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Marriage - Worth Fighting For

© November 2000 The Christian Institute

Contents

What the executive is proposing

Key Facts

Why abolishing adultery and desertion is wrong

Speeding up the separation grounds will lead to more divorce

'Reconciliation' saves marriages, 'mediation' helps the break up

Staying together for the sake of the children

Equating cohabitation with marriage

Unmarried fathers & Parental Responsibilities and Rights Orders (PRR's)

Conclusion

References

What the Executive is proposing

The Executive is proposing major changes to the divorce law which would

Cohabiting couples are also to be given many of the same legal rights as married couples.

Proposals also include making it much easier for unmarried fathers to have the same parental status as unmarried mothers. Whilst we appreciate what the Executive is seeking to do, the danger with this proposal is that it may dissuade men from marriage.

The Executive issued a White Paper for public consultation in September 2000.(1) Legislation in the Scottish Parliament will be introduced in 2001. It is vitally important that the Christian voice is heard in the run up to this.

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Scottish Divorce Law

Under the 1976 Divorce (Scotland)Act, there are five "grounds" for divorce:

Three grounds involve fault (adultery, desertion and unreasonable behaviour) and two involve separation (either with or without consent of both parties).

Key facts

Where children live

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Why abolishing adultery and desertion is wrong

The Executive wants to abolish adultery and desertion, leaving only unreasonable behaviour as the one remaining fault ground. The Executive believes the courts "could" interpret the behaviour ground as including adultery.(11) They do not seem to be certain.

What will happen if adultery and desertion are abolished?

Key facts

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Speeding up the separation grounds will lead to more divorce

The 1976 divorce reforms for the first time allowed divorce following a period of separation. There was no need to prove a fault. This is often referred to as "no-fault divorce". In Christian theology divorce without fault has never been accepted. The law is certainly not perfect, but the question is whether divorce should be made easier than it is now.

Around 70% of divorces in Scotland are currently on the basis of separation.(14)

The separation grounds are :

The Executive wants to cut the separation times to one year with consent and two years without.

Why cutting the separation times is wrong:

Key facts about the divorce rate

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'Reconciliation' saves marriages, 'mediation' helps the break up

Many people are confused about the difference between reconciliation and mediation.

Reconciliation
Reconciliation is about saving marriages through counselling the couple. Astonishingly the word "reconciliation" does not feature once in the Executive's White Paper. The proposals place very little, if any, emphasis on saving marriages.

Many regret divorce. The standard research shows that over 50% of men and 28% of women regret getting divorced. In 10% of cases both husband and wife regret divorcing each other.(22)

Many become reconciled. Hundreds turn back from divorce after proceedings have begun. In the Sheriff Courts alone an average of at least 1,700 divorce petitions per year (or 16% of those initiated) were dropped in the period 1989-1993.(23)

Mediation
The Executive has significantly stepped up funding for mediation services. Mediation seeks to be a low conflict way of couples dividing their assets and taking decisions about their children's future. Mediation is a cheaper alternative to litigation. Through its use the Executive aims to save £0.8 million per year.(24)

Mediators, who are not legally qualified, try to help the couple make decisions about their children, house and money. When an agreement is reached, these decisions are usually turned into legal agreements or court orders which ratify what has been agreed.

One of the main problems for the growth of mediation is that people want legal advice. Greater use of mediation was a central feature in the Family Law Act 1996 for England and Wales. The pilot schemes for these proposals were such a disaster that the Labour Government have abandoned the entire no-fault divorce reforms of 1996.(25)

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Staying together for the sake of the children

In Scotland a quarter of divorces involve children under 16. But in England the proportion is more than half.(26)

Some people say "a good divorce is better than a bad marriage".

But many married couples who experience difficulties in their marriage profoundly disagree. They believe in staying together for the sake of their children. This common sense view has now received substantial backing from social science research.

The Exeter Family Study was quoted by John Major's Government as proving that conflict harms children. This research was used to help justify John Major's ill-fated no-fault divorce reforms of 1996 for England and Wales.

The study does indeed show that conflict is bad for children. But the main conclusion of the Exeter study was that divorce causes even more harm for children than conflict. The study concluded that it was:
"the loss of a parent on one or more occasions rather than the presence of serious conflict or violence that was most closely associated with children's poorer outcomes." (27)

A unique feature of the study was the way it contrasted children whose parents had divorced with children who were living in low conflict and high conflict married households. There was in-depth follow up of 152 Exeter children in two age groups (9-10) and (13-14). (28)

In the words of Dr John Tripp, one of the authors of the study:
"We know that conflict is damaging in the sense that it undermines children's well being and makes them feel less good about themselves when their parents fight, but our data suggests that that's really a very minor effect compared to the effects that we see when a parent leaves the house or leaves the home." (29)

The Exeter Study also concludes that

Conflict and divorce
Jim Wallace's divorce reforms, like those of John Major (which Wallace supported) are based on the belief that fault-based divorce causes conflict which is bad for children.

