with guardianship rights remaining. As a consequence the logic is painful. Since the state has taken unto itself protection of the child and all the attendant responsibilities including guardianship, fathers are superfluous. As such fathers have no obligation to support or to care for a child which now ‘belongs’ to the state. The upkeep of any child therefore falls squarely on the shoulders of the guardians remaining and it is left to the state to pay.

The mistake the state makes is not in tying to address the issue but in tying to address all of the cases in the issue.

Whitehall policy shapers appear to have been seized of this epiphany at long last. ‘The poor’ it is said will always be with us and so too are the failures to regularise child maintenance payments. As if to underscore our position Henshaw concedes that, “Only 13% of current cases have the potential to recoup money for the state.” [35]

We must hope there is a realisation in official circles that did not exist before, namely, a questioning of the cost and cost-effectiveness of the CSA. Getting officialdom to arrive at this juncture has been an uphill battle. It is therefore worth highlighting the bulk of the criticisms made by fathers groups against the CSA over a number of years in these bullet points: 

  • The CSA cost £1 billion to set up in 1993. The court system cost Gov’t nothing.
  • Government is owed over £3 billion it has paid out in ‘maintenance’ to single mothers and is very unlikely to be able to off-set it by collecting taxes from NRFs (non resident fathers).
  • The CSA recovered only £120 million in Income Support expenditure in 2004/05, against costs of £425 million, albeit around £80 million was saved elsewhere.
  • Annually, the system runs at a net loss to the taxpayer of around £200 million.
  • The efficiency of the CS regime has consistently been poor
  • It represents poor value-for-money for the taxpayer.

Lending support to the idea of abolishing CS altogether is this extract taken from Henshaw’s 2006 report into CS payment:

  • “Child support is only likely to be a significant factor where the non-resident parent has a high income. However, in such cases, disregards are unlikely to outweigh the strong financial incentive for the parent with care to remain in the relationship.

Separation typically means a large drop in income for the parent with care.

There is considerable evidence demonstrating the often substantial drop in the standard of living likely to be experienced by carers and children. [36]

  • Evidence suggests women’s net income declines by as much as 18% following separation. [37]
  • Some 48% of children in lone-parent households are in poverty (after housing costs) compared to 20% in couple households.” [38]

Since the CSA data show the majority of fathers to be in or on the borderline of poverty (i.e. net incomes and/or disposable incomes) the “non-resident parent [who] has a high income” is a rarity. (See also Social Security Dept Tables G2.07 and G2.08. Appendix E).

Coupled with the destructive influence CS has on wealth creation and wealth accumulation the case against CS payments is building.


Appendix A


The bias in judicial awards of custody vis-à-vis house husband who normally care for the children are epitomised by these two cases 8 years apart but ruled upon by the same Appeal Court judge ( 2001, 2001 & 210)


Custody ruling deals a blow to house husbands

 By Matt Born, Daily Telegraph, April 19th 2002

THE principle that children should be raised by their mothers won the overt backing of the Court of Appeal yesterday after it rejected a house husband’s attempt to win custody of his two children.

The father, who had raised the children in their £1 million home while his wife enjoyed a successful career on a salary of £300,000, argued that he was the victim of sex discrimination.

But the court refused him leave to appeal against a High Court decision which granted custody to his estranged wife. Lord Justice Thorpe, sitting with Lord Justice Buxton, said that despite the “unusual” role reversals in this case, they could not ignore the “realities” of the “very different” traditional functions of men and women.

The father, who cannot be named for legal reasons, had wanted the children to live with him in London while his wife, the family breadwinner, continued to maintain them.

He also opposed her plans to give up her career and move hundreds of miles away with the children, who are both aged under six. Richard Tott, the father’s barrister, asked the court to imagine the situation in reverse.

He said that if a male breadwinner proposed giving up his job, taking his children out of private education, moving far from London, and replacing the mother as the primary carer, “his application would be looked at with extreme scepticism”.

But in his ruling, Lord Justice Thorpe said that this submission seemed “to ignore the realities involving the different roles and functions of men and women”.

The judges heard that after the couple split up last year in “fraught circumstances” each had applied for custody.

The husband moved out of the family home, while the mother cared for the children briefly. However, they soon reached an agreement to share time with the children. The husband moved to a nearby rented house, paid for by the mother.

