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Can family law be used to make families more stable?

John Bolch shares his thoughts on the article ‘Broken homes, broken children’ by Harry Benson at the Marriage Foundation.

“Family breakdown has been normalised and the kids just have to get along with it.” wrote Harry Benson, Research Director at the Marriage Foundation, in an article entitled ‘Broken homes, broken children.’ The article begins by telling us that the UK has the highest level of ‘family instability’ in the entire developed world, as highlighted in a recent international analysis by the Social Trends Institute, and says: “Yet as a nation, we seem to be completely unaware of what is happening to us.”

As a result of all of that ‘instability,’ a quarter of all our two-year-olds and nearly half of all teenagers are not living with both natural parents, according to the Foundation’s own analysis.

The article goes on to detail the effect of this upon children. It explains: “There’s a reason why it takes two people to make a baby. It’s so that two people can between them earn the money, pay the bills, clean the house, do the shopping, cook the food, tidy up . . . as well as nurture and care for their children and each other.”

Hmm. We are then told that: “Not having a father in the house is the number one factor associated with teenage mental health problems.” And that “problems were also more common among children whose parents were not married when the child was born, or who were least certain of their relationship stability and happiness at that time.” The article continues with some anecdotal evidence that children of lone parents have behavioural problems and that children suffer because of family breakdown.

OK, I could say one or two things about these claims (in fact I have, for example here), but for now, let’s just accept them at face value.

What, then, is the answer to this ‘crisis’? Well, this is not spelt out in the article, but it is easily found elsewhere on the Foundation’s website: “to see more people forming healthy stable relationships and fewer relationships breaking down.” In other words, they want more people to get married, because marriage is more stable than simply cohabiting, and fewer marriages to end in divorce.

Before I look at how these goals might be achieved, I’ll put aside my dislike for attempts at ‘social engineering’, i.e. encouraging people to live their lives according to your values, and for my general belief that such efforts usually have little or no effect anyway.

I’ll also, for obvious reasons, limit myself here to a discussion of how family law is or may be used to achieve these goals – the Foundation has made it clear that the reform of family law is one of the main ways by which it sees its aims being achieved.

Family law, at least where the state is not involved, is, of course, primarily to do with the breakdown of relationships. Nevertheless, it does, or can, impact upon the beginning of relationships as well. There are, I think, really three main family law issues that are relevant to the Foundation’s aims: two that are connected and that relate to the beginning of the ‘stable relationship’ of marriage, and one that relates to its end.

As to the beginning of a relationship, the choice is essentially between marriage and cohabiting. The law can encourage the former (for some, at least) by ‘guaranteeing’ a level of financial support should the marriage break down, and discourage the latter, by ensuring that there is no such support should the relationship break down. As to the ending of the marriage, the law can choose to make this hard, or harder, thereby discouraging divorce.

Thus, in essence, the Foundation would surely want financial support for spouses to remain essentially something like it is, with no such support for cohabitees, and divorce to be at least as hard as it is now, if not harder. In fact, as to the latter, it may come as a surprise to some that the Foundation is in favour of the introduction of no-fault divorce, although only after a minimum six-month cooling-off period. That would mean that the divorce would actually take longer than it often does now, but hardly enough to discourage people from getting divorced. In any case, changing divorce law is irrelevant to the issue of family stability, as the marriage will have already broken down before the divorce takes place.

So that just really leaves the issue of rights for cohabitees, to which the Foundation is clearly opposed. It has said of the proposal that any “new law that automatically attributes legal rights to cohabiting couples will do nothing to encourage men, in particular, to commit” to the relationship. By that, I think they mean that cohabitee’s rights would make cohabitation even less stable than it is now. To be honest, that seems a little bit tenuous to me. In any event, I don’t actually think that the vast majority of people entering into a relationship give one moment to thinking about what rights or responsibilities they may or may not have if the relationship does not last.

In short, I really don’t think that the law has, or can have, much bearing upon the stability of relationships. That is simply not what the law is about. If it is the case that children are adversely affected by living with lone parents or by being from a broken family, family law cannot be either blamed for that or used to put it right. If family breakdown has indeed been ‘normalised’, then family law can only respond to that – it is not responsible for it, nor can it change it.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. Jo Archer says:

    Anyone with an axe to grind can call themselves a ‘foundation’ and their propaganda ‘research’ but nowhere on their website do they explain their sociological research methods. Honestly, don’t give people like this a platform.

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