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Introduction
In
1981 John Eekelaar and I began to study the economic consequences
of divorce. ( see Maintenance after Divorce , Eekelaar and
Maclean OUP 1989). At the time we felt rather uncomfortable
in gatherings of researchers working on divorce, most of whom
were concerned with less mundane matters, and particularly
with the psycho social study of couple relationships, why
some "worked" and others "failed". Twenty
years later, I make no apology for considering the economic
realities of family change as important not only in policy
terms, as an aid the development of techniques for intervention
to alleviate poverty in post divorce households ( confirmed
again recently by Perry ,Douglas, Murch et al in the Cardiff
study "How parents cope financially on marriage breakdown,
FPSC 2000 ) . There are implications not only for family law
but also social security provisions and the law relating to
pensions, to the ownership of property and the management
of debt . But on a more theoretical level, the study of familial
obligations , often visible through their economic relationships,
offers a way in to understanding the nature of the family,
and a way of monitoring and interpreting change. This paper
will address the changing nature of family obligations , and
argue that the centre of gravity has moved away from the relationship
between adults which is losing formality and certainty, and
moving toward the relationship between parent and child. The
latter is becoming increasingly regulated in economic terms
because governmental concerns to reduce dependency and foster
responsibility needs to be able to enforce the obligations
of parents to their children. (I suspect that the next step
for an ageing society may be concentration on the relationship
between adult child and elder parent….but that is not part
of our discussion at this meeting.) The economic realities
of this transition in the UK have so far been painful for
children and those caring for them.
Demographic
and economic context
Others
will address the demographic picture more fully and expertly,
but I offer a brief background to provide the building blocks
for our discussion, taken from "Men and Women in the
UK 2000, published by the Cabinet Office last year.
- In
the UK fewer people are marrying , a total of 310,000 in
1997, and they are marrying later . Between 1971 and 1997
the average age for a woman marrying for the first time
rose from 22 to 27, and for men from 24 to 29.
- Over
the same period the number of divorces more than doubled
, to 161,000 in 1997. This trend is however thought to be
leveling out.
- In
addition the increase in couples living together either
before marriage, instead of marriage, or after a first marriage
has ended in divorce constitutes a major change in family
life. By the early 1990s more first marriages were preceded
by cohabitation than not. The proportion of non married
women aged between 18 and 49 who were cohabiting doubled
between 1979 and 1999 from 11% to 29%, and is expected to
increase further. .
- Fertility
rates have declined since the 1960s, when there were 91
live births per 1000 women of child bearing age, to 59 per
1000 in 1998. Since the 1980s women have been having children
later, and so fertility rates for older women have increased
while they have declined for women in their 20s.
- Women
with and without children are more likely to be working
now than in the past. One in three of women aged 30 worked
in 1909. One in 2 of women aged 30 worked in 1999. Six out
of ten married or cohabiting women with a child under 5
, and three out of ten lone mothers with a child under 5
worked in 1999. Twice as many of these women were working
part time as full time. This proportion is gradually reversed
as children get older.
- By
1997 only 26% of couples with dependent children had a sole
male earner. 62% of such couples relied on two wages, though
for two thirds of the mothers the wage would be for part
time work in low paid service occupations. Although the
number of formal child care places has increased, mothers
still provide the majority of child care. Where help is
used it is usually informal, by a partner or parent for
pre school age children and by brothers and sisters for
school age children.
- Hourly
earnings for the women in full time work have moved closer
to men's, reaching 84% of the male rate. But for the majority
of women who work part time, the earnings gap has grown
wider, standing at only 58% in 1999.
- A
low skilled mother of two will forgo earnings of more than
£260,000 over her lifetime compared with a childless low
skilled women, a mid skilled woman will forgo £140,000 and
a high skilled woman £20,000.
In
addition the social rented housing sector is shrinking, and
property prices are high , thus limiting access to the credit
needed to enter the owner occupied sector to those with stable
full time employment. Housing is not only important in its
own right, but also has an impact on access to high quality
healthcare and education.