But the mother now wanted to give up work in order to spend more time with her children.

His belief that her desire was genuine was the decisive factor in rejecting the father’s claim, Lord Justice Thorpe said. He said it was “not uncommon” nowadays for those who have “sacrificed the opportunity to provide full-time care for their children in favour of a highly competitive profession” to think again about their priorities.

The judge added: “[They] question the purpose of all that striving and whether they should re-evaluate their lives before the children have grown too old to benefit.


Only a year earlier in 2001, a father won a landmark legal victory regarding shared parenting and the overt sexual discrimination against fathers contained within the welfare benefits system (see Hockenjos v Secretary of State for Social Security).  [1]  It was a short lived righting of discrimination with the government immediately abolishing the relevant piece of legislation.


Rachmacher v Granatino  

(see )

This case has elements of both pre-nuptial contract and shared care agreements being overturned (Lord Justice Thorpe ruled).


Rachmacher, a German heiress worth £100 million did not want to share her pre-nuptial assets or wealth with her former husband when they divorced. His income was circa £30,000 pa, though he had a wealthy father. He had given up his job 8 years ago to look after their two children. Custody was shared 2/3 + 1/3 but this was not reflected in the financial settlement.

The parties were both foreign nationals, the wife German and the husband French, who had signed a pre-nuptial agreement valid under German law but then divorced in the UK. In the High Court Baron J had awarded the husband £5.6m even though the pre-nuptial agreement had stated that neither party would seek maintenance from the other in the event of divorce. The wife therefore appealed.

His total indebtedness in legal fees alone amounted to £800,000, of which his wife’s legal fees, which he was obligated to pay, totalled £50,000.

Appendix B 

The still born Family Law Act 1996 had provisions within it for marriage counselling to be given prior to divorce. The Act’s mandate was “to save savable marriages”. From the outset it was obvious that the marriage guidance and counselling services in Britain could not cope with current demand and would be overwhelmed by legislation that might bring a 10 fold increase.

The OCU (Order of Christian Unity) commissioned a survey, “Privatising Divorce ?” (pub Dec 1995), into the marriage and relationship counselling services in Britain.


Facts and figures – quick summary.

1. London Marriage Guidance – have over 100 counsellors based at 18 centres in London who see almost 800 clients weekly.

Couples are charged £40 per session which last 50 mins. Over 700 couples or individuals are waiting at any one time. They handle 5,659 cases and see 100 new clients each week. Married couples constituted 54% of counselling sessions and unmarried partners 46%.

2. Relate – has over 2,300 full and part-time counsellors working in 128 centres in England, Wales and Northern Ireland. It trains 350 counsellors and 30 psycho-sexual therapists per year. All are volunteers who have to pay for their tuition and training lasting over 2 years.  From 1990 to 1996 volume/demand has risen 50%. An average counselling course cost a couple £250.00.  10,000 couples and individuals are waiting for counselling at any one time.  65,000 initial interviews and 44,600 new cases are given every year. In all, Relate handles 396,200 sessions. Each of Relates centres is an autonomous independent charity federated to national Relate.

3. Marriage Care – formerly the Catholic Marriage Advisory Council has 73 local centres. They have monitored their client satisfaction rates and report that 91% of all clients felt they had been “helped” by their counselling. Their courses are accredited by The University of Leeds through the College of Ripon and York St. John.

[ The above groups] are comparatively well funded and professionally run. They have had a near-monopoly position in the market for many decades. However, their position may now be under threat with the emergence of a comparatively new entrant into the sector, namely “Employee Assistance” companies.

Originating in the US, “Employee Assistance” or “Employee Assist” companies have become a common sight in US commercial life. After many years building up experience in the US they have been imported by “multi-nationals” and recently privatised companies. They represent good value for money for these multi-nationals companies and assist with the demands placed on a company’s Personnel Department. These companies are dealt with in greater detail later in this paper. This new genre will probably make their presence felt in the UK. Counselling generally can be expected to grow and this new entrant may muscle in on the more lucrative or volume driven contracts. 


Advice to separating parents
Health and Educational ‘problems’ that have long been associated with divorce and fatherless children.
Government has never drawn these ‘problems’ to the public’s attention. 

Some of these citations listed below date back to the 1960s and 1980s. They have been deliberately included is because their validity has never been questioned and their findings always validated.