The Executive believes that the conflict generally comes from the divorce mechanism, not because the marriage has been ended. They say "we want to reduce acrimony in divorce, especially where children are concerned"(34) and "...we believe the need to present to a court a statement of the fault reasons may exacerbate acrimony".(35)

As has been seen the evidence is normally that a bad marriage is better than a good divorce. The assumption that it is better to divorce for the sake of the children is simply wrong. Conflict is made much worse by the decision to divorce rather than the mechanism of divorce.

Concerns about conflict in divorce are misplaced for many other reasons:

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Equating cohabitation with marriage

Cohabiting couples have, by definition, withheld their mutual consent to marry. They have freely chosen not to marry. Ruth Deech has made this point from her perspective of family law: "A unique commitment is made by those who marry and not, as they are well aware, by those who refrain from marrying, and no amount of emphasis on the similarities between spouses and cohabitants can obscure the difference, one of the most fundamental in human existence."(39)

The White Paper states:
"...the Executive does not equate cohabitation and marriage. The Executive does not plan to set up a regime of property sharing on separation or on succession which is equivalent to that applying to married couples. Couples who cohabit are making an active choice not to marry, or are not free to marry. That difference must be acknowledged and respected by appropriate differences in the legal consequences of cohabitation.".(40)

But whatever the Executive may say, they have equated marriage and cohabitation when it comes to finance. The following proposals will equate marriage and cohabitation with only minor (41) differences:

Currently the "equal shares" principle in the Family Law Act 1985 only applies to marriage. We believe that legal changes which blur the distinction between marriage and cohabitation should be firmly resisted.

The importance of this is further emphasised by the fact that the Scottish Legal Action Group believe that the definition of cohabitation could be legally challenged under the Human Rights Act for failing to include same-sex homosexual couples.(42)

The marriage relationship has enjoyed privileged status in the Western legal tradition because of the unique social benefits it offers. Marriage is not an arbitrary construct; it is an 'honourable estate' based on the different, complementary nature of men and women - and how they refine, support, encourage, and complement one another.

If other human relationships were equated to marriage then marriage would cease to be privileged. In fact, it would be denigrated. A simple example shows how this is so. Disabled parking is provided to those with a disability. If the ability to park in disabled parking spaces was extended to others then there would be no privilege at all for disabled people.

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Unmarried fathers
& Parental Responsibilities and Rights Orders (PRR's)

The Bible starts from the basis that it is wrong to de-couple marriage from parenthood. If children are born outside of marriage, Christians would argue that the parents should marry. If they do not marry the parents can commit further wrong if they fail to take responsibility for their children.

The legal position
In Scots law married couples automatically have legal responsibilities towards their children. They also have legal rights in relation to their children. This is laid out in some detail in the Children (Scotland) Act 1995. Precisely the same situation automatically applies to unmarried mothers. It does not apply to unmarried fathers.

The law treats unmarried mothers and unmarried fathers in a different way: mothers are automatically given parental responsibilities and rights in law, but fathers have to go to court to seek Parental Responsibilities and Rights Orders (PRRs).

It is as if the legal presumption is that unmarried fathers are "deadbeat dads". It could be argued that the law sends out a very bad message to men who father children outside marriage.

At present Scots law appears to treat unmarried fathers as legally dispensable, except for maintenance payments through the Child Support Agency. It might be said that in some ways the law appears to enshrine the view that children do not need fathers.

The Executive proposes to give automatic parental responsibilities and rights to those fathers who jointly register with the mother the birth of their child. On the face of it this seems to be a good idea. The problem is that the proposal could end up removing a major incentive on men to marry and so have a negative impact on future children.

Why we are equivocal
It could be argued that legal changes which promote parental responsibilities and rights as opposed to cohabitants rights are entirely separate. Strictly speaking the legal relationship between parents and children is not the same as the legal relationship between the parents. Yet Christians would want to say that the two issues should be closely related.

The Executive's proposals for unmarried fathers are well intended, but we are equivocal about them. We are sympathetic to the idea that unmarried fathers should be legally assumed to be responsible for their child. However, the right way to do this is for the unmarried fathers to marry.

The danger with the proposals is that they separate parenthood from commitment between the parents.

As Professor Hadley Arkes of Amherst College, USA argues "Is it better for children to be spawned in random relations, or is it better for them to be begotten in arrangements in which their parents are bound to their offspring by the ties of law as well [as] nature? Would anyone seriously deny that it is altogether more wholesome, more preferable in principle, that parents would be as committed to the nurturance of their children as they are committed to each other as husband and wife?"(43)

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Conclusion

The Executive's proposals will make divorce easier. They will not promote reconciliation, and they will deny justice to innocent spouses who reluctantly decide to go ahead with divorce after attempting reconciliation.

The unique status of marriage in law should be preserved and easier divorce should be opposed because it is an objective fact that children brought up by their married parents do better than children from broken homes or cohabiting households.

