Obligation and Commitment in Family Law 9781782258520, 9781782258551, 9781782258544

Table of contents :
Preface
Contents
Table of Cases
Table of Legislation
1. The Ties that Bind?
I. Introduction
II. Care and Caring
III. Legal Obligation
IV. Obligation as a Social Norm
V. The Concept of Commitment
VI. The Rationale for Obligations Upon Family Members
VII. Obligation or Commitment
2. Family Change and Individual Commitment
I. Family Changes
II. A Demographic Picture
III. From the Family to the Individual
IV. Change and Commitment
3. To Have and To Hold
I. Compelling Cohabitation
II. The Concept Of Consortium
III. The Suit for Restitution of Conjugal Rights
IV. The Modern ‘Duty’ of Cohabitation
V. Marriage as Personal Commitment
4. A Clean Break
I. A Duty to Maintain
II. Maintenance During Marriage
III. Post-Divorce Maintenance and the Clean Break
IV. Triumph of the Clean Break?
5. Can’t Pay? Won’t Pay!
I. Duty to State, Mother or Child?
II. Limiting the Burden on the State
III. Protecting the Position of Mothers
IV. Supporting the Child
V. A Culture of Non-Compliance
6. Parenthood is for Life
I. Obligation or Right?
II. Paternal Right and Maternal Concession
III. A Right of Both Parents
IV. A Right of the Child
V. A Parental Responsibility
VI. Enforcing Contact
VII. A Presumption of Continuing Parental Involvement
VIII. An Obligation to be ‘Involved’?
7. Who Cares?
I. Care-Giving as an Obligation
II. Care-Giving as a Claim to a Remedy
III. Caring Relationships
IV. Recognition of Caring Relationships, or Recognition of Care?
8. The Law of Family Obligations
I. Care, Obligation and Commitment
II. Altruism, Family Obligation and Non-Justiciability
III. The Gendered Legal Approach to the Family Unit
IV. Obligations and Commitments in Family Law
V. Obligation and Commitment
Bibliography
Index

Citation preview

OBLIGATION AND COMMITMENT IN FAMILY LAW A tension lies at the heart of family law. Expressed in the language of rights and duties, it seeks to impose enforceable obligations on individuals linked to each other by ties that are usually regarded as based on love or blood. Taking a contextual approach that draws on history, sociology and social policy as well as law and legal theory, this book examines the concept of obligation as it has been developed in family law and the difficulties the law has had in translating it from a theoretical and ideological concept into the basis of enforceable actions and duties. Increasingly, the idea of commitment has been offered as the key organising principle for the recognition of family relationships, often as a means of rebutting claims that family ties are becoming attenuated, but the meaning and scope of this concept have not been explored. The book traces how the notion of commitment is understood and how far it has come to be used as a rationale for imposing the core legal obligations which underpin care and caring within families.

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Obligation and Commitment in Family Law

Gillian Douglas

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Gillian Douglas, 2018 Gillian Douglas has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/ doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Douglas, Gillian, author. Title: Obligation and commitment in family law / Gillian Douglas. Description: Oxford [UK] ; New York : Hart Publishing, 2018.  |  Includes bibliographical references and index. Identifiers: LCCN 2017052960 (print)  |  LCCN 2017055287 (ebook)  |  ISBN 9781782258537 (Epub)  |  ISBN 9781782258520 (hardback : alk. paper) Subjects: LCSH: Domestic relations—Great Britain.  |  Parent and child (Law)— Great Britain.  |  Family policy—Great Britain. Classification: LCC KD750 (ebook)  |  LCC KD750 .D69 2018 (print)  |  DDC 346.4101/5—dc23 LC record available at https://lccn.loc.gov/2017052960 ISBN: HB: 978-1-78225-852-0 ePDF: 978-1-78225-854-4 ePub: 978-1-78225-853-7 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

Preface The idea for this book had been in my mind for several years, but it was only when I was fortunate enough to be awarded a Leverhulme Trust Major Research Fellowship that I was able to devote the time to develop it p ­ roperly. I am immensely grateful to the Trust for providing me with the opportunity to spend two years on a project exploring the notion of obligation and commitment in family law. This book is the major output from that project. The motivation for my project was initially to look more closely at some of the earlier development of what might be called the ‘modern’ family law era, which began when family issues shifted from being primarily dealt with through ecclesiastical and property law to a body of secular law distinctly concerned with ‘the family’. I was interested in the peculiar legal suit of ‘restitution of conjugal rights’, about which there seemed to be very little ever written. The idea of attempting to use law to coerce the performance of the non-financial obligations of marriage then led me to think further about how, and how far, the law has been used to determine the nature and content of family obligations more generally. The notion of family obligation assumed more significance when I was involved in an empirical study of people’s attitudes to the law of inheritance. The study was intended to provide information for the Law Commission in its review of the law of intestacy, a law that has barely altered since 1925. In asking people for their views on who should receive (shares of) their estate, it was clear that what Janet Finch and Jennifer Mason, in their earlier qualitative study of attitudes to inheritance (Negotiating Family Responsibilities, 1993), had described as a ‘sense of obligation’ was highly important in determining their views of what would be ‘right’ and ‘fair’. But it seemed that despite the enormous social changes in family formation and attitudes to intimacy and relationships that have taken place since the 1970s, never mind the 1920s or 1850s, people were still rather traditional when it came to matters of inheritance. We found that their ‘inheritance family’—the family they regarded as legitimate claimants on their estate—was generally the narrow nuclear family of partner (including a cohabiting partner) and children, with ‘own’ (ie genetic) children taking priority over step-children. It seemed to me that as ‘identity’ has become more important in terms of social, cultural and political personhood, so the notion of relational ­identity—who is connected to whom—has become the focus of much of the energy of family law scholars who have examined and advocated the case for the legal recognition of a broader range of family relationships than

vi  Preface this narrow nuclear family type. But somewhat less attention has sometimes been paid to considering what the legal consequences of such recognition would be, often because the drive for recognition has been motivated by a call, or an assumption, that this should deliver equality with the family relationships that are already recognised. Yet we all know from socio-legal and empirical insights into the working of family law that how the law is applied in practice may be far removed from how it appears on its face. And we also know that the law is communicated through a discourse imbued with underlying ideologies, attitudes and values that need to be unpacked and evaluated. So the aim of my project, and this book, has been to focus not on the recognition of relationships, but on the consequences of recognition as articulated through core ‘obligations’ imposed by the law on family members towards each other. As well as examining the concept of obligation, the other dimension of my project has been to explore the meaning of ‘commitment’ in family law and family relationships. This is a concept that has become much more prevalent in both popular and legal discourse about the family and relationships in recent times, but as I explain in Chapter 1, its meaning has shifted from a term largely synonymous with burden—and obligation—to one that embodies dedication and allegiance to a person or a relationship. I seek to show how this change in meaning is a reflection of the liberal view of intimate relationships as existing to provide emotional self-fulfilment for the autonomous individual, who should be free to ‘move on’ from them if they fail to deliver such satisfaction. I note throughout how this conception of commitment is gendered, and how it also reflects the traditionally patriarchal stance of the law in the regulation and control of family relationships. The core obligations imposed by the law on family members fall squarely, in my view, within the notion of ‘caring’, the various meanings of which I explore in Chapter 1. Care has rightly become central to the understanding of what a ‘functional’ approach to families and to family law might look like, but it is sometimes forgotten how (far) it might already be included within the content of family law. One can identify a specific ‘duty of care’ applying to the relationships that have traditionally been given legal recognition through a recognised legal status—marriage and parenthood—with family law imposing a variety of both positive and negative obligations on spouses and parents. The core positive obligations of care concern the duty of a spouse to cohabit with, and to maintain, the other spouse, and the duty of a parent to support, and to maintain a relationship with, his or her child. The negative obligations of marriage might be regarded as including a duty not to commit adultery and a duty not to act with cruelty (or now, loosely, ‘unreasonably’). Negative obligations of parenthood might include the duty not to neglect or to ill-treat the child. The distinction between positive and negative obligations is discussed further in Chapter 1. The focus of the case studies discussed in this book is on the positive obligations only.

Preface vii This is because, apart from adultery, which, by definition, can only apply to marriage (or, should it be so defined, although this has not been the case in the United Kingdom, to a civil partnership), such negative obligations are not confined to those in legally recognised ‘family’ relationships. Acting with cruelty towards an intimate partner, or towards a child, might be a criminal offence regardless, and a spouse behaving in such a way that the other cannot reasonably be expected to live with him or her may well involve criminal offences (eg acts of violence) or other acts controllable by civil law applicable to non-family members (eg harassment), or acts which would be regarded as anti-social regardless of the relationship (eg drunkenness, personal neglect). I have chosen not to deal with adultery and the duty of fidelity, in order to avoid becoming side-tracked into a different discussion of the grounds for divorce, which raise issues separate from the notions of obligation or commitment. I have sought to trace the development of the law taking a retrospective approach, largely from the Victorian era, up to the current time, seeking to contextualise the primary legal sources and the ways in which relationships are viewed and evaluated within them, through reference to social, historical and demographic data and insights. These are discussed in detail in Chapter 2 and referred to throughout the book. I make extensive use of the primary legal sources. In my view, case law and statute are invaluable as sources of information regarding the attitudes that the state considers as important to promote and enforce through law, always bearing in mind, as I have noted, that one cannot assume that the ‘messages’ being sent are an accurate and complete reflection of how people actually behave, nor that the messages are received, understood and acted upon as intended. The focus of Chapter 3 is on the action for ‘restitution of conjugal rights’—a remedy for desertion in the form of a decree requiring one spouse to resume cohabitation with the other. This was not finally abolished until 1970. Chapter 4 considers the approach taken to financial support within and after marriage, and the establishment of the ‘clean break’ principle ending all financial ties between the spouses. This was put into statutory form in 1984. Chapter 5 examines the law governing child maintenance and the pendulum swings that have taken place in policy between a focus on the role of the state or the private sphere in providing financially for children. The high-water mark of state intervention in the parental duty to support one’s child came with the establishment of the child support scheme in 1991. Chapter 6 focuses on how the law has been used to allocate rights and obligations relating to parenting and the upbringing of children both during and after the parental relationship has ended. A drive to encourage more equal roles for both parents received particular recognition in the Children and Families Act 2014. These chapters seek to build up a picture of how the law has reached its current state, and to reflect its interaction with the major social changes that have taken place in the modern and post-modern eras.

viii  Preface Chapter 7 changes the focus from the obligation to provide care in its various forms within the nuclear, form- or status-based family, to the recognition of care work as giving rise to a right to redress or compensation, as advocated by those who argue for a more functional approach to relationship recognition. Here, the discussion considers the recognition of care as a ‘contribution’ to the family, in divorce or property law and as extended to cohabiting and ‘caring’ relationships in Australia. Chapter 8 evaluates the development of the law as traced in the earlier chapters, and its fit with the changing nature of families and changing social attitudes. The case study approach that I have adopted to exploring family legal obligations means that I do not address three significant developments in family law in recent years. The first is the legal recognition of same-sex relationships and of families formed by these. One might legitimately argue that the adoption of non-discriminatory laws on sexual orientation is in many ways the most fundamental social shift in the sphere of intimacy and family relations that has been experienced in modern British (and western) society. However, as I have indicated, the focus of this work is not on the recognition of relationships and relational identities, but on the consequences of such recognition, in the form of legal obligations of care. As same-sex relationships have come to be included within the sphere of family law, this has been on the same basis as traditional ‘family’ relationships. The retrospective assessment in this book of the development of the law on family obligations is as relevant, I would therefore hope, to understanding its significance for same-sex relationships as it is for heterosexual couples and traditional families, although future legal development may identify ways in which same-sex partnerships should be treated differently by family law (eg in relation to assumptions regarding gendered dependency). The second omission is detailed discussion of the challenge of providing care for the elderly. My rationale is twofold. First, apart from under the Poor Law, there has never been a legal obligation on adult family members to support their parents or other kin in England and Wales, which raises particular issues of cultural and social expectation. I touch upon the issue in Chapters 7 and 8. Secondly, until an assessment has been made of the utility and desirability of the imposition of binding obligations that have been recognised in the past, we cannot form a sensible view on whether these should be extended to additional family forms or ways of caring for each other. I hope that the discussion and conclusions in this book provide insights that are helpful to those shaping policy for all forms of caring, in respect of all forms of ‘family’ relationships, in the future. Thirdly, it should be noted that I have not sought to provide a comprehensive ‘statement of the law’ as it currently stands. In particular, international human rights standards and internationally developed norms and processes play a part in regulating family relationships through law, particularly in relation to ‘international’ families formed, living and changing across

Preface ix state borders. However, the development of the law in England and Wales (and, in Chapter 7, in Australia) discussed in this book has not entailed significant reference to or application of international and transnational law. So although relevant provisions and instances are referred to, primarily in Chapter 6, which deals with the promotion of ‘contact’ and ‘involvement’ in the life of the child post parental separation, I do not discuss them in detail. I have been able to discuss ideas and issues arising in this book with many friends and colleagues, including (in alphabetical order), Rebecca BaileyHarris, Anne Barlow, Caroline Bridge, Julie Doughty, Kathy ­Griffiths, John Haskey, Emma Hitchings, Nigel Lowe, Judith Masson, Mervyn Murch, Leanne Smith, Sharon Thompson and Liz Trinder. I would like to thank Belinda Felhberg and Helen Rhoades at the University of Melbourne, Patrick Parkinson at the University of Sydney and Bruce Smyth at the ­ ­Australian National University, for hosting my visits and providing valuable information on family law in Australia. I am lastly and especially grateful to Stephen Gilmore, Kathy Griffiths, Jo Miles, Daniel Monk, Rebecca Probert and Frederik Swennen, for reading and commenting on various chapters in draft. This book is dedicated to my husband, Hugh Rawlings, with the deepest sense of love, obligation and commitment. Gillian Douglas September 2017

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Contents Preface������������������������������������������������������������������������������������������������������ v Table of Cases����������������������������������������������������������������������������������������� xv Table of Legislation�������������������������������������������������������������������������������� xxi 1. The Ties that Bind?���������������������������������������������������������������������������� 1 I. Introduction������������������������������������������������������������������������������ 1 II. Care and Caring������������������������������������������������������������������������ 4 A. An ‘Ethic of Care’�������������������������������������������������������������� 4 B. Meanings of ‘Care’������������������������������������������������������������� 5 III. Legal Obligation����������������������������������������������������������������������� 8 A. Obligation as Duty������������������������������������������������������������� 8 B. Obligation as Remedy������������������������������������������������������ 11 C. The Nature of Family Obligation������������������������������������� 12 IV. Obligation as a Social Norm��������������������������������������������������� 15 V. The Concept of Commitment�������������������������������������������������� 18 A. Commitment in Legal Discourse�������������������������������������� 18 B. Commitment in Family Law Policy���������������������������������� 22 C. Commitment as a Social Concept������������������������������������� 23 VI. The Rationale for Obligations Upon Family Members������������ 28 A. Causation������������������������������������������������������������������������� 29 B. Mutual Commitment������������������������������������������������������� 30 C. Relationship-generated Loss and Gain����������������������������� 31 VII. Obligation or Commitment����������������������������������������������������� 32 2. Family Change and Individual Commitment������������������������������������ 35 I. Family Changes����������������������������������������������������������������������� 35 II. A Demographic Picture����������������������������������������������������������� 36 A. Forming ‘a Family’����������������������������������������������������������� 37 B. Birth and Family Size������������������������������������������������������� 42 C. Households���������������������������������������������������������������������� 45 D. The Ending of Relationships�������������������������������������������� 45 E. Lone-parent Families�������������������������������������������������������� 49 F. Economic Activity������������������������������������������������������������ 51 III. From the Family to the Individual������������������������������������������� 59 A. Form, Role and Gender���������������������������������������������������� 59

xii  Contents B. Capitalism and Family Function���������������������������������������� 60 C. Individualism and Individualisation���������������������������������� 64 IV. Change and Commitment��������������������������������������������������������� 68 3. To Have and To Hold����������������������������������������������������������������������� 70 I. Compelling Cohabitation��������������������������������������������������������� 70 II. The Concept of Consortium����������������������������������������������������� 71 III. The Suit for Restitution of Conjugal Rights������������������������������ 76 A. The Basis of the Action����������������������������������������������������� 76 B. The Ostensible Purpose of the Decree������������������������������� 78 C. The Effect of the Decree after 1884����������������������������������� 82 D. The Tactical use of the Suit������������������������������������������������ 85 E. Abolition of the Suit���������������������������������������������������������� 90 IV. The Modern ‘Duty’ of Cohabitation����������������������������������������� 94 V. Marriage as Personal Commitment������������������������������������������ 96 4. A Clean Break���������������������������������������������������������������������������������� 98 I. A Duty to Maintain������������������������������������������������������������������ 98 II. Maintenance During Marriage������������������������������������������������� 99 A. A Direct Right to Seek Maintenance������������������������������� 100 B. Is there Still an Obligation to Maintain a Spouse During Marriage?������������������������������������������������������������ 104 III. Post-Divorce Maintenance and the Clean Break��������������������� 106 A. Financial Remedies before the Matrimonial Proceedings and Property Act 1970��������������������������������� 106 B. Assessment of Maintenance��������������������������������������������� 108 C. The Modern Law������������������������������������������������������������ 114 IV. Triumph of the Clean Break?�������������������������������������������������� 128 5. Can’t Pay? Won’t Pay!��������������������������������������������������������������������� 130 I. Duty to State, Mother or Child?��������������������������������������������� 130 II. Limiting the Burden on the State�������������������������������������������� 131 A. The Poor Law����������������������������������������������������������������� 131 B. The Problem of ‘Bastardy’����������������������������������������������� 133 III. Protecting the Position of Mothers����������������������������������������� 134 A. The Direct Claim for Maintenance���������������������������������� 134 B. Quantum������������������������������������������������������������������������� 137 C. Provision for Children Born Outside Marriage���������������� 141 D. Duration of Provision for Children��������������������������������� 145 IV. Supporting the Child�������������������������������������������������������������� 146 A. Replacing the Courts������������������������������������������������������� 146 B. Reforming Child Support������������������������������������������������ 151 C. Family-based Arrangements�������������������������������������������� 154 D. Collection and Enforcement�������������������������������������������� 157 V. A Culture of Non-Compliance����������������������������������������������� 159

Contents xiii 6. Parenthood is for Life��������������������������������������������������������������������� 161 I. Obligation or Right?������������������������������������������������������������ 161 II. Paternal Right and Maternal Concession����������������������������� 164 A. The Purpose and Benefits of a Custody or Access Order���������������������������������������������������������������������������� 165 B. The Welfare of the Child����������������������������������������������� 167 III. A Right of Both Parents������������������������������������������������������� 168 A. Splitting Rights������������������������������������������������������������� 170 IV. A Right of the Child������������������������������������������������������������ 172 A. Access and the Welfare of the Child������������������������������ 174 V. A Parental Responsibility����������������������������������������������������� 176 A. A Duty to Facilitate Contact����������������������������������������� 177 B. ‘Implacable Hostility’ or Legitimate Fear?�������������������� 178 C. Contact and Commitment�������������������������������������������� 180 VI. Enforcing Contact���������������������������������������������������������������� 181 A. Enforcing an Obligation to Allow Contact������������������� 181 B. Enforcing an Obligation to Maintain Contact?������������� 185 VII. A Presumption of Continuing Parental Involvement������������ 186 A. ‘Involvement’���������������������������������������������������������������� 188 VIII. An Obligation to be ‘Involved’?������������������������������������������� 190 7. Who Cares?������������������������������������������������������������������������������������ 192 I. Care-Giving as an Obligation���������������������������������������������� 192 II. Care-Giving as a Claim to a Remedy����������������������������������� 194 A. Care as Contribution in a Marriage������������������������������ 197 B. Care, Commitment and Cohabitation��������������������������� 201 III. Caring Relationships������������������������������������������������������������ 207 A. What is Meant by ‘Caring’?������������������������������������������ 209 B. What is a Caring ‘Relationship’?���������������������������������� 213 C. The Rationale for Recognition�������������������������������������� 217 IV. Recognition of Caring Relationships, or Recognition of Care?������������������������������������������������������������������������������� 219 8. The Law of Family Obligations������������������������������������������������������ 222 I. Care, Obligation and Commitment�������������������������������������� 222 II. Altruism, Family Obligation and Non-Justiciability������������� 224 A. Family Morality and Religious Duty����������������������������� 224 B. Law Reform and Obligation����������������������������������������� 226 C. The Sphere of the Emotions������������������������������������������ 228 III. The Gendered Legal Approach to the Family Unit��������������� 231 IV. Obligations and Commitments in Family Law��������������������� 235 A. Laissez-faire Family Law?��������������������������������������������� 237 B. Remedial Family Law��������������������������������������������������� 240

xiv  Contents C. Caring Relationships���������������������������������������������������� 243 D. ‘Family-based’ Remedies����������������������������������������������� 245 V. Obligation and Commitment����������������������������������������������� 246 Bibliography����������������������������������������������������������������������������������������� 249 Index����������������������������������������������������������������������������������������������������� 265

Table of Cases ENGLAND AND WALES A v A (A Minor: Financial Provision) [1994] 1 FLR 657������������������������������������ 145 A v N (Committal: Refusal of Contact) [1997] 1 FLR 533, CA��������� 174, 178, 182 Acworth v Acworth [1943] P 21, CA����������������������������������������������������������������� 111 AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam), [2014] 2 FLR 251��������������������������������������������������������������������������������������������� 19 Ak-Tankiz v Ak [2014] NSWSC 1044���������������������������������������������������������������� 217 Allen v Allen [1948] 2 All ER 413, CA�������������������������������������������������������������� 168 AR v AR (Treatment of Inherited Wealth) [2011] EWHC 2717 (Fam) [2012] 2 FLR 1����������������������������������������������������������������������������������������������� 112 Ashcroft v Ashcroft and Roberts [1902] P 270, CA������������������������������������������� 110 Ashley v Ashley [1968] P 582����������������������������������������������������������������������������� 104 B v B (B (An Infant) Intervening) [1971] 1 WLR 1486, CA�������������������������������� 173 Ball v Ball (1827) 57 ER 703������������������������������������������������������������������������������ 165 Barlee v Barlee (1822) 162 ER 105���������������������������������������������������������������������� 77 Barnardo v McHugh [1891] AC 388���������������������������������������������������������� 133, 163 Bazeley v Forder (1868) LR 3 QB 559������������������������������������������������������� 131, 135 Beer v Beer (1906) 94 LT 704������������������������������������������������������������������������������ 83 Bellenden v Satterthwaite [1948] 1 All ER 343, CA������������������������������������������� 114 Bent v Bent and Footman (1861) 164 ER 1047�������������������������������������������������� 164 Bernard v Josephs [1982] Ch 391, 402, CA��������������������������������������������������������� 20 Best v Samuel Fox & Co Ltd [1952] AC 716������������������������������������������������������� 72 Black v Black (1991) 15 Fam LR 109����������������������������������������������������������������� 206 Brett v Brett [1969] 1 WLR 487, 489, CA���������������������������������������������������������� 113 Brodie v Brodie [1917] P 271������������������������������������������������������������������������� 84, 89 Brooking-Phillips v Brooking-Phillips [1913] P 80����������������������������������������� 79, 82 Calderbank v Calderbank [1976] Fam 93���������������������������������������������������������� 145 Campbell v Griffin [2001] EWCA Civ 990 [2001] WTLR 981�������������������������� 203 Chamberlain v Chamberlain [1973] 1 WLR 1557���������������������������������������������� 146 Charman v Charman (No 4) [2007] EWCA Civ 503 [2007] 1 FLR 1246����������������������������������������������������������������������������������������� 200 Churchard v Churchard [1984] FLR 635, CA������������������������������������� 174–75, 178, 180, 182 Clout v Clout and Hollebone (1861) 164 ER 1047�������������������������������������������� 164 Clowes v Jones (1842) 163 ER 697���������������������������������������������������������������������� 85 Cobb v Cobb [1900] P 294������������������������������������������������������������������������ 103, 138 Codrington v Codrington (1864) 164 ER 1367�������������������������������������������������� 165 Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam) [2015] 1 FLR 745������������ 18–19 Countess de Gasquet James v Duke of Mecklenburg-Schwerin [1914] P 53������������������������������������������������������������������������������������������������� 86–87

xvi  Table of Cases Cowley v Cowley [1913] P 159���������������������������������������������������������������������������� 87 Crozier v Crozier [1994] 1 FLR 126������������������������������������������������������������������ 121 Dailey v Dailey [1947] 1 All ER 847������������������������������������������������������������������ 110 Daubney v Daubney [1976] Fam 267, CA����������������������������������������������������������� 19 Davies v Davies [2016] EWCA Civ 463 [2016] 2 P & CR 10���������������������������� 203 Delaney v Delaney [1990] 2 FLR 457���������������������������������������������������������������� 140 Dewe v Dewe; Snowden v Snowden [1928] P 113������������������������������������������������ 99 Dipper v Dipper [1981] Fam 31, CA�������������������������������������������� 120–21, 125, 172 Dunford v Dunford [1980] 1 WLR 5, CA���������������������������������������������������������� 121 Duxbury v Duxbury [1992] Fam 62n, CA������������������������������������������������� 112, 199 Evans v Evans (1790) 161 ER 466��������������������������������������������������������� 78, 96, 227 Evans v Evans [1948] 1 KB 175��������������������������������������������������������������������������� 80 F v L (Permission to Relocate: Appeal) [2017] EWHC 1377 (Fam)�������������������� 189 Fender v St John Mildmay [1938] AC 1, HL�������������������������������������������������� 71, 73 Fisher v Fisher (1861) 164 ER 1055��������������������������������������������� 107, 109–10, 113 Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304, CA����������������������� 1 Fletcher v Fletcher [1985] Fam 92���������������������������������������������������������������������� 104 Foley v Foley [1981] Fam 160������������������������������������������������������������������������������ 20 Forster v Forster (1790) 1 Hag Con 144�������������������������������������������������������� 73, 78 Giacometti v Prodgers (1872) LR 14 Eq 253�������������������������������������������������������� 89 Gilbey v Gilbey [1927] P 197����������������������������������������������������������������������������� 111 Gillett v Holt [2001] Ch 210, CA����������������������������������������������������������������������� 203 Gow v Grant [2012] UKSC 29��������������������������������������������������������������������������� 207 Granatino v Radmacher [2010] UKSC 42 [2011] 1 AC 534�������� 13–14, 19–20, 94 Gray v Gee (1923) 39 TLR 429��������������������������������������������������������������������������� 72 Greasley v Cooke [1980] 1 WLR 1306, CA������������������������������������������������������� 203 Greene v Greene [1916] P 188����������������������������������������������������������������������������� 84 GW v RW (Financial Provision: Departure From Equality) [2003] 2 FLR 108��������������������������������������������������������������������������������������������� 20 Hamilton v Hector (1872) LR 13 Eq 511����������������������������������������������������������� 165 Handley v Handley [1891] P 124, CA�������������������������������������������������������� 164, 167 Hanlon v Hanlon [1978] 1 WLR 592, CA��������������������������������������������������� 146–47 Haroutunian v Jennings (1980) 1 FLR 62, (1977)���������������������������������������� 143–44 Hart v Hart [2017] EWCA Civ 1306����������������������������������������������������������������� 241 Healing v Healing (1902) 19 TLR 90����������������������������������������������������������������� 131 Hill v Hill [1902] P 140������������������������������������������������������������������������������������� 136 Hope v Hope (1858) 164 ER 644������������������������������������������������������ 78–79, 82, 88 Horniman v Horniman [1933] P 95������������������������������������������������������������� 18, 110 Hunt v Hunt (1862) 45 ER 1168, 1171��������������������������������������������������������� 82, 89 Hyde v Hyde (1859) 29 LJPM&A 150�������������������������������������������������������������� 165 Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130������������������������������������� 73 Hyman v Hyman [1929] AC 601, HL���������������������������������������������������������������� 120 J v C [1970] AC 668, HL����������������������������������������������������������������������������������� 170 J v C (Child: Financial Provision) [1999] 1 FLR 152���������������������������������� 144, 146 James v Morgan [1909] 1 KB 564���������������������������������������������������������������������� 141 Jane v Jane (1983) 4 FLR 712, CA��������������������������������������������������������������������� 171 Jennings v Rice [2002] EWCA Civ 159 [2003] 1 FCR 501�������������������������������� 203

Table of Cases xvii Jessel v Jessel [1979] 1 WLR 1148, CA�������������������������������������������������������������� 121 Jones v Kernott [2011] UKSC 53 [2012] 1 AC 776�������������������������������������������� 202 Joy v Joy-Morancho (No 3) [2015] EWHC 2507 (Fam) [2015] 1 FLR 815��������������������������������������������������������������������������������������������� 21 Juffali v Juffali [2016] EWHC 1684 (Fam) [2016] 4 WLR 119�������������������������� 111 Jussa v Jussa [1972] 1 WLR 881������������������������������������������������������������������������ 171 Kershaw v Kershaw [1966] P 13������������������������������������������������������������������������ 104 L v L (Financial Remedies: Deferred Clean Break) [2011] EWHC 2207 (Fam) [2012] 1 FLR 1283��������������������������������������������������������� 127 L v L [1962] P 101, CA�������������������������������������������������������������������������������������� 119 Lakin v Lakin (1854) 164 ER 159������������������������������������������������������������������������ 77 Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, CA������ 19, 21, 198, 200, 220 Lilford v Glynn [1979] 1 WLR 78, CA�������������������������������������������������������������� 146 Lister’s Case (1721) 1 Str 478������������������������������������������������������������������������������ 74 Lynch v Knight (1861) 9 HL Cas 577������������������������������������������������������ 71–72, 87 M v M (Child: Access) [1973] 2 All ER 81������������������������������������������� 161–62, 173 MacLeod v MacLeod [2008] UKPC 64 [2010] 1 AC 298������������������������������������ 94 Mann v Mann [1922] All ER Rep 777����������������������������������������������������������������� 89 March v March and Palumbo [1861–73] (1867) All ER Rep 522�������������� 110, 112 Marshall v Marshall (1879) 5 PD 19�������������������������������������������������������������� 70, 89 Matthews v Matthews [2013] EWCA Civ 1874 [2014] 2 FLR 1259������������������ 127 McCartney v Mills McCartney [2008] EWHC 401 (Fam) [2008] 1 FLR 707��������������������������������������������������������������������������������������������� 19 McQuiban v McQuiban [1913] P 208����������������������������������������������������������������� 89 Mesher v Mesher and Hall [1980] 1 All ER 126n�������������������������������������� 120, 126 Miller v Miller [2005] EWCA Civ 984, [2006] 1 FLR 151����������������������������������� 21 Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618��������������������������������������������������������������������� 19, 106, 128, 192, 199–200, 233, 241 Mills v Mills [1940] P 124, 132, CA������������������������������������������������������������������ 119 Minton v Minton [1979] AC 593, HL������������������������������������������������� 106, 119–21 Moore v Moore [1981] Fam Law 109���������������������������������������������������������������� 120 Mozley Stark v Mozley Stark and Hitchins [1910] P 190, CA���������������������� 167–68 N v N [1928] All ER Rep 462�������������������������������������������������������������� 112–13, 116 Nanda v Nanda [1968] P 351������������������������������������������������������������������ 84, 91, 93 Nicklin v Nicklin CA, 15 May 1991, unreported������������������������������������������������� 19 Nottidge v Ripley, The Times (London, 25 June 1849)���������������������������������������� 75 O’D v O’D [1976] Fam 83, CA�������������������������������������������������������������������������� 118 Oldroyd v Oldroyd [1896] P 175������������������������������������������������������������������������� 84 Orme v Orme (1824) 162 ER 335������������������������������������������������������������ 78, 80–81 Otway v Otway (1813) 161 ER 1092���������������������������������������������������������������� 110 Owens v Owens [2017] EWCA Civ 182 [2017] 4 WLR 74�������������������� 83, 97, 227 Oxley v Hiscock [2004] EWCA Civ 546 [2004] 2 FLR 669������������������������������� 202 PG v TW (No 2)(Child: Financial Provision) [2014] 1 FLR 940������������������� 144–45 Place v Searle [1931] P 59������������������������������������������������������������������������������������ 72 Preston v Preston [1982] Fam 17����������������������������������������������������������������������� 111

xviii  Table of Cases Price v Price [1951] P 413������������������������������������������������������������������������������������ 96 R v Greenhill (1836) 111 ER 922����������������������������������������������������������������������� 165 R v Jackson [1891] 1 QB 671, CA����������������������������������������������������������������������� 75 R v Leggatt (1852) 118 ER 29����������������������������������������������������������������������������� 74 R v Mead (1758) 96 ER 1182������������������������������������������������������������������������������ 82 R v R [1992] 1 AC 599, HL��������������������������������������������������������������������������������� 81 Re A (Child of the Family) [1998] 1 FLR 347, CA��������������������������������������������� 137 Re A and B (Infants) [1897] 1 Ch 786, CA�������������������������������������������������� 166–67 Re Agar-Ellis; Agar-Ellis v Lascelles (1883) 24 Ch D 317����������������������������������� 162 Re B (An Infant) [1962] 1 WLR 550, CA����������������������������������������������������������� 169 Re B (Contact: Stepfather’s Opposition) [1997] 2 FLR 579, CA������������������������ 178 Re Cochrane (1840) 8 Dowl 630������������������������������������������������������������������� 74, 76 Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48, CA������������������������������� 178 Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam) [2004] 1 FLR 1226������������������������������������������������������������������������������� 183 Re G (Parental Responsibility Order) [2006] EWCA Civ 745 [2006] 2 FLR 1092������������������������������������������������������������������������������������������� 21 Re H (A Minor)(Shared Residence) [1994] 1 FLR 717, CA���������������������������������� 22 Re H (Contact: Domestic Violence) [1998] 2 FLR 42, CA��������������������������� 178–79 Re H (Minors)(Local Authority: Parental Rights)(No 3) [1991] Fam 151������������������������������������������������������������������������������������������������ 21 Re J (A Minor)(Contact) [1994] 1 FLR 729, CA������������������������������������������������ 178 Re K (Contact: Committal Order) [2002] EWCA Civ 1559 [2003] 1 FLR 277������������������������������������������������������������������������������������������� 183 Re K (Minors)(Children: Care and Control) [1977] Fam 179, CA��������������������� 170 Re L (Infants) [1962] 1 WLR 886, CA��������������������������������������������������������� 169–70 Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 334, CA�������������������������������������������������������������� 163, 179–80, 189 Re M (handicapped child: parental responsibility) [2001] 3 FCR 454������������������ 21 Re McGrath [1893] 1 Ch 143���������������������������������������������������������������������������� 167 Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, CA��������������������� 178 Re P (Child: Financial Provision) [2003] EWCA Civ 837 [2003] 2 FLR 865������������������������������������������������������������������������������������������� 145 Re Price (1860) 175 ER 1052������������������������������������������������������������������������� 74, 76 Re S (An Infant) [1958] 1 WLR 391������������������������������������������������������������������ 169 Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18 [2004] 1 FLR 1279������������������������������������������������������������� 21–22 Re W (An Infant) [1964] Ch 202, CA���������������������������������������������������������������� 171 Re W (Contact: Joining Child as Party) [2001] EWCA Civ 1830 [2003] 1 FLR 681������������������������������������������������������������������������������������������� 186 Roberts v Roberts [1970] P 1����������������������������������������������������������������������������� 138 Robertson v Robertson and Favagrossa (1883) 9 PD 94������������������������������������ 107 Russell v Russell [1895] P 315����������������������������������������������������������������������������� 83 Russell v Russell [1897] AC 395, HL������������������������������������������������������������������� 83 S (BD) v S (DJ)(Children: Care and Control) [1977] Fam 109, CA�������������������� 170 S v S [1962] 1 WLR 445, CA����������������������������������������������������������������������������� 169 SA v PA (Pre-Marital Agreement: Compensation) [2014] EWHC 392 (Fam) [2014] 2 FLR 1028����������������������������������������������������������������������������������������� 199

Table of Cases xix Schlesinger v Schlesinger [1960] 1 All ER 721���������������������������������������������������� 112 Scott v Scott (1865) 164 ER 1458������������������������������������������������������������������ 82, 89 Scrimshire (otherwise Jones) v Scrimshire (1752) [1558–1774] All ER Rep 554������������������������������������������������������������������������������������������������ 86 Seaver v Seaver (1846) 164 ER 1156�������������������������������������������������������� 78–79, 82 Seddon v Seddon (1862) 2 Sw & Tr 640������������������������������������������������������������ 164 Sharp v Sharp [2017] EWCA Civ 408������������������������������������������������ 129, 200, 233 Shearn v Shearn [1931] P 1�������������������������������������������������������������������������������� 107 Shelley v Westbrooke (1821) Jac 266����������������������������������������������������������������� 225 Sidney v Sidney (1865) 164 ER 1485����������������������������������������������������������� 109–11 Smethurst v Smethurst [1978] Fam 52����������������������������������������������������������������� 18 Squire v Squire and O’Callaghan [1905] P 4���������������������������������������������� 110, 114 SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam) [2015] 2 FLR 1124��������������������������������������������������������������������� 30, 125, 127–28 Stack v Dowden [2007] UKHL 17 [2007] 2 AC 432������������������������������������������ 202 Swift v Swift (1865) 55 ER 637�������������������������������������������������������������������������� 165 Symington v Symington (1875) 2 Sc & Div 415, 423, HL�������������������� 165–66, 172 Thomas v Roberts (1850) 64 ER 693������������������������������������������������������������������� 75 Thorner v Major [2009] UKHL 18 [2009] 1 WLR 776�������������������������������������� 203 Trippas v Trippas [1973] Fam 134, CA�������������������������������������������������������������� 118 Trustee in Bankruptcy of Claridge v Claridge and Another [2011] EWHC 2047 (Ch) [2012] 1 FCR 388������������������������������������������������������������� 105 V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam) [2004] 2 FLR 851������������������������������������������������������������������������������������������� 183 Wachtel v Wachtel [1973] Fam 72, CA������������������������������������������������ 117–19, 123 Wakeham v Wakeham [1954] 1 WLR 366, CA�������������������������������������������������� 171 Walter v Walter [1921] P 302������������������������������������������������������������������������������� 83 Ward v Ward [1947] 2 All ER 713��������������������������������������������������������������������� 104 Weldon v Weldon (1883) 9 PD 52������������������������������������������������������������������ 80–82 Wellesley v Beaufort (1827) 2 Russ 1,���������������������������������������������������������������� 225 Wellesley v Wellesley (1828) [1824–34] All ER Rep 189, HL��������������������� 134, 225 Westmeath v Westmeath (1821) 37 ER 797��������������������������������������������������������� 82 White v White [2001] 1 AC 596, HL�������������������������������������������� 63, 106, 111–12, 126, 128, 197–99 Willoughby v Willoughby [1951] P 184������������������������������������������������������������� 168 Winchester v Fleming [1958] 1 QB 259��������������������������������������������������������������� 72 Wood v Wood [1891] P 272, 276–7, CA������������������������������������������������������������ 114 Wyatt v Vince [2015] UKSC 14 [2015] 1 WLR 1228������������������������������������������� 15 Wyatt v Vince (No 2)(Settlement: Publicity) [2016] EWHC 1368 (Fam)�������������� 15 AUSTRALIA Dridi v Fillmore [2001] NSWSC 319����������������������������������������������������������� 212–13 Drury v Smith [2012] NSWSC 1067������������������������������������������������������������������ 209 Geoghegan v Szelid [2011] NSWSC 1440���������������������������������������������������������� 209 Hayes v Marquis [2008] NSWCA 10����������������������������������������������������������������� 212 Kardos v Sarbutt [2006] NSWCA 11����������������������������������������������������������������� 218 McCarthy v Tye [2015] NSWSC 1947��������������������������������������������������������������� 209

xx  Table of Cases McKenzie v Storer [2007] ACTSC 88����������������������������������������������� 210, 216, 218, 221, 245 Re Estate of Ham (dec’d): Bogan v Macorig [2004] NSWSC 993���������������������� 209 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964�������������������������� 209, 214, 216, 218 Skarica v Toska [2014] NSWSC 34�������������������������������������������������������������������� 213 Smith v Daniels [2012] NSWSC 604������������������������������������������������������������������ 209 Taddeo v Taddeo [2010] SADC 61������������������������������������� 195, 209, 214, 216, 220 EUROPEAN COURT OF HUMAN RIGHTS Burden v United Kingdom [2008] 47 EHRR 38����������������������������������������� 196, 214 Elsholz v Germany (App 25735/94) (2002) 34 EHRR 58���������������������������������� 162 USA Doyle v Doyle 5 Misc 2d 4, 7 (NY Misc 1957)�������������������������������������������� 98, 100