These
are the economic realities. Clearly they do not provide a
comfortable context for women with children who move from
a household based on two or at the least one and a half earners
to becoming the head of household. Divorce and separation
are so often seen as release from an unsatisfactory relationship.
The harsh reality is that while this may be so, there is also
a heavy price to pay in terms of standard of living for the
children and their resident parent ( still in nine cases out
of ten their mother).
International
comparators
I
should point out that I am speaking about the UK . In other
contexts the economic realities are very different. With good
childcare, gender equality in the labour market and a flexible
housing sector the picture would be very different. When I
first visited Poland in the late 1980s, my colleagues there
provided a very different picture. Housing was available though
horribly overcrowded, women's work was equally paid, child
care was provided by the extended family. Their concern was
that as result of the position of the Catholic Church that
the divorce rate in Poland was too low, and that too many
women felt unable to leave a marriage dominated by alcohol
abuse resulting in domestic violence, partly for religious
reasons. For Moslem women also under the Sharia law access
to divorce is problematic ( see Shah Kazemi report to Nuffield
Foundation, 2001) ,
At
the opposite end of the scale we have the arguments of William
J Goode (see chapter 2 in " Economic Consequences of
Divorce " edited by LJ Weitzman and M Maclean, OPU 1992
) describing divorce as a consumer good, based on his observation
that divorce rates rise with income and are an expression
of rising individual aspirations .
I
find if difficult to reconcile this argument with the over
representation of divorce in lower socio economic groups in
the UK, but perhaps we can compare divorce to peasant revolts
… these happen when the price of bread falls not rises and
there is a little less hunger and a little more hope.
Financial
support for wives 1970-1984
The first empirical study of the economica consequences of
divorce which John Eekelaar and I carried out in Oxford (
see Maintenance after Divorce , J Eekelaar and M Maclean OUP
1986) was undertaken in the early 1980s, when divorce was
about husbands and wives. . After the introduction of no fault
into divorce in the Family Law reform Act of 1969 and the
Matrimonial Causes Act of 1973, the court acquired the discretion
to make post divorce financial provision with the aim of placing
the parties in the position which they would have enjoyed
had the marriage not broken down. This led to a great outcry
from men involved in a second marriage , complaining that
they could never be free of the burden to maintain their first
wife, and that this legacy was harming their wish to move
on to a new life with a new family. The burning issue of the
day , which sounds very strange to modern ears, was how should
a second wife's income be taken into account in determining
the maintenance due to a first wife. The law at the time did
not directly consider the second wife's earning, but did consider
the former husband's financial circumstances which were of
course affected by these. The Campaign for Justice in Divorce,
whose members were divorced remarried men and their second
wives made vociferous demands for a Clean Break and the right
to start again. They argued that the first wives were able
to keep the family house, and be maintained by their former
husbands, even if they had been responsible for ending the
marriage. Our research was energetically targeted as hostile
to this position , as we determined ,on the basis of empirical
work, that those in financial difficulty after divorce were
the households with children, then as now the mothers and
children. Until our work, small scale though it was, discussion
of family law reform had been carried out without factual
information against which the new directions in maintenance
law could be assessed. In the 1980s this gap began to filled
not only here but in the USA ( Weitzman) France ( Bastard
and Voneche) Germany ( Voegeli and Willenbacher) and Australia
( Funder) as socio legal work developed which brought together
the demographic, economic and social data to contextualise
law reform. ( All these authors contributed to Economic Consequences
of Divorce, see above)
The
preparation of the 1984 legislation marks the first step towards
the awareness of the financial needs of of children in the
divorce debates. Until this time, court orders for financial
support to be paid made little distinction between money for
the mother and money for the children, Orders commonly referred
either to the wife, or to the wife and children. There were
tactical reasons for the legal advisers for the wives, ( nb
the availability of legal advice to the women under the legal
aid scheme has had a profound impact on the development of
divorce settlements in England and Wales ) to seek particular
decisions, for example where a wife was thought likely to
remarry an order might be oriented towards the children in
order to secure continuing support, or if the children were
approaching the age of 18 the order might favour the wife
in order to offer her longer protection . In practice the
post divorce support was thought of as the allocation of resources
between the divorcing parties. The children were subsumed
into the mother's household. In the !984 Matrimonial and Family
Proceedings Act the persisting obligation principle with respect
to post divorce support between adults was removed, and replaced
with the proclamation that in making financial provision the
court was to have regard to all the circumstances of the case,
"first consideration being given to the welfare of any
child of the family who has not attained the age of 18".
