The Engine of a Matrilineal Society : Alternative Routes

John Campion, The Cheltenham Group

 


Promised to appear in Family Law 1998 - but they never dared publish


Introduction

This paper is written, not from the legal practitioner's point of view, but from the point of view of the divorced person. It attempts to introduce into the divorced debate a view from the real world. It takes the viewpoint of the divorced husband and the relationship with his children because this viewpoint is almost completely ignored by policy makers and practitioners as this paper will show.

The paper will be examining broad trends in the law rather than the detail of it, and in particular the way the law is implemented rather than its formal description in statute and text books. It will particularly be emphasising the impact that this practice has on real lives rather than what goes on in the highly distorted and artificial world of the divorce court, solicitor's office or court welfare officer interview.

The paper makes the following three claims:

A matrilineal society

It would be hard to dispute the plain fact that we live in an increasingly matrilineal society - a society in which (in the words Dormor 1995 [1] "the only parent that a child will have continuing contact with will be the mother"). This change in the way parents live with their children has been both on a massive scale and sudden as figure 1 indicates. To these figures have to be added all those mothers living with a man who is not the natural father.

TABLE 1 Numbers of one-parent families, Great Britain Taken from Family and Parenthood by David Utting. Figures are in thousands What is more important than these mere figures, however, is what they mean for parents and children thinking about getting married and raising a family. According to our estimates [2] a young man has something like a mere 50% chance of raising his own children. These are not very good odds, especially since (as this paper will demonstrate) the circumstances causing this are largely beyond his control. What is worse, this is only an average, and in some inner city schools some 80% of the children come from divorced families, indicating that a young man there has a mere 20% chance of raising his own children.

The crucial question is "does this matter?" First it must matter simply because it represents a 50% failure rate of a system, so something must be wrong somewhere. Also the plain human suffering engendered indicates that this is clearly a bad state to be in. Divorce is strongly associated with a wide range of physical and mental illnesses as Jack Dominian's group has so well documented [3]. Divorced men are eight times more likely to commit suicide than married men. Divorce in children is associated with every known social pathology from lowered self-esteem through to under-achievement and delinquency. A third of children "worry a lot" about their parents' splitting up [4]. Single parenthood (two thirds of which is caused by divorce) is almost synonymous with poverty and benefit dependency.

A child, not living with its natural father is fourteen times more likely to be abused than a child living with its father [5]. This is not surprising since a natural father is there for his children whereas a father-figure (a boyfriend or step-father) is there for his own sake. The presence of a natural father is the single most important factor in protecting a family against poverty, physical injury and social deprivation. A father both socialises his children and (importantly) is socialised by them.

Stable families are important for binding society together because, as Bloom has pointed out [6] they form an important bridge between the individual and the State. A family gives a parent a stake in society. As well as being motivated to work, a parent is concerned that the society that his children are growing up in is a good one - that education works well, that crime is low, that the environment is good and safe. It is parents, predominantly who run all the clubs and societies which form such an important part of the "social glue". Take all this away and you have a rootless individual who, at best feels no wider concern, and at worst feels bitter and resentful against society.

But, I now wish to turn to the second part of the thesis - that this matrilineal society is caused, not by processes "deep in the fabric of society" as the former Lord Chancellor would have us believe [7], but simply by Government policies - especially divorce law.

Divorce law practice vs divorce law statute

It is an approximation of the truth to say that statute in divorce has very little to say about what really goes on in divorce - that is the real legal framework which dictates peoples' actions and the outcome of those actions. What correspondence there is between what happens in court and what is written in statute is largely because statute has been created post hoc to tie in with practice. This is bad for a number of reasons; not least is the lack of visibility of what is going and therefore the lack of control by normal democratic processes.

When the court started creating a matrilineal society, it had nothing to do with the grounds for divorce or, indeed, statute at all. It started when they started awarding custody of children to mothers regardless of their matrimonial conduct. The last element of conduct to remain was adultery but this was removed in the landmark case of Allen in 1948. He was a prisoner of war who returned to find his wife and his eight-year old daughter living with another man. He was initially awarded custody on the usual grounds that an adulterous wife would be unlikely to provide a stable home for the daughter, but this was overturned on appeal.