Table of Legislation ENGLAND AND WALES STATUTES Administration of Justice Act 1982 s 2(a)������������������������������������������������������������� 72 Child Support Act 1991������������������������������������������������������������� 121, 133, 151, 228 s 1(1)�������������������������������������������������������������������������������������������������������������� 148 s 3(1)(2)���������������������������������������������������������������������������������������������������������� 148 s 6������������������������������������������������������������������������������������������������������������������� 150 s 9(1)�������������������������������������������������������������������������������������������������������������� 157 s 9A���������������������������������������������������������������������������������������������������������������� 157 Sch 1, para 7��������������������������������������������������������������������������������������������������� 149 Child Support, Pensions and Social Security Act 2000 Sch 3��������������������������������������������������������������������������������������������������������������� 148 Children Act 1975 ss 85, 86������������������������������������������������������������������������������� 171 Children Act 1989 ����������������������������������������������������������������� 8, 148, 163, 177, 187 s 1������������������������������������������������������������������������������������������������������������������� 237 s 1(1)�������������������������������������������������������������������������������������������������������������� 140 s 1(2A)���������������������������������������������������������������������������������������������������� 189, 231 s 1(3)���������������������������������������������������������������������������������������������������������������� 16 ss 11A–11P����������������������������������������������������������������������������������������������������� 184 ss 11J–11P������������������������������������������������������������������������������������������������������ 184 s 4(1)(a)���������������������������������������������������������������������������������������������������������� 142 s 8(1)�������������������������������������������������������������������������������������������������������������� 190 s 31(2)������������������������������������������������������������������������������������������������������������ 131 Sch 1��������������������������������������������������������������������������������������������������������������� 144 Sch 1 para 3���������������������������������������������������������������������������������������������������� 145 Sch 1 para 10�������������������������������������������������������������������������������������������������� 157 Children and Adoption Act 2006 �������������������������������������������������������������� 183, 185 ss 1–5������������������������������������������������������������������������������������������������������������� 184 ss 4, 5������������������������������������������������������������������������������������������������������������� 184 Children and Families Act 2014 ������������������������������������������������������������������ vii, 169 s 11����������������������������������������������������������������������������������������������������������������� 189 s 12����������������������������������������������������������������������������������������������������������������� 190 s 18(2)(a)�������������������������������������������������������������������������������������������������������� 236 Children and Young Persons Act 1933, s 1�������������������������������������������������������� 131 Civil Partnership Act 2004, s 44������������������������������������������������������������������������������������������������������������������� 95 s 50 ������������������������������������������������������������������������������������������������������������������ 95 Custody of Infants Act 1839 (Talfourd’s Act)��������������������������������������������� 134, 164 Custody of Infants Act 1873���������������������������������������������������������������������� 134, 165 s 2������������������������������������������������������������������������������������������������������������������� 166 Divorce Reform Act 1969�������������������������������������������������������������������� 48, 113, 197

xxii  Table of Legislation Domestic Proceedings and Magistrates’ Courts Act 1978��������������������������� 103, 105 s 5������������������������������������������������������������������������������������������������������������������� 145 s 8������������������������������������������������������������������������������������������������������������������� 171 s 38����������������������������������������������������������������������������������������������������������������� 136 s 88����������������������������������������������������������������������������������������������������������������� 171 Ecclesiastical Courts Act 1813����������������������������������������������������������������������������� 77 Family Law Act 1996 s 1������������������������������������������������������������������������������������������������������������������� 236 s 30������������������������������������������������������������������������������������������������������������������� 96 s 36(6)(e)���������������������������������������������������������������������������������������������������������� 22 s 41������������������������������������������������������������������������������������������������������������������� 22 Guardianship Act 1973 s 1(3)�������������������������������������������������������������������������������������������������������������� 171 Guardianship of Infants Act 1886 s 5������������������������������������������������������������������������������������������������������������������� 166 Guardianship of Infants Act 1925���������������������������������������������������������������������� 168 Law Reform (Miscellaneous Provisions) Act 1949, s 5������������������������������� 101, 138 Legitimacy Declaration Act 1858������������������������������������������������������������������������� 86 Married Women (Maintenance in Case of Desertion) Act 1886, s 1(1)������ 103, 135 Married Women’s Property Act 1870 ss 13, 14 ������������������������������������������������� 132 Married Women’s Property Act 1882 ������������������������������������������������������������������ 72 ss 2 20, 21������������������������������������������������������������������������������������������������������ 132 Matrimonial Causes Act 1857�������������������������������������������������� 47, 77, 87, 107, 135 s 17������������������������������������������������������������������������������������������������������������� 79, 88 s 22����������������������������������������������������������������������������������������������������������������� 108 s 35����������������������������������������������������������������������������������������������������������������� 165 Matrimonial Causes Act 1878������������������������������������������������������������������������ 75, 85 s 4������������������������������������������������������������������������������������������������������������������� 101 s 4(2)�������������������������������������������������������������������������������������������������������������� 165 Matrimonial Causes Act 1884������������������������������������������������������������������������������ 82 Matrimonial Causes Act 1923������������������������������������������������������������������������ 88, 91 Matrimonial Causes Act 1937������������������������������������������������������������������������������ 91 s 11����������������������������������������������������������������������������������������������������������������� 101 Matrimonial Causes Act 1963 s 5���������������������������������������������������������������������� 108 Matrimonial Causes Act 1973������������������������������������������������������������ 117, 124, 140 s 1(2)(c),(e)������������������������������������������������������������������������������������������������������� 94 s 3��������������������������������������������������������������������������������������������������������������������� 47 s 18(1)�������������������������������������������������������������������������������������������������������������� 94 s 25(2)������������������������������������������������������������������������������������������������������ 16, 139 s 25(2)(f)������������������������������������������������������������������������������������������������� 197, 199 s 25A(3)���������������������������������������������������������������������������������������������������������� 108 s 27����������������������������������������������������������������������������������������������������������������� 103 s 29����������������������������������������������������������������������������������������������������������������� 145 s 52����������������������������������������������������������������������������������������������������������������� 136 Matrimonial and Family Proceedings Act 1984 s 3(1), (4) ���������������� 108, 124, 140 Matrimonial Proceedings and Property Act 1970 s 20������������������� 93, 106–08, 117 Matrimonial Proceedings (Children) Act 1958, s 4��������������������������������������������� 136

Table of Legislation xxiii Matrimonial Proceedings (Magistrates’ Courts) Act 1960 s 16(1)�������� 101–02, 136 Poor Law Amendment Act 1834������������������������������������������������������������������������ 132 s 57����������������������������������������������������������������������������������������������������������������� 135 Poor Law Amendment Act 1844������������������������������������������������������������������������ 133 Poor Law (Amendment) Act 1868, s 33������������������������������������������������������������� 132 Poor Relief Act, 1601, s 6���������������������������������������������������������������������������������� 131 Social Security Administration Act 1992 s 105 �������������������������������������������������������������������������������������������������������������� 105 s 106��������������������������������������������������������������������������������������������������������������� 132 Summary Jurisdiction (Married Women) Act 1895���������������������������������������� 75, 85 s 4����������������������������������������������������������������������������������������������������������� 101, 136 Supreme Court of Judicature (Consolidation) Act 1925 s 185������������������������������ 91 Vagabonds Act 1609 s 7������������������������������������������������������������������������������������� 133 Welfare Reform Act 2009, s 9 (3)(b), Sch 7 Part 1������������������������������������� 105, 132 Welfare Reform Act 2012, s 138������������������������������������������������������������������������ 157 AUSTRALIA ACT Domestic Relationships Act 1994��������������������������������������������������������������� 208, 210 s 15����������������������������������������������������������������������������������������������������������������� 218 s 19����������������������������������������������������������������������������������������������������������������� 218 CTH Family Law Act 1975 Part 1, s 4A; Part VIIIAB������������������������������������������������� 209 s 90SF������������������������������������������������������������������������������������������������������������� 218 s 90SM ���������������������������������������������������������������������������������������������������������� 218 NSW De Facto Relationships Act 1984 renamed Property (Relationships) Act 1984 �� 208 s 5������������������������������������������������������������������������������������������������������������������� 212 s 20����������������������������������������������������������������������������������������������������������������� 218 s 27����������������������������������������������������������������������������������������������������������������� 218 Property (Relationships) Legislation Amendment Act 1999������������������������������� 209 SA Domestic Partners Property Act 1996 s 11��������������������������������������������������������� 218 Family Relationships Act 1975 (SA) ss 11, 11A������������������������������������������������� 208 s 11B(3)(e)������������������������������������������������������������������������������������������������������ 215 TAS Relationships Act 2003 s 11������������������������������������������������������������������������������� 215 s 40����������������������������������������������������������������������������������������������������������������� 218 s 47 ���������������������������������������������������������������������������������������������������������������� 218

xxiv  Table of Legislation VIC Relationships Act 2008 s 5��������������������������������������������������������������������������������� 215 s 45����������������������������������������������������������������������������������������������������������������� 218 s 51����������������������������������������������������������������������������������������������������������������� 218 INDIA Maintenance and Welfare of Parents and Senior Citizens Act 2007�������������������� 193 JAMAICA Maintenance Act 2005��������������������������������������������������������������������������������������� 193 NEW ZEALAND Property (Relationships) Act 1976��������������������������������������������������������������������� 207 SCOTLAND Family Law (Scotland) Act 2006 s 28����������������������������������������������������������������� 207 SECONDARY LEGISLATION Child Support Fees Regulations 2014 (SI 2014/612) Ref 4��������������������������������������������������������������������������������������������������������������� 157 Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677) reg 50������������������������������������������������������������������������������������������������������������� 149 reg 71������������������������������������������������������������������������������������������������������������� 152

1 The Ties that Bind? They were so bound together that they constituted a family.1 Rites of institution … aim to constitute the family … as a united, integrated entity … these inaugural acts of creation (imposition of the family name, marriage, etc) have their logical extension in the countless acts of reaffirmation and reinforcement that aim to produce, in a kind of continuous creation, the obliged affections and affective obligations of family feeling (conjugal love, paternal and maternal love, filial love, brotherly and sisterly love, etc).2

I. INTRODUCTION

T

HERE IS A fundamental tension at the heart of family law. Through the medium of law, the state attempts to use its power to regulate the formation, functioning and dissolution of personal relationships operating in an emotional and affective plane of human experience, frequently in a private space which is ostensibly intended to be kept separate and apart from the ‘public sphere’.3 Such relationships are supposed to be prompted and sustained by altruism, love and commitment, not legally enforceable rules and constraints. Indeed, Milton Regan has argued that, historically, ‘Unwillingness to command performance of … duties … reflected a view that family members typically had a relational sense of identity that the law might undermine, rather than promote, if it intruded too far into the family.’4 Whether families are viewed as social constructs

1 

Fitzpatrick v Sterling Housing Association Ltd [1998] Ch 304, 340C, CA, per Ward LJ. P Bourdieu, ‘On the Family as a Realized Category’ (1996) 13 Theory, Culture and Society 19, 22. For a rejection of the idea that love can be so categorised as ‘distinct types of affection to be found pre-packaged on a supermarket shelf’ rather than as a complex relational emotion shaped by its context, see C Smart, Personal Life: New directions in sociological thinking (Cambridge, Polity Press, 2007) 59. 3  For a critique of the public/private distinction, see F Olsen, ‘The Family and the Market: A Study of Ideology and Law Reform’ (1983) 96 Harvard Law Review 1497; M Fineman, The Autonomy Myth: A Theory of Dependency (New York, The New Press, 2004). 4  M Regan Jnr, Family Law and the Pursuit of Intimacy (New York, New York University Press, 1993) 11. As Olsen and others have pointed out, however, the family members who might share this view have generally been husbands and fathers, rather than wives, mothers and children: see Olsen (n 3). 2 

2  The Ties that Bind? formed of intimate units, romantic partnerships, parent/child dyads, people connected through kinship, caring relationships or other collectivities; or whether ‘family’ is better understood as an ideological concept—the ‘family we live by’ rather than ‘with’, as Alison Diduck argues;5 or not as a noun at all, but as an adjective describing the ‘practices’ that people engage in, or as a verb whereby people are best understood as ‘doing’ family;6 the assumption is that family members care for each other because of sentiment, and not because they are compelled by law to do so.7 Lawyers and legal commentators generally steer clear of bringing love or affection into discussions of family matters and how to regulate them.8 Nor are they alone. As Carol Smart explains, sociologists have also been wary of studying love, regarding emotions as belonging to the province of ­psychology.9 The messiness and uncontrollability of love, and even more, the negative emotions and behaviour that usually follow its disappearance and which frequently lead to the need for regulation and resolution within the sphere of law, help explain why those trained in the ‘cool’ rationalism of law might wish to limit its impact.10 In discussion of law (and the politics and philosophy which influence its development), therefore, as with ­sociology, love tends to have been translated into the related concept of ‘care’. For example, in his discussion of caring and the law, Jonathan Herring brings love and care together in arguing that ‘Law is about enforcement; while

5  A Diduck, Law’s Families (London, LexisNexis, 2003), drawing on J Gillis’ categorisation, in A World of Their Own Making: Myth, Ritual, and the Quest for Family Values (Cambridge, MA, Harvard University Press, 1997). See also Diduck’s discussion of the expanding inclusivity of the concept of ‘the family’, and the consequential expanding responsibilisation of those now included within it, in A Diduck, ‘Shifting Familiarity’ (2005) 58 Current Legal Problems 235. 6  D Morgan, Rethinking Family Practices (Basingstoke, Palgrave Macmillan, 2011) 4–5. 7  But for the view that family relationships are governed by obligation rather than preference, see R Abbey and D Den Uyl, ‘The Chief Inducement? The Idea of Marriage as Friendship’ (2001) 18 Journal of Applied Philosophy 37; and for examination of early political philosophy concerning how far duty and volition go together in domestic relationships, see V Kahn, ‘“The Duty to Love”: Passion and Obligation in Early Modern Political Theory’ (1999) 68 Representations 84. 8  Two exceptions are, first, Katherine O’Donovan, who refers to love in ‘Love’s Law: Moral Reasoning in Family Law’ in D Morgan and G Douglas (eds), Constituting Families: A Study in Governance (Stuttgart, Steiner, 1994). Secondly, John Eekelaar discusses ‘brotherly love’ in Family Law and Personal Life (Oxford, Oxford University Press, 2006) in the context of friendship, and love more generally in ‘Family law and love’ [2016] Child and Family Law Quarterly 289. 9  Smart (n 2) 54. 10  There is a large literature on lawyers’ attempts to limit their clients’ appeal to ‘feelings’ when resolving family disputes: see, in particular, A Sarat and B Felstiner, Divorce lawyers and their clients: power and meaning in the legal process (New York, Oxford University Press, 1995), J Eekelaar et al, Family lawyers: the divorce work of solicitors (Oxford, Hart Publishing, 2000). On the difficulty that the refusal to acknowledge clients’ emotions creates in seeking to achieve such ‘resolution’, see H Reece, Divorcing Responsibly (Oxford, Hart Publishing, 2003) and S Day Sclater and C Piper (eds), Undercurrents of Divorce (Aldershot, Ashgate, 1999).

Introduction 3 c­aring is about the voluntary performance of acts motivated by love.’11 Smart notes, however, that there is a tendency to regard such ‘care’ as having value ‘only if it entails work, self-sacrifice and some degree of compromise and endurance, otherwise known as commitment’.12 Within the sphere of law, as distinct from other disciplines, this tendency may be less open to criticism. For how would law recognise and define love, and how could it promote or enforce it?13 Yet law is frequently used to regulate the expression of emotions: think of much of the criminal law of offences against the person, or the grant of a divorce on the basis of adultery.14 Law can be seen as a mechanism used to regulate caring (in the various forms discussed in section II) within the family, through the core obligations imposed by family law, which are elucidated in Chapters 3 to 6. As explained later in this chapter, I use the concept of obligation in two senses, legal and sociological.15 In the first sense, an obligation is of course the correlative of a right, and it is also the basis for the grant of a remedy to family members suffering harm or detriment as a result of their family ties. In the second sense, it is a social norm governing behaviour and attitudes towards others. The first question explored in this book is how far the notion of obligation has been effectively utilised through the medium of law to promote and sustain caring within the family. Smart’s use of the notion of ‘commitment’ understands it as entailing ‘work, self-sacrifice and … endurance’. But as is explained in section V.C, the term has substantially shifted in its popular meaning from being understood as a synonym for a binding obligation (and, in the meaning used by Smart, effectively a burden) which cannot be avoided, to expanding to cover a promise made, or dedication to a particular plan or belief, which can later be dropped or discarded. Indeed, she goes on to discuss it in exactly this sense, in a critique of arguments attributing the reduction in marriage rates and the rise in cohabitation to a ‘decline’ in commitment.16 In the sphere of family policy, this more recent understanding of ‘commitment’ is often taken as the signifier that an emotional bond has been forged between individuals in an intimate or domestic relationship. It is then regarded as a basis and justification for attaching particular legal consequences to that relationship, from a duty to maintain a child17 to a liability to share one’s ­property.18 11 

J Herring, Caring and the Law (Oxford, Hart Publishing, 2013) 2. Smart (n 2) 64. 13  For the view that the law should promote kindness, rather than love, see Eekelaar ‘Family law and love’ (n 8). 14 See, eg, S Bandes (ed), The Passions of Law (New York, New York University Press, 1999). 15 For a moral/metaphysical analysis, see S Fitzgibbon, ‘Marriage and the Good of ­Obligation’ (2002) 47 American Journal of Jurisprudence 41. 16  Smart (n 2) 66–68. See ch 2 for the demographic picture. 17  See ch 5. 18  See ch 7, section II.B.i. 12 

4  The Ties that Bind? So the second question explored in this book is how far our changing understanding of ‘commitment’ is reflected in a change in our attitude to the nature and scope of the legal obligations to care which may be owed to family members, and to the legitimate role of law in regulating family life. II.  CARE AND CARING

A.  An ‘Ethic of Care’ Acceptance of the centrality of such caring within family life or as underpinning family ‘practices’ has produced a growing literature expounding the importance of placing an ‘ethic of care’ at the centre of (family) law, politics and moral philosophy.19 Carol Gilligan’s original argument was that no account of morality can be complete without considering a ‘moral voice’ focused on responsibility and relationships, as well as rights and justice.20 As Sarah Clark Miller explains,21 this central insight has been elaborated by subsequent care ethicists into an assertion of the moral importance of needs. She identifies four key themes in care ethics: particularity—a focus on the specific person in his or her individual circumstances rather than on a generalised ‘other’; dependency—the recognition that we all have phases of reliance upon others rather than an assumption of autonomous independence—a view propounded, in particular, by Martha Fineman;22 interdependence—the further recognition that we are mutually dependent upon and shaped by our relationships with each other—as Jennifer ­Nedelsky puts it, we are ‘both constituted by, and contribute to, changing or reinforcing the intersecting relationships of which [we] are a part’;23 and need—while individual instances of need may vary widely from one person to another, we all experience needs. Miller goes on to justify the imposition of an ­obligation on others to meet such needs,24 using Kant’s duty of beneficence. Kant argued that there are duties of love (in the sense of practical action for the love of humankind, rather than the emotion of ­loving), of which beneficence is one, and Miller suggests that where a need is

19 

See, for a full review of this literature, Herring (n 11). Gilligan, In a Different Voice: Psychological Theory and Women’s Development ­(Cambridge, MA, Harvard University Press, 1982). 21 S Clark Miller, ‘Need, Care and Obligation’ (2005) 57 Royal Institute of Philosophy Supplement 137. 22  Fineman (n 3). 23 J Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy and Law (New York, Oxford University Press, 2011) 22. 24  While noting that some feminist scholarship argues that ‘care’ is incompatible with duty since it ignores or negates the emotions necessary to act in a ‘caring’ way: see Miller (n 21) at 143–44. 20 C

Care and Caring 5 ‘­ constitutive’ of the person, that is, where the person cannot exercise agency unless it is met, there is a moral duty on those with the means to do so, to respond with beneficence.25 Gilligan’s argument, developing from experimental psychology regarding the differential responses to moral dilemmas given by men and women, has often been taken to mean that these different voices are gendered. Later feminist empirical work has both confirmed and refuted a gender ­difference.26 Regardless of its empirical basis, the distinction between ‘care’ and ‘justice’, ‘responsibility’ and ‘rights’ has been helpful—and influential—in framing and articulating the different viewpoints and experiences of men and women in family relationships, which will be noted throughout this book. The question why a general duty of beneficence should be devolved particularly to family members is considered in section VI. B.  Meanings of ‘Care’ The meaning of ‘care’ and ‘caring’ needs to be articulated, not least because just as the ‘ethic’ of care might be gendered, so too might the meaning of care itself. Interestingly, in the context of the focus here on obligation and commitment, Joan Tronto has noted that ‘Semantically, care derives from an association with the notion of burden: to care implies more than simply a passing interest or fancy but instead the acceptance of some form of burden.’27 In her earlier work, Tronto divided ‘care’ into two categories: ‘caring about’, which she saw as having been the traditional focus of moral philosophy, and which is concerned with attitude and sentiment (for example, how and why one should care about the environment, or about others); in contrast to ‘caring for’, or the physical work and activity of caring.28 Although she subsequently viewed this dichotomy as rather crude,29 it has been used in the context of family law,30 particularly in considering how mothers and fathers, or parents with care and non-resident parents, approach

25  To similar effect, see J Eekelaar, ‘Are Parents Morally Obliged to Care for Their ­Children?’ (1991) 11 OJLS 340. 26  See eg C Smart and B Neale, Family Fragments? (Cambridge, Polity Press, 1999) ch 6; J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge, 1993) 82–85. 27  Tronto (n 26) 103. 28 J Tronto, ‘Women and Caring: Or, What Can Feminists Learn About Morality From Caring?’ in S Bordo and A Jaggar (eds), Gender/Body/Knowledge (New Brunswick, NJ, ­ ­Rutgers University Press, 1989). 29  Tronto (n 26) 106, fn 25. 30  See eg C Smart, ‘The Legal and Moral Ordering of Child Custody’ (1991) 18 Journal of Law and Society 485.

6  The Ties that Bind? and ­undertake post-separation parenting, and is discussed further in later chapters, especially Chapter 6. However, Tronto went on to categorise care into four distinct forms or ‘phases’, which are useful for understanding the ambit of care. First, there is ‘caring about’, or ‘the recognition in the first place that care is necessary’. ‘Taking care of’ is the next step and involves ‘assuming some responsibility for the identified need and determining how to respond to it’. For Tronto, giving money to deal with a problem is a form of ‘taking care of’, rather than the third phase of ‘care-giving’ or ‘direct meeting of needs for care’, because, usually, giving money merely enables others to do the ‘necessary care work’. In the legal context, the provision of money, perhaps in the form of child support, might be seen as a necessary but not sufficient form of care-giving by a non-resident parent. From the perspective of the parent ‘with care’, however, it may be the preferred mode of the non-resident parent’s fulfilment of the obligation of care, as I discuss in Chapters 5 and 6. Tronto’s final phase is ‘care-receiving’, which she regards as important, ‘because it provides the only way to know that caring needs have actually been met’.31 She makes the important point that the care recipient’s view of how care is delivered to her or him is essential in assessing how adequately care is provided. As discussed in Chapter 6, the child’s perspective and experience of post-separation parenting is a factor which is supposed to be considered in reaching decisions on the arrangements to be made for the child’s upbringing. For Tronto and most feminists, care as ‘work’, or at least as ‘activity’, is what is deserving of moral or legal recognition, not simply care as an ‘attitude of mind’. As Herring puts it, care ‘must be more than a feeling’.32 Since the physical activity of care tends to be undertaken mainly by women, the focus on care in a material sense produces an inevitably gendered analysis. Thus for Fineman, focusing on the American context, responsibility for care work has been assigned to the family, with the state providing a fall-back only in cases where it chooses to recognise that there has been a failure of support. Other states, such as Scandinavian welfare states,33 may draw the line between public and family responsibility for caring in a different place. But in most other societies, within the family, In the pattern of long-standing tradition, caretaking continues to be delegated to women—assigned as the responsibility of the person occupying the gendered role of wife, or mother, or grandmother, or daughter, or daughter-in-law, or sister.34

31 

Tronto (n 26) 106–08. Herring (n 11) 15. 33 D Bradley, Family Law and Political Culture: Scandinavian Laws in Comparative ­Perspective (London, Sweet & Maxwell, 1996). 34  Fineman (n 3) 37. See ch 2, sections II.F.iii and iv. 32 

Care and Caring 7 By contrast, however, in his critique of the ‘ethic of care’, Jeffrey Blustein focuses on care as an attitude or sentiment. He goes on to distinguish ‘commitment’ from care, on the basis that a commitment is made when one gives ‘deliberative priority’ to something that one (usually) cares about.35 But this approach in effect seems to amount to saying that commitment is a higher form of cognitive caring about something. The result of these two approaches to the meaning of care is that for some, mainly feminists, the material meaning of caring—the physical activity involved in ‘caring for’ someone—is regarded as of greater moral weight than the emotional or cognitive act of ‘committing’ or ‘making a commitment’ to someone or something. Yet for others, it is the latter which is regarded as key to a person’s acting with moral integrity. As discussed in later chapters, it is precisely this latter form of ‘commitment’—‘caring about’—that has been given increasing prominence in popular semantics, and increasing weight by the legal system. Those who advocate greater recognition of care within the law argue that this would enable appropriate weight to be given to the relational responsibilities that, as Fineman shows, are the counterpart to the needs arising from our inevitable (and derivative) dependence on each other.36 She argues that, while everyone is ‘inevitably’ dependent at certain stages in our lives (for all during infancy, and for many during old age or infirmity), those who undertake care work assume a condition of ‘derivative dependency’ created by fulfilling that obligation. Doing so both relieves others of the burden and hampers their own autonomy and independence, and must therefore be compensated. It is accordingly argued that family law should move away from an emphasis on the form of the relationship of those living a ‘family’ life together, towards a focus on whether the relationship fulfils the function of care. If it does so, it is argued, then it should be given the same ‘recognition’ as traditional family forms based on the conjugal relationship,37 Thus, in a memorable turn of phrase, Herring argues that ‘Family Law needs to be less sexy and more careful.’38 In giving such recognition, however, it should be noted that what is actually entailed is not so much the imposition of an obligation to care for others in the relationship, as an obligation on those others to ‘recognise’ (compensate) such care, usually through the sharing of property or the provision of support. Care thus grounds a claim or right, rather than an obligation. This is discussed in Chapter 7.

35  J Blustein, Care and Commitment: Taking the Personal Point of View (New York, Oxford University Press, 1991) ch 2. 36  Fineman (n 3) 34–40. 37 J Herring, ‘Making family law more careful’ in J Wallbank and J Herring (eds), ­Vulnerabilities, Care and Family Law (Abingdon, Routledge, 2014) 58. 38  ibid, 42.

8  The Ties that Bind? III.  LEGAL OBLIGATION

A.  Obligation as Duty The dictionary definition of ‘obligation’ is of a moral or legal requirement; duty; the act of obligating or the state of being obligated; a legally enforceable agreement to perform some act … a person or thing to which one is bound morally or legally; something owed in return for a service or favour; a service or favour for which one is indebted.

The concept of obligation therefore suggests something that is imposed upon the person, possibly against his or her will or preference.39 Hart regarded ‘obligation’ and ‘duty’ as synonymous, although he suggested that their usage might vary according to context, with ‘obligation’ commonly used in relation to contract, ‘duty’ in relation to tort.40 In his commentary on Hart, Neil MacCormick argued that the concepts are distinct, with obligation flowing from a relationship (eg parent and child) while duty relates to a position or role. This is a subtle distinction—does a parent have a relationship, or a role? In any event, MacCormick recognised that ‘in their vague and general use’ they are more or less interchangeable,41 and they are used interchangeably in this book. By contrast, the dictionary definition of ‘responsibility’ is ‘having the ability or authority to act or decide’ or ‘accountability’. The focus is on who takes decisions rather than on the binding nature of the onus placed on the decision-maker.42 This meaning is exemplified in the argument by John Eekelaar that one notion of ‘parental responsibility’ promoted in the Children Act 1989 is that responsibility for a child lies with the parents and not the state, and not simply that responsibility requires the parent to behave dutifully towards the child.43 One can therefore quibble with Alison Diduck’s suggestion that ‘family law’s purpose is to determine responsibility for responsibility, including the responsibilities of individuals to each other and the responsibilities of families and the state and the community to each other’,44 since this equates responsibility with obligation. According to Hart, an obligation, at least in relation to obeying the law (rather than obligation to another person), derives not from ‘feeling obliged’ 39  But for the view that, stemming from social contract theory, obligation is something that must be assented to, see M Regan Jnr, Alone Together: Law and the Meanings of Marriage (Oxford, Oxford University Press, 1999) 163–69; C Pateman, The Sexual Contract (Stanford, CA, Stanford University Press, 1988). 40  HLA Hart, The Concept of Law (Oxford, Oxford University Press, 1961) 238. 41  N MacCormick, HLA Hart (Stanford, CA, Stanford University Press, 1981) 59–60. 42  ‘Liability’ is defined as ‘legal responsibility’ and again seems focused on accountability. 43  J Eekelaar, ‘Parental responsibility: state of nature or nature of the state?’ [1991] Journal of Social Welfare and Family Law 37. 44  A Diduck, ‘What is Family Law For?’ (2011) 64 Current Legal Problems 287.

Legal Obligation 9 (ie coerced) to obey through the threat of a sanction for non-compliance but from an acceptance that there is a rule governing the behaviour: ‘if a social rule is to exist some at least must look upon the behaviour in question as a general standard to be followed by the group as a whole’. However, Hart went on to state that ‘Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to deviate is great.’45 He explained that ‘it is generally recognized that the conduct required by these rules may, while benefiting others, conflict with what the person who owes the duty may wish to do’,46 and in a developed legal system ‘the acceptance of the rules as common standards for the group may be split off from the relatively passive matter of the ordinary individual acquiescing in the rules by obeying them for his part alone’.47 Although there are highly sophisticated challenges and critiques of Hart’s position, which cast doubt on his views as to the irrelevance of threats and coercion and the nature of the internal aspect of rules,48 it does provide an explanation for what can be empirically observed in the sphere of private family law. A divorcing spouse may ‘accept’ that he or she has to share the property that has been acquired during the marriage without being willing to do so; a non-resident parent may agree that child support should be paid but seek justifications for not doing so in his or her own circumstances. In both cases, the obligation is imposed upon the payer without his or her active consent. Sometimes, the imposition clearly requires to be backed up by some form of enforcement. Stephen Smith has argued that, for the ‘law akratics’—those who ‘sometimes lack the will to do what the law requires despite accepting, in a general way, that they should do so’—a court order may prompt fulfilment of the obligation, by acting as the ‘voice of the conscience’ of the defaulter.49 A court order is also a mandatory instruction, which is intended to coerce the defendant into compliance. Much of the discussion in the case study chapters which follow concerns the availability of a court order (or other official directive) as the mechanism for ensuring compliance with a family law obligation.

45 

Hart (n 40) 55, 84. ibid, 85. 47  ibid, 114. 48  There is, of course, an enormous literature. For discussion of sanctions and coercion, see F Schauer, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ (2010) 23 Ratio Juris 1; and E Yankah, ‘The Force of Law: The Role of Coercion in Legal Norms’ (2007–2008) 42 University of Richmond Law Review 1197. On the internal aspect of rules, see J Gardner, ‘Nearly Natural Law’ (2007) 52 American Journal of Jurisprudence 1; and S Delacroix, ‘You’d Better be Committed: Legal Norms and Normativity’ (2009) 54 American Journal of Jurisprudence 117. 49  S Smith, ‘The Normativity of Private Law’ (2011) 31 OJLS 215 at 231, 232. 46 

10  The Ties that Bind? But equally, as MacCormick noted, it does not follow that because one will be bound by an obligation against one’s will, one cannot also choose to be so bound: [T]he point then is that once one has ‘opted in’ one faces certain requirements of substance in relation to one’s conduct, out of which one cannot unconditionally opt. The act of opting in engages one with the minimum requirements of important values, likely enough prescribed in rules. And these one must fulfil even against one’s wishes.50

He distinguished a promise-incurring obligation and an act-incurring obligation. In the former, the intention of the person making the promise is precisely to incur the obligation, whilst in the latter, the intention is to do the act from which obligations will flow. In the family sphere, one might regard marriage as a promise-incurring obligation, and having a child as an act-incurring obligation. Joseph Raz has also drawn attention to the kind of personal obligations into which people freely enter, such as the obligations which friends owe each other and which are in a sense voluntary obligations, as it is obligatory neither to form friendships nor to continue them once formed. Yet we do not undertake these obligations by an act of promise or consent. As does friendship, these obligations arise from the developing relations between people …51

There is an overlap between this idea of a voluntary obligation and the concept of commitment that is important in the context of the family, as I discuss in section V. MacCormick also suggested that the term ‘obligation’ is particularly used in the context of identifying relationships between people that carry some normative import. For example, to have obligations such as those of a parent ‘implies (a) that one stands in a certain relationship with another, as parent … and (b) that because of that relationship one is required to act in certain ways towards the other’.52 Clearly, recognised family relationships, such as those of spouses or of parents and children, carry with them these normative requirements, but social norms and understandings of family relationships are becoming more contested as family forms and modes of behaviour become more diverse. It becomes more difficult to agree on the content of the obligation, on whom it is to be imposed and to whom it is owed.

50 

MacCormick (n 41) 70. J Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford, Clarendon Press, 1994) 353–54. Such developing relations may cause problems if there is later a claim for compensation based on the provision of friendship care: see ch 7 of this book. 52  MacCormick (n 41) 59. 51 

Legal Obligation 11 B.  Obligation as Remedy Mavis Maclean and John Eekelaar have argued that it is necessary to distinguish between direct and indirect legal obligations.53 They contrast a law ‘which says that a husband must support his wife and provides the wife with a remedy to enforce the obligation’—a ‘direct obligation’—with one which ‘gives no remedy to the wife, but merely allows the state to recover a contribution from the husband towards any benefits it sees fit to provide as a result of his failure to support her’, which is an ‘indirect obligation’. The reference by Maclean and Eekelaar to providing a remedy both reminds us that the correlative of a duty is a right and reflects one of the key functions of family law—its remedial function. It is useful to think of the concept of legal obligation in the sense of a remedy, because the core family law obligations considered in the case study chapters in this book are manifested and vindicated through their operation as remedies when there has been a failure to perform them. There are, of course, several different legal obligations that may be seen as applying to family relationships. They may be understood as either positive, or negative obligations. For example, Chapters 3 and 4 discuss the positive duties within marriage that the spouses live together and provide financial support to each other. Chapters 5 and 6 consider the positive duties on a parent to maintain his or her child, and to participate in caring for (or sharing caring for) the child. However, there are negative obligations as well. For example, spouses may be said to have an obligation not to act in a way that the other cannot reasonably be expected to live with, for the purposes of current divorce law. Parents have a duty not to neglect or ill-treat their children. Such obligations can certainly be seen as manifestations of the function and duty to care and are worthy of discussion. They raise particular issues of scope, however, since the obligation not to abuse, for example, applies not only to spouses or parents: associated persons—indeed, anyone in close proximity to another—have a duty not to harm others, which can be upheld through principles of tort or criminal law. There is, it is true, an obligation on spouses—and only spouses—of fidelity, ie not to commit adultery. This is discussed in Chapters 3 and 4, but as an aspect of the obligations to cohabit and to maintain, rather than as a separate duty in itself. The reason for omitting it as a specific obligation is because discussion of adultery leads to discussion of the law of divorce, which relates to the termination of a marriage rather than the performance of duties within it.

53  M Maclean and J Eekelaar, The Parental Obligation (Oxford, Hart Publishing, 1997) 6. See also, L Ferguson, ‘Family, Social Inequalities, and the Persuasive Force of Interpersonal Obligation’ (2008) 22(1) International Journal of Law, Policy and the Family 61.

12  The Ties that Bind? For the purposes of this book, my interest instead is in those obligations where the duty and the remedy for its breach is (or perhaps was)54 identical. So, the duty of a husband to maintain his wife55 was enforced by ordering the husband to pay her maintenance. A carer of a child who prevents the non-resident parent from having contact with the child is ordered to permit the contact to take place. In other words, the breach of the duty is to be remedied by the enforcement of the duty itself, not by some other remedy, whereas a tortious act or non-performance of a contract would be remedied by financial compensation.56 C.  The Nature of Family Obligation Sarah Clark Miller argues that the duty of beneficence underpinning the ethic of care is an ‘imperfect’ duty because of its breadth: not specifying exactly which actions agents must perform to fulfil the duty and leaving agents with the job of judging whether or not the particular actions they contemplate performing are in accordance with the maxim the moral law prescribes. This is important because when moral agents exercise imperfect duties in particular situations, they are able to exhibit sensitivity as they reflect upon whether or not a specific action fits under the maxim associated with beneficence. The duty to care, therefore, allows for a wide variety of possible caring responses to need and can promote forms of caring that respond to agents as differently situated.57

This indeterminacy reflects the nature of the social norm of family obligation, as discussed in section IV.58 Equally, legal family obligations should not be regarded as absolute duties imposed by categorical rules: rather they should be characterised as ‘soft’ obligations. By this I mean that, first, the obligation may often be bargained away by agreement. Secondly, where this is not done, the application and extent of the duty are (outside the child support system) subject to the determination of the court, applying a broad discretion that may result in an applicant’s receiving nothing at all.

54 

Any remaining marital duty to cohabit is no longer directly enforceable: see ch 3. And now, vice versa: see ch 4. 56 Another way of putting this would be to say that the wife’s right to maintenance, or the non-resident parent’s or child’s right to contact, are ‘primary rights’ arising from the familial relationship, and the ‘secondary right’ to a remedy arising from non-performance of the maintenance or contact duty is identical to the performance of the primary right: see R ­ Chambers, ‘Integrating Property and Obligations’ in A Robertson (ed), The Law of ­Obligations: C ­ onnections and Boundaries (London, UCL Press, 2004) 139. 57  Clark Miller (n 21) 151. 58  J Finch and J Mason, Negotiating Family Responsibilities (Abingdon, Routledge, 1993). 55 

Legal Obligation 13 i.  Bargaining Over Obligations Private ordering, or the settlement by the parties of their claims against each other, has always been an important aspect of the application of family obligations. It perhaps grew naturally out of the bargaining between wealthy families over marriage settlements.59 When marriage was a matter of family decision-making rather than individual choices, and was strategically linked to the preservation or expansion of family wealth, the need to protect the interests both of family members and the family patrimony would require careful planning and negotiation.60 The parties could agree to outcomes that the law could not impose, particularly in relation to the care of children,61 although they would have to be careful to avoid challenging the ideological demands of the law. Thus, marital settlements developed into separation agreements, but had to stop short of either shifting the burden of support on to the state, or appearing to ‘promote’ the ending of marriages.62 In the current legal system, the pressure to settle emanates from the state’s unwillingness to fund either courts or lawyers to handle cases, as well as the parties’ own wish to limit their costs and preserve their privacy. This fits well with a discourse emphasising that (despite continuing financial inequality between the sexes) the parties to a marriage (or other adult intimate relationship) are equals and that the value of autonomy should be promoted.63 In this climate, pre-nuptial or other agreements may be expected to become more common, now that they have been recognised as effective to govern the parties’ post-divorce arrangements (subject to the requirement to meet need and thus reduce the exposure of the state to providing support) and have the potential to remove any obligation to ‘share’ assets.64 While most divorcing couples have little if any ‘surplus’ in wealth to share once needs have been met (if, indeed, they can be met), the ideological message of allowing such agreements is that the law considers ‘marriage in no

59  L Stone, Uncertain Unions (Oxford, Oxford University Press, 1992); L Stone, Broken Lives (Oxford, Oxford University Press, 1993). 60 The protection of ‘family’ money is not just a historical concern: see Granatino v ­Radmacher [2010] UKSC 42, [2011] 1 AC 534, where the spouses’ pre-nuptial agreement was intended to protect the wife’s wealth, which was all derived from her family. 61  Susan Maidment suggests that many women were able to take their children with them when a marriage broke down, despite the law firmly favouring the father: see S Maidment, Child Custody and Divorce: The Law in Social Context (London, Croom Helm, 1984) 154. See ch 6, section II. 62  N Lowe and G Douglas, Bromley’s Family Law, 11th edn (Oxford, Oxford University Press, 2015) 779–84, 851–62. 63  For a discussion and critique of the increasing emphasis in family law on contract, as a manifestation of autonomy, see A Diduck, ‘Autonomy and vulnerability in family law: the missing link’ in J Wallbank and J Herring (eds), Vulnerability, Care and Family Law ­(Abingdon, Routledge, 2014); A Barlow, ‘Solidarity, autonomy and equality: mixed messages for the family?’ [2015] Child and Family Law Quarterly 223. 64  Granatino v Radmacher [2010] UKSC 42, [2011] 1 AC 534.

14  The Ties that Bind? other light than a civil contract’, as Blackstone put it.65 One may expect, or at least hope, that protections will be put in place when ‘marital property agreements’ are legislated for,66 to ensure that some of the inequality of bargaining power between the parties is negated or controlled, but the whole point of such agreements will be to shelter one party’s wealth from the claims of the other.67 The question of what precisely is the scope of the financial ‘obligation’ upon a spouse on marriage will become even harder to answer than it already is, depending as it might upon the terms of the agreement the parties have individually made.68 Where there is no such agreement—which is likely for most spouses, who will continue to rely on whatever the state determines as the terms of the marital contract—divorcing parties generally reach a settlement over their claims rather than litigate. They may ‘bargain in the shadow of the law’69 so far as they (or their lawyers) are able to predict what a judge would order if the case went to court, but this is becoming increasingly difficult as more parties litigate in person with limited information or knowledge available to them. Even when legal aid was more widely available and parties were more likely to be represented, wives, especially, often made poor bargains, trading future uncertainties for current security, and this has not changed.70 When it comes to maintaining a child, the importance of bargaining has been similarly heightened by government policy. There has been a 180-degree turn in thinking about child support, from a firm imperative to use the state system in the 1990s, to desperate encouragement to avoid doing so today. As I discuss in Chapter 5, this is the result of many factors, from inefficiency in the operation of the system to the incompatibility of its guiding principles with social attitudes. ii.  The Discretionary Nature of Family Obligations Perhaps a key end result of the child support experiment was to affirm the view that the flexibility of the discretionary approach utilised in the family courts is superior to the rigidity of a rule-based system. But the breadth of

65  Sir W Blackstone, Commentaries on the Laws of England, 13th edn (London, A Strahan, 1800) vol 1, 433. 66 As proposed by the Law Commission, Marital Property, Needs and Agreements (Law Com No 343, 2014). 67  Granatino v Radmacher [2010] UKSC 42, [2011] 1 AC 534 at [137], per Baroness Hale. 68  See ch 4 and ch 8. 69 R Mnookin and L Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale LJ 950. 70 G Davis, S Cretney and J Collins, Simple Quarrels: Negotiating Money and Property Disputes on Divorce (Oxford, Oxford University Press, 1994); H Woodward with M Sefton, Pensions on Divorce: An Empirical Study (Cardiff, Cardiff Law School, 2014). See ch 4,­ section III.