Rising
awareness of children's interests
During
the mid 1980s, the movement to establish children's rights
developed developed rapidly. The UN Convention on the Rights
of the Child was signed in 1989 , the preparation of the Children
Act 1989 to bring together all law relating to children was
underway with a child -centred focus, talking about listening
to the wishes of the child and stressing not parental rights
but parental responsibility .( see Eekelaar Families and Children
in Individual Rights in Law edited C McCrudden and G Chambers
OUP 1994) To return to the economic realities, it was also
the case that as the numbers of children affected by divorce
and separation increased they began to make visible demands
on the social security system. But there were two key features
of the Children Act which mark a major shift in the policy
approach, which both reflect changes in behaviour and attempt
to direct behaviour. The first was the separation of parental
responsibility from the legal relationship between the two
parents. Parental responsibility was not defined as restricted
to married parents, it continues after divorce , and can be
conferred through a Parental Responsibiity Order on an unmarried
father or by a court if it is thought to be in the child's
best interest. This marks an acceptance of the changing patterns
of child rearing, in recognising that children born to non
married parents have two parents, and also promotes the view
that the parental relationship survives the ending of a legal
or emotional partnership between those two parents. And the
manner in which the Act approaches the question of where a
child should live, ie residence formerly referred to as custody,
and with whom the child should be in touch ,ie contact formerly
referred to as access, indicate by their very language acceptance
of a larger part to be played by the wishes and needs of the
child rather than the legalistic view of the child as a piece
of property to be claimed or access as a right to be exercised
by a non resident parent .Furthermore, the process by which
these changes were to be put into practice carried another
message about the private nature of family responsibilities.
There was a presumption that Section 8 orders concerning residence
and contact should not be needed. The Act was based on the
concept that parental responsibility included responsibiity
for providing good enough parenting at all stages in the child's
life, whether or not the parents were together or apart. There
should be no need for a court to intervene routinely, but
only to offer support and adjudication if an intractable dispute
was to develop.However, divorcing parents have continued to
seek orders, whether in a search for certainty or on legal
advice is unclear.( Bailey Harris, Davis et al, ref to follow)
Child
Support
In
1984 during the debates around the desirability of clean breaks
and applying limits to spousal maintenance, Jenny Levin, then
director of the Legal Action Group, made a key contribution.
She asked why all the discussion centred around support for
wives, and asked why we were not talking about support for
children.
She
was ahead of her time. But as the discussion of childrens
interests became better documented and more developed, the
debates around post divorce finance began to change shape.
Research began to document how the problems lay in households
with children and women were becoming less interested in continuing
financial dependence on men after divorce. Men had for some
time been very interested in clean breaks The consideration
of post divorce finance as meeting the needs of children rather
than as being a continuation of the couple's financial interdependence
looked more and more attractive. The government of the day,
in a period of economic stringency and ideologically committed
to reducing public expenditure was presented with the irresistible
opportunity to both DO GOOD and SAVE MONEY. The stage was
set for the Child Support scheme.. Research was beginning
to show that in the battle between parents at divorce that
the interests of the children were being overlooked. Post
divorce orders for children were low and rarely paid regularly
or in full ( Edwards ,Gould and Halpern Family Law 20 p31-35
1990) Enforcement procedures were ineffective. Until The issue
of child support began to be discussed more widely, particularly
as the numbers of one parent families on benefit and their
dependence on welfare support began to be documented ( Bradshaw
J and Millar J Lone Parents in the Uk , DSS Research report
HMSO1990) and in court in the case of Delaney v Delaney the
judge had accepted the argument that the availability of benefit
for the first family was a sufficient reason for the support
obligation of an absent parent with a second family to be
reduced. The then Prime Minister Mrs Thatcher announced the
policy initiative "to look at ways of strengthening the
system for tracing an absent father and making the arrangements
for recovering maintenance more effective" ( Independent
January 18 1990).