In other words, they are as true to day as they were 30 or 40 years ago. Why society has chosen to ignore them for this period of time is an unanswered question.

For comparison purposes we cite, at Appendix D, a more modern version of the data compiled by Rebecca O’Neill (Civitas, Sept 2002). 

The following statistics are taken fromWhy Two Parents are Important” and support the view that children suffer when not in a two parent households:           


Psychological Health Problems

Greater Psychological Health Problems

Single parent children are 3 to 4 times more likely to have emotional or behavioural problems (Zill and Schoenborn, National Center for Health Statistics, 1990), and 84% of teens hospitalized for psychiatric care come from single parent homes (1989 study, cited by Hewlett, ‘When the Bough Breaks’).

Higher Suicide Rates

Teenagers who attempt suicide are similar to non-suicidal teens in age, income, race or religion, but are more likely to have little or minimal contact with their father (Study of 752 families by New York Psychiatric Institute, cited by Hewlett). 75% of teenagers who commit suicide are from single parent homes (Elshtain, The Christian Century, 1993).

More Alcohol and Drug Abuse

18% of children with strict and involved fathers used drugs. 35% of children without fathers used drugs (1988 UCLA study, cited by Hewlett). Children in father-absent homes are 4.3 times more likely to smoke as children in father-present (Stanton, Oci, and Silva, 1994 survey of 1,037 15-year-olds).

Great Frequency of Sleep Disorders

More trouble falling asleep, more nightmares, and night terrors (Psychiatrist Alfred Messer, cited by Hewlett).

Persistent feelings of betrayal, rejection, rage, guilt, pain

Lasting for years with a renewed intensity at adolescence. Two-thirds [of father-absent children] yearned for the absent parent, one-half of those with an intensity we found profoundly moving. (Wallerstein and Kelly, 1980, Surviving the Break-up).

Lower self-esteem

This especially true for girls (Dr. Robert Fay presentation at NCMC conference, 1992) (Davidson, Life Without Father: America’s Greatest Social Catastrophe, Policy Review, 1990)


Lower Academic Achievement

38% of elementary students from single parent homes were low achieving, while 23 % of both parent children were low achieving (Nat’l Assoc. of Elementary School Principals report, cited by Hewlett). 

30% of children from father-present homes were high achieving, while only 17% of children from father-absent homes were high achieving.

Lower Matha Scores

YaleUniversity study by Carlsmith, cited by Hewlett (Cortes and Fleming, 1968).

Greater Failure Rate

Elementary students from fatherless homes or homes with mother and a stepfather have to repeat
(National Center for Health Statistics study of 47,000 households by Deborah grades at a rate 2-3 times higher than children with both biological parents Dawson, 1991)

Lower SAT Scores

“Dramatic” lower scores for students from father-absent homes (ColumbiaUniversity & Bowling GreenStateUniversity study of 295 from father-absent homes and 760 from father-present homes (cited by Hewlett).

Lower IQ and Achievement

Children who lost fathers before age 5 scored lower on Otis Quick Test and Stanford Achievement Test as junior-high and high-school students (Santrock, 1972) (Hetherington, Cox, and Cox study, 1978) (Cortes and Fleming, 1968).

More Likely to Drop Out of School

Children from fatherless homes twice as likely to drop out of school (US Department of Health and Human Services, Survey on Child Health, 1993) less likely to attend college (Wallerstein, Family Law Quarterly, 1986).


Higher Rates of Criminal Behaviour

Fatherless children are twice as likely to become criminally involved (Margaret Wynn, 1964) -72% of adolescent murderers, 60% of rapists, and 70% of long-term prisoners grew up in father-absent homes (US Department of Justice data, 1991).

Greater Delinquency for Boys

87% of Wisconsin juvenile delinquents are a product of father-absent homes (Wisconsin Department of Health and Social Services, 1994). 70% of juveniles in state reform institutions grew up in father-absent homes (US Department of Justice data, 1988). Young black men raised without a father are twice as likely to engage in criminal activities (Hill and O’Neill, 1993) (Matlock in Adolescence) (Siegman, 1966; Anderson, 1968; Kelly and Baer, 1969).