Obligation as a Social Norm 15 the discretion applied to financial arrangements on divorce, for example, can render difficult the task of predicting what a spouse or parent is obliged to pay by way of property sharing or financial payments. Indeed, it cannot always be reliably predicted whether a party will be held to be under any obligation at all. In Wyatt v Vince,71 for example, the wife claimed financial relief some 20 years after the marriage was dissolved. The Court of Appeal struck out her claim as an abuse of process, but the Supreme Court’s reading of the relevant procedural rules led it to permit her to proceed with her application. The ruling did not deal with the substance of that claim, and Lord Wilson, who gave the judgment of the Court, suggested, without deciding, that the wife’s delay could be sufficient reason to rule it out.72 The husband therefore, at the point of the Court’s ruling, did not know whether he had any obligation to make provision for his ex-wife, still less how this might be quantified.73 This is an extreme case on the facts, but uncertainty of outcome is an inherent feature of a discretionary jurisdiction, particularly where no clear objectives for the jurisdiction have been laid down. The potential for different courts to order significantly different outcomes is inherent in such a system, and emphasises that it may not always be possible to assert that the law is imposing a clear obligation on a family member to support or otherwise care for another. IV.  OBLIGATION AS A SOCIAL NORM

However, empirical evidence suggests that such flexibility and indeterminacy may not necessarily be a weakness but rather a reflection of the contingent nature of obligation as it is felt and experienced by family members. While the discussion so far has focused on the nature of legal obligations between family members, the social context in which family law operates cannot be ignored in seeking to understand how it translates behaviour and emotion into legal mechanisms. The most significant body of evidence shedding light on how families view and perform their obligations is that of Janet Finch and Jennifer Mason.74 Although this did not focus on the nuclear family but was concerned with wider kin, and although it is now quite old, their findings are reflected in later research on the nuclear family, and are worth considering in some detail. 71 

Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228. ibid, [32]. 73  The parties later settled, the wife receiving a lump sum of £300,000 from the husband whose company was valued to be worth at least £57 million: Wyatt v Vince (No 2)(Settlement: Publicity) [2016] EWHC 1368 (Fam). 74  Finch and Mason (n 58). Janet Finch had provided a theoretical outline of their position in J Finch, Family Obligations and Social Change (Cambridge, Polity Press, 1989). 72 

16  The Ties that Bind? The researchers carried out a survey and in-depth interviews with a range of family members, asking them if they felt that there was a ‘proper thing to do’ when faced with a situation calling upon them (or fictional subjects) to respond to a request for help from another family member. The key finding was that people in kin relationships did not feel that there was a widely acknowledged set of ‘rules of obligation’ to govern how to behave; rather, their actions were guided by a sense of obligation: ‘For most people responsibilities towards relatives were not fixed. They are far more fluid than the notion of “rules of obligation” implies … the concept of “guidelines” seems to fit our data much better than “rules”.’75 Finch and Mason characterised these guidelines as ‘procedural’, meaning that ‘they indicate how to work out whether it is appropriate to offer assistance to a particular relative, rather than ones which point to what you should do in concrete terms’.76 But from their description of them, it would be more accurate to see them as providing a set of criteria to apply to help determine what to do. For example, they found that it was most likely that people would ‘endorse family responsibilities in “deserving” cases where the need is presented as entirely legitimate and the person who needs assistance is not at fault in any way’. Secondly, they found that ‘people were more likely to accord responsibility to relatives when the assistance needed is fairly limited—in terms of time, effort or skill’. Thirdly, responsibilities between parents and their adult children were ‘accorded a special status’, coming closest to having fixed rule-based responsibilities associated with them; but even there, responsibilities were not seen as ‘automatic or unlimited’.77 The use of such ‘guidelines’ is reminiscent of the ‘checklist’ approach taken in modern family law statutes to structure the discretion exercised by courts in determining when and how to exercise the power to order financial payments between spouses and from parents to children, and when making orders governing children’s upbringing.78 These checklists reflect the kinds of factors likely to be regarded as morally relevant by parties negotiating to reach settlements between themselves. They help explain opposition to the rigidity of the child support system’s rule-based formula and to other formulaic approaches to assessing financial remedies after relationship breakdown. Even where the law takes the discretionary approach, however, the factors it recognises may exclude or limit issues regarded as important by one or other of the parties themselves. For example, non-resident parents may be less likely to pay maintenance where they are denied contact with

75 

Finch and Mason (n 58), 166.

76 ibid. 77 

ibid, 18–19. See also Finch (n 74) 154–77. eg, Matrimonial Causes Act 1973, s 25(2); Children Act 1989, s 1(3). These are discussed in chs 4 and 6. 78 See,

Obligation as a Social Norm 17 their children.79 Or spouses may regard issues such as matrimonial fault, the ‘stellar contribution’ of the breadwinner or the source of the wealth as important to them.80 The point is not to argue that more such factors should, or should not, be added to these checklists (a court has to take account of ‘all the circumstances’ in any case), but that they reflect issues of significance to the parties, which can be argued about—and sometimes at least, resolved—through the process of negotiation, which Finch and Mason identify as the second key finding from their research.81 Finch and Mason do not use the term ‘negotiation’ simply in the sense of private ordering—reaching agreement over a dispute (although they do include such forms of ‘explicit’ negotiation). Rather, they see it more as a process, taking place over a period of time and as part of a family’s history and context. They argue that through both explicit and implicit negotiation, applying the guidelines they recognise as normatively important within their family, kin build up ‘developing commitments’ to each other and ‘become committed to accepting certain sorts of responsibilities, to particular individuals, over time’.82 The notion that obligation flows from the history of the relationship and the nature of the parties’ behaviour towards one another is very much in line with Regan’s argument that obligations between spouses grow ‘from the accretion of experience in a relationship of interdependence’; they ‘make a host of subtle contributions and sacrifices in reliance on continuation of a shared life together’.83 It is also confirmed by Maclean and Eekelaar’s study of the obligation felt by married and cohabiting couples. They found that while for some married people, marriage provides an ‘external’ source of their obligations to each other, other respondents (both married and unmarried) focused more on their obligation accruing as their relationship developed, or deriving from independent ethical values, such as the golden rule to ‘do as you would be done by’.84 Such research is persuasive in suggesting that the underlying aspects of the family and social context should be taken into account in attempting to understand why the legal obligation might often be difficult to enforce.

79 N Wikeley, Child Support: Law and Policy (Oxford, Hart Publishing, 2006) 19, 484, 485, drawing on various studies in both the UK and other jurisdictions; Maclean and Eekelaar (n 53) 142. 80  See the discussion in Lowe and Douglas (n 62) 882–86, 897–903. 81  Finch and Mason (n 58) 60. 82  ibid, 61–62. 83  Regan (n 39) 26, 190. 84  M Maclean and J Eekelaar, ‘Marriage and the Moral Bases of Personal Relationships’ (2004) 31 Journal of Law and Society 510.

18  The Ties that Bind? V.  THE CONCEPT OF COMMITMENT

Finch and Mason described obligation between kin as a form of ‘developing commitments’ over time, and it was noted earlier that the meaning of ‘commitment’ has expanded from a narrow sense of some kind of financial or perhaps moral burden, to including dedication or allegiance to a relationship or life plan, often marked by an explicit promise to ‘commit’ to this. The essence of modern commitment seems to be that, in contrast to obligation, it is taken on voluntarily rather than imposed.85 The shift in meaning reflects the changes in social attitudes to family relationships, towards a focus on the parties’ individual autonomy and emotional self-fulfilment, explored in Chapter 2. A.  Commitment in Legal Discourse i.  Commitment as Burden and Obligation The legal language also reflects the popular expansion of meaning. The old use of the term,86 as deployed in the context of determining arrangements during or after a marriage, was as a financial burden, obligation or debt that binds the payer. For example, in Horniman v Horniman,87 the husband was described as ‘a man of varied resources set off in some measure by various large commitments’. Often, commitments, in the sense of financial commitments which are taken to be binding and therefore to limit the person’s freedom of action, arise because of the forming of a new relationship. In Smethurst v Smethurst,88 the husband, a postman, was now married for the fourth time and had a step-child.89 He was subject to maintenance orders in favour of his second and third wives and three children of the second marriage. He successfully obtained a reduction in the maintenance payable to the third wife and children on the ‘common sense’ ground that his financial ‘commitments’ simply precluded him from paying at the level originally ordered. Commitments may also be in respect of a business or other financial enterprise. For example, at the other end of the income scale, in C ­ ooper-Hohn v Hohn,90 the husband’s business empire

85  See the multiple definitions given by the Oxford English Dictionary at www.oed.com/ view/Entry/37160#eid1166862080. 86  Other than when dealing with commitment—or committal—to prison for non-payment of maintenance or other non-compliance with a court order. 87  Horniman v Horniman [1933] P 95, 103. See ch 4, section III.B. 88  Smethurst v Smethurst [1978] Fam 52. 89  Interestingly, Arnold J (ibid, 60) stressed that this child’s father had died so that she was an ‘orphan’ (despite still having a mother), with no other source of support. 90  Cooper-Hohn v Hohn [2014] EWHC 4122 (Fam), [2015] 1 FLR 745.

The Concept of Commitment 19 had generated wealth during the marriage of around US$ 6 billion, of which US$ 4.5 ­billion had been channelled into a charitable foundation. Both spouses were regarded as having continuing ‘commitments’ to the business and/or the foundation as a result of their endeavours during the marriage. As Cooper-Hohn v Hohn shows, as well as financial burdens, ‘commitment’ can take the form of devoting time or effort to an activity. Husbands traditionally have been expected to give their energy to work or business, which might therefore legitimately limit the time they can spend with the children, while a wife’s childcare and domestic ‘commitments’ may constrain her ability to engage in remunerative employment. In Lambert v Lambert,91 for example, the husband, a very successful entrepreneur, had a ‘commitment’ to his company while the wife ‘claimed for herself … a committed contribution as wife and mother’. Counsel for Mrs Lambert stressed the ‘extent to which the homemaker frequently sacrifices her potential to generate assets by undertaking the domestic commitment to husband and children’.92 The idea that one ‘must’ spend time or effort, or pay one’s ‘dues’, reflects the moral element implicit in the essence of commitment as burden. In ­Nicklin v Nicklin,93 both spouses had had disabled children in subsequent relationships, creating ‘emotional as well as financial commitments’ for each of them, which inevitably ‘stretched’ their resources. ‘Having commitments’ in respect of one’s family and one’s children has come to be seen as a sign of moral worth and appropriate behaviour on the part of disputing parents.94 ii.  Commitment as Promise and Dedication When commitment is used as a verb or adjective, however, as in ‘committing to’, or ‘being committed to’ something, it conveys the idea that the person is making a conscious choice or promise in respect of the activity or relationship. In Miller v Miller; McFarlane v McFarlane, Lord Nicholls regarded the sharing principle applicable to post-divorce property allocation as derived from the fact that the ‘parties commit themselves to sharing their lives’.95 In Granatino v Radmacher, Lady Hale noted the ‘mutual commitment which each spouse makes to support the other’ while the marriage is­

91 

Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, CA at [5], [34]. ibid, [45]. 93  Nicklin v Nicklin (CA, 15 May 1991), per Butler-Sloss LJ. 94  See, eg, McCartney v Mills McCartney [2008] EWHC 401 (Fam), [2008] 1 FLR 707; AH v PH (Scandinavian Marriage Settlement) [2013] EWHC 3873 (Fam), [2014] 2 FLR 251: wife’s earning capacity limited by childcare commitments; Daubney v Daubney [1976] Fam 267, CA; Nicklin v Nicklin (CA, 15 May 1991): husband’s commitments to second family. 95  Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 at [16]. 92 

20  The Ties that Bind? continuing, and afterwards, where necessary to satisfy requirements which arose because of or during the marriage.96 A major development in legal thinking in relation to intimate relationships since the 1980s has been an acceptance that, in lieu of the express promise of commitment evidenced through entry into marriage, commitment, in the form of emotional and psychological dedication to the partner or relationship, can be implied by one’s actions.97 This appears to have begun in the cases concerned expressly with cohabitants and the rights that might arise from their cohabiting relationship. The question for the courts at a time when cohabitation was relatively unusual was to consider how far the property law cases that had concerned married couples should be applied in the same way to cohabitants. For example, in Bernard v Josephs, which concerned a jointly-owned property where the man had paid a larger share of the mortgage than the woman, Griffiths LJ noted: There are many reasons why a man and a woman may decide to live together without marrying, and one of them is that each values his independence and does not wish to make the commitment of marriage … The judge must look most carefully at the nature of the relationship, and only if satisfied that it was intended to involve the same degree of commitment as marriage will it be legitimate to regard them as no different from a married couple.98

In the divorce context, as pre-marital cohabitation became the norm, so the question arose of whether provision for a divorced spouse should be limited by the formal duration of the marriage, or should reflect the ‘real’ length of the parties’ relationship. The courts initially rejected the latter approach, considering periods of cohabitation and marriage as different, because, as Eveleigh LJ put it in 1981 in Foley v Foley, ‘During the period of cohabitation the parties were free to come and go as they pleased.’99 But by 2003, attitudes had changed. In GW v RW (Financial Provision: Departure From Equality), the judge, Nicholas Mostyn QC, firmly stated: [T]he law in this area is not moribund but must move to reflect changing social values. I cannot imagine anyone nowadays seriously stigmatising pre-marital cohabitation as ‘living in sin’ or lacking the quality of emotional commitment assumed in marriage. Thus, in my judgment, where a relationship moves seamlessly from cohabitation to marriage without any major alteration in the way the couple live, it is unreal and artificial to treat the periods differently.100  

96 

Granatino v Radmacher [2010] UKSC 42, [2011] 1 AC 534 at [187]. the same way as MacCormick’s promise-incurring and act-incurring obligations, noted in section III.A. 98  Bernard v Josephs [1982] Ch 391, 402, CA. 99  Foley v Foley [1981] Fam 160, 167. 100  GW v RW (Financial Provision: Departure from Equality) [2003] 2 FLR 108, [33]. 97 In

The Concept of Commitment 21 In this formulation, ‘commitment’ becomes a defining characteristic of the relationship that, in turn, supplies the qualification and justification for equal treatment with the formal marital tie.101 To similar effect, in Miller v Miller in the Court of Appeal, Thorpe LJ agreed with the trial judge that commitment could be used to offset the short duration of the marriage through ‘a more sophisticated evaluation of the extent of the wife’s commitment to and investment in the marriage emotionally and psychologically’.102 iii.  Commitment as ‘Caring About’ a Child In the context of parent/child relationships particularly, commitment is again often used in the sense of emotional dedication, and can be seen as another way of conceptualising the sentiment of ‘caring about’ another. Thus, as well as being a driven entrepreneur, the husband in Lambert v Lambert was described as being a ‘committed but frequently absent husband and father’.103 Presumably, his commitment in the sense of ‘caring about’ his family was manifested in the lifestyle his wealth was able to provide, rather than by his actual presence and involvement in their daily lives. Black J has commented that ‘parental responsibility is not a reward for the father for his commitment to and involvement with [the child] but an order which would only be made in [the child’s] best interests’.104 Nonetheless, the ‘discipline’ to be applied by a court in weighing whether to make an order granting an unmarried father parental responsibility (in the admittedly rare case nowadays where he does not have it through entry on the birth register), makes ‘the degree of commitment’ he has shown towards the child a key factor.105 Indeed, a father’s persistence in seeking contact with the child, who had only ever lived with his mother and step-father, was taken to demonstrate both his commitment and, thereby, his attachment to the child.106 This form of commitment is regarded as showing the dedication of a ­parent to forming, or sustaining, a relationship, and thus his or her suitability to act as a ‘parent’. Not surprisingly, it is also therefore used as a marker in disputes over shared care and contact. In Re S (Contact: Promoting­

101  Although perhaps inevitably, ‘commitment’ (or its lack) may then become a matter of dispute between the parties: see, eg, Joy v Joy-Morancho (No 3) [2015] EWHC 2507 (Fam), [2015] 1 FLR 815, [15], [84]: spouses disputing degree of ‘commitment’ prior to engagement. 102  Miller v Miller [2005] EWCA Civ 984, [2006] 1 FLR 151 at [33]. The House of Lords upheld the award on different grounds. 103  Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, CA at [10]. 104  Re M (handicapped child: parental responsibility) [2001] 3 FCR 454 at 479b. 105  Re H (Minors)(Local Authority: Parental Rights)(No 3) [1991] Fam 151, 158. 106  Re G (Parental Responsibility Order) [2006] EWCA Civ 745, [2006] 2 FLR 1092. In fact parental responsibility was refused because it was not regarded as in the child’s best interests.

22  The Ties that Bind? Relationship with Absent Parent),107 for example, despite a father’s having been ‘belligerent and insensitive’, he had throughout the history of the proceedings ‘been committed and steadfast’ in his pursuit of contact with the child, and this demonstrated that he was ‘genuinely motivated’. The mother’s fear of his domestic abuse was not therefore sufficient to justify the curtailment of direct contact with the child. Sometimes, however, a parent can take this too far: in Re H (A Minor)(Shared Residence),108 the father was regarded as displaying ‘excessive’ and ‘obsessive’ commitment towards the 14-year-old child. B.  Commitment in Family Law Policy A similar trend towards the understanding and use of the term ‘commitment’ as a promise, or dedication to a particular relationship or plan, can be seen in policy documents and legislation. For example, in the 1990s in England and Wales, the Conservative Government legislated to reform family law remedies for protection from domestic abuse. In what was probably the first statutory use of the term, it sought to uphold the institution of marriage by requiring a court considering making an order in favour of a cohabitant who did not hold rights in the family home to ‘have regard to the fact that [the parties] have not given each other the commitment involved in marriage’.109 The requirement was later toned down, so as simply to require the court to consider ‘the level of commitment involved’ in the parties’ relationship.110 Commitment, in the sense of promise or dedication, is frequently used in political discourse, where parties and governments make manifesto ‘commitments’ and assert that they are ‘committed to’ particular reforms. They have carried this meaning over into their proposals themselves. The Labour Government in the late 1990s, for example, proposed that requiring couples to give longer notice (15 days rather than one) of their intention to marry would ‘help couples to consider the importance of the step they are taking and to ensure they understand the implications of marriage’, and give them ‘more time to reflect on the nature of the commitment they are entering into’.111 A more personalised civil wedding ceremony was also seen as

107  Re S (Contact: Promoting Relationship with Absent Parent) [2004] EWCA Civ 18, [2004] 1 FLR 1279. 108  Re H (A Minor)(Shared Residence) [1994] 1 FLR 717, CA. 109  Family Law Act 1996, s 41. 110  Family Law Act 1996, s 36(6)(e). 111  Home Office, Supporting families: a consultation document (London, Stationery Office, 1998) para 4.27.

The Concept of Commitment 23 allowing couples to celebrate their ‘commitment’ to each other,112 while baby-naming ceremonies were seen as providing the same opportunity to parents ‘to show publicly their long-term commitment to their children’.113 In such usage, the emotional and psychological dimensions of commitment are allied to a moral responsibilisation of the individual. Thus, in its first attempt at child support reform, the Labour Government also laid emphasis upon the importance of the emotional commitment of parents towards their children as being conducive to children’s welfare. It confidently asserted that ‘children do best when they have two positive and committed parents’,114 and seems to have equated paying child support with displaying such commitment. At the same time, this commitment, in the form of dedication to a child, bestows moral value on the parent and therefore deserves recognition. It was accordingly important to revise the approach to child support so as to treat children from first and second relationships more equally: ‘The new formula [for assessing child support] recognises that some fathers have a commitment to children in a second family. So it is more even-handed towards first and second families.’115 C.  Commitment as a Social Concept i.  Commitment as Dedication These uses of the term ‘commitment’ are not the products of consideration, or reflection, about the meaning they convey. They are used alongside the more traditional sense of commitment as a burden or duty,116 and are rarely defined or explained in the legal or policy literature.117 However, the concept itself has been the subject of greater scrutiny in sociological ­enquiries.118 Anthony Giddens, for example, has argued that intimacy has 112  ibid, para 4.28. For the meaning attached to ‘commitment ceremonies’ by same-sex partners before the introduction of civil partnership or same-sex marriage, see B Shipman and C Smart, ‘“It’s Made a Huge Difference”: Recognition, Rights and the Personal Significance of Civil Partnership’ (2007) 12 Sociological Research Online 31 January, also discussed in Smart (n 2) 67–77. 113  Home Office (n 111) para 4.39. 114 DSS, Children First: a new approach to child support, Cm 3992 (London, Stationery Office, 1998) 2. 115  ibid, 27, para 26. 116  In Home Office (n 111), for example, the Government also referred to people having family commitments and work commitments: paras 3.3, 3.5. 117  See, eg, the report from the Centre for Social Justice, Fully Committed? How a Government could reverse family breakdown (London, CSJ, 2014), which at no point explains what it means by ‘committed’ relationships. 118  But note Howard Becker’s criticism in 1960 that in sociological literature, ‘it has been treated as a primitive concept, introduced where the need is felt without explanation or examination of its character or credentials’: H Becker, ‘Notes on the Concept of Commitment’ (1960) 66 American Journal of Sociology 32.

24  The Ties that Bind? been transformed with the rise of ‘pure relationships’ in which ‘external criteria have become dissolved: the relationship exists solely for whatever rewards that relationship as such can deliver’.119 In these relationships, commitment—‘a particular species of trust’—to the relationship as well as to the partner is key: Commitment, within the pure relationship, is essentially what replaces the external anchors that close personal connections used to have in pre-modern situations. … What is the ‘committed person’ in the context of a close relationship? She or he is someone who, recognising the tensions intrinsic to a relationship of the modern form, is nevertheless willing to take a chance on it, at least in the medium term—and who accepts that the only rewards will be those inherent in the relationship itself … A person only becomes committed to another when, for whatever reason, she or he decides to be so …120

We can see the similarity to Finch and Mason’s emphasis on personally negotiated commitments as the best way of understanding obligations between kin. We can also see the contrast with the understanding of legal ‘obligations’ (even those that are ‘soft’). Obligations are imposed upon the person whether he or she wills them or not. Commitment, as used in the modern legislation and case law already discussed, and as understood in the studies referred to, implies an active decision made by the individual (or couple). Empirical studies reflect this. Jane Lewis found that for both married and cohabiting couples, making a commitment to each other was central to what they understood by a relationship, and the ‘whole idea of commitment [was] articulated in terms of something that comes from within rather than being imposed from without’.121 However, for couples who married, marriage was important in making public that private commitment to each other. There may be few, if any, other differences between spouses and cohabitants in the nature and level of commitment that they express for one another: age, religion or the presence of children may be more important factors than marital status in this regard.122 Like Giddens, Lewis argues that the erosion of prescriptive norms imposed by family law, and of the male breadwinner model of family organisation,123 has made commitment something internal to the couple, which has to be negotiated. Regan has attached moral weight to this ‘internal stance’, as he calls it, by arguing that it enables marriage to appear ‘as a universe of shared

119 A Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (­Cambridge, Polity Press, 1991) 6. See also A Giddens, The Transformation of Intimacy: ­Sexuality, Love and Eroticism in Modern Societies (Cambridge, Polity Press, 1992) 58. 120 Giddens, Modernity and Self-Identity (n 119) 92–93. 121 J Lewis, The End of Marriage?: Individualism and Intimate Relations (Cheltenham, Edward Elgar, 2001) 127, 123. See also Maclean and Eekelaar (n 84). 122  See Lewis (n 121) 135–45; Maclean and Eekelaar (n 84). 123  Discussed in ch 2, section II.F.

The Concept of Commitment 25 meaning that serves as the taken-for-granted background for individual conduct … [enabling lives to be lived] in intimate concert, rather than mere parallel association’. By contrast, he suggests that the kind of cool, pure relationship identified by Giddens is marked by an ‘external’ stance in which the partners keep a degree of detachment from each other so that they can evaluate whether it is worth staying in the relationship.124 There is some empirical support for this kind of distinction, although it may not divide in the way that Regan suggests. Carol Smart and Pippa Stevens, in their study of 40 separated cohabitants, posited that the relationships they studied were situated along a ‘continuum’ of commitment, from ‘mutual’ to ‘contingent’. Those at the mutual end were relationships in which the couples reflected upon the reasons for entering a relationship, monitored its progress, and sought to identify and manage future changes, much along the lines of couples in Giddens’ pure relationships. Those at the contingent end were described as based on taking a chance when faced with significant life events, with expectations often left unspoken. The authors commented, ‘These relationships are not commitment-free but it seems that at least one partner hopes that commitment will start or will grow in the future or as a consequence of cohabitation, childbirth or personal change/ development.’125 While the ‘mutual commitment’ end of Smart and Stevens’ continuum therefore looks active, joint and consciously undertaken—much like a marriage—the ‘contingent’ end looks much more unplanned and unspoken: indeed, it is hard to see what is ‘committed’ about it. In their study of cohabitants’ attitudes to their relationship and the potential legal consequences of not marrying, Anne Barlow and Janet Smithson refined this typology into four groups: Ideologues, Romantics, Pragmatists, and Uneven couples.126 The Ideologues were in ‘long term, committed relationships, but one or both partners will have an ideological objection to marriage’. The Romantics intended to marry one day, and ‘saw marriage as a very serious commitment, not to be undertaken in haste’. The Pragmatists ‘took a functional view and so were making decisions about whether to marry or cohabit on legal or financial grounds’. Barlow and Smithson saw all three categories as examples of mutual commitment to the relationship. By contrast, their ‘Uneven couples’ were composed of one partner who wanted to marry and another who did not, or involved parties who ‘were able to separate out different levels of commitment, indicating that they were emotionally committed but that did not mean they should be financially committed’, or ‘where one is more committed to the r­ elationship

124 

Regan (n 39) 5. Smart and P Stevens, Cohabitation Breakdown (York, Joseph Rowntree Foundation, 2000) 24. 126  A Barlow and J Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ [2010] Child and Family Law Quarterly 328, 335. 125  C

26  The Ties that Bind? than the other, leaving one in a vulnerable position’.127 The meaning of commitment used here, for all four types, is the modern, ‘dedication’ form of commitment. ii.  Commitment as Burden However, Finch and Mason construe commitment in a rather different way. For them, although commitments are ‘created’ by negotiation, rather than ‘ascribed’ by fixed norms, they are ‘consolidated over time’, because it ‘becomes too expensive for people to withdraw from them’.128 They use the term ‘commitment’ interchangeably with obligation (and responsibility) to imply something that becomes a burden, even though it does not start out as such. A commitment, in this sense, is something from which one cannot withdraw. This sense of commitment as a constraint on a person’s freedom of action clearly overlaps with the idea of obligation as being imposed upon someone: the difference is that a commitment was originally assumed by an act of conscious will (however grudgingly). iii.  Personal, Moral and Structural Commitment More light can be shed on this multiplicity of meanings by considering insights into commitment to be gleaned from the social psychology literature.129 Contrary to Hart’s understanding of the nature of legal obligation, what one feels is key to the notion of commitment in social psychology, where researchers have sought to explain why people may or may not stay in relationships. Scott Stanley and Howard Markman,130 for example, identify two key dimensions of commitment: dedication to something (or someone) and constraint from withdrawing. They define these two features as personal dedication: ‘the desire of an individual to maintain or improve the quality of his relationship for the joint benefit of the participants’ and constraint commitment: ‘the forces that constrain individuals to maintain relationships regardless of their personal dedication to them’.131 It can be seen that the former fits the view of commitment reflected in English law of a volitional assumption of obligation bound up in the relationship, while the latter reflects Finch and Mason’s concept of a commitment from which

127 

ibid, 341, 335. Finch and Mason (n 58) 96, 94. 129  See the discussion by Lewis (n 121) 125–26; and A Barlow et al, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford, Hart Publishing, 2005) 60. 130  S Stanley and H Markman, ‘Assessing Commitment in Personal Relationships’ (1992) 54 Journal of Marriage and Family 595. 131  ibid, 595–96. 128 

The Concept of Commitment 27 it is too costly to withdraw. This dual understanding of the dimensions of commitment is helpful in explaining how the concept is used—we ‘commit to’ and ‘make commitments’, and we then ‘have’ commitments that bind us. Stanley and Markman drew on previous work by Michael Johnson, which distinguished three separate strands to commitment in personal relationships: personal, moral and structural.132 Personal commitment is the extent to which the person wishes to stay in the relationship, affected by attraction to the person, attraction to the relationship itself, and its importance to his or her own identity. It is the form of commitment recognised by Giddens in the pure relationship and the sense of commitment as dedication or allegiance already considered. Moral commitment is ‘the sense that one is morally obligated to continue a relationship’ and is a function of three components: the values attached to the morality of dissolving the relationship, the personal moral obligation felt to the other person and one’s general moral consistency of behaviour. This appears to be primarily a form of personal commitment based on one’s internal moral code, although this code will of course be shaped by social, cultural and religious norms. ­Structural commitment is the sense of constraint or the perception of barriers to leaving the relationship. Johnson argues that structural commitment is not perceived as significant so long as personal or moral commitment remain high. This makes sense—couples in happy relationships do not feel trapped in them. But where this is not the case, the factors outlined by ­Stanley and Markman become significant. Later researchers summarised this as follows: ‘spouses remain married because they want to (Personal Commitment), because they ought to (Moral Commitment), or because they have to (­ Structural Commitment)’.133 This elucidation of the concept of commitment is helpful in understanding the way it is experienced by family members. The voluntary entry into a relationship through marriage, or a conscious decision to cohabit or to have a child, indicates the personal commitment (or dedication) made by the individual (and ideally the other partner or parent). It entails the assumption of both rights and obligations to the other, which are determined by the particular legal regime. This may be underscored by a sense of moral obligation both to the other family member(s) and to the continuation of the relationship. Legal barriers to abandoning the relationship may play a part in its continuation when personal and moral commitment become weakened, but history suggests that other constraints may be more significant. For women (and children) there may be no economic alternative to

132  Subsequently tested empirically: see M Johnson et al, ‘The Tripartite Nature of Marital Commitment: Personal, Moral and Structural Reasons to Stay Married’ (1999) 61 Journal of Marriage and Family 160, 161. 133  JM Adams and WH Jones, ‘Conceptualization of Marital Commitment: an Integrative Analysis’ (1997) 72 Journal of Personality and Social Psychology 1177 at 1180.

28  The Ties that Bind? r­ emaining in the relationship; depending upon time and culture, there may be considerable social pressures that make it difficult to leave; and the duration of the relationship may impel action in either direction. It may be hard to walk away from the investments made; but equally, it may be felt that these have yielded up as much benefit as they are likely to produce. VI.  THE RATIONALE FOR OBLIGATIONS UPON FAMILY MEMBERS

The last question to consider in this chapter is the one raised earlier: Why should the general duty of beneficence, translated into the ethic of care, fall to individual members of a family (however defined) rather than the state? Linked to this, since a right is the correlative of an obligation, why is there a right on the part of one family member to be the beneficiary of the duty to care that is placed upon another? As noted in section II, Fineman indeed argues that since the care-giver’s labour benefits society as a whole, the important beneficiary of care work is the state, rather than the cared-for person. It follows that she considers that the primary liability to pay for that benefit lies with the state, rather than with the family: ‘Caretakers should have the … right to have their societypreserving labor supported and facilitated. Provision of the means for their task should be considered the responsibility of the collective society.’134 Similarly, Lucinda Ferguson argues that this follows because the deficit suffered by the carer is structural.135 Such an argument means, of course, that recognition of the obligations arising from care must go far beyond the boundaries of family law, encompassing employment law, social care, tax and benefits, and so on. But historically, and in current British society, responsibility for taking care of people has been allocated first to the family, and only as a fall-back to the state.136 The appeal to collective state responsibility for the dependency created by caring appears especially utopian in the context of economic austerity in a neo-liberal world. As Herring points out, the cost to the state of meeting the social debt of care in full would be enormous.137 Until the will and the means are found for shifting the debt, 134 

Fineman (n 3) 49. Ferguson (n 53). 136  See chs 4 and 5. Other states may strike the balance elsewhere: see Bradley’s discussion of Scandinavian family policy (n 33); and for the notion of ‘family solidarity’ implying an obligation on wider kin to provide support, see ch 7, section I and ch 8, section IV.C. For the argument that there is an additional obligation owed by parents towards each other to relieve parenthood-generated costs, because of their shared responsibility to care for their child, see A Blecher-Prigat, ‘The Costs of Raising Children: Toward a Theory of Financial Obligations between Co-Parents’ (2012) 13 Theoretical Inquiries in Law 179. For the view that it is unfair for one parent to ‘freeload’ while the other assumes all or the major part of the burden of caring, see M Weiner, ‘Caregiver payments and the obligation to give care or share’ (2014) 59 Villanova Law Review 135. 137  Herring (n 11) 222. 135 

The Rationale for Obligations Upon Family Members 29 the family will remain the primary source of care, but can this be justified on the basis of more than force of circumstances? A. Causation It has been argued by Eekelaar, amongst others, that the moral obligation to maintain (and care for) a child does not derive from the biological (or legal) parental link in itself. Rather, since the community as a whole has a duty to alleviate need and to promote human flourishing, it is simply the most socially convenient arrangement to delegate that duty to parents: It coincides with the wishes and instincts of most parents and will usually be well performed; it is linked to a bonding process which can be of great importance for the child’s sense of identity; it allows the costs of childrearing to accrue incrementally, and marginally, to the costs of an adult household, and is therefore economically efficient.138

Nick Wikeley adopts a similar view, arguing that the child has a fundamental human right to a level of child support meeting his or her essential needs, which gives rise to a duty on both society and the child’s parents, the balance of contributions between them reflecting contemporary political values.139 Scott Altman has also argued that a mere causal link between parent and child does not provide an adequate basis for the attachment of obligation.140 But in so far as he recognises that child support costs could be shared between the parent(s) and the state, he appears to accept that causation is not morally irrelevant. I suggest, however, that the child has fundamental needs that have to be met urgently and fully from the moment he or she is born. Willingly engaging in behaviour that runs the risk of creating a child, or failing to terminate a pregnancy that will result in the birth of a child, who will inevitably be vulnerable and dependent, seems a valid moral basis for imposing the prior obligation to ‘take care of’ that child in the sense used by Tronto on the child’s progenitors. This means that the parent can either provide financial support, arrange for the child’s care to be undertaken by someone else if she or he does not wish to provide it, or, of course, care for the child her or himself. As Marsha Garrison argues: The risks that children’s dependence impose on both individuals and communities necessitate the identification of responsible caregivers, and parents are the obvious

138 

Eekelaar (n 25) 352. Wikeley (n 79) 36. 140  S Altman, ‘A Theory of Child Support’ (2003) 17 International Journal of Law, Policy and the Family 173, 176. 139 

30  The Ties that Bind? candidates because they—and they alone—caused the state of dependency that mandates care-giving.141

B.  Mutual Commitment In the context of adult relationships, the position is more complex. The mutual ‘personal’ commitment epitomised by marriage entails both the entry into a contract and the giving of promises. If one sees marriage—as adopting an ethic of care approach would imply—as in essence a contract for taking care of each other, then doing so, at least in the form of financial support to meet needs arising during the marriage, and to cover any loss consequent upon its breakdown, seems a sensible and logical term to include within the contract.142 But for cohabitants and those in other ‘family’ close relationships, it is harder to demonstrate such mutual commitment and harder to determine the terms of engagement into which the parties have entered. Of course, where it is possible to do this, the same basis of consent and promise seems to justify the recognition of a set of moral, and potentially legal,143 reciprocal obligations and rights. Going further than this, some scholars argue that it is the relationship itself that gives rise to mutual obligations. Diane Jeske, for example, suggests that family obligations are owed because, but only when, the relationship is one of mutual intimacy.144 Similarly, Regan argues that interdependence, rather than consent to marry, creates the obligation between intimate partners.145 But this does not seem to resolve the ­questions of why only certain relationships would be deemed to show the necessary interdependence, nor how the necessary degree of closeness or intimacy could be established.146

141 M Garrison, ‘Is consent necessary? An evaluation of the emerging law of cohabitant obligation’ (2004–05) 52 UCLA Law Review 815, 828. Blecher-Prigat’s argument that parents owe each other a duty of support qua parents is similarly based on causation, although she would reduce the extent of the obligation where one parent’s parenthood was non-consensual: Blecher-Prigat (n 136) 206–07. When adults voluntarily assume the care of a child through adoption or fostering, the basis of the obligation is their ‘personal commitment’ to do so. 142  Cf Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR 1124 at [25]–[31]. Note that the term of the contract is concerned with remedying losses and meeting needs consequential upon the relationship, not sharing the marital acquest. Whether marriage should imply such sharing depends upon the view taken of ‘autonomy’, on which see S Thompson, Prenuptial agreements and the presumption of free choice: Issues of power in theory and practice (Oxford, Hart Publishing, 2015). See further, chs 3, 4 and 8. 143  See the discussion in ch 7, section II.B. 144 D Jeske, ‘Families, Friends, and Special Obligations’ (1998) 28 Canadian Journal of Philosophy 527. 145  Regan (n 39) 111, 167. 146  See ch 7, section III.B for discussion of the Australian use of ‘indicia’ to identify eligible caring relationships.

The Rationale for Obligations Upon Family Members 31 C.  Relationship-generated Loss and Gain Where the evidence of such mutuality cannot be provided, other justifications need to be sought for the imposition of legal consequences flowing from the parties’ relationship. We saw earlier that Barlow and Smithson identified ‘Uneven couples’ whose relationship did not involve mutual agreement as to what the relationship meant (including in legal terms) for each partner.147 It is hard to justify why a situation where one person ‘cares about’ or even ‘for’ another but the other does not reciprocate (to the same degree) should give rise to legal rights any more than other examples of unrequited love. Barlow and Smithson argue that the ‘vulnerability’ of the financially weaker party justifies legal protection, but they do not explain why being financially or emotionally ‘vulnerable’ creates an obligation on the other to relieve that vulnerability. It seems implicit in their approach that the care undertaken by the weaker party creates that vulnerability, which provides the missing justification. But again, this needs to be demonstrated. Many people may perform acts of care for others without either of them expecting that this should give rise to some kind of legal claim. A person might do the weekly shopping for an elderly neighbour; a friend might move in temporarily to care for someone recovering from illness. Such activities may have a commercial value but it does not follow that they should be compensable, nor does it follow that it would be appropriate to impose a legal, as distinct from a moral, obligation to care on the neighbour or friend. Finch and Mason’s work suggests that, even more than in the case of the kin relationships that they were studying, the imposition of a moral or social obligation in such cases would depend on the prior history between the parties.148 However, while adults do not necessarily need to perform care work for each other (think of flat-mates or couples ‘living apart together’— those who are in a relationship but not living with their partner), entering into an intimate relationship (including where it has been drifted into in a rather ‘contingent’ way), and particularly having a child, generally entails the undertaking of forms of care. As Fineman shows, this may create a derivative dependency or vulnerability, because decisions taken and actions driven by such care may have long-term adverse consequences for the caretaker.149 Similarly, Garrison, while arguing against treating cohabitation as equivalent to marriage, views ‘dependency-causation’ as adequate to produce obligations on cohabitants that could be enforced through equitable remedies. She asserts that ‘commitment is but one species of dependencycausation’, wherein the parties ‘have placed themselves, emotionally and

147 

Barlow and Smithson (n 126) 341. Finch and Mason (n 58). 149  Fineman (n 3). 148 

32  The Ties that Bind? sometimes physically and economically as well, “in another’s power”’.150 The ­non-financial ­‘contributions’ and sacrifices made by a partner to the welfare of the family are now well recognised. But they do not just generate losses for the partner; they create long-term gains and benefits for other family members too.151 I suggest that where those gains and benefits are utilised and enjoyed by the recipient, he or she cannot fairly argue that these should simply be treated as windfalls unconnected to the effort—and commitment—of the care-giver.152 In Chapter 8, such relationship-generated gain and loss are used to frame an argument based on justice and fairness, as well as from an ethic of care, that the responsibility to satisfy a claim arising from caring rests at least in part with members of a family.153 VII. OBLIGATION OR COMMITMENT

We have seen in this chapter that the concepts of obligation and commitment clearly overlap, but they can, nonetheless, be distinguished. The essential difference between them is that an obligation can be binding without the obligor choosing to become bound by it—one may be ‘under an obligation’—whereas commitment is an active concept implying an initial decision or acceptance to be bound. Changes in the nature of family life, and attitudes towards family relationships, have prompted debates over how far a ‘sense of’ moral and legal obligation towards family members is becoming attenuated, because their ‘commitment’ to each other is claimed to be in decline.154 Simultaneously, it is argued that the same legal rights, as well as obligations, should accrue to people in family relationships regardless of the form these take, because they may all demonstrate the same level of commitment or engagement in caring.155 In so arguing, appeals to an ethic of care can be seen to be appeals to an ethic of justice as well.

150 

Garrison (n 141) 829. (n 11) 222; G Douglas et al, ‘Cohabitants, Property and the Law: A Study of Injustice’ (2009) 27 MLR 24, 30–32. See the Law Commission’s recognition of ‘retained benefit’ in its discussion of cohabitation law reform: Cohabitation: The Financial Consequences of Relationship Breakdown (Law Com No 307, 2007) paras 4.26–4.59. 152  For a similar argument, based on the idea of one parent ‘freeloading’ off another, see Weiner (n 136) 137. 153  See B Sloan, Informal Carers and Private Law (Oxford, Hart Publishing, 2013) 12–20. For further discussion, see ch 8, section IV.B. 154  E Scott, ‘Social Norms and the Legal Regulation of Marriage’ (2000) 86 Virginia Law Review 1901. 155  A Barlow and G James, ‘Regulating Marriage and Cohabitation in 21st Century Britain’ (2004) 67 MLR 143; J Millbank, ‘The role of “functional family” in same-sex family recognition trends’ [2008] Child and Family Law Quarterly 155. 151  Herring

Obligation or Commitment 33 The concepts of care and commitment also overlap. Caring about another entity, in the sense of attaching moral worth and significance to it, may be viewed as a praiseworthy form of commitment, and acting in accordance with what one is committed to is seen as an aspect and indicator of one’s integrity.156 As will be discussed in Chapters 3 and 4, it has proved impossible to use the law to enforce an obligation to care for (still less to care about) one’s spouse. But the duty to take care of him or her in the sense of financial provision is potentially amenable to coercive state enforcement, and the body of marriage law, together with the investments the parties have made in their marriage, creates structural commitments which may make it more or less difficult, or at least costly, to end the relationship. By contrast with adult relationships, in the parent/child relationship, as will be seen in Chapters 5 and 6, emotionally caring about a child, that is, being committed to that child in the sense of the type of personal commitment outlined in section V.C.iii, is regarded as a matter that can be made subject at the least to legal consideration and scrutiny, and, in some respects, to legal regulation and enforceability. The law sends a very strong message that care as sentiment is to be equated with both financial care of a child and physical care work in its moral worth and legal significance. But this message does not necessarily reflect the reality of people’s family lives or attitudes, particularly the gendered nature of these. This is because, those—mainly women—who undertake such care work may feel that they have little ‘choice’ in the matter. A primary carer of a child may feel constrained to stay in an unsatisfactory relationship because of the need to continue to care for that child and the lack of any available means of doing so elsewhere. Barlow and Smithson’s reference to the vulnerability of a cohabitant who is financially weaker than the other partner points to the structural commitments that may prevent the cohabitant from leaving—such commitments having arisen from the care work entailed in looking after the partner and their children in that cohabiting relationship itself. Commitments, however voluntarily entered into, may feel like burdens and be regarded as obligations. The same researchers also found a ‘gendered psychology with regard to the moment of commitment’,157 which seems to echo the gendered voices associated with the ethic of care. They found that family identity seemed more important to female cohabitants—for example, taking the man’s name signified the woman’s commitment to him—and, of course, institutional and cultural arrangements may demand gendered life choices, such as who goes

156  157 

Blustein (n 35) 96. Barlow and Smithson (n 126) 342.