As Professor A H Halsey, (Professor of Social Policy at Nuffield College, Oxford) and co-author of English Ethical Socialism states: "No one can deny that divorce, separation, birth outside marriage and one-parent families as well as cohabitation and extra-marital sexual intercourse have increased rapidly. Many applaud these freedoms. But what should be universally acknowledged is that the children of parents who do not follow the traditional norm (i.e. taking on personal, active and long-term responsibility for the social upbringing of the children they generate) are thereby disadvantaged in many major aspects of their chances of living a successful life. On the evidence available such children tend to die earlier, to have more illness, to do less well at school, to exist at a lower level of nutrition, comfort and conviviality, to suffer more unemployment, to be more prone to deviance and crime, and finally to repeat the cycle of unstable parenting from which they themselves have suffered... The evidence all points in the same direction, is formidable, and tallies with common sense."(44)

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References

1 Parents and Children A White Paper on Scottish Family Law, The Scottish Executive, The Stationery Office, 2000
2 In England and Wales 60% of marriages are projected to be lifelong. In Scotland the figure will be higher since the divorce rate is lower. See Population Trends 83, Spring 1996, page 25
3 Scotland's People (Results from the 1999 Scottish Household Survey), The Scottish Executive, 2000, Table 1.9
4 Population Trends 101, Autumn 2000, ONS, Table 2.1
5 3,151 divorce cases out of 12,381 involved a child under the age of 16. See Parents and Children (Op cit), page 16
6 Marriage, Divorce and Adoption Statistics (England and Wales) 1998, ONS, 2000, Table 4.10
7 Supporting Families - A Consultation Document , Home Office, 1998, page 4, para 8
8 Halsey A H Quoted in Dennis N & Erdos G Families without Fatherhood, IEA, 1993, page xii
9 McAllister F (ed) Marital Breakdown, One plus One, 1995, pages 16, 20, 23
10 Table extracted by the Central Research Unit, The Scottish Executive from the Scottish Household Survey, 1999 (Figures rounded to whole numbers)
11 Parents and Children, Op cit, para 4.8
12 Population Trends 101, Autumn 2000, ONS, Table 2.1
13 See Cretney S, Elements of Family Law, Sweet and Maxwell, 1992, pages 42-43
14 Civil Judicial Statistics Scotland 1998, The Stationery Office, pages 27-28
15 The Lord Chancellor's Department Public Attitudes to Marriage, Divorce and Family Mediation, March 1994, page 43
16 The Lord Chancellor's Department Public Attitudes to Marriage, Divorce and Family Mediation, Summary Paper on MORI Survey, March 1994, page 4
17 Registrar General Scotland, 1999 Annual Report, 2000, page 139
18 Registrar General Scotland, Annual Reports for 1976, 1980, 1982
19 Nakonezny P A, Shull R R and Rodgers J L The effect of No-fault Divorce on the Divorce Rate across the 50 States, Journal of Marriage and the Family, 57 (May 1995): 485
20 The crude divorce rate is given in The Social Situation in the European Union 2000, Eurostat, 2000, page 103
21 Divorces Australia, Australia Bureau of Statistics, Chapter 2, page 55
22 See the statement by the Parliamentary Secretary in Hansard 25th March 1996 col 800
23 Civil Judicial Statistics Scotland, Reports 1989-1993, Table 8
24 Parents and Children, Op cit, para 9.5
25 Lord Chancellor's Department, Press Release No 159/99, 17 June 1999
26 3,151 divorce cases out of 12,381 involved a child under the age of 16 in 1998. See Parents and Children (Op cit), page 16 and Marriage, Divorce and Adoption Statistics (England and Wales) 1998, ONS, 2000, Table 4.10
27 Tripp J and Cockett M The Exeter Family Study, The University of Exeter, 1994, page 55
28 Ibid, page 6
29 Transcript of BBC Panorama, 7 February 1994
30 Tripp J and Cockett M Op cit, page 57
31 Ibid, page 58
32 Loc cit
33 Loc cit
34 Parents and Children (A White Paper on Scottish Family Law), The Scottish Executive, 2000, para 4.2
35 Ibid, para 4.4
36 Civil Judicial Statistics Scotland, The Stationery Office, for each year 1985 to 1995
37 Edwards L and Griffiths A Family Law, Green, 1997, page 387, section 14.18
38 Ibid page 388, section 14.19
39 The case against the legal recognition of cohabitation, Deech R, in Marriage and Cohabitation in Contemporary Societies, Eekelaar J M and Katz S N, Butterworth, 1980, page 302
40 Parents and Children, Op cit, para 7.1
41 Ibid Chapter 7, introduction to proposals 12-15
42 Scolag, (Issue No 276), October 2000, editorial
43 Arkes H in Homosexuality and American Public Life, (Ed. Wolfe C) Spence, 1999, page 177
44 Halsey A H Quoted in Dennis N & Erdos G Families without Fatherhood, IEA, 1993, page xii

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