Greater delinquency for girls      – –  (Monahan, 1957; Toby, 1957

More Violent misbehaviour in School

Children who exhibited violent misbehaviour in school were 11 times as likely to live without their father than children who did not violently misbehave (Sheline, Skipper, Broadhead, American Journal of Public Health, 1994).


Greater chance of being physically Abused

Pre-schoolers living without their biological father were 40 times more likely to be a victim of child abuse as compared to like-aged children living with their father (Wilson and Daly in Child Abuse and Neglect: Biosocial Dimensions, 1987) premarital pregnancy, out-of-wedlock childbearing, and absent fathers are the most common predictors of child abuse (Smith, Hanson, and Noble, Child Abuse: Commission and Omission, 1980).

Greater Chance of Being Sexually Abused

69% of victims of child sexual abuse came from homes where the biological father was absent (Gomes-Schwartz, Horowitz, and Cardarelli, ‘Child Sexual Abuse Victims and their Treatment’, 1988).


More Difficulty in Interacting with Men and Male Peers

Daughters of divorcee’s aggressive, forward with boys and men. Daughters of widows shy and timid with boys and men (Hetherington, 1972).

Younger Marriages

Daughter of divorcees marry at younger age (Hetherington, 1972).

More Unwed Pregnancies

Girls from fatherless homes 111% (over 2X) more likely to have unwed pregnancy (Warren Farrell presentation at NCMC conference, 1992; Hetherington, 1972).

Higher Divorce Rates

Girls from fatherless home 92% (nearly 2 x) more likely to divorce (Warren Farrell presentation at NCMC conference, 1992; Hetherington, 1972).


Less Masculine, More Dependent Behaviour

(Santrock’s study of 4- and 5-year old, father-absent boys) (Rogers and Long’s study of 6- too 15-year-old boys where father employed away from home community, 1968) (Hetherington’s study of 9- to 12-year-old, father-absent boys, 1966).


More Likely to Suffer Accidents and Injuries

Fatherless children are 20-30% more likely to experience accidents, injuries, and poisonings than did father-present children (Remez, Family Planning Perspectives, 1992). Compared to children living with father, fatherless children experience more accidental injury, asthma, frequent headaches, and speech defects (Dawson, Journal of Marriage and Family, 1991). 

Appendix D 

‘Experiments in Living: the Fatherless Family’ 

by Rebecca O’Neill (Civita, Sept 2002)


The experiment

  • Fewer children live with both their mother and their father
  • Routes into the fatherless family
    • Divorce
    • Births outside marriage
    • Changes in marriage and cohabitation
  • Is the married two-parent family a thing of the past?
    • Most people still believe in the ideal of marriage and do, in fact, get married

The Results: How does the Fatherless Family Affect Adults, Children and Society ?

  • Lone mothers
    • Are poorer
    • Are more likely to suffer from stress, depression, and other emotional and psychological problems
    • Have more health problems
    • May have more problems interacting with their children
  • Non-resident biological fathers
    • Are at risk of losing contact with their children
    • Are more likely to have health problems and engage in high-risk behaviour
  • children living without their biological fathers
    • Are more likely to live in poverty and deprivation
    • Have more trouble in school
    • Tend to have more trouble getting along with others
    • Have higher risk of health problems
    • Are at greater risk of suffering physical, emotional, or sexual abuse.
    • Are more likely to run away from home
  • Teenagers living without their biological fathers
    • Are more likely to experience problems with sexual health
    • Are more likely to become teenage parents
    • Are more likely to offend
    • Are more likely to smoke
    • Are more likely to drink alcohol
    • Are more likely to take drugs
    • Are more likely to play truant from school
    • Are more likely to be excluded from school
    • Are more likely to leave school at 16
    • Are more likely to have adjustment problems
  • young adults who grew up not living with their biological fathers
    • Are less likely to attain qualifications
    • Are more likely to experience unemployment
    • Are more likely to have low incomes
    • Are more likely be on income support
    • Are more likely to experience homelessness
    • Are more likely to be caught offending and go to jail
    • Are more likely to suffer from long term emotional and psychological problems
    • Are more likely to develop health problems
    • Tend to enter partnerships earlier and more often as a cohabitation
    • Are more likely to divorce or dissolve their cohabiting unions
    • Are more likely to have children outside marriage or outside any partnership

Effects on the Social Fabric

  • Increased crime and violence
  • Decreased community ties
  • A growing ‘divorce culture’
  • Cycle of fatherlessness
  • Dependence on state welfare

“ . . . . The weight of evidence indicates that the traditional family based upon a married father and mother is still the best environment for raising children, and it forms the soundest basis for the wider society.”