34  The Ties that Bind? out to work full-time and who looks after the children. So both care and commitment appear to be gendered. For women, commitment may be experienced as structural commitment or burden, and they may be more likely to be engaged in care in the material sense of ‘caring for’ others. Men, by contrast, may be more focused on demonstrating their personal commitment to the family by a promise, or other evidence of dedication, and more likely to show that they ‘care about’ others. If, as suggested, active, personal commitment of this type is the primary form in which commitment is recognised in family law and policy, and the burden of structural commitment is ignored or diminished in significance, then this gendered dimension will inevitably favour men when it comes to determining the rights and enforcing the obligations entailed in family life. The next chapter explores the social and demographic data on how families and family life have changed in the modern (and post-modern) era, with the focus on England and Wales, in order to set the scene for examining how the law on family obligations has developed alongside and in response to such change.

2 Family Change and Individual Commitment [Y]oung women have built up expectations of more equality and partnership in professional and family life which encounter contrary developments in the labor market and in male behaviour. Conversely, men have practised a rhetoric of equality, without matching their words with deeds. On both sides the ice of illusion has grown thin …1 [T]he doctrine of ‘lifestyle choice’ … has been undermining marriage for at least five decades. Marriage is fragile. … The idea that marriage meant commitment and obligation to others was viewed as an intolerable fetter upon the right to do your own thing.2

I.  FAMILY CHANGES

T

HIS CHAPTER GIVES an account of the demographic, social and cultural changes in family life over the period covered in this book— roughly the last 150 to 200 years—which provide the back-drop to and context for the legal developments discussed in subsequent ­chapters. After examining data on changes in family formation, particularly the decline in marriage and the rise in cohabitation and the increasing rate of births outside marriage, it then considers information on the termination of marriages through divorce and the available comparable data on cohabiting relationships. The increasing participation of women, including those with children, in the work force and the extent to which caring and domestic tasks are shared between partners are also considered. The chapter draws on historical, economic and sociological theories to argue that these changes reflect a turn in thinking and culture away from a focus on the collective interest of the family and ideas of family solidarity,3

1 

U Beck, Risk Society: Towards a New Modernity (Los Angeles, Sage, 1992) 103–04. M Phillips, ‘If you don’t marry, don’t expect the benefits’ The Times (1 November 2016). 3  For a valuable discussion of the concept of solidarity, see A Barlow, ‘Solidarity, autonomy and equality: mixed messages for the family?’ [2015] Child and Family Law Quarterly 223. 2 

36  Family Change and Individual Commitment towards the needs and preferences of the individual. This shift, I suggest, reflects the general predominance of liberal thought in western societies regarding autonomy and individual rights, giving primacy to the argument that family obligations should be based on consent. It helps explain the growing conceptualisation of ‘commitment’ as a personal, voluntarily assumed allegiance to a person, project or relationship, as outlined in ­Chapter 1. It also shows why the concept of structural commitment, in the sense of felt burden or obligation, has lost traction as an ideological and moral imperative, although not as an aspect of the lived experience of many family members—most especially women continuing to take the primary role of carer within the private family sphere. II.  A DEMOGRAPHIC PICTURE

The data selected4 to present a demographic and statistical picture of ‘­families’ will necessarily demonstrate the author’s reliance on a particular model of ‘family’. If one starts with marriage statistics, one may be taken as implying that normatively, families should be formed through marriage. If one starts with birth statistics, the implication is that a ‘family’ is a nuclear structure that must contain children. If one includes data on divorce, one ignores the fact that divorce statistics only count the completion of a legal process; if one includes cohabitation, one must apply a working definition of cohabitation which leaves out couples ‘living apart together’. And if one focuses on ‘couples’, one ignores other relationships based on intimacy. When compounded by the gaps in knowledge and understanding inherent to data in the form of ‘numbers’, the limitations of using such material are obvious. But charting the nature and extent of social changes in relation to families is a necessary task before one can go on to consider and evaluate the legal developments that took place alongside and in response to these changes. In this book, my focus is on the way the law has conceived the obligations to be imposed on those regarded in law as family members. Since modern family law in England and Wales does indeed conceptualise the legal family as (primarily) the narrow nuclear family, formed through a relationship between two adults and including their children, the information explored here inevitably concentrates on the data relevant to these. Moreover, it may be noted that the collection of national statistical data follows this model, the Office for National Statistics defining ‘family’ as

4  Data presented below usually include the earliest year for which there is information in the published series.

A Demographic Picture 37 follows: ‘A family is a married, civil partnered or cohabiting couple with or without children, or a lone parent, with at least one child, who live at the same address. Children may be dependent or non-dependent.’5 A.  Forming ‘a Family’ i. Marriage While marriage might have been seen as the only respectable ‘career’ for a woman until comparatively recently, the marriage rate has always been higher for men than women, although the gap has closed in recent years.6 In 1862, for example, 58.7 males per 1,000 unmarried men entered into a ­marriage, compared with 50.0 females. Following a decline caused by the ‘lost generation’ of men who died during the First World War, marriage rates increased. The highest ever rate of marriage, in response to the uncertainties of wartime, occurred in 1940, with 80.5 men per 1,000 and 63.4 women per 1,000 marrying in that year.7 The ideological strength of the breadwinner/housewife model of marriage as the appropriate frame in which intimate relations should occur was strong in the mid-twentieth century and the rate of marriage8 was higher after the Second World War than previously. The highest rate in peacetime occurred in 1972, at 78.4 men and 60.5 women per 1,000. But Claire Langhamer has argued that ‘if we scratch beneath the surface’ of this ostensible ‘golden age of marriage’, ‘we uncover a mid-twentieth century of quiet emotional instability and gentle subversion of established norms’ caused by the pressure of marrying in haste for romantic ‘love’ (or because of pregnancy) and repenting at leisure as people lived longer and divorce remained hard to obtain.9

5 ONS, Families and households in the UK: 2016 (2016) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/ 2016#percentages-of-young-adults-living-with-their-parents-have-been-growing, 2. Compare the definition of ‘household’, ibid, discussed in section II.C. 6 Following data taken from ONS, Marriage summary statistics (Provisional) (2014) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/datasets/marriagesummarystatisticsprovisional, Table 2b. 7  There was a similar spike in 1915: 64.9 males and 53.8 females per 1,000. For discussion, see C Langhamer, The English in Love: The Intimate Story of an Emotional Revolution (Oxford, Oxford University Press, 2013) 166–69. 8  And births: see Royal Commission on Population, Report (Cmd 7695, 1949) para 11. 9  Langhamer (n 7) 7.

38  Family Change and Individual Commitment Table 2.1:  Number of marriages, proportion of re-marriages, marriage rates, and average age at marriage, England and Wales Year

Number of marriages

Proportion of re-marriages %

Marriages per 1,000 unmarried males, females

Average age at first marriage, years

M

F

M

F

M

F

1862

164,030

13.8

9

58.7

50.0

25.9

24.5

1900

257,480

9.5

6.9

53.7

44.9

26.7

25.2

1924

296,416

8.9

7.2

53.6

41.2

27.5

25.6

1940

470,549

6.9

5.0

80.5

63.4

27.3

25.0

1955

357,918

12.2

10.9

70.8

53.1

26.3

23.9

1972

426,241

19.5

18.3

78.4

60.5

24.9

22.9

1985

346,389

26.9

25.7

48.7

40.5

26.0

23.8

1994

291,069

29.2

29.1

36.3

30.6

28.5

26.5

2000

267,961

30.5

29.9

30.1

25.9

30.5

28.2

2010

243,808

25.1

23.9

22.0

20.0

32.5

30.6

2014

252,222

24.3

22.6

23.0

20.9

32.7

30.8

Sources: ONS, Marriage Summary Statistics 2012 (Provisional) (2014); Marriages in England and Wales, 2014 (2017).

Subsequently, and perhaps unsurprisingly therefore, the marriage rate reduced as economic and social opportunities provided a meaningful alternative to marriage for women, and social disapprobation of relationships outside marriage declined.10 By 2014, the rate had dropped to 23.0 men and 20.9 women per 1,000 unmarried men and women. The effect of higher and lower rates of marriage on divorce rates is considered in section II.D of this chapter. Along with the overall decline in marriage, the age at which people marry has also risen significantly in recent decades.11 There was relatively little variation in the mean age at marriage for both men and women, from when the data were first collected in 1846, right the way through to the 1980s, at

10 

See further section II.D. data taken from ONS, Age and previous marital status at marriage (2014) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/datasets/ageandpreviousmaritalstatusatmarriage, Tables 6 and 7. For comparative purposes, data do not include same-sex marriages. 11  Following

A Demographic Picture 39 around 27–28 for men and 25–26 for women,12 although the average age at first marriage was lowest in 1970 (22.4 for women and 24.4 for men). Langhamer notes that in the post-war period, ‘Marriage was a boundary marker. It signified the end of teenage life’ and was seen as the inevitable next step in the life-course.13 It seems implicit in this that, so long as reliable contraception was difficult to obtain and a stigma attached to extra-marital sex and pregnancy, marriage was a necessary condition for having a full heterosexual sex life for most people.14 Once these barriers ceased to exist, romantic and sexual satisfaction could be obtained without marrying.15 The age of marriage increased, with the mean in 2014 at 37.0 for men and 34.6 for women (32.7 for single men and 30.8 for single women). The number of very young couples marrying has dwindled to negligible levels—in 2014, just 574 men and 2,135 women under the age of 20 got married, compared with 35,080 men and 108,945 women in 1972.16 Lastly, the proportion of marriages that are re-marriages for one or both parties has been between 25% and 30% since the 1980s (declining somewhat in recent years), from a low in 1940 of just 6.9% for men and 5% for women, and compared with around 13% for men and 9% for women in the mid-nineteenth century.17 The proportion of remarriages by divorced, as distinct from widowed, spouses has grown18 as divorce has become more common, as is explored in section II.D. These data suggest that the high rates of marriage in the 1970s, when cohabitation was still frowned upon, produced high numbers of marriages that did not deliver the emotional selffulfilment that people had come to expect. These, in turn, led to high rates of divorce in the 1990s, and higher rates of remarriage as parties sought to ‘try again’ in the marriage market, until cohabitation became sufficiently socially acceptable to offer an alternative. But while marriage rates have declined, the family constituted by marriage (and civil partnership) remains by far the most common type, representing 67% of families in 2016, compared with 17.5% formed by cohabitation

12  All marriages. For single men and women (ie never married), the mean age was around 26 and 24. 13  Langhamer (n 7) 176. 14  Especially women, of course. And the very rich may have had more freedom. 15  Of course, the necessary social and economic conditions had to exist as well, including the possibility and acceptability of financial independence for women. 16 ONS, Marriages in England and Wales, 2014 (2017) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/ datasets/marriagesinenglandandwales2013. 17  Data derived ibid, Tables 3 and 4. For comparative purposes, data do not include samesex marriages. 18  In 2014, 92% of men and women remarrying were divorced, compared with around 75% in 1972 and just 17% of men and 21% of women remarrying in 1940: ibid.

40  Family Change and Individual Commitment and 15.3% composed of lone-parent families.19 Moreover, around the same historically high proportions of men and women have experienced some form of couple partnership as have ever done in the past: ‘there has been no flight from partnership per se’.20 What is happening is that by middle-age, people are very likely to have experienced either a marriage, or a cohabitation, whereas in previous generations they would have been less likely to cohabit.21 ii.  Cohabitation and Coupledom Unlike the statistics for births, marriages and divorces, which can be based on registrations and court orders dating back, more or less robustly and accurately, over a couple of centuries at least, data on the prevalence of cohabitation22 have only recently been collected systematically. Indeed, there is controversy over how far one can estimate historical rates of cohabitation much before the 1970s.23 What does seem indisputable is that, as is well known, in the current era cohabitation has become ‘the fastest growing family type in the United Kingdom’, with 5.9 million people cohabiting in 2012, double the 1996 figure. Over the same period, the percentage of the population aged 16 or over who were cohabiting increased from 6.5% to 11.7%.24 Ann Berrington and Juliet Stone’s analysis shows that cohabitation increased particularly rapidly in the 1980s and 1990s, driven by younger couples cohabiting as a prelude to marriage.25 By 2011, over a quarter of

19 ONS, Families and households in the UK: 2016 (2016) (n 5), Figure 1. There may be a socio-economic and ethnic difference: it is asserted that marriage has declined most amongst the working-class (see eg Social Policy Justice Group, Breakdown Britain: The state of the nation report: fractured families (London, Centre for Social Justice, 2006) 97), but the published ONS data do not analyse marriage rate by socio-economic class. See, however, J Ermisch and M Murphy, Changing household and family structures and complex living arrangements (Swindon, ESRC, 2006), who find that less-educated women (education being a proxy for social class) have higher rates of cohabitation, extra-marital birth and divorce; and C Belfield et al, Intergenerational income persistence within families IFS Working Paper W17/11 (London, IFS, 2017) Appendix, Tables A1, A2, who find that men born to poorer parents have a higher (and increasing) chance of being never married, or divorced, by their 40s. 20 E Beaujouan and M Ni Bhrolcháin, ‘Cohabitation and marriage in Britain since the 1970s’ (2011) Population Trends No 145, 7. 21 ibid. 22  For consideration of how to identify cohabitations, see N Lowe and G Douglas, B ­ romley’s Family Law, 11th edn (Oxford, Oxford University Press, 2015) 939–45. 23  The most exhaustive historical attempt is that by R Probert, The Changing Legal Regulation of Cohabitation: From Fornication to Family, 1600–2010 (Cambridge, Cambridge ­University Press, 2012), but her arguments and conclusions have been challenged by Craig Lind, ‘The Truth of Unmarried Cohabitation and the Significance of History’ (2014) 77 MLR 641. 24 ONS, Short Report: Cohabitation in the UK, 2012 (2012) at webarchive.nationalarchives. gov.uk/20160105160709/http://www.ons.gov.uk/ons/dcp171776_284888.pdf, 1. 25  A Berrington and J Stone, Cohabitation trends and patterns in the UK (Southampton, ESRC Centre for Population Change, 2015) 1.

A Demographic Picture 41 women in the UK aged 25 to 34 were cohabiting, although there was a small reduction in the proportion of women under 24 doing so, probably due to the general postponement of the age at which young adults are ­leaving the family home.26 Of couples getting married, 85.1% had cohabited ­beforehand.27 Cohabitation has become more acceptable in all age groups, with the over-65s experiencing ‘the largest percentage increase in cohabitation of all age groups, despite the small percentage of people who do cohabit in this age group’ (up from 0.6% in 1996, to 2.2% in 2012).28 Unsurprisingly, older cohabitants are more likely to have been divorced (or widowed) than younger ones.29 Since younger age groups are delaying (or avoiding) getting married, those who are older are both more likely to have been married in the first place and may be more wary of marrying again, for both emotional and instrumental reasons. They may be reluctant to ‘commit’ to a new partner and feel they have prior ‘commitments’ to children and grandchildren (often in the form of property). The comparative opacity of informal relationships is even more of an issue in trying to explore the apparently growing phenomenon of couples who are ‘living apart together’ (‘LATs’). This has been defined as ‘being in a relationship but not living with [one’s] partner’, and has been estimated as the position of 9% of the adult population in Britain.30 Simon Duncan et al found that the majority of LATs in their representative quantitative sample were young, with 43% aged 16–24 and 33% aged 25–44, but 11% were 55 or over. Reasons for living apart fell into four main categories. Around a third of their sample said that it was too early in the relationship to cohabit, and another third preferred to live apart. However, the researchers found that such ‘preference’ was mainly due to reservations about the partner or the prospect of cohabiting (especially based on earlier bad experiences), or because of prior obligations to family members: in other words, respondents were, like older cohabitants, either not ready to commit, or had other commitments that took priority. Other reasons were practical; for example, couples were compelled to live apart for cost reasons or because of work. It is not entirely clear yet how far some couples classed as LATs would, in previous eras, simply have been described as ‘dating’ or ‘courting’, although clearly there are many people who, for both personal and practical reasons, choose (and have the financial wherewithal) to sustain their relationship

26  ibid and Figure 2. See also ONS, Families and households in the UK: 2016 (2016) (n 5), Figure 4. 27 ONS, Marriage statistics, cohabitation and cohort analyses (2014) at www.ons.gov.uk/ peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/datasets/marriagestatisticscohabitationandcohortanalyses, Table 1. 28 ONS, Short Report: Cohabitation in the UK, 2012 (2012) Figure 2. 29  ibid, 3. 30  S Duncan et al, Living Apart Together: uncoupling intimacy and co-residence (Bradford, University of Bradford, 2013) 1.

42  Family Change and Individual Commitment at a distance. This pattern is entirely in line with social and cultural shifts in attitudes to intimacy and family formation. The explanations for such shifts, discussed in section III, seem equally applicable. B.  Birth and Family Size Since the family as envisaged by the law includes that with dependent ­children, it is important to consider the data relating to birth and family completion. The crude number of births in any given year will be reflective of the size of the total population (and of the population of fertile women), so it is more meaningful to look at the data on the average number of children in a completed family, or born to women at particular ages, in order to gauge the extent of any changes in family behaviour and attitudes regarding having children. The data show that family size in Britain has declined significantly since the late nineteenth century. Indeed, the Royal Commission on Population, reporting in 1949, noted that the ‘fall in the size of the family over the last seventy years … is the salient fact in the modern history of population in Great Britain’.31 In the mid-Victorian era, women in England and Wales completed their families after around five live births. By the turn of the century, they averaged 3.37 children, and the figure continued to decline to 2.19 in the 1920s.32 The total fertility rate (the average number of children a woman would have assuming that current age-specific birth rates remain constant throughout her childbearing years) in England and Wales has fluctuated since 1938 (the earliest year for which national data are recorded). The highest rate was in the 1950s–1960s, but by 2015 the rate was almost identical to that when records began, at 1.82.33 The mean age of mothers at the birth of their first child has risen from 23.8 in 1972 to 28.6 in 2015, and teenage pregnancy has declined sharply: the conception rate for women under 18 has more than halved since data were first collected in 1969, down from 47.1 to 21.0 conceptions per 1,000 women aged 15–17.34 Lastly, the average completed family size declined from 2.24 children to women born in 1943, to 1.91

31 

Royal Commission on Population, Report (1949) para 74. ibid, Tables XV, XVI, XVII. 33  In 1938, it was 1.84. See ONS, Births in England and Wales: 2015 (2016) at www.ons. gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsummarytablesenglandandwales/2015, Figures 1, 2. 34 ONS, Conceptions in England and Wales: 2015 (2017) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/conceptionandfertilityrates/bulletins/ conceptionstatistics/2015#the-under-18-conception-rate-in-2015-is-the-lowest-recorded-sincecomparable-statistics-were-first-produced, Figure 3. 32 

A Demographic Picture 43 for women who were born in 1970,35 and the proportion of families with three or more children declined from 36% to 27%. However, two children has remained the most common completed family size since the 1940s.36 In England and Wales, small families have therefore long been the norm; possible reasons for this are explored in section III. i.  Births Outside Marriage A more dramatic change in behaviour and attitude towards child bearing has been the increase in the proportion of births outside marriage.37 The ratio of illegitimate births as a proportion of total live births was 66 per 1,000 (6.6%) in 1842, the first year that the data were collected.38 As will be discussed in Chapter 5, this was around the time of the reform of the Poor Law, when ‘bastardy’ was regarded as a major social problem. The ratio declined in the latter part of the nineteenth century, and remained relatively stable, apart from peaks in the two World Wars,39 at around 45 per 1,000 (4.5%) until the 1960s. However, from a post-war low of 4.7% in 1955, the ratio began to climb steadily thereafter, and indeed was regarded as having gone through an ‘amazing rise’ in the 1960s, nearly doubling to 8.5% in 1968.40 In fact, while the rate of increase was high, the actual proportion did not exceed 10% of all live births until 1978, but it continued to rise thereafter, exceeding 20% in 1986, 30% in 1991 and reaching 40% in 2001. In 2015, the proportion was 47.7%.41

35  The latest age cohort of women to have completed their childbearing (taken as reaching age 45). 36 ONS, Childbearing for women born in different years, England and Wales 2015 (2016) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/conceptionand fertilityrates/bulletins/childbearingforwomenbornindifferentyearsenglandandwales/2015#teenagechildbearing-is-in-decline, Table 1. The peak in the 20th century was 2.42 to women born in 1935: ibid, Figure 1. 37 There will also be a number of children ostensibly born within marriage but actually having a father other than the mother’s husband. However, chromosomal analysis suggests the proportion may be as low as 4%: M Jobling, ‘Founders, Drift and Infidelity: The Relationship between Y Chromosome Diversity and Patrilineal Surnames’ (2009) 26 Molecular Biology and Evolution 1093. 38  K Kiernan, The Illegitimacy Phenomenon of England and Wales in the 1950’s and 1960’s (1971) www.york.ac.uk/media/spsw/documents/research-and-publications/Kiernan_1971_IllegitimacyPhenomenonOfEnglandAndWales.pdf, 2. Kiernan warns that recorded data might be inaccurate and that the figures may be an underestimate. 39  About 5.4% between 1916–20, and a historically high 9.3% in 1945: ibid, Table 1. Ermisch and Murphy (n 19) note that less-educated women are more likely to give birth outside marriage. 40 Kiernan (n 38) 2; ONS, Birth Summary Tables, England and Wales 2015 (2016) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/birthsummarytablesenglandandwales/2015, Table 1. 41 ONS, Birth Summary Tables (n 40).

44  Family Change and Individual Commitment Table 2.2:  Total fertility rate, birth rate, mean age of mother, births outside marriage, England and Wales Year

Number of live births

Proportion outside marriage %

Total fertility rate

Mean age of mothers

Mean age of mothers at first birth

1938

621,204

4.2

1.84

29.0

25.9

1940

590,120

4.3

1.75

28.8

25.8

1955

667,811

4.7

2.22

27.8

24.8

1972

725,440

8.6

2.17

26.5

23.8

1985

656,417

19.2

1.78

27.3

25.1

1994

664,726

32.4

1.75

28.1

26.0

2000

604,441

39.5

1.65

28.5

26.5

2010

723,165

46.8

1.94

29.5

27.7

2015

697,852

47.7

1.82

30.3

28.6

Sources: ONS, Summary of key live birth statistics, 1938 to 2015 (2016) Table 1; ONS, Births by Parents’ Characteristics, England and Wales (2016) Table 4b.

The rate at which women have children outside marriage will be a function of many different factors, including attitudes to sex outside marriage, the attractiveness of marriage, the stigma attached to ‘illegitimacy’ and the degree of economic autonomy that women enjoy. Given the rise in cohabitation outside marriage already noted, one also has to consider the extent to which the propensity to have children outside marriage is linked to being in a quasi-marital, cohabiting relationship with the father of the child.42 It can be inferred that where unmarried parents declare that they are living at the same address when they register their child’s birth, they are in a cohabiting relationship.43 In 1986, the first year for which such data are available, 10% of all registered births were to cohabiting parents. By 2015, reflecting the growth in cohabitation, the proportion was 32.1%.44 Whereas in earlier times a pregnancy would have been a prompt to get married, whether cohabiting or not, the average age at first marriage for women is now later than their average age at the birth of their first child.45 42  The mother might also be in a relationship with a same-sex partner (as could male parents, of course) but these data are not available as yet in the birth statistics. 43 ONS, Births by Parents’ Characteristics England and Wales 2015 (2016) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/ bulletins/birthsbyparentscharacteristicsinenglandandwales/2015. 44  ibid, Figure 3. 45  As pointed out in ONS, Short Report: Cohabitation in the UK, 2012 (2012) 6. The average age of first marriage for women was 30.8 in England and Wales in 2014, compared with 28.6 for age at birth of their first child in 2015: see Tables 2.1 and 2.2.

A Demographic Picture 45 C. Households Lastly, by way of comparison, and of significance for the consideration in section II.F.iv of the provision of family care, it should be noted that a ‘household’ is defined for statistical purposes as one person living alone, or a group of people (not necessarily related) living at the same address who share cooking facilities and share a living room, sitting room or dining area. A household can consist of more than one family, or no families in the case of a group of unrelated people.46

The most common type of household consists of two people (35%), while another 35% consist of three or more, down from 57% in 1961.47 The proportion of households consisting of one person has grown since the 1970s, from 18% to 29% (and the growing number of LAT relationships might reflect this). It is unusual for households to contain more than one family couple (eg the classic multi-generational family consisting of older parents living with an adult son or daughter together with their spouse and any ­children); just 1.2% of households consisted of this type in 2016, compared with ­loneparent households, which made up 10% of the total.48 A slightly larger proportion, 3.3%, consisted of unrelated adults.49 As the definition quoted above shows, these could range from house-sharers to close friends to non-nuclear relatives in close caring relationships of the kind discussed in ­Chapter 7. Of course, economic factors such as the high cost of home ownership are likely to play as much of a role in driving this pattern as changes in how ‘doing family’ is understood. D.  The Ending of Relationships As will be shown, the rate of divorce increased significantly over the 150 years since it was brought within the jurisdiction of the civil courts, but the rate of separation of married couples, and perhaps even more so of cohabitants, is less easily charted. As the Finer Committee on One-Parent Families noted in 1974, nobody even knows what proportion of earlier marriage cohorts have experienced breakdown. Some relationships are cemented only by the birth of a child and valid marriages collapse for so many different reasons and with so many different

46 ONS,

Families and households in the UK: 2016 (2016) 2. ibid, 9; and I Macrory, Measuring National Well-being—Households and Families, 2012 (London, ONS, 2012) 3. 48 ONS, Families and households in the UK: 2016 (2016), Table 2. 49 ibid. 47 

46  Family Change and Individual Commitment outcomes that, death apart, only those regulated by the courts leave a statistical record. The relationship between de facto and de jure marriage breakdown in the past or today cannot be measured and it is therefore impossible to know whether the stability of marriage has changed from one generation to another.50

The durability of cohabitation in comparison with marriage has been an important issue because of the argument of some policy-makers that marriage is inherently more stable than cohabitation and therefore to be encouraged, and, by corollary, that cohabitation should be discouraged. This argument can be translated into the view that the commitment entailed in marriage (by which is meant personal commitment as defined in Chapter 1) is lacking in cohabitation, which is therefore less deserving of legal recognition both morally and from a policy perspective.51 The best analysis of the evidence on the breakdown of cohabitation is that of Eva Beaujouan and Maire Ni Bhrolcháin. They found that five years after commencing their relationships in 2000 to 2004, around 40% of cohabiting couples had married, about 35% had broken up and 25% continued to live together.52 By comparison, about 22% of married couples had separated or divorced by their fifth anniversary.53 Beaujouan and Ni Bhrolcháin suggest that reasons for this lower rate may include the fact that people are now marrying about five years later than they did in the 1980s, but it may be more significant that pre-marital cohabitation is now so prevalent (and such cohabitations are lasting longer, from just under two years on average in the 1980s to around four years by 2004–07),54 so that ‘relationships may be subject to greater testing before marriage than in the recent past, with cohabitation screening out weaker partnerships’.55 It does not appear to follow that married couples are more ‘committed’, or that marriage itself promotes stability and longevity of relationships: other data show that cohabiting couples may be younger, poorer and less well-educated than couples who marry, contributing to relationship fragility.56 The number of divorces, and the rate of divorce, can be measured with slightly more accuracy.57 In addition to the strength of a spouse’s personal

50  Department of Health and Social Security (Chair, Sir M Finer), Report of the Committee on One-Parent Families (Cmnd 5629, 1974) vol 1, para 3.1 (hereinafter, ‘the Finer Committee’). 51 See, eg, Social Justice Policy Group (Chair, Samantha Callan), Breakthrough Britain: Ending the Costs of Social Breakdown, Vol 1: Family Breakdown (London, Centre for Social Justice, 2007) 2, 93; Centre for Social Justice, Fully Committed? How a Government could reverse family breakdown (London, Centre for Social Justice, 2014) 33. 52  Beaujouan and Ni Bhrolcháin (n 20) Table 3. 53  ibid, Table 4. 54  ibid, Table 2. 55  ibid, 14–15. 56  A Goodman and E Greaves, Cohabitation, marriage and relationship stability, IFS Briefing Note BN107 (London, Institute for Fiscal Studies, 2010). 57  But note that the numbers appearing in the Family Court Statistics do not tally with those provided by the ONS. Data here are taken from ONS—but see notes to Table 2.3.

A Demographic Picture 47 or moral commitment to the other or to the marital relationship, the total number of divorces is influenced by what was described in Chapter 1 as structural or constraint commitment. The structural barriers preventing or deterring someone from leaving a marriage include cultural, social and economic factors, such as how much stigma attaches to a separated or divorced person, and how easy it is to become financially independent from a spouse. There will also be legal factors, such as how difficult it is to satisfy the grounds necessary to obtain a divorce and to make use of the legal system to do so. As is well known, until the Matrimonial Causes Act 1857 introduced a judicial procedure for obtaining a divorce through the civil courts, the cost and complexity of ending a marriage put divorce (as distinct from separation) beyond the reach of most couples.58 The social opprobrium of divorce lasted much longer, at least until the 1960s, and the economic difficulties of leaving or being left by a spouse remain a significant hurdle for many wives, especially those who are the primary carers of the children of the marriage.59 Unlike births, cohabitations and even marriages, the resort to divorce will therefore be a function, in part at least, of the legal environment and changes in the accessibility of divorce. The effects of these should be borne in mind in interpreting the shifts in the data set out here. The data show that the number of decrees granted was initially very low,60 but climbed steadily thereafter. Once the grounds for divorce were made the same for both spouses in 1923, wives were more likely to seek or obtain a divorce than husbands.61 The mean age at divorce is available from 1963, and remained around the same until the age at which people marry began to rise significantly. From the late 30s for men, and the mid-30s for women, it is now the mid-40s for both. The median length of marriage when a divorce is obtained has not changed much, at around 11 to 12 years. It decreased to a low of 8.9 years in 1985, but this was not because of the higher and earlier rates of marriage at that time but because the law was changed to reduce the time-bar on seeking a divorce from three years since the wedding to one.62

58 

See L Stone, Road to Divorce (Oxford, Oxford University Press, 1990). See chs 4, 5 and 6. 60 Whether the correct figure is 24 or 179. For detailed analysis of the court records in the first few years of the jurisdiction, see D Wright, ‘Untying the Knot: An Analysis of the ­English Divorce and Matrimonial Causes Court Records, 1858–1866’ (2004) 38 University of Richmond Law Review 903. 61  These data are missing for 1945 to 1948. 62  In most cases—the bar could be lifted at the discretion of the court on the basis of the petitioner’s exceptional hardship or the respondent’s exceptional depravity: Matrimonial Causes Act 1973, s 3. 59 

48  Family Change and Individual Commitment Table 2.3:  Divorces in England and Wales 1858–2014 Year*

Number of decrees

Granted to Husband or Wife** H

1858

W

Average age of Husbands and Wives H

W

Median duration of marriages, years

Divorces per 1000 married persons

5.9

24***

1898

508

309

199

1924

2,286

1,131

1,155

1939

8,254

3,823

4,431

1947

60,254

1958

22,654

10,303

12,283

1971

74,437

29,649

44,204

39.4

36.6

11.5

1972

119,437

45,385

73,220

40.1

37.6

12.2

9.5

1985

160,300

44,574

115,144

37.4

34.9

8.9

13.4

1994

158,175

45,112

112,640

39.3

36.7

9.8

14.2

2000

141,135

42,452

98,438

41.3

38.8

10.7

12.7

2010

119,589

40,338

79,178

44.2

41.7

11.4

11.1

2014

111,169

41,364

69,803

45.6

43.1

11.7

9.3

Source: ONS, Divorces in England and Wales: 2014 (2016). * Data not available for all years. ** Numbers do not equal number of divorces, as in some cases the divorce was granted to both parties. *** This figure is dubious: data provided for Parliament in 1889 recorded 179 successful divorce suits: Home Office, Divorce and Matrimonial Causes (London, Hansard, 1889) 2.

Finally, the divorce rate—the number of divorces per 1000 married people— was first recorded in 1971, when it was 5.9 per 1000. After the Divorce Reform Act 1969 came into force in that year, the rate jumped to 9.5 in 1972, and reached a high point in 1994 of 14.2. It subsequently fell back and was 9.3 per 1,000 in 2014. The explanation for the reduction is the growth in cohabitation and the tendency for pre-marital cohabitation to serve as a trial marriage, which weeds out more of the relationships that would earlier have become unsuccessful marriages.63

63 

Beaujouan and Ni Bhrolcháin (n 20) 15.

A Demographic Picture 49 E.  Lone-parent Families The phenomenon of a single parent—usually a mother—raising children outside the approved marital structure has been regarded as problematic from the days of the Poor Law.64 Widows might be pitied, but abandoned or deserting wives, and unmarried women, caused concern from both a moral and an economic perspective. Such mothers were a particular danger to the normative order if they appeared to be lone parents by choice rather than circumstance.65 The Finer Committee was the first official inquiry to examine in detail the incidence and circumstances of one-parent families. Drawing on data from the 1971 Census, they estimated that there were 620,000 such families, representing about one-tenth of all families with dependent children.66 Mothers headed 84% of these families. By 2016, 24% of all families with dependent children (1.9 million) were lone-parent families, of which 90% were headed by mothers. However, fathers constituted 22% of lone parents with non-dependent children, reflecting the greater tendency for women to take primary caring responsibility for younger children.67 The overall number of lone-parent families headed by mothers almost tripled between 1971 and 1996, to nearly 1.5 million.68 By 2015, the number of lone-parent families headed by fathers had doubled from the 1971 estimate, to 201,500.69 More significantly, the prior marital status of such families had changed very significantly. In the 1970s, the Finer Committee had estimated that over a third (37%) of lone mothers were separated wives, while 23% were divorced and another 23% widowed. Only 17% were ‘single’. Finer was concerned to show from these figures that ‘blame’ or stigma should not be attached to lone mothers, who were much more likely to have been unlucky in their choice of partner (or in their fate)—deserted wives, perhaps—rather than reckless and ­wanton singletons. The Report argued that the ‘pursuit of individual happiness through wedded love has gone far to turn marriage into a

64 

See ch 5, section II. P Thane and T Evans, Sinners? Scroungers? Saints? Unmarried Motherhood in ­Twentieth Century England (Oxford, Oxford University Press, 2012). 66  Finer Committee (n 50) vol 1, Table 3.1. 67 ONS, Families and households in the UK: 2016 (2016) at www.ons.gov.uk/peoplepopulation andcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2016#perc entages-of-young-adults-living-with-their-parents-have-been-growing, 2, Table 1 and accompanying text. 68 ONS, Lone parents with dependent children by marital status of parent, by sex, UK: 1996 to 2015 (2016) at www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/adhocs/005660loneparentswithdependentchildrenbymaritalstatusofparent bysexuk1996to2015. 69 ibid. 65 See

50  Family Change and Individual Commitment r­ omantic lottery, and nobody can predict how many … brides and grooms … will have drawn losing tickets.’70 By 1996, the growth in cohabitation had produced a doubling in the proportion of lone mothers who were ‘single’. However, as we have seen, the 1990s also saw historically high rates of divorce, so that although the proportion of separated and divorced lone mothers dropped, it did so by only a small amount, from 60% to 56%. The decline in early death rates meant that the proportion of lone parents who were widows fell from nearly a quarter (23%) to 5%. By 2015, the growth in cohabitation had had a much more dramatic effect: 57% of all lone mothers were single; those who were or had been married constituted only 40% of the total; and widows made up just 3% of lone mothers.71 Table 2.4:  Proportions of lone mothers and fathers by prior marital status 1971

1996

2015

%

%

%

Women

Men*

Women

Men

Women

Men

Single

17

–

39

17

57

30

Separated

37

–

23

28

17

28

Divorced

23

–

33

41

23

30

Widowed

23

–

5

14

3

12

Sources: Finer Committee (1974); ONS, Lone parents with dependent children by marital status of parent, by sex, UK: 1996 to 2015 (2016). * No data available.

The data on ‘single’ parents do not distinguish between ex-cohabitants and ‘never together’ lone parents. Ann Berrington analysed relationship histories for lone mothers in the decade after the millennium, and found that the proportion of women who have had a child outside of a cohabiting (or marital) partnership is related to age, with the highest proportion amongst the youngest women. Around 40% of lone mothers aged 18 to 29, but only about 15% of those in their 30s, and just 5–10% of older mothers, had not been in a co-residential relationship before the child’s birth.72 These proportions appear to have stabilised,73 perhaps reflecting the recent trend amongst young adults of leaving home and achieving financial independence at a later age than previously. 70 

Finer Committee (n 50) vol 1, para 3.1. Lone parents with dependent children (n 68). 72 A Berrington, The changing demography of lone parenthood in the UK: Working Paper 48 (Southampton, ESRC Centre for Population Change, 2014) Figure 5. 73  ibid, 11. 71 ONS,

A Demographic Picture 51 F.  Economic Activity As already noted, constraints on moving on from a relationship will be economic as well as social and emotional. Chapters 4 and 5 consider the extent to which the law has imposed an effective obligation to provide financial support for a dependent spouse or child. Consideration of the working of such an obligation should be set against the ability of a wife or cohabitant to engage in economic activity, enabling her to achieve financial independence from her spouse or partner, or of a mother who has primary care of a child to leave or manage without a (male) partner. Throughout most of the twentieth century, wives who had given up (or been required to give up)74 paid work on marriage, or on having their first child, or who were, as women, paid less than men receiving the ‘family wage’,75 would have struggled financially to leave an unsatisfactory marriage, particularly if they wished to keep their children.76 Unmarried mothers faced even greater difficulties (including even greater social stigma than divorcees) in keeping their children. i.  Employment Rates Britain’s industrialisation in the eighteenth and nineteenth centuries took the bulk of the population away from the rural economy and separated work from home.77 While poverty and circumstances meant that many wives might have had to work during their marriage,78 it was the social norm to expect the husband, the male breadwinner, to support his family (not least because until the later nineteenth century, married women could not legally own property, including earnings). Differential wages paid to men and women were predicated on this assumption, which also helped explain the relatively late age of first marriage, since the man had to be sufficiently established to be earning enough to maintain his wife and any children. Hilary Land notes that the 1851 census recorded 25% of married women as having an occupation distinct from their domestic work, but that this had dwindled to 10% by 1901. Yet she also points out that it was estimated that, amongst working class families, only 41% depended on the

74  See the discussion of ‘marriage bars’ in the Royal Commission on Equal Pay 1944–46 (Chair, Sir C Asquith), Report (Cmd 6937, 1946) ch XII. 75 See H Land, ‘The Family Wage’ (1980) 6 Feminist Review 55; D Kynaston, Family ­Britain: 1951–57 (London, Bloomsbury, 2009) 572–80. 76  For discussion of the position of mothers as ‘innocent’ or ‘guilty’ wives in a divorce, see ch 4, section III.B.i and ch 6, section II. 77  Land (n 75); and see Gillis in section III.A. 78  See E Orme et al, Lady Assistant Commissioners, Royal Commission on Labour: The Employment of Women, Reports (C 6894–xxiii, 1893) for evidence on the employment of married women at the end of the 19th century; Land (n 75).