The pretence in Statute and associated public discussions is that two parents can equally appear before a court and argue for custody of their children. As anyone involved in divorce knows, this is not the case. Custody to the mother regardless of her adultery, desertion or other matrimonial offence is the powerful default which a father has to overturn. This default exists even with boys up to 11 and 12 years old and irrespective of whether the mother is working full time or not.

This outcome (which is pre-determined) is probably the most important factor motivating divorce. Most parents feel they can walk away from money and property but not from their children. The stance adopted by the father is also powerfully motivated by the information he will be given by his solicitor that, in the event of the mother or her new partner flouting a court order over access, the courts will do nothing to protect his rights. He will also know that, in the event of his failing in a custody dispute, he will have to pay his wife's costs.&127;

The change in practice to the custody-to-mothers default is also the reason why there is not a close coupling between divorce rate changes and statutory changes - a point continually (and falsely) made by the reformers to justify the claim that the law has nothing to do with divorce rates [8]. The coupling is between divorce rate changes and judicial practice.

Removing conduct from custody settlements set the scene for the next step in the reformers' agenda which was to remove conduct from the grounds for divorce (i.e. to produce divorce on unilateral demand) and from financial settlements following divorce [9]. This was accomplished by the rulings by Ormrod and Denning over the notorious Wachtel case in 1973. I say "notorious" because this completely overturned the case law which stood since Ashcroft in 1902. In this case the husband divorced the wife for adultery, got custody of the children automatically and had to pay 50 per annum to his former wife so that she would not be left destitute. Far from this representing some oppression of women as held in some quarters [10] this actually represented a (quite proper) pragmatic deference to humanity against the strict dictates of justice.

But the Wachtel rulings were all the more unacceptable because they were in clear contempt of Parliaments' wishes which threw out such provisions at the committee stage of the 1970 Act dealing with financial matters. In the true spirit of practice led statute, conduct was subsequently omitted from the so-called consolidating Act of 1974.

Having removed considerations of conduct from the things that mattered to people (their children, property and money) the next step was the engineering of divorce on unilateral demand. This occurred in a manner very similar to the way that doctors have engineered abortion on demand through misuse of the "mental health criterion" - in this case by a blatant misuse of the "unreasonable behaviour" ground.

The judgement was made that what was deemed "unreasonable" was a subjective and non- judiciable matter. This lead to petitions by wives which were a mixture of invention and triviality. The behaviour ground therefore became simply a cynical means of manipulating judicial procedures to produce the desired outcome - divorce on unilateral demand. Irate and distressed husbands were told by their own solicitors to simply go along with the charade and that the divorce would have no consequences for the ancillary matters - children home and finances.

This, coupled with the fact that legal aid rules were engineered so that defending a divorce would not attract legal aid in the majority of cases, meant that defence for a husband became, in practical terms, both irrelevant and impossible. Quite the most reprehensible claim in all of this has been the Law Commission's [11] that the failure of husbands to defend divorces indicates their acceptance of the divorce as a fact. This of course, allowed the claim that "the marriage has de facto broken down so now let's get on with post-divorce settlements" - an attitude strongly underpinning the Family Law Act.

This is a gross misrepresentation of the situation on two counts. The first is the practical matter that the husband has been coerced into this state of legal helplessness, and the second (more pernicious) is that this permits the adoption of the model of marriage as a love affair, a matter dealt with later.

The final step in this vicious charade was the removal of the husband from his home through ouster orders which through the 1980s were increasingly applied despite the fact that the husband had done nothing wrong. Frequently the husband found his own solicitor encouraging him to leave the home to "reduce tension". It is probably this measure - the most frightening and humiliating of all - which creates the greatestdegree of hostility. Former Law Commissioner (and architect of the Family Law Act) Brenda Hoggett [12] (now Lady Justice Hale) declared that

The courts' ----- power of adjustment of property interests ---- are now so extensive in the long term that ordering one spouse from his own home in the short term no longer seems so drastic

Of course this won't seem too drastic to Hoggett because she will never have to suffer such draconian encroachment of the State into her life - since she is female. Such equanimity is seldom demonstrated by those forced out of their homes.