Appendix  E

Social Security Statistics, Table G2.07 1996 – 2010 (CSA)

The fallacy of dead beat dads irrevocably annexed to CS payments is here blown apart.

Using tables supplied by the CSA we see that unemployment and disability account for half or all non-payments or ‘zero’ payment of CS.

Its not that divorced or separated dads ‘won’t pay’, it’s more that they ‘can’t’ pay’ due to their own impoverishment.

The often heard generic designation of non-resident-fathers as dead beat dads thoughtlessly bandied about by the untutored is here shown to be erroneous and misplaced.  If it does apply it is to very few of fathers and is statistically insignificant.

To demonstrate the continuing nature of the problem, i.e. of impoverished fathers being taxed, the following tables cover the years 1996 to 2010.

Table G2.07 (below) refers to 1996 and of the total number assessed to pay CS (395,500) only 216.7 were actually employer and earning a living. The income was so low for 14,800 fathers that their assessment was £0 per week. Those in work and paying less than £4.80 per week totalled 87,700.

So pernicious was the original CS regime that even Income Support, designed for a single person’s needs, was attacked with 38,800 suffering a levy of not more than £4.80 per week.


Table G2.07  CSA. Maintenance Assessments by Absent Parent’s Employment/ Benefit type (thousands), i.e. unemployedAll Assessments at31st  May 1996.



Full Maintenance Assessments (thousands, e.g. 395.5 =395,500)



Earned Income

Income Support



Interim MaintenanceAssessment








£ 0.00







< £ 4.80






– –

< £ 10              



– –



– –

< £ 19






– –

< £ 29




– –

– –

– –

< £ 39




– –

– –


< £ 49




– –

– –


< £ 59




– –

– –


< £ 69



– –

– –

– –


< £ 79



– –

– –

– –


< £ 89



– –

– –

– –


< £ 99



– –

– –

– –


< £ 109



– –

– –

– –


< £ 119



– –

– –

– –


< £ 120 +



– –

– –

– –

– –








Weekly Av’ge Maintenance

£ 23.33

£ 38.22




£ 92.16

Source : Social Security Statistics Table G2.07 1996:- CSAThis table describes the source of income of absent parents, i.e. fathers, and the CS maintenancepayments made.

Of the 395,500 assessments barely 54% were levied against fathers who had an income.


















By 1999 both the numbers involved and the layout of Table G2.07 had changed.

There were now 864,000 maintenance assessments but despite this the number of unemployed fathers remained at approx 50%.


[1] “Jobseekers’ allowance sex bias unlawful” (Court of Appeal), May 17 2001, The Times. (Hockenjos v Secretary of State for Social Security). This was in direct contravention of Article 1 of Directive 79/7/EEC, and of Article 3 and Article 4 and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207). Ref. Sprawson Report, child benefit DWP.

[1] Hockenjos v Secretary of State for Social Security) Court of Appeal, The Times, May 17th 2001 “Jobseekers’ Allowance sex bias unlawful”). “ .. . . .The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly…” – Article 1 of Directive 79/7/EEC, and Article 3  & Article 4, and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207).

[2] ‘One in five UK children ‘is living in poverty’ – UNICEF report (19/06/2001). See also “Child poverty Up” The Independent, 24th April 2007

[3] “Joint birth registration: promoting parental responsibility” 6/2007. Cm 7160.

[5] National Centre for Social Research

[6] ‘Mommy’s little secret’ , The Globe and Mail, By Carolyn Abraham, Saturday, December 14, 2002

[7] “The Myth of Monogamy with her husband” by Barash & Barash, 2001. Also  ref Dr. Lipton.

[8] HMSO 1998, “Supporting Families” DWP 2011   pp 6 & 10.

[10] European Parliament British MEP Marina Yannakoudakis (ECR) stressed that although 91% of single parents in EU are women, we should still use the notion of “lone parents”. Laura Alipranti underlined that in Sweden 26% of single parents are men whilst Rossana Trifiletti told the Hearing that single fathers are also poorer than natural families.

[11] See also “Divorce Matters” (pub 1984), p166.