The
policy objectives were twofold: to improve the level of support
paid to children by absent fathers…. and to do so in an efficient
and cost effective way. The courts had not proved very effective
in either setting or enforcing adequate levels. The government
looked therefore to developments in Wisconsin followed shortly
afterwards in Australia to set up an administrative system
for child support bypassing the courts. The scheme pioneered
in Wisconsin by Irwin Garfinkel aimed to ensure that children
should receive a similar proportion of their parents resources
whether or not the parents lived together. ( Garfinkel I Fathers
under Fire LSE STICERD CASE paper 14 1998) Based on family
expenditure studies, a formula was devised to reflect the
percentage of parental income devoted to the children in intact
families, and to require this to be paid to the mother for
the child by the absent parent. The levels involved were considerably
higher than previous levels of child support. Enforcement
was to be firm.
The
British government moved swiftly to develop a similar scheme.
A White Paper was publihes in 1990 by the Department of Social
Security and the Lord Chancellor's Department entitled "Children
come First" , later parodied in the press as "Treasury
comes First." There were some important differences between
the UK scheme and the US and Australian schemes. In particular,
our assessment procedure was extremely complex and difficult
for potential users to understand. It required a great deal
of detailed and up to date information from individuals whose
lives were in a state of flux, and whose circumstances were
likely to continue to change for some time. Penalties for
failure to comply were swinging. It came as no surprise to
those familiar with the matter that the scheme gave rise to
vociferous opposition from the fathers, whose requirement
had been dramatically increased. The women were also unenthusiastic,
as most were on benefit and were required to go through a
complex procedure involving conflict with the child's father,
and received no welfare disregard. Both these aspects have
received attention and a revised scheme comes into operation
next year. But there are some crucial aspects of the scheme
which have been overlooked in the storm of criticism. Firstly,
child support became a right,to be accessed in an administrative
setting, rather than a claim to be made in a court of law.
This reflects a far stronger position for the child, and a
clear shift in public attitudes and expectations. Divorce
is no longer just about adults. The significance of this change
for those involve in the process was not well recognised at
the time, especially the inappropriateness of procedures deriving
from benefit work, where a claimant asked the state for support
and has to satisfy the authorities that he meets the criteria.
In such a case it is understood that detailed questions will
be asked, and the claimant must substantiate his claim. But
in the case of Child Support, the system was dealing with
a conflict between two parties, who needed the opportunity
to challenge each others' statements, and were required to
take part in a procedure which often advantaged neither of
them, nor the child, but solely the tax payer. It was these
queries and rebuttals which took time, leading to inordinate
delay and subsequent bills for punitive arrears. (See Maclean
in Maclean M and Kurczewski J eds Family Law and Family Policy
in the New Europe Ashgate 1997) The second aspect which merits
attention is the continuation and extension of the ideas underlying
the concept of Parental Responsibility in the Children Act
whereby the well being of children is formally separated from
any consideration concerning the civil status of the parents.
The Child Support scheme applied to all children with non
resident parents , whether these parents had been married
and divorced, whether they had lived together and separate,
or whether they had never shared a common household. The state,
even the retreating and diminishing state of the Tory administration,
had accepted the responsibility to intervene in defining and
enforcing the financial obligations of all biological
fathers.
The
financial savings to the public purse were less than expected
( as had been the case in Australia also) , and the gains
to children were slight as the Child Support Agency proved
no more effective than the courts had been in enforcing child
support payments. But children were at the heart of post divorce
finance. Spousal maintenance is becoming rare. Child support,
instead of being tacked on the end of discussion about financial
settlements is now fixed into the process as the first item
to take into account. It is defined, and required.