52  Family Change and Individual Commitment man’s wages alone, and in the aftermath of the First World War, Eleanor Rathbone calculated that a third of women workers were partially or fully responsible for dependants.79 Helen McCarthy has summarised the position from the 1930s onwards: Between the wars, only 10 per cent of wives were formally employed outside the home; this had more than doubled by 1951, rose to 35 per cent in 1961 and stood at 49 per cent a decade later. As a proportion of the female workforce, married women’s share grew from 16 per cent in 1931 to nearly 45 per cent at the beginning of the 1950s, and in 1957 passed the 50 per cent mark.80

She notes that before the Second World War, wives’ employment was viewed as a social problem, caused by the unemployment, incapacity or absence of a male breadwinner.81 The need to employ more women during the war required a different perspective, and undertaking paid work came to be framed as satisfying a psychological need in married women. A continuing demand for labour in the 1950s and 1960s appeared to clash with the apparent82 preference of married women for limited, part-time working and the view that mothers of pre-school-aged children should not work.83 It was resolved, she suggests, by the argument that married women had a dual role—wife/mother and worker—but the apparent ambivalence of married women towards work was used by policy-makers to justify the post-war failure to provide adequate nursery facilities, the legacy of which still affects women’s childcare arrangements today.84 Subsequently, women’s employment rates continued to rise, whilst men’s declined. From a 40-point gap in the 1970s, there is now only a 10-point difference between men’s and women’s employment rates.85 The rise amongst women is mainly due to more women remaining in employment until their first child is born, and many more returning to work afterwards.86 Given that marriage rates are declining and cohabitation and single parenthood have risen, it is more meaningful to compare the working position of people with or without dependent children, than by marital status. Of significance, therefore, is the reducing gap in employment rates between these two groups. Alison Spence shows that, as between women, this n ­ arrowed

79 

Land (n 75) 60–62. McCarthy ‘Social Science and Married Women’s Employment in Post-War Britain’ (2016) 233 Past and Present 269, 270. 81  ibid, 272. 82  But this may have been an over-simplification of the data: see ibid, 276. 83  On the influence of John Bowlby on 1950s’ popular attitudes, see Kynaston (n 75) 570. 84  McCarthy (n 80) 300–03. 85  A Spence, Social Trends 41, Labour market (London, ONS, 2011) 6–7; ONS, Female employment rate LF25 and Male employment rate MGSV (London, ONS, 2017): 2016 data for Q2. 86  McCarthy (n 80) 269–70. 80 H

A Demographic Picture 53 from 5.8 percentage points in 1996 to 0.8% in 2010.87 But in 2016, ONS reported that, among parents with dependent children: The employment rate for married or cohabiting men was 92.8% and for women, 73.9%. The disparity in employment rates between men and women without dependent children was much smaller, at 72.6% for men versus 68.5% for women.88

The data therefore show that the presence of children still has a much greater effect on women’s ability or propensity to take paid work than on men’s. Thus, the proportion of women classified as ‘economically inactive’ (ie unemployed but not looking for work) fell between 1971 and 2011 from 44.5% to 29.3%, while the proportion of economically inactive men increased from 4.9% to 17.1%, but only around 5–6% of the men said that this was because they were looking after the home or their family, compared with around 35–45% of the women.89 The age of the child and the presence or absence of a partner also make a considerable difference to women’s employment rates. In 2013, 67% of married or cohabiting women were employed. Of these women who had a dependent child aged under 3 years, 65% were in employment. By contrast, 60% of women without a partner, and only 39% of those with a child under 3 years, were employed. Of lone mothers whose youngest child was of primary school age, 61% were working, compared with 74% of mothers with partners.90 Table 2.5:  Proportion of women employed, by marital status and age of youngest child, UK, 2013 Married/cohabiting %

Lone parent %

All women

67

60

Child under 3

65

39

Child 4–10

74

61

Child 11–18

80

74

Source: ONS, Women in the labour market: 2013 (2013) 8–9.

ii.  The Gender Pay Gap It is also necessary to consider men’s and women’s average earnings and hours of work to get a realistic picture of the extent to which employment 87 

Spence (n 85) 7. Working and workless households in the UK: April to June 2016 (2016) at www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/ bulletins/workingandworklesshouseholds/aprtojune2016#toc. 89  Spence (n 85) 18 and Table 5. See further sections II.F.iii and iv. 90 ONS, Women in the labour market: 2013 (London, ONS, 2013) 8–9. 88 ONS,

54  Family Change and Individual Commitment might provide them with financial independence. As long ago as 1946, the Royal Commission on Equal Pay examined the gap in pay between men and women.91 As already noted, the concept of the ‘family wage’ and the dominance of the male breadwinner model of marriage were used to justify and sustain differences in pay. It is difficult to find historical cross-sector data on the size of the gap, but the Royal Commission reported, for example, on the ‘20 per cent rule’, whereby Civil Service pay rules provided that the maximum point on the women’s scale at each grade should not be lower than men’s by more than 20% and that the women’s maximum at one grade should not be lower than that of men at the grade below.92 This sort of differential was followed in other parts of the public sector, such as the teaching professions and the Post Office, while in other sectors, such as agriculture, it widened to a third. On the other hand, there was apparently no differential, at least in pay scales, in some professions outside central and local government—including university teachers.93 In the manual private sector, however, the gap was wide. In 1938, women engaged in manual labour in manufacturing industries earned only 47% of the wages of men, reflecting the low number of women in higher-paying sectors, the lower rates paid to women in predominantly female sectors such as textiles, and the fact that collective agreements or wages orders simply specified women’s rates at roughly half to two-thirds those of men. By 1945, with the impact of the war, average pay for women in manufacturing had grown a little, to 53% of that of men.94 The Royal Commission found gaps ranging from 5% to 35% in other sectors.95 This gender pay gap (now officially defined as the difference between men’s earnings and women’s earnings as a percentage of men’s earnings) has only been calculated systematically since as recently as 1997.96 In that year, taking all employees, both full- and part-time, the gap was 27.5% (median)/25.3% (mean);97 this had narrowed to 18.1%/17.3% in 2016.98

91 

Royal Commission on Equal Pay 1944–46 (n 74). For a detailed explanation, see ibid, paras 41–44. 93  ibid, chs V–VII. 94 Ibid, paras 144–48, based on average weekly earnings. There were no data for nonmanual, agricultural or distributive trades, but these were assumed to have much narrower differentials. 95  ibid, para 167 (weaving). 96 See DCMS, Secondary Analysis of the Gender Pay Gap: Changes in the Gender Pay Gap over Time (2014) at www.gov.uk/government/uploads/system/uploads/attachment_data/ file/295833/Analysis_of_the_Gender_Pay_Gap.pdf, 6. 97  Median average preferred by ONS, because it reflects typical pay more closely; cf Fawcett Society advocates the mean precisely because it captures extremes: see www.fawcettsociety.org. uk/Blog/calculating-gender-pay-gap. Both data are included where available. 98  This and following data taken from ONS, Annual Survey of Hours and Earnings: 2016 provisional results (2016) and accompanying tables, at www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/bulletins/annualsurveyofhoursandearni ngs/2016provisionalresults#main-points. 92 

A Demographic Picture 55 Taking full-time workers only, who are more likely to include women earning higher salaries, the gap was 9.4%/13.9% in 2016, compared with 17.4%/20.7% in 1997. The picture for part-time working is more complicated. More women work part-time than men (41% and 12% respectively in 2016) because of their childcare and other caring responsibilities (discussed later in this ­section). Since the hourly earnings of part-time employees tend to be less, on average, than the earnings of full-time employees, women are more likely to receive lower hourly rates of pay. This helps explain why the gender pay gap for all full-time and part-time employees is greater than the gender pay gap for full-time employees only. However, amongst part-time workers, women are paid more on average than men, so that, taking the median, the gap has in fact switched from a very small bias towards male earnings in 1997 of 0.6%, to a negative pay gap, of –6% in 2016; indeed, the gap between male and female part-time median earnings appears to be widening in women’s favour. (However, the mean continues to show an advantage enjoyed by men, albeit reducing from 17% to 5.8%). For high earners, the gap for full-time employees has remained largely consistent, fluctuating for median earnings at around 20%. The introduction of the National Living Wage in 2016 in the UK boosted the earnings of women more than those of men, thus narrowing the gap at the bottom, because of the greater number of women working in low-paid jobs. Analysis by the Institute for Fiscal Studies (IFS) also found that, between 1991 and 2008, the gap between male and female hourly earnings grew steadily in the years after parents had their first child, reflecting the mother’s giving up work for a time, or moving to part-time employment. The IFS suggest that this reduces women’s labour market experience, so that women’s lower earnings are a reflection not just of lower pay, but also of reduced earning potential.99 iii.  Child Care and Housework Since a key reason why women’s earnings are lower than men’s lies in their caring responsibilities, the final element of the contextual picture that needs to be considered is how far the stereotypical breadwinner/housewife model still governs the division of household labour and the performance of care work. Women and men marrying before and after the Second World War were, it seems, still significantly driven by concerns that, in line with the ­prevailing

99  M Costa Dias et al, The Gender Wage Gap, IFS Briefing Note BN186 (London, Institute for Fiscal Studies, 2016) 12.

56  Family Change and Individual Commitment model, the husband should be a good provider and the wife a good­ housekeeper.100 While men often worked very long hours, ‘It was most wives, though, who truly knew what long hours meant.’101 Housewives keeping diaries in the 1950s reported 15-hour days spent on housework and childcare. A study of women working in the higher grades of the civil service (after the marriage bar was abolished in 1946) found that only 20% of husbands ‘put in as much as half the hours spent by their wives on domestic tasks’. However, by the end of the 1950s, some younger husbands were reported as sharing the washing up if they were not too tired after work, and were prepared to help with the children (by pushing the pram, or taking them to the park).102 The position has changed since then, not least because everyone does less housework and the tasks themselves are easier to do, but women still undertake the bulk of domestic care work (including as domestic workers for wealthier women). In 2012, women reported doing 13 hours’ housework and 23 hours’ caring for family per week, compared with men reporting eight and 10 hours respectively.103 The overall story is that there has been very little change over the past two decades in the percentage of couple households dividing household responsibilities along traditional gender lines. The biggest gender divides are in who does the laundry (women, in 70 per cent of couple households in 2012) and who makes small repairs around the house (men, in 75 per cent of couple households in 2012). … [I]t was the case in 1994 and remains the case in 2012 that, to differing degrees, women are much more likely than men to always or usually care for sick family members, shop for groceries, do the household cleaning and prepare the meals.104

In relation to child care specifically, Gavin Ellison et al conducted a largescale study in 2008–09 to build a picture of parents’ attitudes and arrangements. In their survey, 74% of the parents were in paid employment, but this rose to 88% of fathers and fell to 63% of mothers. Eighty-three per cent of fathers were working full-time compared to just 27% of mothers; only 5% of fathers worked part-time, while 36% of mothers did so. Fathers’ hours were also significantly longer than those of mothers: 46% worked between 40–49 hours per week, while only a quarter of mothers did so.105 The p ­ ractical

100  N Higgins, ‘The changing expectations and realities of marriage in the English working class, 1920–1960’ (D Phil thesis, Cambridge, 2002), cited by Kynaston (n 75) 583. 101  ibid, Kynaston (n 75) 584. 102  ibid, Kynaston (n 75) 588. 103 J Scott and E Clery, ‘Gender Roles’ in A Park et al (eds), British Social Attitudes 30 (London, NatCen, 2013) 126. 104  ibid, 127. 105 G Ellison et al, Work and care: a study of modern parents, Research Report: 15 (­Manchester, EHRC, 2009) 34 and Table 5.

A Demographic Picture 57 effect of this working pattern was that while only 29% of parents believed that primary responsibility for childcare rests with the mother,106 threequarters of mothers—and around 55% of fathers—reported that the mother in fact had primary responsibility.107 In 24% of father-headed lone-parent families, the primary responsibility for childcare was in fact performed by another family member, such as a grandparent, while 76% of lone mothers reported having primary responsibility and just 9% relied on other family members.108 Lastly, the assumption that very young children should be cared for by mothers and the preponderance of fathers working fulltime continued to govern many parents’ arrangements—52% of mothers reported caring for a pre-school child during the week, compared with 18% of fathers.109 Indeed, the British Social Attitudes Survey found that ‘while attitudes that there should be a clear gender divide—with male breadwinners and female home-keepers—have been almost eradicated (believed by only one in eight people in 2012)’, 69% of respondents thought the best arrangement for caring for pre-school age children was for the mother either to be at home (31%) or to work part-time (38%) while the father works full-time.110 It should be noted, moreover, that the availability of part-time work, or some other form of flexible working, appears to be gendered as well as related to the sector of the economy, the size of the employer’s enterprise and the grade of employment.111 Mothers (particularly those with younger children) in Ellison et al’s survey were more likely than fathers to report both that they were working flexibly and that they had the opportunity to do so.112 And while the statutory two weeks’ paternity leave was taken by 53% of fathers, a further 34% had not done so, mainly because they felt they could not afford it,113 a reflection of a broader finding that 53% of parents felt their childcare arrangements were determined by necessity rather than choice.114

106 

ibid, Figure 1. is common in surveys of this kind, parents often had different impressions of the extent to which care is shared—31% of fathers believed that they shared responsibility with the mother, while only 14% of mothers did so: ibid, Figure 7. See also Scott and Clery (n 103) Table 5.5 on housework, and section IV of ch 5 of this volume, on child support. 108  Ellison et al (n 105) 35–36. 109  ibid, Figure 9. 110  Scott and Clery (n 103) 121 and Table 5.3. 111  The public sector and the professions were more likely to have such arrangements, as were larger organisations (or very small ones) and more employees at higher grades reported their availability: Ellison et al (n 105) 49–51. 112  ibid, 50. 113  ibid, 54. 114  ibid, 56. 107 As

58  Family Change and Individual Commitment iv. Caring It has been noted that women remain more likely than men to take on the care of sick family members. As life expectancy increases, the task of providing care for adult family members is becoming a major policy dilemma. Family law in England and Wales has not focused upon care for ascendants or kin other than spouses/civil partners and dependent children, and the obligation to care for these therefore currently lies in the social and moral spheres.115 But it does not follow from the fact that there is no legal duty of care (in the form either of monetary support or care work) upon, say, an adult child, that the provision of such care as a social reality should be ignored in assessing the context in which legal family obligations are imposed. The ‘double shift’ outlined in the preceding section, of paid employment and domestic care undertaken by the majority of women, will be compounded if they are also expected to assume responsibility to care for their own parents or other kin—the so-called ‘sandwich generation’.116 This will also impact on the nature and degree of the ‘commitment’ (in the various senses discussed in Chapter 1) women may feel both to their own nuclear family and to these further potential recipients of their care. In 2011, 5.78 million people (about 10% of the population) in England and Wales were providing unpaid care to those who were elderly, sick or disabled. About 58% of carers were women.117 Just under two-thirds of carers provided between 1–19 hours per week, over a tenth 20–49 hours, and nearly a quarter 50 hours or more of care.118 Apart from carers aged under 24, women were more likely to be providing care than men at all ages up to 64, after which men become more likely to care than women because carers in this age group are looking after their spouse or partner (and older women, whilst having greater longevity, are more prone to illness).119 As Dalia Ben Galim and Amna Silim summarise, despite the significant social and economic changes affecting women since the war, they ‘are still the nation’s carers, with many balancing care responsibilities and work throughout their lives. This can have significant implications for work

115  See J Herring, Caring and the Law (Oxford, Hart Publishing, 2013); and J Finch and J Mason, Negotiating Family Responsibilities (Abingdon, Routledge, 1993), discussed above ch 1, section IV and see ch 7, section I. 116  D Ben-Galim and A Silim, The Sandwich Generation: Older women balancing work and care (London, Institute for Public Policy Research, 2013). 117 ONS, Full story: The gender gap in unpaid care provision: is there an impact on health and economic position? (2013) at http://webarchive.nationalarchives.gov.uk/20160105160709/ http://www.ons.gov.uk/ons/dcp171776_310295.pdf. 118 ONS, 2011 Census analysis: Unpaid care in England and Wales, 2011 and comparison with 2001 (2013) at www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/ healthcaresystem/articles/2011censusanalysisunpaidcareinenglandandwales2011andcomparis onwith2001/2013-02-15. 119 ONS, Full story (n 117) 3.

From the Family to the Individual 59 opportunities, incomes and pensions.’120 They reported that as a result of older women’s121 greater caring responsibilities, they are more likely than men to give up work, with 17% of unemployed women having given up work to care for someone, in contrast to only 1% of men. Lastly, it should be noted that caring for grandchildren is a major form of older women’s care work. Ben Galim and Silim also reported in 2013 that 42% of families in the UK with children over nine months old were receiving informal child care from a grandparent, and where the mother was working or studying, the proportion was 71%.122 Women engaged in such caring may simultaneously be working part-time, caring for a spouse or partner, and caring for a parent. Their financial position is unlikely to be strong; the structural constraints limiting their freedom to leave emotionally unfulfilling relationships will be manifold. III.  FROM THE FAMILY TO THE INDIVIDUAL

A.  Form, Role and Gender These demographic and statistical data reflect deep social changes that have affected families, but they do not fully explain them. Nor do they make completely explicit how far they reflect a shift in social and cultural focus from the family to the individual. One can draw on a variety of disciplinary perspectives to try to fill these gaps. The traditional high age of first marriage, the reduction in the birth rate and the rise of the breadwinner/ housewife marriage model may be explained applying the historical a­ nalysis of John Gillis, for example.123 Gillis argues that the distinctive family system in north-west Europe has been the single-family household, based on monogamous marriage, taking place when the couple (or at least the man) have established sufficient economic independence. This produced a relatively high age of first marriage, and consequently high numbers of young unmarried people. As capitalism advanced into the industrial era and banks and stock markets replaced families as sources of capital, a man’s success came to depend more on his own talents and efforts and on the opportunities he took outside the home, while the home itself ceased to be a site of production. Women and children became less able to contribute to the man’s labour and, in the working classes, sought employment outside the

120 

Ben-Galim and Silim (n 116) 2. Defined in their report as women generally in their 50s and 60s still able to work. 122  Ben-Galim and Silim (n 116) 11. 123  J Gillis, A World of Their Own Making: Myth, Ritual, and the Quest for Family Values (Cambridge, MA, Harvard University Press, 1997). 121 

60  Family Change and Individual Commitment home as well, very often in the form of domestic care work for families wealthier than their own.124 Children ceased to be employed in productive labour within the family home and became a cost rather than an asset to the family, so that the middle-classes began to limit their fertility, producing a gradual drop in the birth rate. Wives ceased to be involved in the husband’s business or trade, so that marriage became less focused on finding a partner with the right skills or capital to perpetuate that business. Gillis concludes that by the late nineteenth century, conjugal love was becoming the basis for marriage, spreading slowly out to all social classes: While the financial worth of a prospective husband or wife never became wholly irrelevant, no respectable middle-class couple could henceforth admit to marrying for anything but love. … Marriage, like career, had become a matter of individual choice, involving only the two families of origin.125

Gillis argues that the meaning attached to motherhood and fatherhood underwent significant change too. The development of the ideology of ‘separate spheres’ of home and market during the nineteenth century, which required women increasingly to focus on home and family, saw fatherhood change from a nurturing to a protecting and providing role, while motherhood assumed an ‘iconic function’, moving from child-bearing, to childrearing and nurturing.126 Thus the accepted family model, which came to dominate the late nineteenth and most of the twentieth century, was that of the breadwinner husband/father and dependent housewife/mother. B.  Capitalism and Family Function Gillis’ discussion of the impact of capitalism on the family provides the prelude to a necessary consideration here of a more thoroughgoing (though highly contested) economic analysis of the reasons for family change and the shift towards individualism. In this, Gary Becker argued that both the development of the breadwinner/housewife family model and the shift of focus away from the family unit on to the individual, were rational and functional responses to the advent of capitalism.127 Becker posited that traditional pre-capitalist societies in Europe were static; they had limited information and knowledge, and technological change was slow. Families provided protection against uncertainty, acting

124  For a history of domestic service and the role it played in freeing up the time of wealthier women, see A Light, Mrs Woolf and the Servants: The Hidden Heart of Domestic Service (London, Fig Tree, 2007). 125  Gillis (n 123) 70. 126  ibid, 190. 127  G Becker, A Treatise on the Family (Cambridge, MA, Harvard University Press, 1981).

From the Family to the Individual 61 as informal insurance systems, sharing good and bad fortune amongst their members. They were held responsible for the acts of their members, sharing both praise and shame accordingly, and therefore closely monitoring behaviour. Families ‘warranted’ the honesty and good conduct of their members in order to secure jobs, places and apprenticeships for them. Wealthier families viewed marriage as a means of forming favourable alliances with others, and so took a close interest in how matches were made and expected the individuals concerned to assent. The information on which marital choices were based concerned the reputation and wealth of the family, not the personality and behaviour of the individuals. Amongst poorer families, by contrast, there was greater autonomy in economic and social choices made by individual members, as the family itself had little to lose from the decisions taken. A person might seek to move away from the family in order to better himself and avoid his progress being thwarted by its low status. Becker contrasted such societies with ‘modern’ societies. He drew no distinction between those formed by industrialisation and ‘late modern’ societies in which consumption and services are primary,128 focusing instead simply on capitalist societies. In such societies, he argued, markets facilitate trade and production, stimulating change in technologies, incomes and opportunities; people become more mobile in order to take advantage of these. Developed laws of contract replace the previous reliance on family ‘certification’ of workers, while the availability of market credit, savings vehicles and insurance enables the individual to develop his capital and self-insure against risk. The family and kin become less important, and less concerned, to monitor individual behaviour. As individuals move away to secure better economic opportunities, the family becomes less able to supervise them anyway. Family members therefore develop more autonomy over decision-making, including choice of partner. Personal, rather than family, compatibility becomes more central to that choice. However, because personal traits (as distinct from family characteristics) are harder to assess prior to the marriage, there is greater disappointment with the marital experience, and greater propensity to divorce and try again in the marriage market, as witnessed by higher divorce rates. With economic activity underpinned by more complex technology and bodies of knowledge and taking place increasingly outside the home, parents need to invest more in their children’s education and training to equip them for the outside world. The additional cost this imposes means that they will have fewer children but of higher ‘quality’. Becker suggested that the shift to love as the basis for choice of marital partner and the greater investment in a smaller number of children

128  Compare the work of Beck and Beck-Gernsheim and Giddens, discussed in this chapter, section III.C.ii.

62  Family Change and Individual Commitment in the family explain a perceived increase in emotional closeness and affection within the nuclear family in modern societies.129 All of this reflects the view that an increased emphasis has been placed on the individual in modern societies. More recent political and popular debate has seized on this perspective to argue that western societies have become ‘selfish’, and accordingly unwilling to make the sacrifices needed to ‘make marriage work’ or to ‘put the children first’,130 but Becker argued that ‘individualism replaced familialism because many family functions in traditional societies are more effectively handled by markets and other organizations in modern societies’.131 Becker’s analysis suggests one explanation for the impact that the broad shift from a traditional to a capitalist society might have had on family relations, but his understanding of the division of labour within the family and of altruism within it has been the subject of considerable and justifiable criticism. i.  The Sexual Division of Labour within the Family Becker’s argument is that specialisation of labour within the family via the separate roles of breadwinner and housewife is the most efficient way of allocating time and effort within the family in capitalist societies.132 On his view, it makes sense for men to devote more time and effort to building up their investment in the market, and for women to put their effort into investment in the family. He understood marriage to be a reciprocal relationship, whereby the husband gained from his wife’s domestic labour (the content of which will vary according to their social class) and the wife gained from the husband’s labour in the market. He thus defined marriage as ‘the term for a written, oral, or customary long-term contract between a man and a woman to produce children, food, and other commodities in a common household’.133 One can see here, as Jane Lewis has explained, the idea of an ‘efficient and stable family form in which the obligation to maintain was clear for men and the obligation to care was clear for women’.134 As David Kynaston described the bargain in 1950s Britain, marriage was a contract, a well-understood lifetime arrangement based on mutual interest. … At the heart of that mutual interest was usually a very traditional 129  The suggestion of greater emotional closeness in the modern era is strongly contested: see the critiques of Stone, for example, noted in this chapter, section III.C.i. 130  In the academic literature, see eg, RE Bellah et al, Habits of the Heart: Individualism and Commitment in American Life (Berkeley, CA, University of California Press, 1996). 131  Becker (n 127) 244. 132 ibid ch 2. The approach is very similar to Talcott Parsons’ analysis of the American ­family in the mid-20th century: see T Parsons and R Bales, Family: Socialization and Interaction Process (London, Routledge & Kegan Paul, 1956). 133  Becker (n 127) 27. 134 J Lewis, The End of Marriage?: Individualism and Intimate Relations (Cheltenham, Edward Elgar, 2001) 45.

From the Family to the Individual 63 division of labour: the husband as breadwinner, the wife as homemaker, even if she was in part-time paid work. ‘While he is at work she should complete her day’s work—washing, ironing, cleaning or whatever it may be—and she must have ready for him a good meal’ …135

In Becker’s view, in the late twentieth century, this model broke down as women increasingly went into the labour market, because the rewards there outweighed those available from investment in the family. In turn, children became even more expensive because of the cost their care imposes on career development and lost earnings. The gain from marriage was reduced because there was less benefit in the sexual division of labour. Divorce, cohabitation and birth outside marriage therefore became viable alternatives to traditional marriage for both men and women. The provision of welfare benefits to lone parents, pensions to the elderly and a free education system (and, one might add, in the UK, a National Health Service), all provide alternatives to the traditional reliance on the family for support and care, resulting in (or perhaps contributing to) greater financial independence for women to walk away from unsatisfactory relationships and the greater distancing between parents and their adult children.136 Becker’s approach is inherently sexist. For example, he regarded the division of labour as ‘partly due to intrinsic differences between the sexes’,137 with women biologically committed to the production and feeding of children (through giving birth and breast-feeding). Moreover, in discussing altruism within the family, he denoted the ‘altruist’ as the husband and the ‘selfish beneficiary’ as the wife (and any children).138 More seriously, perhaps, his thesis has been condemned as merging the positive and the normative, as ignoring issues of power and inequality, failing to reflect the reality of women’s lives within the family, particularly the burden of care work that they assume, and taking as historically inevitable that which is socially constructed.139 Nonetheless, as Philomila Tsoukala has argued, his work is important not only in recognising that domestic work in the family has productive value (which has been important in providing financial recompense for the caring role carried out by many wives and partners),140 but also in providing tools of analysis to explore the financial positions of parties to a relationship and to test out the implications of imposing or removing the financial obligations imposed upon them.141 135 

Kynaston (n 75) 583. Becker (n 127) 245–54. 137  ibid, 21. 138  For an excellent critique of the contrary tendency to claim altruism as inherently feminine, see P Tsoukala, ‘Gary Becker, Legal Feminism, and the Costs of Moralizing Care’ (2007) 16 Columbia Journal of Gender & Law 357, 392–93. 139  For a detailed discussion of Becker and his feminist critics, see A Estin, ‘Can Families Be Efficient? A Feminist Appraisal’ (1996) 4 Michigan Journal of Gender & Law 1; Tsoukala (n 138). 140  White v White [2001] 1 AC 596. See ch 7, section II.A. 141  Tsoukala (n 138). 136 

64  Family Change and Individual Commitment C.  Individualism and Individualisation Becker’s thesis may be summarised as holding that in traditional societies, the family determined both the life chances and life choices of its members, whilst in modern societies, the family influences only the former. It finds echoes in other work that argues that cultural norms have come to focus on the needs and wants of the individual, rather than on those of the family. i.  Affective Individualism Lawrence Stone, in his study of early modern society in England between 1500 and 1800,142 argued that ‘affect’ had been absent prior to the modern era, suggesting a picture of ‘cold’, arranged marriages (or at least marriages where economic considerations rather than love and attraction were paramount) and harsh parenting.143 His work has been heavily criticised as too sweeping and generalised.144 Later historians of the family have corrected the image he created. Martin Ingram, for example, exploring attitudes in the late sixteenth and early seventeenth centuries, finds that ‘a more subtle system prevailed in which love had a part to play in combination with prudential considerations, the pressures of community values and … the interests of parents and sometimes other family members’.145 Similarly, Joanne Bailey’s account of parent/child relations in the late Georgian period reveals as much intense love, care and intimacy as is expected of modern parents.146 But Stone’s account of the development of individualism in the sixteenth to eighteenth centuries appears more convincing. He characterised this in various ways: it was a greater ‘interest in the self, and … recognition of the uniqueness of the individual’; it was also a ‘secular individualism’, reflecting a desire for personal self-expression accompanied by, in the political sphere, a ‘rising demand for autonomy … the right of the individual to a certain freedom of action and inner belief’ and, in the economic domain,

142 L Stone, The Family, Sex and Marriage in England 1500–1800 (Harmondsworth, ­Penguin Books, 1979), especially ch 6 from which the quotations in the text are taken. 143  For a devastating critique, see A MacFarlane, ‘Review’ (1979) 18 History and Theory 103. 144  For example, C Hill, ‘Sex, Marriage, and the Family in England’ (1978) 31 Economic History Review 450 questioned the extent to which evidence about the upper classes can be assumed to apply to those lower down the social scale. For discussion of the position relating to the lower social classes, see J Gillis, For Better, For Worse: British Marriages 1600 to the ­Present (New York, Oxford University Press, 1985); and for consideration of the merchant class, see R Grassby, Kinship and Capitalism: Marriage, Family, and Business in the EnglishSpeaking World, 1580–1740 (Cambridge, Cambridge University Press, 2001). 145 M Ingram, Church Courts, Sex and Marriage in England 1570–1640 (Cambridge, ­Cambridge University Press, 1987) 142. 146  J Bailey, Parenting in England 1760–1830: Emotion, Identity, and Generation (Oxford, Oxford University Press, 2012).

From the Family to the Individual 65 ‘the growth of possessive individualism’ reflected in significance becoming attached to the concept of private property. All of this, in his view, resulted in ‘a progressive reorientation of culture towards the pursuit of pleasure in this world, rather than postponement of gratification until the next’.147 Whatever the historiographical criticisms that can be made of Stone’s thesis, it is plausible to argue that there was indeed a growth in the focus on the individual during this period, a product of the Enlightenment and reflecting the ascendancy of philosophical and political liberalism, culminating in the later major reforms to the franchise and the changing position of women. ii. Individualisation There are echoes of both Stone’s historical account and of Becker’s economic analysis in the identification by Ulrich Beck and Elizabeth Beck-Gernsheim of contemporary shifts in cultural attitudes to the individual and the family, which they term ‘individualization’.148 For them, individualisation in late modernity ‘is the product of the labour market and manifests itself in the acquisition, proffering and application of a variety of work skills’.149 It has two aspects: first, a weakening of the traditional social relationships, bonds and belief systems that used to determine people’s lives, so that now, spaces have opened up for individuals to decide for themselves how to live. But secondly, they suggest that this is a form of ‘institutionalized individualism’, with guidelines on how one is to live one’s life prescribed by the state and the market rather than by religion and tradition enforced by the family. People have to ‘build up a life of their own by way of the labour market, training and mobility, and if need be to pursue this life at the cost of their commitments to family, relations and friends’.150 Individualisation is not, then, to be understood as mere selfishness, as conservative commentators might suppose. Rather, it reflects the focus on the individual, rather than on a family or other group, as the target and recipient of state attention. 147 Stone (n 142) 159. See L Holcombe, Wives and Property: Reform of the Married ­ omen’s Property Law in Nineteenth-Century England (Oxford, Martin Robertson, 1983) W 97, who argues that those advocating divorce reform in the 1850s similarly focused on the inutility to society of requiring unhappy spouses to remain in loveless marriages. 148 U Beck and E Beck-Gernsheim, Individualization: Institutionalized Individualism and its Social and Political Consequences (London, Sage Publications, 2002) 32. See also E ­Beck-Gernsheim, Reinventing the Family: In Search of New Lifestyles (Cambridge, Polity Press, 2002); E Beck-Gernsheim, ‘From Rights and Obligations to Contested Rights and Obligations: Individualization, Globalization, and Family Law’ (2012) 13 Theoretical Inquiries in Law 1. For criticism, see in particular, C Smart, Personal Life: New directions in sociological thinking (Cambridge, Polity Press, 2007) 18–20. She criticises their thesis for a lack of historical specificity, an assumption that families change because of institutional change, and a tone of pessimistic hyperbole. 149  Beck and Beck-Gernsheim (n 148) 32. 150  U Beck and E Beck-Gernsheim, The Normal Chaos of Love (Cambridge, Polity Press, 1995) 6.

66  Family Change and Individual Commitment It becomes the individual’s responsibility to shape his or her own life; but equally, it will be that person’s responsibility if his or her choices and actions fail to deliver self-fulfilment. This seems to fit well with the ideology of autonomy and self-responsibility promoted in liberal societies.151 Beck and Beck-Gernsheim suggest that modern industrialisation, which has brought improved educational and employment opportunities for women, has produced a new ideal of marriage focused on emotional support, viewing marriage as a tie between two persons who each earns their own living and seeks in the partner mainly the fulfilment of inner needs … its central focus is now the individual ­person with her own desires, needs, ideas and plans, in short, personal happiness.152

One might doubt the extent to which this ideology of independent autonomy is reflected in the way people actually live their family lives,153 but the emphasis on personal fulfilment as the purpose of marriage (or cohabitation) is resonant. Beck and Beck-Gernsheim argue that one consequence of this shift is to increase the time and effort that must be spent in negotiation. No longer can the man, as head of the household, determine what is to ­happen. The marriage (or other partnership) is a joint enterprise of co-heads of household, and the interests of each must be considered in order to reach agreed decisions. They conclude that ‘As people make choices, negotiating and deciding the everyday details of do-it-yourself relationships, a “normal chaos” of love, suffering and diversity is growing and developing.’154 That ‘normal chaos of love’, in their view, does not mean that people turn their backs on marriage or other intimate relationships. Rather, these become a source of emotional satisfaction, which in turn becomes the source of identity and validation of the self. The form of such relationships becomes more diverse in order to meet individual preferences. A ‘post-familial family’ has developed in the guise of cohabitation, blended families, living apart together and so on. Reflecting the rise in rates of cohabitation, divorce and parenthood outside marriage and partnership that were reviewed in section II of this chapter, the ties and obligations between these family members become more fragile: wider but thinner. Beck and Beck-Gernsheim identify one other key development in the nature of the family—a focus on the child—which they see as a natural consequence of the weakening of ties between the adult partners: What remains is the child. It promises a tie which is more elemental, profound, and durable than any other in this society. The more other relationships become 151  For critiques of which, see H Reece, Divorcing Responsibly (Oxford, Hart Publishing, 2003); M Fineman, The Autonomy Myth: A Theory of Dependency (New York, The New Press, 2004); J Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (New York, Oxford University Press, 2011). 152  Beck and Beck-Gernsheim (n 148) 72. 153  See A Diduck, Law’s Families (London, LexisNexis, 2003) ch 2. 154  Beck and Beck-Gernsheim (n 148) 98.

From the Family to the Individual 67 interchangeable and revocable, the more a child can become the focus of new hopes—it is the ultimate guarantee of permanence, providing an anchor for one’s life.155

This insight helps explain the current emphasis on the importance of maintaining links between a parent and child after separation, which are explored in Chapters 5 and 6. But given the continuing difficulties that can be involved in securing and sustaining positive post-separation parenting, both for the primary carer and the non-resident parent, Anthony Giddens has argued that a child may be regarded by some as not so much an anchor offering stability as a drag on a parent’s freedom of movement.156 ­Moreover, as already noted, the gendered nature of childcare makes the experience of commitment in parenting more likely to be felt as a constraint and a burden by mothers than by fathers. Giddens’ own analysis of social change posits a ‘transformation of intimacy’ in the late modern era, through the development of the ‘pure relationship’.157 He too argues that the nineteenth century saw the spread of the ideal of romantic love rather than economic factors as the foundation for marriage, resulting in the disentanglement of the marital bond from wider kinship ties.158 But he suggests that from this developed the ‘pure relationship’, where a social relation is entered into for its own sake, for what can be derived by each person from a sustained association with the other; and which is continued only in so far as it is thought by both parties to deliver enough satisfactions for each individual to stay within it.159

Key elements160 of this pure relationship are, first, that it is not anchored in external conditions of social or economic life (which might be taken as the structural commitments discussed in Chapter 1). The relationship is sought only for what it can bring in terms of emotional intimacy and self-fulfilment to the parties involved, and it must be continuously re-negotiated as a kind of ‘rolling contract’ to determine whether the relationship is to endure or not.161 Love in the pure relationship is ‘confluent’ rather than ‘romantic’— that is, whereas romantic love requires the lovers to ‘lose themselves’ in each other and to assume that their love is ‘forever’, confluent love is ‘contingent’ on the relationship’s continuing to ‘deliver’ satisfaction. 155 

Beck and Beck-Gernsheim (n 150) 73. Giddens, The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Societies (Cambridge, Polity Press, 1992) 26. 157 A Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age (­Cambridge, Polity Press, 1991); Giddens (n 156). 158  Giddens (n 156) 26. 159  ibid, 58. 160  Giddens (n 157) 89ff. 161  Giddens (n 156) 192. For consideration of this approach as an ‘external’ stance towards intimacy, see M Regan Jnr, Alone Together: Law and the Meanings of Marriage (Oxford, Oxford University Press, 1999). 156  A

68  Family Change and Individual Commitment In contrast to Beck and Beck-Gernsheim, who, as we have seen, view the child as the ‘ultimate guarantee of [the] permanence’ of the perfect intimate relationship that individuals are seeking, Giddens seems to downgrade it entirely, suggesting that the couple’s ‘joint emotional enterprise’ is regarded as taking priority over their obligations to their children.162 This somewhat dismissive approach is unsurprising, since it reflects the voluntary commitment, consensual model of intimate relationships that he espouses.163 His assumption that obligations must be voluntarily assumed reflects wider ­liberal thinking, which, as the following chapters demonstrate, has shaped the modern legal conception of rights and duties within the family. IV.  CHANGE AND COMMITMENT

The picture of demographic and social change presented in this chapter demonstrates shifts in the significance and impact of the various understandings of ‘commitment’ discussed in Chapter 1. The recent decline in the marriage rate, and the postponement of marriage, could be said to suggest a reluctance to make a personal commitment in the sense of a promise or dedication, but it does not follow that this means people are ‘less committed’ to intimate relationships. Indeed, one could argue that the delay in marriage highlights the significance attached to entering into such a commitment, and that the increasing prevalence of pre-marital cohabitation shows a desire to test out the strength of the relationship and the resilience of the commitment. The later age at which women are giving birth appears to demonstrate a similar seriousness of purpose and determination not to ‘start a family’ until properly ready to do so. What also seems to be reflected in the data on the general increase in cohabitation is a view that personal commitments to a partner or a child can be made privately and informally, without the need for the public sanction signified by marriage.164 At the same time, this growth in cohabitation, and the increase in the proportion of births outside marriage, coupled with the overall rise in the number of divorces (even if that has levelled off in recent years), suggest that moral commitment and the structural commitment imposed by social norms have become less central to people’s attitudes and actions. There is no longer a stigma in mainstream society towards living together, having a child outside marriage or getting divorced, and there is a greater understanding and tolerance of people’s decisions both to enter into and to leave

162 

Giddens (n 156) 26. See ch 1, section V.C.i. 164 See Lewis (n 134); and M Maclean and J Eekelaar, ‘Marriage and the Moral Bases of ­Personal Relationships’ (2004) 31 Journal of Law and Society 510, discussed in ch 1, section V.C.i. 163 

Change and Commitment 69 intimate relationships. There is general acceptance that there may be good reasons for such decisions that are personal to the individual, rather than needing to align with the supposed ‘benefit’ to society of ‘preserving’ the institution of marriage. In seeing these actions as conscious ‘decisions’, the active, voluntary nature of commitment as a personal, individual undertaking is underscored. On the other hand, while women’s economic position has improved out of all recognition in the modern era, they face continuing barriers to equality in employment and remuneration. These are coupled (and causally linked) with similarly continuing social expectations that women are primarily ‘carers’ of both children and other relatives. Lone-parent families are still overwhelmingly likely to be headed by mothers, and women’s ­working opportunities and practices continue to be shaped by their childcare and other caring responsibilities. These data evidence the extent to which women continue to be bound by their structural commitments, in the sense of burdens and obligations to family, and the extent to which men seem able to minimise or avoid these. In the following chapters, the key legal obligations associated with caring within the family are explored as case studies to illustrate the thesis that, as family relationships have come to be seen as based on emotional connection and individual self-fulfilment—as ‘caring about’ others—it has become increasingly problematic to assume that law can be used to enforce such bonds. Law can more easily still be used to enforce ‘taking care of’ another through financial obligations. But here the emphasis on personal commitment as the rationale for the imposition of obligations and the assumption that partners are (capable of being) financially autonomous and independent of each other, have increasingly underpinned the tendency to limit continuing financial ties between them, with consequential impact on support for children as well.

3 To Have and To Hold [N]ature is the first lawgiver, and when she has set tempers opposite, not all the golden links of wedlock nor iron manacles of law can keep ’em fast.1 [S]o far are suits for restitution of conjugal rights from being in truth and in fact what theoretically they purport to be, proceedings for the purpose of insisting on the fulfilment of the obligation of married persons to live together, I have never known an instance in which it appeared that the suit was instituted for any other purpose than to enforce a money demand.2

I.  COMPELLING COHABITATION

T

HIS CHAPTER EXPLORES the changing understanding of the obligation to care within a marriage during the period of modernisation and individualisation outlined in Chapter 2. It does so through an examination of the history of the ‘ancient, curious and unreal ecclesiastical remedy of restitution of conjugal rights’.3 The development and eventual abolition of this remedy, intended to vindicate and restore a spouse’s right to the equally ancient, curious and unreal concept of ‘consortium’, illustrates the two key drivers of family change in the modern era discussed in the previous chapter—the rise of liberal individualism and the increasing focus on emotional self-fulfilment as the objective of intimate relationships. It will be shown that it came to be accepted that spouses could not be compelled to live together against their wishes (or often, against the wishes of one of them), thus reflecting the rise in individualism and the view of marriage as a relationship intended to deliver emotional fulfilment. But at the same time, the instrumental use of a restitution decree as a mechanism for delivering financial remedies to a deserted spouse could be said to reflect a liberal (and more prosaic) view of marriage as a simple contract for ‘personal services’ in

1 

G Farquhar, The Beaux’ Stratagem (1707) Act III, Sc 3. Marshall v Marshall (1879) 5 PD 19, 23 per Hannen P. 3 C Davies, ‘Matrimonial Relief in English Law’ in RH Graveson and FR Crane (eds), A Century of Family Law (London, Sweet & Maxwell, 1957) 347. There were even more obscure remedies, such as actions for ‘enticement’, ‘harbouring’ and ‘criminal conversation’ (adultery), noted in section II. 2 

The Concept of Consortium 71 exchange for financial support. As can be appreciated, the process and trend in thinking was not a simple linear one from ‘pragmatic’ to ‘romantic’, or from ‘spiritual’ to ‘economic’. The question of how the two conceptions of marriage can be fitted together continues to challenge those seeking to reform the legal consequences of marriage, as well as those attempting to extend such consequences to other types of intimate relationship. One could argue that the trends illuminated by a study of the restitution action are at least as well highlighted by a discussion of the continuing reform of the grounds for divorce. However, the interest of this chapter lies in what the action reveals about changing understandings of the obligations of care within the continuing marriage—not the basis on which the ­marriage could be brought to an end. As Stephen Cretney has said, the remedies of restitution, separation, and damages for adultery have considerable conceptual importance: they all reflect the fact that in 1857 marriage was still seen as a legal relationship which gave rise to legally enforceable rights and duties. In the latter part of the twentieth century this approach increasingly seemed ­outdated; and the legislative response betokens a changed view of the relationship between the family and the law.4

II.  THE CONCEPT OF CONSORTIUM

At common law, the relationship between the spouses was referred to as consortium or ‘conjugal society’.5 This term was not fully defined but appears to have been intended to encompass living together, and the rights and duties that flowed from the relationship.6 This begs the question what those rights and duties were, but essentially the husband had the right to expect domestic and sexual services—care work—from his wife in return for providing her with a roof over her head and ‘maintenance’. As Lord Wensleydale explained in Lynch v Knight:7 The relation of the husband to the wife is in most respects entirely dissimilar from that of the master to the servant,8 yet in one respect it has a similar character.

4  S Cretney, Family Law in the Twentieth Century: A History (Oxford, Oxford University Press, 2003) 143. 5  Lynch v Knight (1861) 9 HL Cas 577, 589. 6  Consortium was intended ‘not only to preserve the happiness of the spouses but also to conserve and further the interests of the children’, according to Lord Thankerton in Fender v St John Mildmay [1938] AC 1, HL, at 24. 7  (1861) 9 HL Cas 577, 598, 599. 8  For consistent feminist criticism that this was exactly what the marital relationship was like in the 19th century, see L Holcombe, Wives and Property: Reform of the Married ­Women’s Property Law in Nineteenth-Century England (Oxford, Martin Robertson, 1983); and M Shanley, Feminism, Marriage, and the Law in Victorian England 1850–1895 (London, IB Tauris, 1989) and the sources cited therein.

72  To Have and To Hold The assistance of the wife in the conduct of the household of the husband, and in the education of his children, resembles the service of a hired domestic, tutor or ­governess; is of material value, capable of being estimated in money; and the loss of it may form the proper subject of an action, the amount of compensation ­varying with the position in society of the parties.