[12] Royal Commission on Marriage and Divorce : report, 1951-1955. This prompted two documents; ‘The Field of Choice’, by the Law Commission and ‘Putting Asunder’ by the Archbishop of Canterbury. The latter believed that there shouldn’t be changes unless what amounted to a post-mortem could be undertaken for each petition. The Law Commission rejected this option preferring the easier and faster ‘irretrievable break down’ option to be claimed by one of the parties and which required no court investigation.

[14] “New family law could bring legal miser”, 20April 2007, hidden pitfalls in the Family Law (Scotland) Act 2006. .

[16] The Agency is also pursuing the estates of more than 600 deceased parents so their children will benefit

[17] Hockenjos v Secretary of State for Social Security) Court of Appeal, The Times, May 17th 2001 “Jobseekers’ Allowance sex bias unlawful”). “ .. . . .The principle of equal treatment means that there shall be no discrimination whatsoever on ground of sex either directly or indirectly…” – Article 1 of Directive 79/7/EEC, and Article 3 & Article 4, and of Regulation 77 of the Jobseekers’ Allowance Regulations (SI 1996 No 207).

[18] Spawson Report (head of the Child Benefit Policy section, 1999) blamed the 1975 DWP computer system for the inability to share child benefit between parents when custody was shared.

[19] Rossana Trifiletti MEP, told the Hearing that single fathers were also poorer than natural families – European Parliament

[20] National Survey of Child Support Agency Clients’ (DWP),

[21] “Quickie” divorces, i.e. special measures divorce procedures, were first introduced in 1946.

[22] Quote; “The average mean yearly maintenance award in the CSA is £1,800. . . .”

[24] Statutory Instrument No 1520 (July 2006) amends the Child Support Act 1991. Debts of over 6 years.

[25] “Feckless father cannot remember children’s names” BBC Panorama, 17 January 2011.

[26] Report from His Majesty’s Commissioners for inquiring into the Administration and Operation of the Relief of the Poor (1834), p 351.

[27] Maggie Gallagher, US Institute for Marriage and Public Policy.

[28] “Recovering child support” (Henshaw, 2006) Para 4

[29] ibid

[34] “The rule of law that a father is the natural guardian of his legitimate child is abolished”. Children Act 1989, Part 2 (4),

[36] 38 Douglas G and Murch M, 2000, How parents cope financially on marriage breakdown, Joseph Rowntree Foundation.

[37] 39 Jarvis S and Jenkins S, 1999, Marital Splits and Income Changes, Institute of Social and Economic Research.]

[38] Department for Work and Pensions, 2006, Households Below Average Income 1994/95–2004/05.

State sanctioned kidnapping

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

 This is the first case of ‘child kidnap’ by Social Services that we were made aware of and in which we became actively involved.  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 I 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.


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 yesterday at Wolverhampton Crown Court to be sentenced.

Prosecuting counsel Mr. Richard Ace told the court that the 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 [ ‘clinging on only by his fingertips’ was an exaggeration but the noose was 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.”


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 against the express wishes of the entire Biddulph family.

Bearing in mind all the above, when the Dept of Constitutional Affairs invited submissions in response to its Green Paper and Questionnaire regarding how courts operated, we included the following 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 by Birmingham 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.


Germanisation of Polish children, see:

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 20th century, divorce has never been encouraged by the state.

[Emphasis and italics added]


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.



  • 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.

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

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)

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

Fig 1. Dependant children and marital status

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 18th 2008

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,

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:

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,

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

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)

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.

Addendum: April 2013 – At last an academic voice has joined our contention that the 10% figure is a nonsense. In written evidence to the Children and Families bill committee, Prof. Parkinson (author of Australia shared parenting law reform) poured scorn on the claim in child custody matters that “Only 10% choose to come to court over contact arrangements.”    In written evidence put before parliament he shows why it is wrong and unreliable  (

This 10% figure has been cited extensively over the years and, for example, by Prof. Liz Trinder (and her inner circle inc. Jenn McIntosh), Peacey and Hunt (2008) and as far back as Joan Hunt & Ceridwen Roberts (2004).  For a brief review of its importance and impact see also “Parkinson’s cavalry crushes Norgrove’s big guns”


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


Related links



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.


Related links



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


Related links


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



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.


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.


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).



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.



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


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