Taking stock

Through a series of case law judgements and development of a legal culture, operating relatively independently of statutory requirements, the State has effectively abolished the State of legal marriage in all but name. This is because the courts have decided to ignore the concept of matrimonial obligations and opt for what Hoggett called "radical remedies" for the protection of dependent spouses (i.e. wives).

Hoggett's paper is important, not only in giving a clear account of what has happened in divorce proceedings over the decades, but in pointing up the anti-family and anti-father attitudes that exist within the establishment. Thus Hoggett argued for the extension of the "radical remedies" to the unmarried on two grounds; first on the logical grounds that the doing away with the concept of matrimonial obligations made this acceptable in principle; second on the pragmatic grounds that marriage had become very unattractive to men and they should not be allowed to escape from their obligations.

The Family Law Act clearly formed part of the Hoggett agenda. It enshrined divorce on unilateral demand in statute and further strengthened the radical remedies available to wives by encouraging rapid settlements and making ousters easier through Part IV - the so- called domestic violence provisions. There is, in fact, not a single reference to domestic violence in the Act. What the wording does is to make the grounds for ouster very broad and subjective. Thus the Act does for ouster what the courts in the 1970s did for the grounds for divorce.

The so-called cooling off period is no such thing because it is during this period that the husband will be ordered from his home by Part IV provisions, custody and financial settlements will go through as before (all the things which cause hostility) and the divorce in all but name will have taken place more quickly than before. It was the Law Commission perceived requirement for living arrangements to be settled rapidly in the wife's favour which formed one of the main motivations for the Act.

The next item on the agenda will be the "home-sharers charter" emanating again from the Law Commission which will bring the rights of married and unmarried women still closer together. When I gave evidence on this to the Law Commission some two years ago they made it quite clear that the law had a clear trajectory to it and to try and change this would be unwelcome and futile. Strong anti-marriage and anti-father attitudes seem to be endemic within the minds of family law policy makers and practitioners. The following are quotations from the so-called anti-sexism policy document of the National Association of Probation Officers [13] - the main professional body of Court Welfare Officers (CWOs):

The document, in some 15 pages, contains not a single reference to the rights or needs of children or fathers. This is very disturbing because the CWO effectively acts as judge and jury in custody disputes. The recommendations made by the officer to the court are seldom overturned, yet an officer following this policy document cannot act according to the requirements of the Children Act - that is to put the interests of children first.

Prospect

The view that divorce has nothing to do with the break up of marriages is unsustainable when one examines the nature of respective outcomes for husbands and wives and their pre-determined nature. It is also unsustainable if one examines the correlation between judicial practices and divorce rates rather than statutes and divorce rates. The view that the break up of marriage is not a matter of concern is also unsustainable if one examines the detail of what is going on in the homes and its serious impact on individuals (including fathers and their children) and its implications for wider society.

What we most urgently need is a law which takes marriage seriously and that means a law which takes fatherhood seriously. Supporters of the current regime often speak of the family as "not deteriorating, but simply undergoing change", as if the new serial monogamy was somehow a modern phenomenon to be embraced. This cannot be something to be embraced with equanimity simply because of the large scale and serious human suffering which it causes. It also cannot be something modern [14] because it is returning us to the family unit of the animal kingdom and the Stone-Age [15].

A law which took marriage seriously would, by definition, be one which took fatherhood seriously because marriage is precisely that social structure, underpinned by the law and other factors which signifies the status of the father as the legitimate "owner" of his children. To me this is the fundamental of marriage, and love and individual relationships are mere incidentals. It is this social reinforcement of a father's legitimate ownership of his children which sets us apart form the animal kingdom and the Stone-Age. Furthermore, as Daniel Amneus has argued [15], and as I have argued earlier in this paper, it is a process which is not a mere arbitrary product of civilisation but the very process which has enabled civilisation to develop by harnessing the energy of the man to support physically, economically and emotionally his family over the long term.

It is therefore instructive to note the dismissive tone with which Hoggett and other feminists treat this model of marriage. Hoggett, for example, speaks of the "triumph of romantic love" over mere "dynastic ambition", for example. For "dynastic ambition" read the wish to love your children, bring them up in security and with decent values and to have a stake in their future.