And Lord Campbell noted in the same case:9 [B]y the adultery of the husband, the wife does not necessarily lose the consortium of her husband; for she may, and, under certain circumstances, she ought to ­condone and still enjoy his society; whereas condonation of conjugal infidelity is not permitted to the husband, and, by reason of the injury of the seducer, the consortium with the wife is necessarily for ever lost to the husband.

In Lynch v Knight itself, the husband’s brother-in-law told him that his wife had been too intimate with a certain doctor before they married, and implied that she would commit adultery with him if given the chance. The husband threw her out of the matrimonial home and she was forced to return to her father’s house. When the spouses were later reconciled, they sued the brother-in-law for slander.10 The House of Lords finally rejected the suit on the ground that the husband had acted unreasonably in turning his wife out on the basis of such a flimsy allegation, but their Lordships agreed that, had the allegation been that the wife had actually committed adultery, ‘most husbands’ would have reacted as he had done.11 The case highlights the focus on the husband’s exclusive claim to his wife’s sexual and other services as a key aspect of consortium. This was reflected in a variety of common law suits that a husband could bring for deliberate and malicious interference with his consortium which brought about loss of the ‘comfort and society’ of his wife. He could sue if his wife were assaulted, for the ‘enticement’ or ‘harbouring’ of his wife which resulted in her ceasing to live with him, and for ‘criminal conversation’, that is, for adultery with her.12

9 

(1861) 9 HL Cas 577, 590. fact, because the wife had no legal personality as a married woman, the husband had to be joined in the suit, although their claim was based on special damage to her rather than to him. 11  For a fictional account of a husband’s refusing to live with his wife, after he discovered she had failed to tell him she had been (chastely) engaged to someone else before they met, see A Trollope, Kept in the Dark (1882). 12  See CA Morrison, ‘Tort’ in Graveson and Crane (eds) (n 3) 88. Once married women were given legal capacity to hold property and to sue in their own right under the Married Women’s Property Act 1882, the courts held that a wife could also sue for enticement (Gray v Gee (1923) 39 TLR 429) and possibly for loss of consortium caused by a deliberate act (Place v Searle [1931] P 59), but not for adultery nor, as the House of Lords eventually held, for loss of consortium due to negligence: Best v Samuel Fox & Co Ltd [1952] AC 716. That action was regarded, by that time, as an anomaly, which should not be extended to wives but abolished— as it (and these other suits) was by the Administration of Justice Act 1982, s 2(a). In Winchester v Fleming [1958] 1 QB 259, Devlin J similarly held that the action for ‘harbouring’ was archaic and should not be extended to allowing wives to sue. 10  In

The Concept of Consortium 73 As Lord Wensleydale’s statement shows, as well as sexual partner, the wife was expected to serve as an unpaid ‘domestic, tutor or governess’, ­taking care of the family and ensuring the smooth running of the household. But consortium also included ‘moral’ duties that were not in themselves subject to direct legal enforcement, although they might help frame a claim for a matrimonial remedy. In Hyde v Hyde and Woodmansee,13 in holding that a Mormon polygamous marriage was not a ‘Christian’ marriage amenable to English law, Lord Penzance noted: The matrimonial law is correspondent to the rights and obligations which the contract of marriage has, by the common understanding of the parties, created. Thus conjugal treatment may be enforced by a decree for restitution of conjugal rights … Personal violence, open concubinage, or debauchery in face of the wife, her degradation in her home from social equality with the husband, and her displacement as the head of his household, are with us matrimonial offences, for they violate the vows of wedlock. A wife thus injured may claim a judicial separation and a permanent support from the husband under the name of alimony …

The content of consortium appears to have had an almost mystical, unfathomable quality. In 1912, the Royal Commission on Divorce and ­Matrimonial Causes (the Gorell Commission)14 recommended, inter alia, that the respondent’s incurable insanity should be a ground for divorce. While the majority of the Commissioners agreed that ‘many marriages become ­absolute ­failures’ and ‘divorce is not a disease but a remedy for a disease’, their rationale for including insanity in the list of grounds was because it renders the person ‘incapable of carrying out any of the obligations incident to marriage’.15 However, they did not attempt to categorise what these obligations might be. The only substantive example they discussed was in classing ‘refusal to perform Conjugal Duties’—ie sexual intercourse—as a ground for nullity if the marriage had never been consummated, and (provided it endured for at least three years) desertion if it had.16 Yet, as discussed in section III.B, conjugal ‘rights’ were not necessarily regarded as including ‘marital intercourse’ when a court was awarding a decree for their restitution.17 More nebulous notions of marital duty were also envisaged. In Fender v St John Mildmay,18 a married man had an affair and his wife obtained a decree nisi based on his adultery. Before the decree absolute had been granted, he asked his mistress to marry him once he was free. However,

13 

Hyde v Hyde and Woodmansee (1866) LR 1 P & D 130, 135. Royal Commission on Divorce and Matrimonial Causes (Chair, Lord Gorell), Report (Cd 6478, 1912). 15  ibid, paras 238, 243, 268. 16  ibid, para 327. 17  Forster v Forster (1790) 1 Hag Con 144, 154-155. 18  Fender v St John Mildmay [1938] AC 1, HL at 16, 30–31. 14 

74  To Have and To Hold he changed his mind and married someone else, and the mistress sued for breach of promise of marriage. The question was whether the engagement was illegal because he had been married at the time it was entered into. In considering this issue, Lord Atkin stated that the solemn obligations of married life … are not all included in the legal phrase, rendering conjugal rights … [but a promise to marry someone else whilst still married] would almost necessarily interfere with, hamper and embarrass the ­ ­married consortium.

Lord Russell of Killowen suggested that such obligations would include ‘loyalty’ to a wife, incompatible with a promise to marry someone else, which would surely constitute a ‘moral breach’ of the marriage tie.19 So far as the husband’s right to consortium appears to have been concerned, it seems to have been interchangeable, at least in the eighteenth and nineteenth centuries, with the idea of guardianship or custody of his wife: thus his physical control over a wife, so long as it was exercised without cruelty, was initially upheld by the courts. For example, in Re Cochrane20 the court held that a husband was entitled to seize and detain his wife indefinitely in order to exercise his ‘guardianship’ over her—and to prevent her attending masked balls against his wishes.21 On the other hand, in RvL ­ eggatt,22 where the wife had left the husband and gone to live with her adult son, the husband was refused a writ of habeas corpus because the court held she had left him voluntarily and was not being ‘detained unlawfully’. The husband’s remedy, if he had one, lay in the ecclesiastical court. The legal conundrum created by these two decisions seems to have been, as counsel for the husband put it, that the husband had ‘the right, when he had got the custody of [his wife], to keep her confined like a bird in a cage, but that if she could get out, she might go where she pleased’.23 The result was an incentive to exercise self-help in order to recover the wife, rather than trust to legal remedies. In Re Price,24 for example, the court discharged a writ of habeas corpus brought by the wife’s friends, seeking to release her from her husband, who had forcibly removed her from

19  In fact, Lord Atkin, in the majority, held that a promise to marry made once decree nisi had been granted was not illegal, there no longer being any consortium in existence. Lord Russell, in the minority, saw no distinction between being married before or after decree nisi, the status of marriage continuing until decree absolute. 20  Re Cochrane (1840) 8 Dowl 630. 21  But cf Lister’s Case (1721) 1 Str 478, where the parties had agreed to live apart. It was held that unless the wife’s behaviour jeopardised the husband’s ‘honour and estate’, he could not seek to deprive her of her liberty. As there was no such evidence, habeas corpus was granted. 22  R v Leggatt (1852) 118 ER 29. 23  The Times (11 June 1852). 24  Re Price (1860) 175 ER 1052.

The Concept of Consortium 75 a religious community (‘Agapemone’)25 in which they had been living. The husband had become disillusioned and wanted to leave, but the wife refused to go. Wilde J held that, in the absence of proof of cruelty, the husband retained the right to have his wife living with him, and he could seize and restrain her by force if necessary. It is unclear how far the unusual nature of the community influenced the court’s approach. Certainly, by the end of the nineteenth century, as social attitudes towards the position of women, especially married women, continued to change, so too the courts finally rejected the view that a husband could exercise force to ‘discipline’ or constrain his wife in order to ensure she fulfilled her duty of consortium.26 R v Jackson,27 known as the ­‘Clitheroe Case’, was a cause célèbre. The parties married, but the husband almost immediately went to New Zealand to try to buy land and start a business. The wife did not wish to join him there and wrote asking him to return, but when he did so, she refused to live with him, regarding him as having only married her for her (considerable) wealth. He obtained a decree for restitution of his conjugal rights, which she refused to obey. So as she was leaving church, he seized her in full view of the congregation, bundled her into a carriage and took her to his house where he confined her for several days. Her relatives sought a writ of habeas corpus, which, having been refused by the Queen’s Bench, was granted by the Court of Appeal (who interviewed the wife in camera to determine what her views were).

25  Meaning ‘abode of love’. Whether the group practised ‘free love’, as The Times (15 August 1860) appeared to think, is not clear. There had been earlier litigation, and much publicity, surrounding the community. The wife and two of her sisters had married male members of the group, being beguiled into doing so without a marriage settlement, thus all losing control and ownership of their sizeable inheritances. In 1849, a fourth, unmarried sister was seized from the community by her brother and placed in a private lunatic asylum, where she languished until escaping 17 months later. A commission of lunacy found her to be sane, and she successfully sued the doctor for compensation, being awarded £50 damages: Nottidge v Ripley, The Times (25 June 1849). Mr Price gave evidence on behalf of the community at the trial. In 1850, the Vice-Chancellor refused custody of a 4-year-old child to the husband of another sister, who herself had grown disaffected and had been expelled from the community while pregnant, because of the husband’s adherence to the group’s religious views, which, to the judge’s particular annoyance (and the hilarity of The Times), included playing mixed hockey on the Sabbath: Thomas v Roberts (1850) 64 ER 693. The full story is told in S Wise, Inconvenient People: Lunacy, Liberty and the Mad-Doctors in Victorian England (London, Vintage Books, 2013) ch 4, who includes an illustration by Punch of the hockey games at p 112. 26  The Matrimonial Causes Act 1878 provided that magistrates could grant a wife a ‘separation order’ (akin to judicial separation) on the husband’s conviction for aggravated assault. The Summary Jurisdiction (Married Women) Act 1895 extended this power to conviction for any assault on the wife where the husband was fined £5 or more or imprisoned for two months. 27  R v Jackson [1891] 1 QB 671, CA. See the discussion by Shanley (n 8) 177–83; Cretney (n 4) 146–47; and G Frost, ‘A Shock to Marriage?: The Clitheroe Case and the Victorians’ in G Robb and N Erber (eds), Disorder in the Court: Trials and Sexual Conflict at the Turn of the Century (Basingstoke, Palgrave Macmillan, 1999). According to The Times (20 March 1891), the ‘populace applauded the [husband’s] act, regarding it, apparently, as a development of that old practice of “marriage by capture” which, we are told, had once so wide a vogue’.

76  To Have and To Hold The Court finally and firmly rejected the view that a husband could exercise any force or restraint to require his wife to render him his conjugal rights, and overruled Re Cochrane (they seem not to have been referred to Re Price). Although public opinion was divided, the case marked the final realisation that, as The Times put it—albeit in a disapproving tone and presenting the Court’s decision as having overturned all previous understanding of the law—‘a man and woman cannot be compelled to live together against the will of either. … The principle is in harmony with modern feeling and modern legislation.’28 III.  THE SUIT FOR RESTITUTION OF CONJUGAL RIGHTS

A.  The Basis of the Action Although The Times might in 1891 have regarded the effect of the ­Jackson decision as having rendered the law an absurdity, for those husbands who rejected the idea of self-help, and for wives seeking some way forward when a marriage got into difficulties, the duty to live together, which was the essence of consortium, remained, in theory at least, legally enforceable through action in the courts. Up to the Victorian era, the ecclesiastical courts provided a forum in which the marital and sexual behaviour of parishioners could be scrutinised and judged. Early on, the Church authorities themselves ‘presented’ spouses who appeared to be living apart so that they could be disciplined by the bishop.29 It was also possible for a deserted spouse to seek a decree of restitution of conjugal rights. The court could award a petitioner wife alimony (maintenance) pending the husband’s returning to cohabit with her, but an adulterous wife lost her right to maintenance and could not obtain a decree in her favour. The procedure was based on written evidence and private interrogation of witnesses with no cross-examination, with the case determined by a judge.30 28 

The Times (20 March 1891). studies of the ecclesiastical courts’ work, see M Ingram, Church Courts, Sex and ­Marriage in England, 1570–1640 (Cambridge, Cambridge University Press, 1987); L Stone, Road to Divorce (Oxford, Oxford University Press, 1990) ch 8; J Bailey, Unquiet Lives: ­Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge, Cambridge U ­ niversity Press, 2003); R Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860 (Cambridge, Cambridge University Press, 2007). For a description of their procedure, see Stone, Road to Divorce 195–98 and A Kiralfy, ‘Matrimonial Tribunals and their Procedure’ in Graveson and Crane (eds) (n 3) 289, 289–97. 30  Sir W Blackstone, Commentaries on the Laws of England, 13th edn (London, A Strahan, 1800) vol III, 92, considered that matrimonial causes, ‘partly from the nature of the injuries complained of, and partly from the clerical method of treating them, soon became too gross for the modesty of a lay tribunal’, and added in a footnote that ‘Some of the impurest books, that are extant in any language are those written by the popish clergy on the subjects of matrimony and divorce.’ 29 For

The Suit for Restitution of Conjugal Rights 77 However, after the passage of the Matrimonial Causes Act 1857,31 the new Divorce Court, which took over the ecclesiastical courts’ matrimonial jurisdiction, operated in the same way as the civil courts, with oral evidence heard in public and the verdict determined by a jury. The penalty for non-compliance with an ecclesiastical court decree was ‘admonition’ and, ultimately, excommunication, but by the eighteenth century, with the growth of toleration, acceptance of non-conformity and a more secular approach, this had lost its power to compel obedience. In 1813, the Ecclesiastical Courts Act substituted imprisonment for excommunication.32 This was a much more draconian penalty, but it is not known whether it was any more conducive to compliance. It certainly was ineffective in Barlee v Barlee.33 The wife left the husband, alleging adultery and cruelty, although his attempts to gain control of her considerable separate estate seem to have been a key factor in their marital unhappiness. He petitioned for restitution of conjugal rights and she was unable to prove her allegations against him. She refused to return to him when the decree was duly granted, and she was imprisoned for contempt. She then petitioned the court for clemency, claiming that she could not now discover his whereabouts, that in any event she feared for her safety if she were to return, and that she was suffering grievously in gaol where she was limited to a diet of bread and water with a small amount of cheese, and was severely afflicted with rheumatism. Her petition was supported by the Sheriff and nine justices in Suffolk, who regarded her case ‘as deserving of the utmost commiseration’. But the Arches Court (the ecclesiastical court of appeal) held that it had no discretion to release her if she would not comply.34 By contrast, in Lakin v Lakin,35 the husband had ignored restitution proceedings taken against him by his wife, who had left him for another man. The husband believed she was not serious in pursuing the action; he hoped to avoid the legal costs, but found himself imprisoned for contempt. Three years later, with the wife (having given birth to a child by her new partner) agreeing to his release, the Court, which regarded this as a very hard case, accepted his profession of obedience, and noted

31  For a very readable and thorough discussion of the history of divorce a mensa et thoro and a vinculi before 1857, and the arguments and recommendations for a judicial procedure for terminating a marriage, see Royal Commissioners into the Law of Divorce (Chair, Lord Campbell), First Report (London, HMSO, 1853) especially paras xi–xxxii. 32  See Outhwaite (n 29) 128. 33  Barlee v Barlee (1822) 162 ER 105. 34  The case attracted considerable publicity and her husband attempted to have her declared a lunatic. Mrs Barlee was discharged from prison after three years on a writ of habeas corpus, and she then instigated a criminal prosecution against her husband and her trustees, whom she considered to be in league with him, for conspiracy to have her committed. The jurors brought in a verdict of not guilty, but they criticised the trustees for not once having visited Mrs Barlee while she lay ‘in a felon’s prison for three long years’: The Times (13 March 1826). 35  Lakin v Lakin (1854) 164 ER 159. The wife’s motive in bringing the proceedings is unclear, given that she had left the husband for another man.

78  To Have and To Hold that it was unlikely he would have been subjected to the decree in the first place had he been properly advised. In 1884, as discussed in section III.B, imprisonment was abolished as the sanction for non-compliance, a finding of desertion being substituted instead. B.  The Ostensible Purpose of the Decree The name given to the remedy offered by the ecclesiastical courts implies that the purpose of a restitution suit was to restore the spouses to each other’s company, in order to allow each to enjoy their full rights of consortium. Indeed, the decree required the (husband) respondent to ‘take the ­petitioner home and treat her with conjugal affection’.36 However, in F ­ orster v ­Forster,37 the London Consistory Court noted that ‘the duty of matrimonial intercourse cannot be compelled by this Court, though m ­ atrimonial cohabitation may’. The husband had sought a divorce a mensa et thoro (judicial separation) on the basis of his wife’s adultery. This was refused because of his own probable adultery and proven neglect of the wife (including his withdrawal from her bed). The Court went on to add that it is not however to be considered as a matter perfectly light in the behaviour of a complaining husband, that he has withdrawn himself without cause, and without consent, from the discharge of duties that belong to the very institution of marriage; and if he has so done, he ought to feel less surprise if consequences of human infirmity [ie adultery by his wife] should ensue.38

It was candidly recognised in Seaver v Seaver that the effect of the law was to keep the two spouses legally bound together even though they might hate and despise each other.39 The spouses had both committed adultery and had each lost suits for divorce a mensa et thoro on that basis. The wife then sued for restitution, and it was held that in the absence of a ‘divorce’, the parties remained bound to live together so that the decree must be granted. To rule otherwise would be to enable each spouse to ‘free himself or ­herself from the matrimonial bond, though equally guilty … the Court ­Christian … will not tolerate the principle that either mutual crime or mutual compact can release or suspend the obligation of the marriage vow’.40 But the judges’ 36  As quoted in Orme v Orme (1824) 162 ER 335. In Evans v Evans (1790) 161 ER 466, 496, Sir William Scott said that an instruction to take a wife back (the wife having failed to prove cruelty justifying a divorce a mensa et thoro) required the husband to ‘treat her with conjugal kindness’. 37  Forster v Forster (1790) 1 Hag Con 144, 154–55. 38 ibid. 39  Seaver v Seaver (1846) 164 ER 1156. The case was not reported until after the decision in Hope v Hope (1858) 164 ER 644, discussed below. The eventual report interestingly includes a draft judgment prepared by one of the judges, Dr Longfield, that was not delivered because the Court gave a unanimous decision. 40  (1846) 164 ER 1156, at 1163, 1166.

The Suit for Restitution of Conjugal Rights 79 concern was not solely a spiritual one. They were bothered by the possible destitution (and sexual degradation) of the wife if the husband were not obliged to take her back or, much more likely, come to some financial arrangement with her. This does not seem to have been a concern for the civil judges who took over the jurisdiction after 1857.41 Perhaps because Seaver was decided in Ireland, it did not reach the attention of the English courts, and Hope v Hope,42 a restitution suit taken over from the Consistory Court when the Matrimonial Causes Act 1857 came into force, was decided the other way. Sir Cresswell Creswell held that the fact that both parties had committed adultery did not wipe out each other’s offence unless condonation or connivance was proved.43 Thus, the wife remained an adulteress who had lost her common law right to maintenance and would, if the husband had been innocent, have failed in seeking a restitution decree because of her own guilt. The court would not therefore permit her to take advantage of mutual wrong, and it refused her the decree. But the parties remained married to each other, although the wife was presumably at risk of destitution because the husband did not have to support her. This decision was upheld in the much later case of Brooking-Phillips v Brooking-Phillips.44 The wife sought a restitution decree, but the husband alleged she had committed adultery. When she tried to introduce evidence of his own adultery so as to rely on Seaver—which had by now appeared in the Law Reports—the Court held that this was irrelevant to establishing a restitution suit since the basis for the claim was purely the non-cohabitation of the spouses (usually through desertion), not another matrimonial offence such as adultery or cruelty. The wife could not be restored to the ‘condition of an innocent person with reference to her conjugal rights’ just because of the husband’s equal misconduct. As with Mrs Hope, Mrs Brooking-Phillips was left in the position of a wife who had lost her right to maintenance but had no way out of the marriage. In Seaver, in his draft judgment,45 Dr Longfield considered that a restitution ‘sentence’ decreed ‘not merely that the parties shall live together, but its effect in substance is that they shall fulfil all their matrimonial duties, of which fidelity to the nuptial bed is not the least important’.46 41  Although the Matrimonial Causes Act 1857, s 17 allowed for the award of ‘alimony’ on granting the decree. 42  Hope v Hope (1858) 164 ER 644. 43  Condonation meant forgiveness of the adultery; connivance meant standing by knowingly while adultery took place. For discussion, see Cretney (n 4) 181–86. 44  Brooking-Phillips v Brooking-Phillips [1913] P 80. 45  (1846) 164 ER 1156. See n 39. 46 ibid, 1170. He criticised the common law stance, which seems to have been adopted without question in Hope v Hope, that a guilty wife could be left penniless: ‘This shocks every feeling of justice and humanity, and is most repugnant to the Ecclesiastical Law, which visits with equal condemnation adultery committed by the husband or by the wife, and will secure to the penitent that justice which is denied to her by her profligate husband.’

80  To Have and To Hold By this, he was not suggesting that the husband had to take the wife back into his bed. Rather, in a rejection of the sexual double standard—at least where both spouses were ‘guilty’—he was warning the husband that he should not think he could commit adultery with impunity because of the fault of his wife. The question of what precisely the decree required in terms of marital duty was addressed in Orme v Orme.47 There, the wife complained that although the husband allowed her to live in his house, he would not let her ‘have access to his person and bed, and refused [her] common necessaries for her support and maintenance’. The Consistory Court held that the decree was directed to restoring cohabitation, nothing else. Such ‘cohabitation’ meant no more than residence under the same roof.48 Even the supply of maintenance could not be compelled through the grant of a decree so long as the spouses were actually living in the same household.49 The Court regarded the suggestion that it might seek to enforce anything more than co-residence as ‘very far transgressing those bounds of interference to which it has restricted itself in modern practice’.50 The case demonstrates the limits of the decree, and researchers have doubted its effectiveness even as a means of restoring basic co-residence.51 As Ingram notes, ‘In the last resort, when the couple were bitterly at odds, there was little that the judges—or indeed anyone else—could do.’52 ­Blackstone, in a telling indication of the growing importance attached to individual autonomy and self-fulfilment by the end of the eighteenth c­ entury, described the action as brought whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason, in which case they will be compelled to come together again, if either party be weak enough to desire it, contrary to the inclination of the other.53

47 

Orme v Orme (1824) 162 ER 335. much later, in Evans v Evans [1948] 1 KB 175, 180, it was held that the word ‘cohabit’ used in Acts dealing with the grant of maintenance by the magistrates meant ­living together as ‘husband and wife’, and while this might not mean having sexual intercourse, it ‘implies a state of affairs very different from that of mere residence. It must mean that the wife is acting as a wife and has kept her status and position as a wife … is rendering wifely services to him and is acknowledged by the husband to be his wife.’ The word was contrasted with ‘reside’, also used in the Act, which the Court considered meant no more than living under the same roof. Restitution cases were not cited. 49  See section III.D.iii for tactical use of the suit precisely to secure maintenance when the spouses were separated. 50  (1824) 162 ER 335. 51  Bailey (n 29) 50. 52  Ingram (n 29) 188 (referring to orders made in cases ‘presented’ by the authorities). 53  Blackstone (n 30) 93, quoted by Hannen P in Weldon v Weldon (1883) 9 PD 52, 55, emphasis added. 48  Interestingly,

The Suit for Restitution of Conjugal Rights 81 Yet it is worth recalling that at that time (and of course, until 1991),54 a husband could not be criminally convicted of raping his wife, so that if he chose to enforce his right to have ‘access’ to her bed and body, he could do so.55 For example, in Belcher v Belcher,56 the husband infected his wife with venereal disease. She refused to sleep with him and he sued for restitution of conjugal rights. She counter-sued for divorce a mensa et thoro, arguing that he was guilty of cruelty, but the judge ruled that the husband had contracted the disease before the marriage. Only if the infection were the result of adultery by the husband, and inflicted on the wife deliberately by him, would it constitute cruelty. He therefore dismissed her suit and granted the husband his decree. By the later part of the nineteenth century, however, as the Jackson case discussed in section II illustrated, judicial attitudes were definitely changing, though perhaps the worst possible case to put them to the test was Weldon v Weldon57 in 1883. Here, the wife, a well-known and ‘flamboyant ­character’,58 and her husband had been separated for several years when she sued him for restitution of conjugal rights. She did this deliberately to embarrass him and to scupper his attempt to move her from the former matrimonial home, which she had turned into a kind of orphanage and ­general refuge for characters (including highly dubious confidence tricksters) to whom she had become attached. The decree was granted,59 but of course he refused to return to her. By this time, perhaps reflecting the ruling in Orme v Orme, the decree ordered the respondent to ‘take the petitioner home and receive her as his wife, and render her conjugal rights’, with no mention of the demonstration of ‘affection’ being part of the duty. Mrs Weldon was a litigant in person who took a highly robust approach to the Bench, and she sought to have the decree enforced by ‘attachment’ of her husband, that is, his committal to prison for contempt. Hannen P noted that the real

54 

R v R [1992] 1 AC 599. the discussion by Shanley (n 8), ch 6. But note that when judicial divorce was introduced in 1857, rape was an aggravating factor enabling the wife to divorce an adulterous husband: see the text associated with (n 83). 56  A case decided in 1835 and discussed by Stone (n 29) 204. 57  Weldon v Weldon (1883) 9 PD 52. 58  Cretney (n 4), 144, fn 16, and see ibid, 144–45 for his discussion of the case and the parties. For a full account of Mrs Weldon’s life, her involvement in spiritualism, general eccentricity and talent for embarrassing her husband (and family), see Wise (n 25) ch 10. Their attempt to commit her to a lunatic asylum is reported in The Times (15 March 1884). Stone’s suggestion (n 29 at 168), that the use of private asylums to deal with troublesome wives died away after the mid-18th century seems contradicted by such cases (and by Wilkie Collins’ The Woman in White (1859)). 59  The husband withdrew his defence that the wife had committed adultery. She was permitted to make a denial of guilt from the witness box, describing the allegation as an ‘infamous lie’ and complaining at the court’s refusing to let her go on to make a statement: ‘I object to things being hushed up in this way’: The Times (14 July 1882). 55  See

82  To Have and To Hold advantage (and usual purpose) of the restitution suit was to secure maintenance for a deserted wife, which the husband had shown himself prepared to ­provide. But he held that the power to order maintenance was in addition to and not in lieu of attachment, and accepted that there were no grounds for failing to enforce the decree in this case. But the husband was not committed to prison. The publicity surrounding the case and other legal actions brought by Mrs Weldon, who was a serial, if not a vexatious, litigant, prompted the Government to act to ensure that such a ‘farce’, as her husband’s counsel had described it, could not happen again. Cretney notes that the Matrimonial Causes Act 1884 was enacted without any debate in either House of Parliament, or even an explanatory government statement.60 Presumably, the publicity surrounding the ­Weldon case made this unnecessary. The Act abolished the sanction of committal to prison for disobedience to the decree, substituting an order for periodical payments instead and providing that a refusal to comply with the decree would henceforth provide evidence of desertion (known as ‘statutory desertion’), which could be used to support a suit for judicial separation or, where the wife was the petitioner, for divorce if coupled with evidence of the husband’s adultery. The change reflected clearly the growing acceptance, set out by Blackstone a century earlier, that the law could not require the spouses to ‘care about’ each other, and should not be used to coerce them to resume living together when they no longer wished to do so. C.  The Effect of the Decree after 1884 Under ecclesiastical law, as Seaver v Seaver had shown, voluntary separation by the spouses was not permitted—the spouses must either cohabit, or be granted the right to separate by the ecclesiastical court.61 However, the common law and equity courts took a different view, upholding voluntary separation agreements62 on the basis that, at least since the Reformation, it had not been regarded as illegal to live apart. In so holding, the civil courts were rejecting the view that there were only two states recognised whilst a marriage was in being—cohabitation or legally sanctioned separation. But, as Hope v Hope and Brooking-Phillips demonstrated, this could still leave

60 

Cretney (n 4) 145. The Divorce Court applied the same thinking in initially holding that it had no discretion to withhold a restitution decree if the respondent had failed to establish a recognised defence (there, cruelty) for her refusal to cohabit: Scott v Scott (1865) 164 ER 1458. 62  R v Mead (1758) 96 ER 1182; Westmeath v Westmeath (1821) 37 ER 797, 803. In Hunt v Hunt (1862) 45 ER 1168, 1171 it was said to be ‘impossible to ascertain’ how early it was that the common law accepted the validity of deeds of separation, per Lord Westbury LC. See Stone (n 29) ch 7 for full discussion. 61 

The Suit for Restitution of Conjugal Rights 83 the marriage in a third, twilight zone—an empty legal shell, as the Law Commission would later describe it.63 This was even more clearly demonstrated in the notorious case of Russell v Russell.64 The spouses separated after a few months of marriage and the wife brought proceedings for a judicial separation, alleging that the husband had committed homosexual acts with a friend. These allegations were rejected, but she and her mother continued to spread rumours, and the husband successfully brought a prosecution for criminal libel against the mother, who was sent to prison. The wife then sought restitution of conjugal rights in a further attempt to negotiate a financial settlement with the husband. He responded by suing her for judicial separation, alleging cruelty based on her behaviour in perpetuating the allegations. The jury found for the husband and the wife appealed. The Court of Appeal rejected the wife’s argument that she was entitled to a restitution decree. It considered that, given her behaviour, it would be unjust to expect the husband to resume cohabitation with her, and granting a decree that he would then inevitably disobey would, as a consequence of the 1884 Act, put him in statutory desertion.65 This would be contrary to the justice of the case. The wife withdrew her appeal against that ruling, but the House of Lords then rejected the husband’s argument that ‘cruelty’ could be committed without putting the other spouse in ‘danger’ to life, limb or health. This meant that he was not entitled to a judicial separation. The spouses therefore remained in the position that they were neither obliged to live together, nor entitled to terminate their relationship.66 (Of course, this is a condition that any spouses may find themselves in where the law does not permit unilateral divorce without cause.)67 The law gave priority to the public policy of upholding the institution of marriage at a symbolic level, whilst accepting that the reality was that spouses could be morally entitled to live apart. The Court of Appeal’s ruling in Russell was followed in several cases.68 But the trend was by no means consistent. The importance of ‘upholding 63  Law Commission, Reform of the Grounds of Divorce: The Field of Choice (Law Com No 6, 1966), para 15. 64  Russell v Russell [1897] AC 395, HL. 65  Russell v Russell [1895] P 315. 66  See Cretney (n 4) 203–05 for the aftermath—the husband went through a Nevada divorce, which was unrecognised in this country. His second marriage was therefore bigamous and he was sentenced to imprisonment. He eventually bought off the first wife, who agreed to divorce him. As Cretney notes (ibid at 204), ‘It is not surprising that his experiences converted the Earl into a dedicated campaigner for reform of the divorce laws.’ For a sympathetic account of the husband’s case, see A Sumner Holmes, ‘“Don’t Frighten the Horses”: the Russell Divorce Case’ in Robb and Erber (eds) (n 27) 140. 67  For the best dramatic evocation of that position, compounded by the hypocrisy of the law, see A Herbert, Holy Deadlock (1934), and for a modern-day example, see Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74. 68  See, eg, Beer v Beer (1906) 94 LT 704 (wife refused restitution decree because husband had just cause for leaving her—but he failed to prove grounds to be granted a judicial separation from her); Walter v Walter [1921] P 302 (parties reached a separation agreement so decree refused as it was clear they would not resume cohabitation).

84  To Have and To Hold the sanctity of marriage’ could also mean that the courts took a strict view of what was morally acceptable marital behaviour. For example, in Greene v Greene,69 the Court accepted that the wife drank to excess, was ‘furiously jealous’, made untrue accusations and engaged in hysterical outbursts. It did not, however, consider that any of this gave the husband ‘reasonable grounds’ for leaving her, and granted her the restitution decree. Perhaps this stance reflected the court’s recognition that wives could be placed in extreme financial hardship if their husbands were not required to support them financially. This appears to be a partial rationale for the decision in Brodie v Brodie.70 There was a ‘shotgun wedding’, but the husband made the wife sign a pre-nuptial agreement that they would not live together or take any proceedings against each other afterwards. He brought a similar agreement along to the register office and they both signed it after the ­ceremony. The wife subsequently sought a restitution decree, presumably to secure maintenance or evidence of desertion. The court held that the two documents formed one agreement, which was void on the ground of public policy as contemplating future separation, so the wife was held entitled to her decree. Even more strikingly, in Oldroyd v Oldroyd,71 the court granted a decree where the spouses, who were both marrying for the second time and bringing their respective children to live in the ‘blended’ family, fell out because the husband’s daughters quarrelled with the wife and her daughter, and the husband chose to side with his own children, resulting in the wife leaving him and his refusing to have her back. The judge held that the husband’s ‘first duty is towards his wife. She and he are compelled to live their lives together, and it is his duty so to control and arrange his household that he and his wife may lead their lives in peace.’ This seems to have been a rare example of a case where the court at least appears to have considered (despite the husband’s allegation that she was simply seeking an order for maintenance) that the wife genuinely wished to resume cohabitation, and where its order was intended to bring both the husband and his daughters to their senses. During the twentieth century, use of the decree became even more uncommon, as spouses had other remedies they could use to deal with marital problems, including suits for maintenance, separation orders and, of course, ultimately for divorce.72 The futility of the order was increasingly acknowledged, as shown in Nanda v Nanda73 in 1968. The spouses had married in India, but when the husband came to settle in England, he cohabited with another woman by whom he had two children. His wife followed him, and

69 

Greene v Greene [1916] P 188. Brodie v Brodie [1917] P 271. 71  Oldroyd v Oldroyd [1896] P 175, 187. 72  See ch 4. 73  Nanda v Nanda [1968] P 351. 70 

The Suit for Restitution of Conjugal Rights 85 on failing to break up his new relationship, obtained a decree for restitution of conjugal rights. As Payne J stated, ‘she promptly took steps to enforce the decree by her own means’, eventually gaining entry to the husband’s home and refusing to leave. The husband sought non-molestation and ouster injunctions, and the judge held that although it was understandable that the wife might have been misled by the language as to the form and effect of the decree, it gave her no right to anything more than maintenance, or to take proceedings for a judicial separation or eventually a divorce in the event of the husband’s non-compliance. The suit had become an unnecessary step towards obtaining more meaningful remedies for marriage breakdown, and it was abolished in 1970, as discussed in section III.E. D.  The Tactical use of the Suit The history of the restitution decree therefore demonstrates the gradual recognition of the futility of attempting to use the law to make spouses stay together or reconcile. Although Cretney suggests that the ecclesiastical courts ‘had been concerned to enforce the obligations of matrimony’,74 the reasons why most individual litigants brought such suits seem to have had little to do with wishing to secure a reconciliation with the other spouse. Rather, the motivation was generally tactical. The purpose, however, changed over time, from a concern to affirm the validity of a marriage, to a desire to secure financial provision, with an interim phase when obtaining the decree provided a short-cut for wives seeking a divorce. However, the expense of bringing restitution proceedings, at a time when cases were heard only in London, generally meant that litigants had to be people of means. For those who could not afford the cost, the magistrates’ courts eventually provided a means of obtaining a separation and financial provision75 but not for speeding up a divorce. i.  To Establish the Validity of a Marriage According to Stone, before the mid-eighteenth century at least, the action was used primarily as a means of establishing or defending the existence— and validity—of a marriage.76 In Moseley v Collier,77 for example, the man 74 

Cretney (n 4) 143. Causes Act 1878 and Summary Jurisdiction (Married Women) Act 1895. See ch 4, section II.A. 76  L Stone, Uncertain Unions: Marriage in England 1660–1753 (Oxford, Oxford University Press, 1992). 77 (1746–47), discussed by Stone, ibid ch 4. Where a nullity suit was rejected, the other spouse could seek a decree for restitution of conjugal rights within the same proceedings, ­obviating the need to cross-petition: Clowes v Jones (1842) 163 ER 697. 75  Matrimonial

86  To Have and To Hold brought the action, claiming that the parties had entered into a marriage ‘per verba de praesenti’, that is, by the mutual exchange of vows, which, in canon law, created a valid marriage. However, while the common law recognised such a marriage as creating a contract for marriage between the parties, it denied it full legal consequences unless it was followed by ­solemnisation in church, particularly as to the ownership or inheritance of property.78 The petitioner claimed that the woman had insisted the m ­ arriage be kept secret because she was afraid that she would be disinherited if her parents knew of it. He now wanted the ecclesiastical court to order her to go through a church marriage ceremony with him to complete the formalities— a different form of enforcing the duty to cohabit. Although he succeeded at first instance, the Court of Arches allowed the woman’s appeal due to lack of clear evidence for the contract.79 A more complex case involving conflict of laws issues arose in Scrimshire (otherwise Jones) v Scrimshire.80 The 15-year-old woman and 18-year-old man were married in France where they were each visiting relatives, in a private house by an unauthorised priest according to Roman Catholic (‘Romish’) rites. The marriage was annulled in France at the suit of the man’s mother because neither had obtained parental consent, and the woman was banished from France for having gone through a clandestine marriage. She sought a decree of restitution of conjugal rights from the London Consistory Court, arguing that the marriage was ‘irregular’ under English law but not void. The decision established the lex loci celebrationis as determining which law governs the formalities of a marriage, so that she lost her suit, but the judge, Sir Edward Simpson, who regarded her as ‘a lady of good character’, awarded her £400 costs, expressing the hope that ‘the lady may be happy … in a man that deserves her better’.81 ii.  To Provide Evidence of Desertion to Bolster a Wife’s Divorce Petition With the demise of the clandestine marriage, and later the introduction of a specific action for a declaration as to the validity of the marriage,82 the basis for seeking a restitution decree shifted. Reflecting the sexual double

78 See Stone (n 29) ch 2; R Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (Cambridge, Cambridge University Press, 2009) ch 2. 79  For further examples, see Stone (n 76) chs 5, 18, 20. 80  Scrimshire (otherwise Jones) v Scrimshire (1752) [1558–1774] All ER Rep 554, 564. 81  See too Countess de Gasquet James v Duke of Mecklenburg-Schwerin [1914] P 53: parties married in Dover but returned to the Continent immediately afterwards (undergoing a religious ceremony in Dinan). Marriage annulled in Germany because husband had not had his curator’s consent. Wife sought restitution of conjugal rights, in order to establish the validity of their marriage, but decree refused on the ground that service could not be effected out of the jurisdiction. 82  Legitimacy Declaration Act 1858.