Which
children come first?
But
although policy had come a long way towards putting the child
centre stage, family change had gone even further. While the
child support policy makers concentrated on the needs of the
children left behind by fathers who moved on, what they failed
to take into account was where these fathers had moved on
to….ie a second family. The Child Support legislation made
no attempt to recognise that two sets of children both had
a claim on their fathers resources. A society which permits
serial reproductive relationships must turn its attention
to the resulting obligations which result . In our recent
study "The Parental Obligation" ( Maclean and Eekelaar
1997) John Eekelaar and I looked at the differing ways in
which parenting across households is developing . We found
that of the fathers who had never lived with their children,
usually formed an initial bond , and this might be sustained
particularly where a young father was supported in this by
his own mother. But these bonds were fragile, and liable to
disintegrate under the pressure of moves away to new jobs
or the arrival of new partners and new children. These young
fathers were rarely long term providers, or long term presences
in their childrens' lives. Of the children whose parents had
lived together and separated, who had spent at least 2 or
3 years with both parents, the ties were stronger but still
more vulnerable than those of the married parents who later
divorced after longer periods together as evidenced by both
contact and support. We do not attribute this to any magical
component in the marriage vows, but to the fact that the longer
a father has lived in a common household with the child the
more their lives are entwind, the more familiar the father
will be with the actual costs of child rearing, and the more
the father has invested in the child. (I will leave aside
the question of whether those who choose to marry differ from
those who do not).
Amongst
our respondents with this variety of experience we found a
complex set of expectations about the relative demands of
first and second families on the income of their father. In
this study we used a vignette, describing a married couple
who had children, and later separated. The father went on
to remarry, and live with his new partner and her child. We
asked about the claims of both sets of children on the fathers
resources. We later complicated the picture by adding a new
child for the remarried couple, and finally a rich new partner
for the former wife.( see pp140-141 Parental Obligation ,
Maclean and eekelaar, Hart Oxford 1997) . Briefly, 3 out of
4 mothers though the biological children of the first marriage
had the primary claim on the fathers resources, compared with
2 out of 3 of the fathers. 2 out of 3 fathers and only 1 in
3 mothers thought the stepchildrens needs should affect the
support to the first family. Fewer than 1 in 3 of the mothers
thought the a child of the new relationiship should affect
the support to the first family… compared with 4 out of 10
of the fathers… and nearly half of the mothers thought the
mother's new partner should affect the support to her children
compared with 1 in 4 of the fathers….
The
key finding in my view was the gender difference in the response
we received from our sample of parents who did not live with
the other parent of their child. . Men were far more willing
to give a higher priority to the claims of social children
, than the women. The women placed far greater emphasis on
the claims of biological parents. There are many ways of interpreting
this finding, but perhaps a key factor is that women are very
unlikely to have direct experience of non biological parenting.
They rarely live apart from their children
Concluding
observations
We
have described the apparent development of a more child centred
policy reflecting and supporting a more child centred way
of conducting family life. A most appropriate conclusion to
be offering at the Leeds Centre.
But
I will end with some preliminary and rather disturbing findings
from our work in progress on Settling Up, a project being
carried out with the support of the Nuffield Foundation into
how couples divide their resources on separation. The sample
includes both married and cohabiting couples., and asks not
only what they did, but also how they feel about this matter,
and what they think is fair or unfair and why.
We
found that cohabiting couples separate more quickly and easily,
and with less apparent conflict than the divorcing couples.
But that the women with children were walking away
with nothing. Although the Children Act could offer some protection
to separating formerly cohabiting women in their capacity
as parents, through the right to benefit from property during
the child's minority , this is little understood or used.
Indeed these women do not see lawyers as a matter of course
as the divorcing women do. ( see Genn Paths to Jusrtice, Hart,
2000) Neither they nor their children are protected from the
harsh economic realities of separated parenting.(see Settling
Up , Lewis, Arthur and Maclean forthcoming)
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