This brings us to the crux of the matter which is that underlying all of this two quite different models of marriage are at issue - marriage as a love affair between two people (let us call this Type L marriage) and marriage as a permanent and mutual commitment for the purposes of raising children (let us call this Type C marriage). These two models stand in direct contrast to each other. Thus in Type L marriage the degree of commitment arises from the dictates of human emotion whereas in Type C marriage the emotional feelings arise from the degree of commitment. The charge of this paper is that society has had foisted on it a Type L model of marriage by the legal and social science communities - a model which has not been created by reference to the needs of individuals or of wider society but simply by reference to the values and predilections of these professional communities.

Type C marriage must be the model of marriage that we need because, since love affairs are, by definition, temporary and subject to unilateral cessation, we could not bring our children up, with the love and long term and serious commitment that that entails if we were to anticipate their being taken away from us and our relationship with them being destroyed at some time in the future. It is very significant to note that, although a third of children are born outside of marriage, the parents of the great majority of these children end up getting married. This can only indicate that parents realise that they need to enter into some more serious and permanent arrangement at this time. Marriage (that is Type C Marriage) is a powerful "instinct".

I view this with some degree of optimism. But the fact of the matter is that, although people believe they are entering into Type C marriage, they are actually entering into Type L marriage. This is clearly indicated by the criteria for termination (i.e. unilateral declaration) and the fact that no special ownership rights over children are conferred by it on fathers. Spouses are seriously mislead on this matter by taking part in a ceremony in which Type C declarations are made but which have no legal substance to them. In our experience fathers are shocked to discover that this is the case. The system only works on the basis of systematic deceit.

What is more important, though, is that the Type L model has been justified largely by reference to the pragmatics of legal proceeding and not by reference to any principle relating to social need. This is a serious deficiency because principle and pragmatics should lead to quite different solutions and to confuse the two means that one has lost control of where one is going.

For example the following practices could all be compatible with a C model of marriage and the suitability of each would be determined by factors such as the resources the courts were prepared to put into proceedings.

Each of these solutions has different merits and demerits and any one would be acceptable to some degree. But what is completely unacceptable is the current system of no-fault divorce coupled with mother custody as the default. This practice is based on a Type L model of marriage underpinned by animal models of parenthood and Marxist models of human need. Neither of these models is applicable to humans [18] and if we can't return to practices based on models which are applicable to humans, then the outlook is bleak indeed.

Unless something is done to remedy this situation we can only see a world in which fewer and fewer people get married and partnerships become increasingly strained and based on self-interest, protectionism and suspicion rather than on ideas of mutual commitment, mutual benefit and trust. Marriage rates are at an all-time low and are still falling. This is only to be expected when marriage has nothing to offer a man except the prospect of effective slavery.

1. The Relationship Revolution, Duncan Dormor, One Plus One, 1995
2. The Emperor's New Clothes, The Cheltenham Group, 1996
3. Marital Breakdown and the Health of the Nation, Jack Dominian. One plus One, 1991 & 1997
4. Mori poll commissioned by Readers Digest, 1996
5. Robert Whelan, Broken Homes and Battered Children, Family Education Trust, 1994
6. Allan Bloom, The Closing of the American Mind, Simon and Schuster, 1987
7. Looking to the Future: The Green Paper leading to the Family Law Bill
8. A point made to us by Minister Johnathan Evans during the passage of the Family Law Act.
9. This agenda was made clear in the Autobiography of Dunn and in a telephone conversation to a colleague with Lord Scarman, the first Chairman of the Law Commission.
10. Comment by former Chairman of the Solicitors' Family Association, Cornwall, to a colleague at the AGM of Families Need Fathers, 1996.
11. Law Com 192, for example
12. Ends and Means - The Utility of Marriage as a Legal Institution. 1980
13. Equal Rights - napo anti-sexism policy document
14. Except in the trivial sense that is happening today
15. Daniel Amneus, The Garbage Generation, Primrose Press, 1991.
17. Daniel Amneus argues for father custody as an effective solution for stabilising marriages because deserting fathers never remove children from the home.
18. Or, at least, the burden is on the socio-legal community to demonstrate that it is.