The Suit for Restitution of Conjugal Rights 87 s­tandard exposed by Lynch v Knight, when the Matrimonial Causes Act 1857 introduced judicial divorce, it provided that while a husband could divorce his wife on the basis of her adultery alone, a wife must prove an aggravating factor as well as her husband’s adultery, such as incest, c­ ruelty, rape83 or that he had been in desertion for two years. As discussed in section III.C, the 1884 Act subsequently provided that failure to comply with a restitution decree would constitute desertion and provide the aggravating factor without having to satisfy the two-year requirement.84 By the early twentieth century, in Countess de Gasquet James v Duke of Mecklenburg-Schwerin,85 Sir Samuel Evans P noted that most restitution suits were being brought to establish evidence of desertion.86 The Gorell Commission on Divorce, which reported in 1912, also argued that the suit was ‘seldom used with the bona fide object of effecting a return to cohabitation, though causes of this character are not unknown’. Rather, ‘collusion’ in divorce proceedings was particularly likely to arise in cases where, in the absence of the husband’s having committed a matrimonial offence in addition to ­adultery, he and his wife would agree that she should seek a restitution decree which he would disobey, so that he could be found to be in desertion and thus ‘give’ her grounds for divorce without having to wait a further two years.87 As the Chairman put it to a witness: I will tell you how it is done. Assume there is the collusion which you mention, but not detectable. You have only to go to the expense of the wife writing a letter to the husband who does not come home, saying, ‘I want you to return to me,’ and his declining to do so, and it follows at once he is liable to a suit for restitution. Upon that suit being got through, which is done if he does not appear, desertion for two years is declared, and then she adds to the one act of adultery one cause of desertion, and obtains her decree … That is the commonest form possible. – I am quite aware of that. Except for the poor, who would not be able to afford the expense of that restitution suit, there is no practical difficulty whatever in a woman getting a divorce for one act of adultery now? – The King’s Proctor cannot stop that.88

83 

See n 55. For an example, see Cowley v Cowley [1913] P 159. It also obviated the two-year requirement to ground an action for judicial separation. 85  Countess de Gasquet James v Duke of Mecklenburg-Schwerin [1914] P 53. 86  ibid, 66. For further discussion, see Davies (n 3) 318. 87  Royal Commission on Divorce and Matrimonial Causes (1912) paras 377, 102. In fact, the wife had to wait six months after the restitution decree before she could petition for divorce. John Galsworthy’s Forsyte Saga novel, In Chancery (1920), includes a plot line involving a wife who obtains a restitution decree in order to obtain evidence of the husband’s desertion, but he returns to her before the six months have expired, thus preventing her from divorcing him. 88  Royal Commission (1912), Minutes of Evidence, vol III, paras 35, 519 et seq. See also Minutes of Evidence, vol I, paras 1444 et seq. 84 

88  To Have and To Hold As Russell v Russell had demonstrated, however, a court might be reluctant to grant restitution against a respondent who refused to return to cohabitation, if it considered that the justice of the case lay with the respondent. And as Cretney points out, the respondent spouse might actually comply with the decree, thus frustrating the whole object of the exercise.89 Divorce reform through the Matrimonial Causes Act 1923, following from the ­recommendations of the Gorell Commission, resulted in the abolition of ‘statutory desertion’, obviating the need to bring restitution proceedings to speed up a divorce. iii.  To Secure Financial Support Although the ostensible purpose of a restitution decree was to compel the spouses to return to cohabitation, the ecclesiastical court could award financial support, in the form of ‘alimony’90 for the wife while the suit was ­pending. If the husband failed to comply with the restitution decree, the wife could usually obtain a divorce a mensa et thoro based on his adultery or c­ ruelty, and the court could then award her ‘permanent alimony’. This was necessary, because until the property law reforms of the late nineteenth century, the husband was entitled to all of the wife’s property (unless it was protected as her ‘separate property’ under a trust). Allowing her to live separately from him without providing for financial support would therefore have left many wives destitute. The Matrimonial Causes Act 1857, ­section 17 obviated the need to obtain a judicial separation, by providing that a wife successfully applying for a restitution decree could be awarded permanent alimony. Thus, even when restitution had been sought as a means of establishing the validity of the marriage or as a basis for establishing desertion, a second (but not necessarily subsidiary) objective had frequently been to pave the way for the award of financial support or to compromise the suit if a suitable private agreement could be reached between the parties.91 In Hope v Hope,92 the counsel for the wife readily admitted that she brought her restitution suit ‘from absolute necessity, with a view to obtain 89 

Cretney (n 4) 146, fn 30, and 147, fn 41, who also refers to Galsworthy’s In Chancery. was an unsecured annual or total sum reflecting the husband’s continuing ­common law duty to support his wife. For the different forms of support that could be ordered in matrimonial proceedings, see J Barton, ‘The Enforcement of Financial Provision’ in ­Graveson and Crane (eds) (n 3) 352. 91  See Bailey (n 29) 12, 50–51, 53–54. She notes (ibid at 200) that a variety of legal actions might be taken to ‘persuade’ the other spouse to reach a suitable settlement, in one case the wife abandoning her judicial separation when a private separation was achieved, and then launching a restitution suit ‘when that in turn failed to meet her needs’. Ingram (n 29 at 181) notes that restitution and judicial separation were frequently cross-petitioned, the one being prayed in answer to the other. 92  Hope v Hope (1858) 164 ER 644, discussed in section III.B. 90 ‘Alimony’

The Suit for Restitution of Conjugal Rights 89 a maintenance from her husband’, although, as we have seen, her a­ dultery was held to preclude her succeeding. Indeed, in Marshall v Marshall, ­Hannen P stated that ‘I have never known an instance in which it appeared that the suit was instituted for any other purpose than to enforce a money demand.’93 Such ‘demands’ would generally be made in negotiations for separation agreements. The common law and equity courts, as we have noted, upheld these agreements, provided that they were not made with a view to future separation.94 Restitution suits might be brought to seek to ‘persuade’ the other spouse to negotiate seriously for such an agreement; indeed, Russell v Russell is an example of such a case.95 But they were also sometimes brought even where a separation agreement had previously been reached, in order to secure further provision or to seek to override other terms. Such an agreement invariably contained a clause covenanting not to take legal proceedings, including for restitution of conjugal rights, against the other party. By the late nineteenth century, such clauses were regarded as enforceable against both husband and wife.96 However, in McQuiban v McQuiban,97 the court allowed a suit to proceed where the husband had fallen into arrears on the payments that had been agreed and had petitioned for bankruptcy. An award of alimony would not be a provable debt in the bankruptcy, and would thus survive to be paid back when he became solvent again. Since, in the view of the Court, the ‘very foundation’ of the separation deed had been the husband’s obligation to maintain the wife and their child, the ouster clause should not be regarded as a bar to her suit. The case provides a very clear example of a restitution decree’s being used as the vehicle for the provision of financial support. Perhaps an even clearer case can be seen in Mann v Mann.98 The spouses had married in secret because the wife did not think her family would approve of the match. She went with her parents to Trinidad, where she met another man who wished to marry her, and she unsuccessfully sought an annulment of the first marriage. The First World War then intervened, and the husband enlisted. She obtained a restitution decree, which the husband ignored. She told his solicitors that she would not seek any financial

93 

Marshall v Marshall (1879) 5 PD 19, 23. Although in the 18th century, this had not been seen as a bar in Equity—see Stone (n 29) 156. For an extreme example, see Brodie v Brodie [1917] P 271, discussed in section III.C. 95  See also Scott v Scott (1865) 164 ER 1458, 1459, where the wife argued that the husband’s action was only being brought to ‘extort money from her and her mother’; and Giacometti v Prodgers (1872) LR 14 Eq 253, where the very wealthy wife entered into a separation agreement to forestall the husband’s bringing a restitution suit against her. 96  Hunt v Hunt (n 62): enforceable against husband; Marshall v Marshall (n 2): enforceable against wife. 97  McQuiban v McQuiban [1913] P 208. 98  Mann v Mann [1922] All ER Rep 777. 94 

90  To Have and To Hold ­ rovision from him while he was on active service. Six years later, in 1921, p when presumably she had lost the chance of marrying the more eligible suitor, she sought periodical payments, and the court held that these could be back-dated to the time of the decree. E.  Abolition of the Suit It seems clear, then, that the action for restitution of conjugal rights was regularly used as a tactical device aimed at securing some goal other than the actual reconciliation of the parties, and many actions may have been abandoned, presumably due to reaching a private settlement. Even in the early modern period, before other forms of matrimonial relief were made accessible, the action was not common. For example, in Bailey’s sample of seventeenth- and eighteenth-century ecclesiastical cases in Durham, York and Oxford, there were 26 restitution suits out of 109 ‘separation cases’, only six of which produced a decree.99 As liberal ideas about the ‘proper’ basis of marriage and the importance of the freedom of the individual grew during the nineteenth century, there was increasing recognition that the law should not coerce one spouse to resume living with the other when he or she no longer wished to do so. Just as the acceptance of a social need for divorce had eventually prompted the establishment of a judicial process for terminating a valid marriage in 1857, so too had it resulted in abolition of committal to prison for disobedience of a decree of restitution, with replacement by financial orders or evidence establishing desertion instead. The number of restitution petitions brought in the Divorce Court after they were removed from the ecclesiastical jurisdiction was apparently very small—just 11, of which two resulted in decrees, in 1858; while in 1898 there were just 22, of which 15 were granted.100 The highest number of restitution suits was brought after the First World War, with 463 decrees granted in 1921 (in comparison, there were only 46 judicial separations, but 3,956 decrees nisi of divorce).101

99  Bailey (n 29) 216, Appendix 18. See similarly Ingram (n 29) 181–82 for the 16th and early 17th centuries. 100  Unfortunately, data are missing or discrepant as between those provided in Home Office, Divorce and Matrimonial Causes (London, Hansard, 1889) 2; the Home Office, Judicial ­Statistics, England and Wales, 1898, Part II—Civil Judicial Statistics (Cd 181, 1900) Tables xlv–xlviii; the Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956) Tables 1, 2; and ONS, Divorces in England and Wales: 2014 (2016) Table 1. The number of divorces and judicial separations are those provided in 1889 and 1900; the number of restitution petitions and decrees are those recorded in 1900 and by the Morton Royal Commission. 101 Morton Royal Commission (1956) Tables 1, 2. The highest number of restitution ­petitions (497) was issued in 1920, resulting in a backlog of cases not disposed of until 1921: see Table 3.1.

The Suit for Restitution of Conjugal Rights 91 Table 3.1:  Number of petitions and decrees of divorce, judicial separation and restitution of conjugal rights, selected years Year

Divorce

Judicial separation

Petitions

Decrees nisi

1858

253

1898

644

1921*

2,790

Restitution of conjugal rights

Petitions

Decrees

Petitions

Decrees

179

87

41

11

2

431

106

27

22

15

3,956

132

46

422

463

Sources: Home Office, Divorce and Matrimonial Causes (London, Hansard, 1889) 2; Home Office, Judicial Statistics, England and Wales, 1898, Part II—Civil Judicial Statistics (Cd 181, 1900) Tables xlv–xlviii; Royal Commission on Marriage and Divorce, Report 1951–1955 (Cmd 9678, 1956) Tables 1, 2. * Number of divorce and restitution decrees higher than petitions because of post-war backlog of cases not disposed of until 1921.

During the first half of the twentieth century, law reformers were focused on the ground for divorce rather than other matrimonial remedies, but, as noted in section III.D.ii, the tactical use of restitution suits was clearly recognised by the 1912 Royal Commission. Although the Commission is now remembered primarily for its basic recommendation to equalise the ground for divorce between the sexes, which was enacted, in relation to adultery,102 in the Matrimonial Causes Act 1923, its terms of reference included the requirement to consider the problem of providing access to divorce and other remedies for those in the ‘poorer classes’. Part of its objection to the restitution suit was precisely that it could be used as a short-cut to divorce only by wives wealthy enough (or with husbands wealthy enough) to pay for expensive preliminary restitution proceedings in the Divorce Court as well as the expense of the divorce suit itself. The substitution of simple adultery by either spouse for the earlier sexual double standard dealt with the restitution issue,103 the number of restitution decrees falling to 34 in 1924, and, apart from a rise at the end of the Second World War, use of the

102  The Gorell Commission (n 14) para 329, actually recommended additional grounds— cruelty, wilful desertion for three years, incurable insanity, habitual drunkenness, and life imprisonment after commutation of a death sentence—but none of these was enacted until the first three were added by the Matrimonial Causes Act 1937, on the genesis of which see AP Herbert, The Ayes Have It: The Story of the Marriage Bill (London, Methuen, 1937). 103 The 1884 Act was repealed by the Supreme Court of Judicature (Consolidation) Act 1925 and ‘statutory desertion’ was abolished. Section 185 provided that failure to comply with the decree would still provide grounds for a decree of judicial separation (but simple adultery by the husband had been a ground for this anyway). In Nanda v Nanda [1968] P 351, 353, it was held that failure to comply constituted prima facie evidence of desertion.

92  To Have and To Hold restitution suit was very low (when compared with suits for divorce) during the inter-war and post-war period.104 The continued use of restitution as a means of obtaining maintenance was also clearly a middle-class preserve, given that the magistrates’ courts were providing both maintenance105 and separation orders (which were equivalent to judicial separations) in considerable numbers from the late nineteenth century.106 The Morton Royal Commission, which reported in 1956,107 noted that after the High Court was given jurisdiction to award maintenance based on the husband’s wilful neglect to maintain in 1949, the number of restitution suits fell by over a half.108 Indeed, the Morton ­Commission stated that it might have come to the conclusion that there was no justification in retaining the suit but for the fact that some in the legal profession felt it still served a useful purpose in providing a means of obtaining maintenance where wilful neglect to maintain could not be established, or a husband was seeking provision from a wife, or in enabling a spouse to ‘obtain a finding of the court which puts on record the circumstances of the separation, if these are not altogether clear’.109 The Morton Commission took a very conservative approach to the reform of divorce and other matrimonial causes. Fundamental change had to wait for the liberalisation of social attitudes in the 1960s, with the introduction of irretrievable breakdown as the ground for divorce and a general tidying up and modernising of the increasingly anachronistic relics of nineteenth-century family law. In the wake of its proposals on divorce, the Law C ­ ommission examined a number of these, including restitution of conjugal rights, and finally recommended abolition of the suit in its report of 1969.110

104  There were around 30 decrees per annum in the early 1950s, compared with around 13,000 divorces: Morton Commission (n 101) Table 2. 105 However, magistrates could only award a maximum of £2 per week for a wife until 1949, when the amount was raised to £5, and no separate amount was provided for a child until 1920 when a maximum of 10 shillings per week was introduced (see Cretney (n 4) 449–50, fnn 37, 41). Clearly, wealthier women would expect more than these sums. See ch 4, section II.A.iii and section III.B.ii. 106  The Gorell Commission (n 14) para 138, found, in a 3-year period between 1907–09, that there were over 10 times as many magistrates’ court orders containing provision for ‘alimony’ for wives, as divorces in each year (around 7,000 per annum compared with 650). OR McGregor et al, Separated Spouses: A Study of the matrimonial jurisdiction of magistrates’ courts (London, Duckworth, 1970) 16, 36, 38–43), drawing on the official statistics, found that in 1959, 13,358 maintenance orders were granted, and in 1969, 17,424, but they drew attention to the unreliability of the data. 107  Morton Commission (n 100) para 324. 108  But the number of divorces also nearly halved, suggesting that the decline may have had more to do with the ending of the post-war surge in marriage breakdowns than the availability of another means of obtaining maintenance. 109  Morton Commission (n 100) para 323. 110  Law Commission, Proposal for the Abolition of the Matrimonial Remedy of Restitution of Conjugal Rights (Law Com No 23, 1969).

The Suit for Restitution of Conjugal Rights 93 The Law Commission111 found that, in the three years 1965–67, there had been an annual average of only 35 restitution petitions and 10 decrees. More petitions were in fact brought by husbands than by wives, but more decrees were granted to wives.112 In a more detailed analysis of 64 ­petitions (35 by husbands, 29 by wives) brought in London over this period, it found that about a third (21) led on to proceedings for divorce or judicial separation. Interestingly, financial provision did not seem to be the primary motivation by this stage: no husband sought such provision, and fewer than half of the wives did so. In 19 cases, no further action was taken once the petition had been filed; and only 11 restitution decrees were granted.113 The data suggested (but did not prove) that petitioners might indeed see the decree as a remedy of last resort to persuade a deserting spouse to return, but the Law Commission also noted the view that it was ‘an intolerable interference with the freedom of individuals for the court to order adults to live together and [was] hardly an appropriate method of attempting to effect a reconciliation’.114 Nanda v Nanda115 had also shown clearly that the law had no teeth, and it was suspected that few decrees were actually obeyed. These arguments satisfied the Commission that it should provisionally recommend abolition of the suit.116 It confirmed this conclusion in its Report, which simply repeated all of the data and arguments that had been presented in the Working Paper. The suit was accordingly abolished by section 20 of the Matrimonial Proceedings and Property Act 1970. The Lord Chancellor, Lord Gardiner, in introducing the Bill in the House of Lords, had described restitution as ‘really an absurd procedure in modern times … I think we can say goodbye to [it] without any regret’.117 The view of the House of Commons was ­perhaps encapsulated by Gordon Oakes MP: How can any judge order to live together two people who would hate the sight of each other? What possible use is it? If they are apart, they are the best judges of that, and they will not listen to any High Court judge sitting bewigged and telling them to live together … [N]o High Court judge can force together again, without any legal powers, two people who do not want to live together.118

111  Law Commission, Family Law: Restitution of Conjugal Rights (Law Com WP No 22, 1969) para 4. 112  No reasons were offered for this. 113  Law Com WP No 22 (1969) p 3. The remaining petitions were either dismissed by consent, or no further action was taken after an answer had been filed. 114  Law Com WP No 22 (1969) para 6. 115  See the text associated with n 73. 116  Law Com No 23 (1969) para 7. 117  HL Deb, 6 November 1969, vol 305, col 477. 118  HC Deb, 28 January 1970 vol 794, col 1578.

94  To Have and To Hold IV.  THE MODERN ‘DUTY’ OF COHABITATION

The abolition of the action for restitution of conjugal rights does not provide an answer to the question whether there remains any vestige of the ‘duty’ to cohabit as husband and wife—and that question has been the subject of much more contemporary discussion, which requires consideration here. It does not follow that just because there is no specific remedy available for failure to fulfil the duty to cohabit, the obligation itself no longer exists. After all, desertion and separation for five years (without consent) remain facts that can establish the irretrievable breakdown of the marriage and thus provide the basis for a divorce.119 Moreover, the decree of judicial ­separation expressly relieves the petitioner of the duty to cohabit whilst the other incidents of marriage continue to apply, suggesting that the duty itself otherwise exists: ‘Where the court grants a decree of judicial separation it shall no longer be obligatory for the petitioner to cohabit with the respondent.’120 Yet the Privy Council and Supreme Court have both opined, obiter, that the duty to cohabit was abolished as a result of the abolition of the decree for restitution of conjugal rights. In MacLeod v MacLeod,121 Baroness Hale, giving the judgment of the Judicial Committee, relied on the courts’ rejection of the husband’s right to ‘self help’ and the abolition of the decree and the action for damages for adultery, to conclude that ‘[t]here is no longer an enforceable duty upon husband and wife to live together’. The majority of the Supreme Court in Granatino v Radmacher122 agreed with this view, but the point was not essential to the decision and it remains open. It is no coincidence that the point was raised in two cases concerning the validity of marital property agreements. The demise of the restitution suit, as has been shown, was a reflection of an acceptance of marriage as essentially no more than a contract between two private individuals—why should the parties not be able to negotiate as to its terms? And autonomous individuals, who should be able to determine the consequences of their marital contract, can hardly be bound to cohabit when one or both no longer wish to do so. Yet in so far as such negotiation included provision for the parties to live apart, this would suggest that cohabitation would, otherwise and by default, be an enforceable term of the marital contract. 119 

Matrimonial Causes Act 1973, s 1(2)(c), (e). ibid, s 18(1). 121  MacLeod v MacLeod [2008] UKPC 64, [2010] 1 AC 298 at [38]. For criticism, inter alia, of the Committee’s reasoning, although not directly challenging Baroness Hale’s view of the obligation to cohabit, see M Parker, ‘The Draft Nuptial Agreements Bill and the abolition of the common law rule: “swept away” or swept under the carpet?’ [2015] Child and Family Law Quarterly 61. 122  Granatino v Radmacher [2010] UKSC 42, [2011] 1 AC 534 at [52]. 120 

The Modern ‘Duty’ of Cohabitation 95 On the other hand, it is worth noting that the equivalent of a decree of judicial separation for civil partners—a separation order—contains no express lifting of an obligation to live together, and one must conclude that no such obligation exists in a civil partnership. If civil partnership is intended to mirror marriage as faithfully as possible, it seems unlikely that a duty to cohabit would be held to exist only in marriage, but as there are other distinctions between marriage and civil partnership,123 the absence of such a duty in the latter does not establish that it cannot have survived in the former. Chapter 1 considered the meaning of ‘obligation’ and suggested that ­family obligations might best be characterised as ‘soft’, being subject to private bargaining between the parties, including complete waiver, and to discretionary application by the courts, including complete exemption from having to meet the obligation. But the abolition of the restitution suit does suggest that the ‘duty’ to cohabit in marriage cannot even be a ‘soft’ ­obligation of this kind. In Hart’s jurisprudence, as was also discussed, the lack of a coercive sanction applicable to enforce the obligation to cohabit would not, of itself, mean that there could not still remain a legal obligation implicit in marriage. But for Hart, legal obligations are imposed ‘when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate … is great’.124 The abolition of imprisonment for non-compliance with the decree in 1884, the recognition in Russell v Russell that it could be unjust and morally wrong to require spouses to live together even though the public interest would not (at that time) allow them legally to divorce, and the abolition of the decree itself in 1970, ­followed and were mandated by the fact that ‘social pressure’ was no longer exerted on those spouses who chose to separate. The law had in fact upheld the validity of a mutual decision to part through the mechanism of a separation agreement since at least the early nineteenth century, as noted in section III.C. A consensual separation had become an accepted basis for divorce with the introduction of the concept of irretrievable breakdown as the ground for divorce in 1969, and although the period of separation justifying the grant of a divorce is longer when it is non-consensual, and desertion remains a matrimonial offence, it is clear that social disapproval does not attach (in any serious way) to either situation. The modern understanding of ‘commitment’ as a personal and contingent choice is incompatible with any suggestion that one could be compelled by law to ‘care about’ or ‘for’ one’s spouse. Clearly, desertion or mutual separation negates the continuation of personal commitment, and there may be few structural 123 The absence of incapacity/wilful refusal to consummate as a ground for nullity, and adultery as a fact for dissolution, for example: Civil Partnership Act 2004, ss 50 (nullity), 44 (dissolution). 124  HLA Hart, The Concept of Law (Oxford, Oxford University Press, 1961) 84.

96  To Have and To Hold constraints to persuade the spouses to remain together. One could therefore conclude that the obligation has gone, not just because it is no longer directly enforceable, but also because the social expectation—and pressure to conform to that expectation—had already disappeared.125 Indeed, one might argue that the fact that a marriage ‘of convenience’ is regarded as valid despite the absence of subsequent cohabitation between the parties, demonstrates the lack of any societal or state interest in imposing a duty on people to live with each other, even within a marriage. V.  MARRIAGE AS PERSONAL COMMITMENT

The history of the restitution decree can therefore be traced from a communal measure intended to enforce the obligation to live together in marriage, backed up by excommunication or imprisonment, to a ‘futile’ legal gesture regarded as incapable of enforcement in the face of the spouses’ (or one spouse’s) rejection of that obligation. It illustrates very clearly the gradual supplanting of the old view that the public interest could require the individual spouses to temper their own preferences and personal happiness to the higher public good, expressed most famously, perhaps, by Sir William Scott in Evans v Evans126 in 1790: For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives; for necessity is a powerful master in teaching the duties which

125  It could be argued that the duty to cohabit still exists because there is a duty to provide a matrimonial home, recognised by the grant of ‘home rights’ to a spouse (or civil partner) in s 30 of the Family Law Act 1996. However, the duty to provide a home was regarded as satisfying the husband’s common law duty to maintain the wife, rather than as an aspect of the duty to cohabit (see Price v Price [1951] P 413, 420–21) and its main application today is as a basis for providing protection of the duty to occupy in situations of domestic abuse, when the remedy provided—an occupation order—is available, in certain circumstances, to cohabitants as well as to spouses. Thus the remedy reflects an emphasis on providing help to vulnerable partners in both formal and de facto relationships, rather than a means of upholding the obligations of marriage. 126  Evans v Evans (1790) 161 ER 466. The case was a suit for judicial separation based on cruelty. He also said, ibid at 467, that ‘Courts of Justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no farther; they cannot make men virtuous; and, as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to remove.’ Yet he did not query that a restitution decree could have been granted to order the spouses to resume cohabitation!

Marriage as Personal Commitment 97 it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples who now pass through the world with mutual comfort, with attention to their common offspring and to the moral order of civil society, might have been at this moment living in a state of mutual unkindness, in a state of estrangement from their common offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good.

Although it took a very long time (and current divorce law has struggled to catch up with the change),127 by the end of the twentieth century this had been superseded by the liberal belief in the freedom and autonomy of the individual, allied with the view that marriage could only legitimately be based on a willing emotional connection—a personal commitment to the spouse and the union. Even before this shift in attitude, the tactical use of the suit to secure other matrimonial remedies—the declaration that a marriage was valid, a means of speeding up a divorce or a mechanism for securing financial provision from the other spouse—reflected how the law could be subverted or manipulated to side-step the attempt by the authorities to shape how people were to conduct their intimate relationships. As marriage has come to be recognised as an emotional and companionate relationship based on personal commitment, the view that the law cannot compel cohabitation, let alone love, against the will of (one of) the spouses, has meant that marriage as a legal concept has come to be seen more as a contract than a ‘sacred’ tie. The obligations of consortium became translated into a set of duties and rights that the law could—in theory at least—more easily enforce. The freedom of the individual precluded ‘specific performance’ of the duty to live together, but the duty could be transmuted into an enforceable obligation of financial support once the spouses had separated. The next two chapters explore whether the view that the law can regulate and enforce financial ties is any more realistic than the view that it could regulate the obligation to care as expressed in the non-material duties of consortium.

127 

Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74.

4 A Clean Break Why should ex-wives and separated women seek a preferred status in which they shall toil not, neither shall they spin. Alimony was originally devised by society to protect those without power of ownership or earning resources. It was never intended to assure a perpetual state of secured indolence. It should not be suffered to convert a host of physically and mentally competent women into an army of alimony drones.1 [The Matrimonial and Family Proceedings Act 1984] introduces a firm principle into family law, namely that women must bear the full adverse consequences of their economic dependence on men—even though it is men who continue to accrue the benefits of that dependence.2

I.  A DUTY TO MAINTAIN

T

HE PREVIOUS CHAPTER traced how it gradually became accepted that the duty to cohabit implicit in the concept of ‘consortium’ could not be enforced by operation of law against the will of a spouse. It also showed how spouses used the procedure for seeking a decree of restitution of conjugal rights tactically to secure other remedies, particularly financial support, achieved through either a private settlement or the imposition of an order for maintenance. This chapter examines how far the ‘maintenance’ duty in marriage has operated as an enforceable obligation on a spouse to ‘take care of’ the other,3 by providing them with financial support, and in particular whether such a duty should continue to operate after the marriage has been terminated. Section II briefly explores the duty to maintain during the ongoing marriage. It shows that the obligation to support a spouse during the marriage was never enforced effectively and is now largely symbolic only. Section III,

1 

Doyle v Doyle 5 Misc 2d 4, 7 (NY Misc 1957), per Hofstadter J. C Smart, The Ties That Bind: Law, marriage and the reproduction of patriarchal relations (London, Routledge & Kegan Paul, 1984) 242. 3 J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, ­Routledge, 1993). 2 

Maintenance During Marriage 99 the main part of the chapter, explores the post-divorce position. The tension between advocating reforms that would strengthen wives’ formal equality with their husbands and their financial autonomy on the one hand, and pressing for greater recognition of married women’s need for special protection because of their weaker economic position in society, on the other, has come to dominate the debates. The chapter demonstrates that not only has the rhetoric of autonomy captured the policy agenda concerning how far husbands should be expected to support their wives after the marriage has been terminated, but that the modern emphasis on marriage as a vehicle for achieving emotional self-fulfilment mandates that where a spouse fails to achieve this objective, she or he should be free to leave that marriage behind unencumbered by continuing financial as well as emotional ties, increasingly without regard to the difficulties that this may create for the spouse left behind. II.  MAINTENANCE DURING MARRIAGE

Historically, the duty to maintain,4 which applied only to the husband (since a wife could not hold property in her own name), was limited by a concern to uphold the husband’s dominance over the wife, including his economic power over her. The right of the wife to be maintained by her husband was explained as ‘not contractual in nature. It is an incident under the common law of the status or estate of matrimony.’5 It was for the husband to determine the marital standard of living whilst the couple were living together— only if a wife were effectively being starved or abused by her husband might she be able to seek redress by bringing proceedings in either the ecclesiastical or common law courts for ‘cruelty’.6 As Blanche Crozier commented, the wife’s right to maintenance ‘cannot be much of a right if the interpretation of what it means is left to [the husband’s] discretion’.7 The position was slightly different if the couple parted. Even a patriarchal society and legal system could accept that a wife, who owned nothing and could not enter into contracts on her own account, might be vulnerable if she were abused or thrown out by her husband. But although the common law proclaimed a duty on the husband to maintain his wife, it did not provide a mechanism whereby she could enforce this duty directly. Instead,

4  M Finer and OR McGregor, ‘The History of the Obligation to Maintain’ in Department of Health and Social Security (Chair, Sir Morris Finer), Report of the Committee on One-Parent Families (Cmnd 5629, 1974) vol 2, app 5, para 25. 5  Dewe v Dewe; Snowden v Snowden [1928] P 113, 119, per Lord Merrivale. 6  The common law courts could issue a writ of supplicavit: effectively a form of binding over to keep the peace; the ecclesiastical courts could grant a divorce a mensa et thoro—judicial separation. Only the latter would provide the wife with a ‘maintenance’ order in the form of alimony. 7  B Crozier, ‘Marital Support’ (1935) 15 Boston University Law Review 28, 34.

100  A Clean Break there were four legal mechanisms that might be utilised to try to require a husband to fulfil his duty—the law of agency;8 resort to relief under the Poor Law;9 the use of the ecclesiastical courts10 to seek an order for alimony (maintenance);11 and the use of private separation agreements.12 Only the last two of these provided the wife herself with a direct means of securing support from the husband; the first two required others to do so for her, thus exemplifying an ‘indirect obligation’, as elucidated by Maclean and Eekelaar.13 A.  A Direct Right to Seek Maintenance As has been well-documented, the nineteenth-century reforms to the position of married women basically adopted a twin-track strategy. This was to enhance the economic independence of women through reforms to their legal capacity to own property and to enter into contracts on the one hand, and to provide more effective means to ensure their protection from abusive husbands on the other. There is a considerable literature on the achievement of the property reforms, and these are not discussed here.14 i.  Maintenance as a Remedy for Matrimonial Fault The protective approach initially took the form of creating a legal remedy— the ‘separation order’—that would relieve a wife of her duty of cohabitation

8  See C Morrison, ‘Contract’ in RH Graveson and FR Crane (eds), A Century of Family Law (London, Sweet & Maxwell, 1957) 126–33; Law Commission, Matrimonial and Related Proceedings—Financial Relief (Law Com WP No 9, 1967). 9  For an accessible summary of the history of the Poor Law, see N Harris, ‘Social ­Security Prior to Beveridge’ in N Harris (ed), Social Security Law in Context (Oxford, Oxford ­University Press, 2000). 10 J Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge, Cambridge University Press, 2003); L Stone, Road to Divorce (Oxford, Oxford University Press, 1990) 195–98; A Kiralfy, ‘Matrimonial Tribunals and their Procedure’ in Graveson and Crane (eds) (n 8) 289, 289–97. 11  The term ‘alimony’, as Cretney explains, ‘is correctly applied to the periodical and unsecured maintenance which the Ecclesiastical Courts would grant to a separated wife’: S Cretney, Family Law in the Twentieth Century: A History (Oxford, Oxford University Press, 2003) 395, fn 7. Its use in the phrase ‘alimony drone’ (see Doyle v Doyle (n 1)) is therefore inaccurate, so far as English law is concerned. 12  Stone (n 10) ch VII. 13  M Maclean and J Eekelaar, The Parental Obligation (Oxford, Hart Publishing, 1997) 6; and see ch 1, section III.B. 14  See in particular, D Stetson, A Woman’s Issue: The Politics of Family Law Reform in ­England (London, Greenwood Press, 1982) ch 3; L Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England (Oxford, ­ Martin Robertson, 1983); M Shanley, Feminism, Marriage, and the Law in Victorian England, ­ 1850–1895 (London, IB Tauris, 1989) chs 1, 2, 4.

Maintenance During Marriage 101 with her husband because of his violence rather than his financial neglect. It was inspired by the campaign led by Frances Power Cobbe, influenced by the liberal arguments of JS Mill and Harriet Taylor, for protection of (mainly) working-class wives from domestic abuse.15 But it was recognised that the courts required an accompanying power to order the husband to pay maintenance to the wife, for the same reason that the old divorce a mensa et thoro had required the payment of alimony. Even with the achievement of some degree of equality with husbands in relation to the holding of property, most wives were still financially dependent upon them for support of themselves or their children, and could not contemplate separation unless their economic position could be safeguarded. Nor could all such women afford to take proceedings in the costly Divorce Court in London. Jurisdiction was therefore given to the magistrates, when dealing with a husband’s violence against the wife as a criminal matter, to provide civil remedies in the form of the separation order and consequential maintenance.16 Henceforward, the question of how the spousal duty to maintain during the marriage was to be enforced was primarily17 dealt with through extensions to the powers of the magistrates and on the basis of a finding of matrimonial fault on the part of the respondent spouse, which justified the parties’ living apart. Rather than focusing on the husband’s abuse, a wife was subsequently enabled to seek an order based on his ‘wilful neglect to provide reasonable maintenance for her or her infant children whom he is legally liable to maintain’, which had ‘caused her to leave and live separately and apart from him’.18 However, in line with the common law, she lost her right to claim maintenance if she committed adultery, and her right was suspended if she was in desertion. This meant that she would still have to have ‘just cause’ for leaving the husband in the first place, so that (unless he was in desertion, and until adultery was added to the list of grounds for an order in 193719) her ability to obtain maintenance still hinged on proof of his abuse. The focus on fault reflected the approach to matrimonial conduct taken by the divorce jurisdiction, but even though the ground for divorce was equalised for husbands and wives in 1923, it was not until the Matrimonial Proceedings (Magistrates’ Courts) Act 1960 was enacted that a husband was enabled to seek a maintenance order from the wife during the marriage, and then only where he was incapacitated by age, illness or disability.

15 

See Shanley (n 14) 167. Matrimonial Causes Act 1878, s 4. 17  The High Court was eventually given jurisdiction to make maintenance orders by the Law Reform (Miscellaneous Provisions) Act 1949, s 5. 18  Summary Jurisdiction (Married Women) Act 1895, s 4. 19  Matrimonial Causes Act 1937, s 11. A husband could obtain a separation order, but not maintenance, on proof of the wife’s adultery. 16 

102  A Clean Break The reform was commended by Olive Stone as a ‘shift from an assumption of dependence to an assumption of responsibility [which] is a landmark in the progress of the married woman towards full legal personality’.20 The debates on the 1960 Bill in Parliament were certainly marked by a clear shift in the attitude towards the position of the claimant wife, notwithstanding the dominance at that time of the male breadwinner/housewife model of marriage. Several attempts were unsuccessfully21 made to require express reference to be made to a wife’s earning capacity as a relevant factor in determining whether, and if so how far, a husband should be required to maintain her. Lord Denning expressed the sentiment clearly: I have had cases before me in which the wife, maybe a young wife, childless, ­separates from her husband, goes back to her mother, gets an order for maintenance … and then is content to draw a pension for life from him, not troubling to go out to work herself.22

ii.  The Modern Maintenance Jurisdiction The continuing focus on fault as a basis for awarding maintenance could not stand with the abolition of the matrimonial offence as the ground for divorce and its replacement by the concept of ‘irretrievable breakdown’ in 1969. The new era after divorce reform was firmly based on a view of marriage as a relationship formed by willing commitment and founded on emotional self-fulfilment. If either spouse wished to end the union, it was accepted that, subject to safeguarding the interests of the other party and any children, he or she should—eventually—be allowed to do so. The Law Commission accordingly conducted a review23 of the magistrates’ and High Court jurisdiction to award maintenance following the divorce reforms, which had come into force in 1971. It noted that the reformed law on financial remedies on divorce makes explicit that the obligation to maintain arises from the fact that the parties have been married and that the obligation is mutual. If this is the policy underlying the matrimonial maintenance law on dissolution, when the obligations of marriage have ceased, the same principle should certainly apply while the marriage still exists.24

20  O Stone, ‘The Matrimonial Proceedings (Magistrates’ Courts Act), 1960’ (1961) 24 MLR 144, 145. 21 But regard was to be had to both parties’ ‘means’, which the Government considered encompassed earning capacity: HL Deb, 4 February 1960, vol 220, cols 956–57. 22  ibid, cols 954–55. 23  Law Commission, Matrimonial Proceedings in Magistrates’ Courts (WP No 53, 1973). The paper was produced by a Working Party including representatives of the Home Office, the department responsible for the magistrates’ courts. 24  Law Commission, WP No 53 (1973) para 34.

Maintenance During Marriage 103 The legislation that resulted from the Law Commission’s deliberations sought to bring the maintenance jurisdiction more closely into line with the divorce reforms.25 Section 1(1) of the Domestic Proceedings and­ Magistrates’ Courts Act 1978 provides that an order may be made on the grounds that the respondent has failed to provide reasonable maintenance for the spouse;26 has behaved in such a way that the applicant cannot reasonably be expected to live with the respondent; or has deserted the applicant. It can immediately be seen that while the first ground is neutral, no longer requiring a finding of ‘wilful’ neglect or refusal to maintain, the other two are still based on matrimonial fault. The legislation thus faithfully replicated the same fudging of rationales that was present in the reformed divorce law, where ‘irretrievable breakdown’ was provable by evidence of fault as well as separation. The courts, applying the new law in an era when social security had now been accepted as the main source of support for those unable to earn and many earners had little cash to spare for maintenance, faced difficulty in balancing the competing interests of the individual wishing to move on from a relationship, of the family left behind and of the state. For example, Carol Smart interviewed magistrates in the early 1980s who simultaneously favoured the idea of reducing husbands’ maintenance liabilities because wives should not be given ‘a meal ticket for life’, rejected the idea of improving state benefits for lone parents because that would mean increasing the burden on taxpayers in a time of economic recession, and were concerned that both men and women should continue to fulfil the traditional model of breadwinner/housewife marriage.27 iii. Quantum Cretney notes that the facts that when the jurisdiction was first created in the nineteenth century the magistrates were catering for the poorer sections of society and were faced with a maximum cap28 on what they could order, meant that there was little discussion of the principles upon which they were to exercise their discretion: ‘Overwhelmingly, the question was simply how much could, somehow, be extracted from a husband.’29 Some magistrates may have given little thought to what would be an appropriate sum. In Cobb v Cobb,30 for example, decided in 1900, a 66-year-old railway porter 25  The other main changes were to provide that the duty to maintain should be fully reciprocal, with both spouses liable on the same grounds; and to remove adultery as a bar to support. 26  Matrimonial Causes Act 1973, s 27, was amended accordingly. 27  Smart (n 2) ch 9. 28 £2 per week, imposed by the Married Women (Maintenance in Case of Desertion) Act 1886, s 1. 29  Cretney (n 11) 450. 30  Cobb v Cobb [1900] P 294.

104  A Clean Break earning 23 shillings per week was ordered to pay his wife £1 (20 shillings) per week in maintenance. It is a mystery how the justices expected him to survive on the remaining 3 shillings. He was twice imprisoned for failure to pay, and after the order was reduced to 12 shillings per week, he appealed (financed by railway passengers who got up a collection for him). Jeune P accepted his counsel’s argument that the magistrates should apply the one-third guideline used in judicial separation cases, and agreed to the husband’s offer to pay 8 shillings per week. But the automatic application of the one-third rule of thumb might be too generous to either the husband or the wife. In the much later case of Ward v Ward,31 it was said to be ‘absurd to apply automatically to working-class people a standard which was applicable in the days when income tax was 1s. in the pound, a rent-roll might be £10,000 a year, and pin-money was £2,000 or £3,000 a year’. The general principle of assessment in the modern era was set out by Simon P in Kershaw v Kershaw:32 In cohabitation a wife shares with her husband a standard of living appropriate to his income, or, if she is also earning, their joint incomes. If cohabitation is destroyed by the wrongful conduct of the husband, the wife’s maintenance should be so assessed that her standard of living does not suffer more than is inherent in the circumstances of separation … Although the standard of living of both ­parties … may have to be lower than it was before there was the breach of cohabitation, in general the wife should not be relegated to a lower standard of living than that which her husband enjoys.

B.  Is there Still an Obligation to Maintain a Spouse During Marriage? David Bradley argued that the 1978 reform meant that ‘the last vestiges of the common law obligation to maintain’ were removed.33 His assessment leads to a final question. As with the duty to cohabit discussed in ­Chapter 3, can it be said that there is in fact any remaining obligation— on either spouse—to maintain the other during marriage? The husband’s common law duty to maintain has been prospectively abolished by section 198 of the Equality Act 2010, having been described by Lord Lester, who

31  Ward v Ward [1947] 2 All ER 713, 714. See, to similar effect, Kershaw v Kershaw [1966] P 13. 32  [1966] P 13, 17. See too, Ashley v Ashley [1968] P 582: husband required to pay wife £5 per week from his wages of £14 5s, even though this would simply be deducted from the wife’s social security benefits and she would be no better off. But realism was necessary. In Fletcher v Fletcher [1985] Fam 92, it was accepted that the husband, dependent on supplementary benefit, had no ‘margin’ of income available to pay more than a notional sum of 5p per annum for the wife and their child. 33  D Bradley, ‘Matrimonial Proceedings in Magistrates’ Courts’ (1977) 40 MLR 450, 455.

Maintenance During Marriage 105 introduced the clause as an amendment to the Bill, as ‘long superseded by statutory remedies’.34 But pending this provision’s being brought into force, reliance on the common law duty has not entirely disappeared. In Trustee in Bankruptcy of Claridge v Claridge and Another,35 in an attempt to resist the grant of a declaration that the husband’s transfer to her of his interest in the matrimonial home had been given at an undervalue, the wife argued that he had done this in order to satisfy his duty to maintain her, either under the common law or under the Domestic Proceedings and Magistrates’ Courts Act 1978. Sales J considered the duty to be the same under either, but it is worth noting that the 1978 Act does not, in terms, provide that there is a duty to maintain on spouses and civil partners; rather, it provides that the court may make an order if it finds one of the grounds satisfied. By contrast, section 105 of the Social Security Administration Act 1992 provides that a person shall be liable to maintain another person, for the purposes of the Act, if that other person is his or her spouse or civil partner. The duty may be enforced by the traditional mode of action dating back to the Poor Law of criminal proceedings on proof of persistent refusal or neglect to maintain, but the ability of the authorities to take civil proceedings against the liable relative has been prospectively repealed.36 Such proceedings, being brought by the state, would, if ever taken, evidence the continuing existence of a duty of support on the individual towards the state, but not towards the spouse/civil partner themselves—another example of an indirect obligation. Although the private law power of a spouse or civil partner to seek a maintenance order remains in effect in practice, the legislation is a dead letter. A spouse in need will either reach a private arrangement, or will seek welfare benefits before starting divorce proceedings.37 If wealthy enough, she or he might apply for maintenance pending suit in those proceedings. In many ways, the position of the dependent spouse has reverted to that which existed before 1878, with private arrangements backed up by a family justice system for the rich or by earnings and welfare benefits for the poorer. But whereas the rationale for that position was then the preservation of the integrity of the marital unit and the upholding of the husband’s dominion over the wife, it is now the conception of each spouse as an autonomous individual in relationship with the other and with the state, with a mutual obligation of support which is ‘soft’ (and largely theoretical) at best.

34 

HL Deb, 9 February 2010, vol 717, col 707. Trustee in Bankruptcy of Claridge v Claridge and Another [2011] EWHC 2047 (Ch), [2012] 1 FCR 388. 36  Section 106 repealed by the Welfare Reform Act 2009, s 9(3)(b), sch 7, pt 1, to take effect if and when entitlement to income support is abolished. 37  Or judicial separation proceedings. Equivalent proceedings for dissolution or separation apply to civil partners. 35 

106  A Clean Break III.  POST-DIVORCE MAINTENANCE AND THE CLEAN BREAK

Modern attitudes to divorce are predicated on the sense of autonomy referred to at the end of section II.B, and on the idea that one is justified in leaving a relationship when it no longer delivers satisfaction and one is no longer ‘committed’ to it. Such a stance may be seen as underpinning the modern legal principle that it is preferable for there to be no ongoing financial ties between the spouses after a divorce—‘the clean break’—as articulated by Lord Scarman: ‘An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down’38 and Baroness Hale’s view that [i]n general, it can be assumed that the marital partnership does not stay alive for the purpose of sharing future resources unless this is justified by need or compensation. The ultimate objective is to give each party an equal start on the road to independent living.39

A clean-break financial settlement means one where the parties’ financial liabilities towards each other are resolved once and for all, with no continuing ties. This means that there will be no order for periodical payments (or these will be time-limited), no postponement of the payment of capital or the division of property to a later date (such as when the children of the marriage have grown up and left home) and no future payments out of one party’s pension when he or she retires.40 The only obligation is to ensure so far as possible that each party is treated ‘fairly’ on the termination of the marriage.41 This section of the chapter traces the process by which this ‘clean break’ principle became significant in the application of financial remedies on divorce. A. Financial Remedies before the Matrimonial Proceedings and Property Act 1970 i.  The Range of Remedies If the duty to provide maintenance during the marriage may be regarded as a soft obligation, the position regarding post-divorce support was subject to greater uncertainty still. When divorce had only been obtainable by Act of Parliament (and the petitioner was overwhelmingly likely to be a

38 

Minton v Minton [1979] AC 593, HL, at 608. Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, HL, [144]. 40 Although a share of one spouse’s pension rights may be assigned, at the time of the divorce, to the other. For details, see N Lowe and G Douglas, Bromley’s Family Law, 11th edn, (Oxford, Oxford University Press, 2015) 876–80. 41  White v White [2001] 1 AC 596. 39 

Post-Divorce Maintenance and the Clean Break 107 husband, not a wife), it had been the practice to provide for maintenance for the divorced wife, notwithstanding her misconduct. Lawrence Stone explains that this was done as a private settlement rather than on the face of the Bill, and reflected the fact that the ‘husband was often desperate to obtain a divorce and willing to settle on any reasonable terms in order to be rid of [the wife]’.42 It can be viewed both as the penalty the husband had to pay to be granted the ‘extraordinary indulgence’ of being allowed to re-marry43 and as a residual economic safeguard to the wife who, after all, was usually likely to be a member of the upper (or wealthier) classes and who ­‘usually had friends in Parliament who could exercise political pressure on her behalf’.44 When judicial divorce was introduced by the Matrimonial Causes Act 1857, it was provided that a husband could be ordered to secure to the wife such gross or annual sum of money for a term not exceeding her life, as ‘having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable’.45 Such an order effectively achieved a sort of clean break between the parties, because once the settlement securing the ordered sum of money was made, the wife only had recourse to the property on which the order was secured; she could not enforce directly against the husband and the terms of the order could not be varied.46 But the property remained in the husband’s name, and was thus preserved for his family and choice of heirs. Where the wife was the respondent (ie the guilty party), the court could order the settlement of any property to which she was entitled in reversion or possession, for the benefit of the husband and/or the children of the marriage. Cretney suggests that this was enacted because it was assumed that the divorced wife would marry her lover, ‘and it seemed intolerable that the property preserved for her by the doctrine of the married woman’s separate estate should then pass to the seducer’.47 Given that it was likely to be

42 

Stone (n 10) 345. Barton, ‘The Enforcement of Financial Provisions’ in Graveson and Crane (eds) (n 8) 357. 44 See Robertson v Robertson and Favagrossa (1883) 9 PD 94, 96. But as is well known, only four women successfully obtained divorces from Parliament (see Stone (n 10) 360–62), and it seems that they were not provided with financial support by their ex-husbands: Fisher v Fisher (1861) 164 ER 1055, 1056, per Cresswell JO. 45  Section 32. For discussion, see D Wright, ‘Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858–1866’ (2004) 38 University of Richmond Law Review 903, 977–84, who notes that applications and orders for settlements or permanent alimony were low in the first few years, and either most couples must have made private settlements, or wives were left to depend on their lover (if the guilty party) or their family, or to fend for themselves. 46  Barton (n 43), 358. Shearn v Shearn [1931] P 1, 4. 47  Cretney (n 11) 398. 43 J

108  A Clean Break the wife’s (family’s) property, rather than the husband’s, such an objection seems a fine example of the sexual double standard. ii.  Expansion of Remedies The range of mechanisms for providing for the parties’ post-divorce finances was gradually expanded during the latter half of the nineteenth century and is recognisable in the legislation which still governs the matter today.48 In particular, power to award unsecured ‘periodical payments’, in cases where the payer lacked capital, was granted in 1866. This set the model for a wife’s basic support on divorce. It meant that she could still obtain maintenance despite the husband’s lack of capital, but at the risk of his noncompliance with the order. There was no means of requiring a spouse to pay a lump sum, or transfer capital, reflecting ‘the Victorian belief that capital was to be used to provide income and not to be spent’.49 In 1956, the Morton Royal Commission recommended giving the court the power to order a lump sum, and when doing so, the power ‘to direct that the payment … should extinguish the right to claim maintenance where it appears to the court that a composition of this nature would be fair to both parties’.50 That particular recommendation— in effect, the imposition of a clean break—was not enacted until 1984,51 but as Cretney argues, the long-term significance of the recommendation to enable the court to award a lump sum (enacted in 1963)52 was considerable: ‘the courts and the legislature began to move away from thinking solely in terms of income maintenance, and towards making provision by way of capital adjustment’.53 B.  Assessment of Maintenance The Victorian Divorce Court had to develop the principles on which a financial order was to be granted. Although it was enjoined to apply the same principles to the remedies attached to the grant of a judicial separation or restitution of conjugal rights as the ecclesiastical courts would have done,54

48  See, eg, the power to vary nuptial settlements, granted in 1859, and discussed by Cretney, ibid, 398–99. 49  ibid, 397. 50  Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956) para 516. 51 Matrimonial and Family Proceedings Act 1984, s 3(4), inserting s 25A(3) into the ­Matrimonial Causes Act 1973. 52  Matrimonial Causes Act 1963, s 5. 53  Cretney (n 11) 416. 54  Matrimonial Causes Act 1857, s 22.

Post-Divorce Maintenance and the Clean Break 109 the only precedent available to it regarding divorce was the practice of ­Parliament when granting the highly exceptional private Acts for divorce prior to 1857.55 There were three key issues that had to be resolved. First, there was the question of how far the ‘guilty’ wife was to be supported despite her matrimonial misconduct. Secondly, there was the matter of what would be the appropriate measure of maintenance for the recipient spouse. Lastly, the courts had to determine the duration of an order because, perhaps rather surprisingly to modern eyes, the 1857 Act did not provide that an order would cease on the recipient’s remarriage. i.  The Relationship between ‘Fault’ and Financial Provision When the Law Commission reviewed the law in the 1980s, it considered that historically, [t]he right and duty of maintenance was related to the performance of reciprocal matrimonial obligations; a husband who was at fault should continue to support his wife, but conversely it would be unjust to require a husband who had ‘performed substantially all his matrimonial obligations to continue to provide maintenance for a wife who had substantially repudiated hers.’ The concept of a life-long right to and duty of support was thus inextricably linked with the concept of divorce as a relief for wrongdoing.56

But this is something of a simplification of a more complex picture. In an early case, Fisher v Fisher,57 the Divorce Court considered that even the ‘innocent’ wife who petitioned for divorce should receive no ‘more than a maintenance’ because, after all, she could have chosen to seek a judicial separation (on which she would have received one-third of the husband’s or the parties’ joint income), which would have kept the marriage tie in existence. Sir Cresswell Cresswell JO opined that she ‘ought not to be left destitute; on the other hand, I think it would not be politic to give to wives any great pecuniary interest in obtaining a dissolution of the marriage tie’.58 This approach was soon rejected. In Sidney v Sidney,59 Sir James Wilde JO considered that there seemed no reason why Parliament would have expected the wife to ‘purchase’ the remedy of divorce rather than a judicial separation, ‘by a surrender to any extent of the provision to which she would otherwise have been entitled’. 55  For the view that such practice offered no useful precedent, see Fisher v Fisher (1861) 164 ER 1055, 1056. 56  Law Commission, The Financial Consequences of Divorce: The Basic Policy, A Discussion Paper (Law Com No 103, 1980) para 13. For a valuable summary discussion of the history, see Lord Wilson SCJ, ‘Changes over the Centuries in the Financial Consequences of Divorce’ [2017] Fam Law 728. 57  Fisher v Fisher (1861) 164 ER 1055. 58  ibid, 1056. 59  Sidney v Sidney (1865) 164 ER 1485, 1486.

110  A Clean Break In Fisher, Cresswell JO had also queried why, if the wife were the ‘delinquent’, the husband should be called upon to provide for her, as had been the practice in Parliamentary divorces, and it seems that the early practice of the Court was to refuse a guilty wife any maintenance on the basis that she had forfeited her common law right and would have received nothing on a judicial separation.60 But in Ashcroft v Ashcroft and Roberts,61 the Court of Appeal upheld the view of Gorell Barnes J that ‘it [was] right that the husband should be required to provide a small maintenance for [the wife], so that she may not be turned out destitute on the streets’. Cretney points out that the amount ordered in that case—£1 per week—was considerably less than a manual labourer’s weekly wage62 and was intended purely to save the wife from ‘utter destitution’—or ‘from the terrible temptation which might otherwise assail her’.63 The award of such a ‘compassionate allowance’, as it subsequently became known,64 was subject to wide divergence in practice: some judges, even up to the 1960s, regarded the adulterous wife as having forfeited all such ‘compassion’, while others, particularly at appellate level, regarded it by then as an outmoded term and considered that only where a wife’s misconduct had been really heinous should she be left with nothing.65 ii. Quantum a. One-third? The next question was how much maintenance the wife should receive. The old one-third approach used by the ecclesiastical courts survived into the Divorce Court era; and even though the Church courts had said that there was not a rigid rule requiring the court to award one-third,66 it was certainly used in divorce cases as a rule of thumb.67 The appellate courts sought to emphasise that one-third should not be applied automatically, particularly not where the husband had significant wealth: it was erroneous to regard a case as ‘not one of discretion but of arithmetic’.68 Writing in the 1950s, Barton considered that the one-third rule might ‘be taken to be now pretty

60 

See Cretney (n 11) 406, fn 72. Ashcroft v Ashcroft and Roberts [1902] P 270, CA, at 273. 62 But women would have received lower wages than male workers anyway: see ch 2, section II.F.ii. 63  Cretney (n 11) 407, quoting from Squire v Squire and O’Callaghan [1905] P 4. 64  Dailey v Dailey [1947] 1 All ER 847. 65  Cretney (n 11) 408–09. 66  Otway v Otway (1813) 161 ER 1092, see this chapter, section II.A.iii. 67 See March v March and Palumbo [1861–73] (1867) All ER Rep 522 (petitioner husband); Sidney v Sidney (1865) 164 ER 1485 (petitioner wife). 68  Horniman v Horniman [1933] P 95, 101, per Lord Merrivale. 61 

Post-Divorce Maintenance and the Clean Break 111 well discredited’,69 yet it continued to influence the courts’ approach even under the post-1970 law. If assessment were a matter of discretion rather than arithmetic, on what principles was that discretion to be exercised? This turned in part on what the court understood as the objective of ‘maintenance’—was it to keep the wife from the streets, to keep her comfortable, or to keep her at the standard she would have had if the marriage had continued? In Sidney v Sidney,70 the Court had applied the one-third approach, although it recognised this was insufficient to put the wife at the same standard of living she had enjoyed during the marriage, presumably therefore assuming that this was not the object. In Gilbey v Gilbey,71 Lord Merrivale P appeared to think that a comfortable but not lavish life-style was sufficient, even where the husband could afford more: [W]here, beyond everything called for by such requirements in the most comprehensive view, the husband possesses an ample fortune, of which he can dispose for external purposes, the amount of his income affords no definite guidance as to what sum is required for personal, domestic, and social expenses, and what sum will supply to his sometime wife the necessaries, comforts, and advantages incidental to her station in life.

b.  Reasonable Requirements? This suggests that ‘maintenance’ for the innocent wife was understood as what in more modern times became known as ‘reasonable requirements’72—a sum that would keep her at a level suitable to her station, but certainly not equal to that of the husband. The judges varied in their view of how far maintenance should be expected to cover only the current ‘requirements’ of the wife. In Acworth v Acworth,73 Scott LJ held: ‘Maintenance’ is a very wide word, and, in my view, it should be read as covering everything which a wife may in reason want to do with the income which she enjoys. It includes much more than food, lodging, clothes, travelling, and so on. It includes, for instance, charity and making arrangements for the future, thus incurring various liabilities in her discretion, and it is wrong to limit it to any particular

69 

Barton (n 43) 361. Sidney v Sidney (1865) 164 ER 1485. 71  Gilbey v Gilbey [1927] P 197, 201. 72  Preston v Preston [1982] Fam 17. The line of authorities following this case was disapproved by the House of Lords in White v White [2001] 1 AC 596, but cases limited to meeting a (wife’s) lavish ‘needs’ are still common in litigation concerning the ultra-wealthy: see, eg, Juffali v Juffali [2016] EWHC 1684 (Fam), [2016] 4 WLR 119—wife awarded £62.3m on a needs basis. 73  Acworth v Acworth [1943] P 21, CA. 70 

112  A Clean Break form of expenditure. The figure arrived at by the court in the first instance was not arrived at primarily on the basis of her needs. It is not for the court, when making a maintenance order, to decide, by a close consideration of a wife’s needs, how much she ought to spend. I do not say that the needs of a wife should be altogether disregarded, but I do say that that is not the primary consideration.

The arguments and factors included here echo those presented in litigation today—how far, for example, should a Duxbury calculation (which seeks to determine the capital sum required to be invested to produce a certain level of income for the beneficiary) leave the wife with a ‘cushion’ over and above her living costs?74 Or how far should a wife’s share of capital include the ability to leave an inheritance to her children?75 c.  Status Quo? This rather generous approach to assessment was also reflected in the view presented in some judgments that the goal should be to leave the innocent spouse in as close a position as possible to that which he or she had enjoyed during the marriage. In March v March and Palumbo,76 Mellor J considered that ‘[t]he principle seems to be, that if the union of two parties is dissolved by the fault of one, the party who is innocent shall not be placed pecuniarily in a worse position than if the marriage had continued’. The same approach was taken in N v N,77 where Lord Merrivale P held that the court’s function was to ‘take into consideration the position in which the parties were, and the position in which the wife was entitled to expect herself to be and would have been, if her husband had properly discharged his marital obligation’. But the courts appear to have been reluctant to follow the principle through to its logical conclusion. In Schlesinger v Schlesinger,78 the husband, who ran a business in South Africa, was extremely wealthy. While Sachs J quoted N v N with approval, and considered that the wife was ‘entitled to live on a really high standard’, he stated ‘that it does not seem to me that she is entitled to expect to live on that astonishingly high “Rolls Royce plus” standard’ of the days when she was living with the husband.

74  Duxbury v Duxbury [1992] Fam 62n, CA; AR v AR (Treatment of Inherited Wealth) [2011] EWHC 2717 (Fam), [2012] 2 FLR 1 [71]. 75  White v White [2001] 1 AC 596, 609. 76  March v March and Palumbo [1861–73] (1867) All ER Rep 522, 524. 77  N v N [1928] All ER Rep 462, 466. See Wright (n 45) 977, fn 373, who notes that commentators in the 1870s had summed up ‘the guiding principle of the cases [as], that where the breaking up of the home is due to the conduct of the respondent, the Court ought to place the petitioner and the children, as nearly as possible in the same position as if the family life had not been interrupted’, citing W Latey and G Browne, Law and Practice in Divorce and ­Matrimonial Causes (1873). 78  Schlesinger v Schlesinger [1960] 1 All ER 721. It may be noted that this was a judicial separation case where the wife was granted the decree although she had herself committed adultery.

Post-Divorce Maintenance and the Clean Break 113 She should thus live in a style commensurate with her having custody of the two children of the marriage, ‘to be able to travel, and to be able out of her income to provide such furniture and such car as may be appropriate’—but presumably, not a Rolls Royce. The approach set out in N v N was dependent upon the husband’s possessing considerable wealth; and where that was the case, the award could be substantial, despite factors that one might have thought would have militated against this. In Brett v Brett, for example, the marriage only lasted six months, the wife was a qualified solicitor and there were no children. She left the husband because of his ‘revolting sexual demands and practices’.79 The Court of Appeal was clear that it must take into consideration the position in which the wife was entitled to expect herself to be, and would have been, if the husband had discharged his marital obligation—the marital obligation being, of course, an obligation to maintain her on the scale appropriate to his station in life.

The idea of maintaining the ex-spouse at the standard he or she would have enjoyed had the marriage continued was adopted by the Law Commission when it reformed the law following the Divorce Reform Act 1969, and the Commission’s reasoning and the subsequent abandonment of that principle are discussed in section III.C.ii. iii.  Duration of Orders The legislation enacted in 1857 did not contain any provision limiting the duration of an order. A secured order could last for the wife’s life; unsecured periodical payments could last for joint lives, but it was up to the court to specify the term. According to Stone, by the end of the Parliamentary divorce era, it had become ‘standard practice’ to include a provision in the financial settlement that the maintenance sum was conditional on the wife’s living ‘chastely or unmarried’—‘dum casta et dum sola’.80 This was intended primarily to avoid the guilty wife bringing a handsome dowry, courtesy of her ex-husband, to her adulterous lover, but it was imposed on innocent wives too. So in Fisher v Fisher,81 despite the wife’s being the innocent party, Sir Cresswell Cresswell imposed the ‘dum casta’ condition, arguing that if she had obtained a judicial separation instead of the divorce, and had subsequently committed adultery, her alimony would have ceased, and it would therefore be ‘unreasonable to call upon the former husband to maintain her [if she] should become guilty of immorality’ or if she remarried. Yet in 79 

Brett v Brett [1969] 1 WLR 487, 489, CA. Stone (n 10) 345. 81  Fisher v Fisher (1861) 164 ER 1055. 80 

114  A Clean Break Wood v Wood,82 where the parties agreed on quantum but the husband wanted the condition included in the settlement, Lindley LJ considered that ‘it is an insult to any woman of spotless character to provide against the contingency of her sinking so low as to render such a provision necessary’. Moreover, it would also be unjust to the wife, whom the husband had ‘practically force[d]’ to divorce him because of his misconduct, and for whom he could not afford to do more than make her ‘a bare subsistence’, to terminate that subsistence money ‘merely because she may marry again. The continuance of the allowance may conduce very materially to her marrying, and to her future comfort and happiness.’ So far from the judge’s expressing concern at the wife’s being awarded a ‘dowry’ to enable her to marry again, he was enthusiastically endorsing the possibility. Of course, this wife was ‘innocent’. Where the wife was the respondent and therefore the ‘guilty’ party, the condition was regarded as appropriate, because ‘the strongest pressure ought to be put upon [the wife] not to lapse into sin’.83 Eventually, judicial attitudes began to change. In Bellenden v ­Satterthwaite,84 where both spouses had remarried, the Court of Appeal accepted that while the wife’s remarriage was not, of itself, a sufficient ground for reducing the order made against her husband, it was nonetheless necessary to consider the effect of remarriage on both spouses’ finances. Here, the husband had incurred additional expense by remarrying, while the wife had ‘secured a fresh legal right to be supported’ by her new husband. The case marks an important shift in thinking—both parties were entitled to have moved on from their first marriage. In so doing, the husband had assumed new obligations; the wife had acquired new rights. C.  The Modern Law i.  A Shift in Attitudes Even though the 1950s Morton Royal Commission adopted a very conservative approach to divorce reform, it reported that several of its witnesses had suggested that the effect of the present law is to encourage a wife to live in idleness for the rest of her life on the maintenance paid by her husband, or her former husband. They said that, firstly, this is in itself undesirable; if she is able to work for her living she should do so, in her own interest as well as in the interest of the community; secondly, it is unfair to the husband; if there has been a divorce, he may be prevented from making a second marriage; if he does marry again, his

82 

Wood v Wood [1891] P 272, 276–77, CA. Squire v Squire and O’Callaghan [1905] P 4, 9. 84  Bellenden v Satterthwaite [1948] 1 All ER 343, CA. 83 

Post-Divorce Maintenance and the Clean Break 115 second wife (who may have had nothing to do with the breakdown of his first marriage) and his second family may be kept short of money, to the point of real hardship; further, even if the husband does not have to pay maintenance after divorce, because his wife marries again or has means of her own, he has still hanging over him the possibility that he may be called upon to support her in the future if she falls on hard times.85

The Royal Commission was perhaps realistic in resisting such arguments, taking the view that despite the social and economic changes of the previous 100 years, it nevertheless remains the fact that most married women still look to their husbands as the principal if not the sole provider for the family. This could not be otherwise since the wife’s contribution is primarily in running the home and looking after the children.86

The Commission therefore rejected any change to the basic principles the courts should apply, although it did not otherwise seek to justify or even elucidate what those principles were, other than that a husband ‘should’ support his wife and a wife should, in limited circumstances (where the husband lacked the capacity to earn a living), support the husband. This view of marriage as a traditional division of labour between husband breadwinner and wife home-maker was also evident in the Commission’s recommendation that maintenance should cease on a wife’s remarriage, because ‘a wife should have to accept that, if she marries a second time, she should cease to have any claim against her first husband’.87 The question of which husband should have responsibility for the dependent woman was therefore now more clearly answered—a wife should look to her current spouse for ongoing support. ii.  The ‘Minimal Loss’ Principle When the Divorce Reform Bill was introduced into Parliament at the end of the 1960s, there was a significant body of concern that the legislation, through its introduction of the possibility of divorcing after five years’ separation despite the lack of consent of the other spouse, would provide a ‘Casanova’s Charter’ for husbands who might tire of their middle-aged wives and seek to marry a younger second partner.88 It was argued that if the husband were to be allowed to divorce in such circumstances, the wife should at least be protected financially. As Baroness Summerskill put it,

85 

Morton Royal Commission (n 50) para 485. ibid, para 491. 87  ibid, para 496. 88  See Cretney (n 11) 372–75. 86 

116  A Clean Break ‘A woman who is cast off after many years’ service to the family should … be able to count on her share of the goods accumulated during the marriage.’89 This statement advanced the modern view that a wife is entitled to a share in the family assets, rather than the traditional stance that she is a dependant seeking the husband’s largesse. In order to persuade such opponents not to block divorce reform, the Lord Chancellor undertook not to implement the legislation until the Law Commission had completed its consideration of new financial remedies on divorce. The Law Commission considered that the rights and obligations that attached to both husband and wife ‘subsist while the marriage runs smoothly, when it gets into heavy weather and, usually, even after it has been ship-wrecked’.90 Rights and duties should be mutual and reciprocal for both spouses. The right to support should not necessarily come to an end as a result of a matrimonial offence; it was now widely recognised that there was usually fault on both sides, and the introduction of irretrievable breakdown as the basis for divorce would make it impossible to maintain the distinction between the guilty and innocent spouse. The Law Commission agreed, however, with the Morton Commission that maintenance should automatically terminate on the remarriage of the payee, accepting that the wife should look to her new husband for support. It also considered that any scheme ‘whereby the husband provides a capital sum on the divorce in full discharge of his obligations is preferable to one involving a continuing obligation’, but the Law Commission thought that such a clean break (as it became known) might be difficult to achieve in practice. Overall, it did not challenge the assumption that a wife might be entitled to ongoing maintenance despite the divorce, and did not query the basis on which an ex-husband could be held under an obligation to provide it. Under pressure to produce proposals that would reassure those worried about abandoned wives, the Law Commission issued its final report in 1969.91 Its solution to the plight of the innocent wife divorced against her will was, inter alia,92 to adopt the principle adumbrated in N v N93 where, as noted, Lord Merrivale P held that the court’s objective was to ‘take into consideration the position in which the parties were, and the position in which the wife was entitled to expect herself to be and would have been, if

89 

HL Deb, 30 June 1969, vol 303, col 310. Commission, Matrimonial and Related Proceedings—Financial Relief (WP No 9, 1967) para 9. 91 Law Commission, Financial Provision in Matrimonial Proceedings (Law Com No 25, 1969). 92  There were other measures intended to safeguard the wife, through either the postponement or the refusal of the decree: see Lowe and Douglas (n 40) 222–24. 93  N v N [1928] All ER Rep 462, 466. 90 Law

Post-Divorce Maintenance and the Clean Break 117 her husband had properly discharged his marital obligation’. But the Law Commission did not discuss the reasons for taking this approach. It could have been justified on the basis that most wives at that time were financially dependent upon their husbands and were unable to return to, or take up, well-paid employment after divorce because of ongoing or past childcare responsibilities, and the policy of the law had long been that the burden of support should not be picked up by the state in the first instance. Any assumption of female economic equality was therefore ill-founded, and it was only just to ensure that women did not lose out too badly from divorce. The ‘minimal loss’ principle, as it was dubbed by John Eekelaar,94 was enacted in section 5 of the Matrimonial Proceedings and Property Act 1970, later consolidated in section 25 of the Matrimonial Causes Act 1973. It provided that that court was so to exercise [its] powers as to place the parties, so far as it is practicable and, having regard to their conduct, just to do so, in the financial position in which they would have been if the marriage had not broken down and each had properly discharged his or her financial obligations and responsibilities towards the other.

It was clearly intended to safeguard the position of the ex-wife who remained dependent on the husband. It stemmed from a conception of divorce, not so much as a penalty for matrimonial fault, as a repudiation of the marriage tie. The goal of marriage had become emotional self-fulfilment. A spouse (stereotypically assumed to be the husband) was to be enabled to move on from a marriage that had failed to deliver such fulfilment, to try again in a new partnership. But it was recognised that the spouse left behind (stereotypically the wife) might be unable to support herself unaided. If she found a second husband, the problem was solved, as he would take on the obligation of support, but until that happened, the first husband must pay for his freedom, just as had been the original thinking in the nineteenth century. Wives were still largely seen as supplicants for support. But it was recognised that the court’s expanded powers to enable property division to take place as well as the provision of maintenance, gave wider scope to bring about readjustment of property to produce an equitable outcome between the parties.95 This could be done in order, where possible, to achieve the minimal loss objective or, at least, in the view of Ormrod J at first instance in Wachtel v Wachtel,96 ‘to bring about a shift of emphasis from the old

94  J Eekelaar, Family Law and Social Policy, 2nd edn (London, Weidenfeld & Nicolson, 1984) 109. 95  Law Commission (n 91) para 54. Even the Morton Royal Commission (n 50) para 687 had advocated ‘equitable division’, although only in relation to the contents of the marital home. 96  Wachtel v Wachtel [1973] Fam 72, CA.

118  A Clean Break concept of “maintenance” of the wife and children by the husband to one of re-distribution of assets and, what might be called, “purchasing power”’.97 It was also recognised, even while the debates over divorce reform were still taking place, that the majority of husbands could not in fact support two households.98 During the 1970s, complaints grew that not only could they not do so, but that they should not have to try. Continuing to maintain an ex-wife was a drain on the resources of the husband, placing any new relationship in jeopardy. John Eekelaar contended that ‘society cannot both concede an almost unfettered right to divorce (and consequentially, to remarriage) when a marriage breaks down and at the same time impose a burden on the divorcee which he can rarely discharge’.99 Ruth Deech argued that measures to advance women’s equality in employment, through equal pay and sex discrimination legislation, showed that there were no legal barriers to women, including married women, achieving self-sufficiency and it was ‘good’ for them to do so.100 Even though such legislation might not yet be as effective as it should be, it did not follow that ‘the ex-husband, alone in the community, must atone for the deficiencies of the system’.101 In a path-breaking study of the practice of the registrars (judges) actually applying the legislation, Barrington Baker and colleagues found that the minimal loss principle had been all but abandoned by the end of the 1970s.102 They showed that the courts’ powers to transfer property and award lump sums were used to try to secure the children’s continued occupation of the former matrimonial home with the primary caretaker— usually the mother. Where she was unable to compensate the husband by buying him out, this might mean that he had to be deprived of his share of the capital, either during the children’s dependency or for good. Far from the expected financial ‘victim’ of the new divorce law being the abandoned wife, husbands began increasingly to complain that their wives were leaving them, receiving the lion’s share of the marital acquest and yet were still expecting maintenance. A solution was to try to use the court’s expanded powers of property adjustment to try to rebalance the situation by trading off capital for maintenance and ending any continuing financial ties. A wife

97 

Trippas v Trippas [1973] Fam 134, CA; O’D v O’D [1976] Fam 83, CA. Ormrod J made the same point in his judgment in Wachtel v Wachtel [1973] Fam 72, 77. 99  J Eekelaar, ‘Some Principles of Financial and Property Adjustment on Divorce’ (1979) 95 LQR 253, 262. 100  R Deech, ‘The Principles of Maintenance’ [1977] Fam Law 229. 101 ibid, 232. For the view that such arguments ignored the reality of family life, see K O’Donovan, ‘The Principles of Maintenance: An Alternative View’ [1978] Fam Law 180. 102  W Barrington Baker et al, The Matrimonial Jurisdiction of Registrars (Oxford, Centre for Socio-Legal Studies, 1977). See too, Law Commission, The Financial Consequences of Divorce: The Basic Policy, A Discussion Paper (Law Com No 103, 1980) para 61. 98 

Post-Divorce Maintenance and the Clean Break 119 might agree to forgo o ­ ngoing support in return for a larger share of the capital.103 This would allow both to ‘start again’. As Lord Denning put it in Wachtel v Wachtel,104 when the husband has available capital assets sufficient for the purpose, the court should not hesitate to order a lump sum. The wife will then be able to invest it and use the income to live on. This will reduce any periodical payments, or make them unnecessary. It will also help to remove the bitterness which is so often attendant on periodical payments. Once made, the parties can regard the book as closed. 

There was an equal advantage to the husband in being able to order his affairs in the certainty that he would not be at risk of an application by the ex-wife for an upward variation in the amount of maintenance payable by him. As the Law Commission put it in 1969, a capital award ‘enables the parties to start afresh without relics of the past hanging like millstones round their necks’.105 iii.  Judicial Endorsement of a Clean Break In the inter-war years, practitioners clearly recognised that there was an advantage to the recipient client in having control over a lump sum capitalising the sums due, rather than having to rely on the ex-spouse to keep up the payments. The courts accepted the autonomy of the spouses to reach such a settlement through the making of consent orders.106 But the question arose as to how far such orders made by consent could be revisited. In Minton v Minton,107 the spouses made an agreement embodied in a consent order that the husband would transfer the matrimonial home to the wife, paying her 5p per annum maintenance until completion. When that took place, the wife handed the husband a document waiving all future claims to maintenance. Three years later, she applied for an increase in the nominal maintenance order. Counsel for the husband argued that she should be bound by her waiver. ‘Women are adult and, since they can make this decision, they should be allowed to stand on their own feet if they wish to do so.’108 Counsel for the wife stressed the drain on public expenditure were the husband not to be required to support her, and the apparent

103  Where, as was usual, the capital took the form of equity in the matrimonial home, a clean break was facilitated by the fact that the wife could receive welfare benefits for her own and the children’s support without the capital value’s being taken into account. This meant that she could avoid being dependent upon the husband even where her own earning capacity was diminished by childcare responsibilities. 104  Wachtel v Wachtel [1973] Fam 72, 96. 105  Law Commission (n 91) para 9. 106  Mills v Mills [1940] P 124, 132, CA. See also L v L [1962] P 101, CA. 107  Minton v Minton [1979] AC 593, HL. See G Douglas, ‘The Not So Clean Break’ (1980) 96 LQR 196. 108  [1979] AC 593, 600.

120  A Clean Break c­ onflict with the principle in Hyman v Hyman that the parties may not oust the jurisdiction of the courts.109 Lord Scarman asserted, however: There are two principles which inform the modern legislation. One is the public interest that spouses, to the extent that their means permit, should provide for themselves and their children. But the other—of equal importance—is the principle of ‘the clean break.’ The law now encourages spouses to avoid bitterness after family break-down and to settle their money and property problems. An object of the modern law is to encourage each to put the past behind them and to begin a new life which is not overshadowed by the relationship which has broken down. … The court having made an order giving effect to a comprehensive settlement of all financial and property issues as between spouses, it would be a strange application of the principle of the clean break if, notwithstanding the order, the court could make a future order on a subsequent application made by the wife after the husband had complied with all his obligations.

After Minton, the courts developed a jurisprudence regarding the scope and applicability of the clean break principle, which continues to be elaborated.110 At its most simple, a clean break means no financial ties of any sort between the now divorced spouses. That, in particular, means no ongoing periodical payments, and this is the focus of discussion here. However, it is possible, although it seems increasingly rare,111 for the court to exercise its powers so that although there are no such payments taking place, the parties are still ‘tied’ to each other because, for example, sale of the former matrimonial home is deferred to a future date (usually when the youngest child has left full-time education) in order to preserve the home in the short to medium term.112 The parties in such a case must still have dealings with each other over aspects of the upkeep and eventual sale of the property, thus reducing the benefit (both financial and emotional) of a true ‘clean break’. Moreover, it is often said that there can be ‘no clean break where there are children’,113 since the parents will have to continue to cooperate over their care and upbringing, including through some financial exchange, where possible, for their maintenance. But in fact, as is discussed in more detail in Chapter 5, there has been a revision of approach in this regard. It was undoubtedly the case that although the legislation made clear that orders for periodical payments for children could be made ‘from time to time’, and so could not be barred in the future even with consent, it was not uncommon for a spouse to agree to forgo such payments in return for a greater share

109 

Hyman v Hyman [1929] AC 601, HL. See Lowe and Douglas (n 40) 876–80. 111  In a representative sample of court files only 18 (6%) of 300 cases were dealt with in this way: H Woodward with M Sefton, Pensions on Divorce: An empirical study (Cardiff, Cardiff Law School, 2014) 182. 112  Mesher v Mesher and Hall [1980] 1 All ER 126n. 113  See, eg, Dipper v Dipper [1981] Fam 31, CA, 43; Moore v Moore [1981] Fam Law 109. 110 

Post-Divorce Maintenance and the Clean Break 121 of the available capital, usually in the form of the matrimonial home. It was only when the arrangements for child maintenance were reformed through the Child Support Act 1991 that it became clear that this was neither legally permissible nor to be regarded as desirable.114 But there can clearly be a clean break in the sense of no financial payments for the care-taking spouse even though they have children: there were four children in respect of whom periodical payments were being made in Minton v Minton itself. But it was unclear whether there was power to dismiss a wife’s claim for periodical payments without her consent.115 The argument in favour, as propounded by Lord Denning MR in Dunford v Dunford,116 was that this was the only way the court could achieve certainty and a true clean break. Otherwise, the wife might, at some point in the future, come back to the court to seek an increased order, possibly from a purely nominal order as in Minton v Minton to something substantial. The opposing argument was precisely that it was important to preserve flexibility for the wife, since no one could predict what the future might hold.117 The two views reflected the old and continuing debate regarding how far the law should, on the one hand, reflect or promote an ideal of married women’s autonomy and self-sufficiency, or, on the other, recognise their dependency and relationship-generated loss. iv.  The Law Commission’s Examination of the Issue Unsurprisingly, the idea of the clean break grew in popularity, particularly amongst ex-husbands, who began a lively campaign to get rid of the minimal loss principle and their liability to pay ongoing maintenance for their former wives.118 Their pressure was coupled with sustained academic c­ riticism,119 and targeted parliamentarians very successfully. The Lord Chancellor, Lord Hailsham, referred to the volume of complaints he had received: ‘by far the bitterest have come from second wives’, who told him, ‘Look, this woman’—meaning the first wife—‘is living with her boyfriend who is very well off. She is getting maintenance from my husband and I have to go to

114 

Crozier v Crozier [1994] 1 FLR 126. See G Douglas, ‘The Clean Break on Divorce’ [1981] Fam Law 42. 116  Dunford v Dunford [1980] 1 WLR 5, CA. 117  Dipper v Dipper [1981] Fam 31, CA, 47, 49. 118  The main campaigning group was the ‘Campaign for Justice in Divorce’, see Smart The Ties That Bind: Law, marriage and the reproduction of patriarchal relations (London, Routledge & Kegan Paul,1984) 130–31. See HL Deb, 21 November 1983, vol 445, col 28; HC Deb, 15 February 1984, vol 54, cols 416–17. The campaign was supported by members of Parliament, including Toby Jessel MP, who had contributed to the jurisprudence himself in Jessel v Jessel [1979] 1 WLR 1148, CA, where he had unsuccessfully sought to rely on Minton v Minton to argue that a periodical payments provision in a consent order made in his divorce could not be increased on the ex-wife’s application. The Court distinguished Minton on the basis that there was clearly an ongoing substantive order in Mr Jessel’s case. 119  See, eg, Eekelaar (n 99); K Gray, Reallocation of Property on Divorce (Abingdon, Professional Books, 1977). 115 

122  A Clean Break work, leaving my family at home in the hands of an unsuitable baby sitter in order to keep her.’120

Leo Abse MP similarly said he had received ‘thousands’ of letters; lobbying by his All-Parliamentary Group led eventually to the Lord Chancellor’s referring the matter to the Law Commission.121 The Law Commission clearly regarded being handed this hot potato with some unease. Rather than producing a range of proposals for public consideration, as was the normal procedure, it issued a discussion paper raising the issues and inviting responses.122 In this, the Law Commission set out the complaints made of the current law. Given that these stemmed mainly from disgruntled husbands and their second wives, it is not surprising that the Law Commission focused largely on the hardship these suffered, although it did explain the difficulties that first wives faced in carrying the main burden of childcare and attempting to re-enter the job market. It also set out various possible objectives for the law instead of ‘minimal loss’, including the relief of need; the condescendingly termed ‘rehabilitation’ (that is, the idea that the recipient needs a period of adjustment to become self-sufficient, with periodical payments to cover re-training, or the time still required to care for children before a return to (full-time) work is possible); the clean break; and the argument, put forward by Kevin Gray, that the parties should be returned to the position they had each been in before the marriage.123 As noted above, the Law Commission was reluctant to provide any positive recommendations, beyond suggesting that perhaps a combination of models would be best, a stance which Leo Abse MP later described as ‘pussy-footing’ around.124 It concluded, perhaps slightly despairingly: [W]e do not believe it to be possible to reach any clear conclusion on the policy of the law regulating the financial consequences of divorce without first forming a judgment on the nature of marriage, and in particular on the question how far marriage should involve legally enforceable life-long rights and duties.125

Abse told Parliament that after publication of this damp squib, 230 MPs had signed his motion ‘making it clear to the Law Commissioners and to the Lord Chancellor that they wanted a definitive reply’. This was presented the following year, when the Law Commission issued its final paper on the

120  HL Deb, 21 November 1983, vol 445, col 96. See also, the letter to The Times by Mrs Jill Climpson, 5 March 1983: ‘An unprecedented privileged class has been formed in society from a relatively small proportion of ex-wives whose raison d’être after divorce is to hound the man who dares to marry another woman—regardless of fault in the break-up of the first marriage’. 121  HC Deb, 15 February 1984, vol 54, cols 416–17. 122  Law Commission, The Financial Consequences of Divorce: The Basic Policy, A Discussion Paper (Law Com No 103, 1980). 123  Gray (n 119) 320. 124  HC Deb, 15 February 1984, vol 54, cols 416–17. 125  Law Commission (n 122) para 92.

Post-Divorce Maintenance and the Clean Break 123 subject, in which, having received 468 individual responses, it now felt able to bring forward clear recommendations.126 The ‘vast majority’ of those who commented had considered that the minimal loss principle imposed on the courts ‘a task which was rarely possible of attainment … [and] it was, in the great majority of cases, undesirable that it should be attained’.127 It should therefore be removed from the law. In its stead, rather than an overall objective, the law should ‘give a clear indication’ of how the discretionary factors set out in section 25 should be applied. Thus, the legislation would point the courts towards giving priority to the needs of children and giving greater weight to the divorced wife’s earning capacity, and to the desirability of both spouses becoming financially self-sufficient. There was, the Law Commission said, ‘a widespread feeling’ amongst respondents that ‘greater weight should be given to the importance of each party doing everything possible to become selfsufficient’, so far as this was consistent with the interests of the children. To encourage this, courts should be required specifically to consider whether a fixed term, rather than open-ended, maintenance order would be appropriate, and they should be expressly empowered to dismiss a claim for maintenance without consent.128 v.  Legislating for the Clean Break Although the Government accepted the Law Commission’s recommendations and initially announced that it would take an early opportunity to legislate on them, it did not do so, acting only after a private member’s bill had been introduced. The debates in Parliament over the shift away from ‘minimal loss’ to ‘clean break’ reflected the polarised positions taken by those lobbying for husbands and second wives on the one hand, and first wives on the other. The Lord Chancellor told Parliament that the minimal loss objective was impractical and wholly undesirable. With the basis of divorce being the irretrievable breakdown of the marriage, ‘it is neither practicable nor desirable to attempt to put the financial eggs back in their shells’.129 Minimal loss, in the hyperbolic words of Lord Rawlinson, has accentuated the feeling of resentment when, in every case and whatever the circumstances, conduct has to be wholly ignored.130 These are the cases which 126  Law Commission, The Financial Consequences of Divorce: The Response to the Law Commission’s Discussion Paper, and recommendations on the Policy of the Law (LC No 112, 1981). 127  ibid para 17. 128  ibid, paras 24–30. 129  HL Debs, 21 November 1983, vol 445, col 35. 130  Following the decision in Wachtel v Wachtel [1973] Fam 72, CA that conduct should only be taken into account in financial proceedings where it would be ‘obvious and gross’ to ignore it.

124  A Clean Break arouse the most bitter resentment—where one of the parties to the marriage has caused the family life of the marriage to break into pieces, has behaved scandalously by any standard, but nevertheless ends up with a handsome financial settlement … while the wronged party suffers loss of marriage and home and is left quite unable to create another.131

Thus the victim of the law revealed by this scenario had shifted from the abandoned wife of the 1960s ‘Casanova’s Charter’ to the wronged husband, left with the millstone of the ex-wife around his neck, by the 1980s. Opponents of change, who included both the Labour Opposition and those representing lone parents and divorced wives, focused on the financial reality facing women who were divorced—particularly given the high level of unemployment in the country at that time. One journalist summed up the view: ‘[T]he Bill is seen as a middle-class male backlash, concocted by a Prime Minister who is a second wife, a Lord Chancellor who was divorced, and trumpeted by a media dominated … by a bunch of divorced hacks.’132 One final, failed attempt to amend the Bill, to require the court ‘fairly [to distribute] the assets of the marriage including any pension and insurance rights on the basis that marriage is a common endeavour’, was put forward.133 It was a rare example of the debate’s moving beyond the focus on continuing or curtailing spousal maintenance to an appreciation that the court actually already possessed powers to produce an equitable redistribution of the matrimonial property. But the essential ‘problem’ that was presented as requiring reform was the fact that ‘in practically no circle of society can a man keep two households with two separate sets of children’.134 Few people seem to have challenged the assumption that he should have the right to establish two households and two separate sets of children in the first place, but a retired judge, HHJ Lyall Wilkes, did so in a letter to The Times: ‘[T]he courts generally pay too much attention to the new domestic burdens the ex-husband has quite voluntarily assumed on his remarriage, without thought as to whether he can discharge his obligations to his first family.’135 Notwithstanding such arguments, the Matrimonial and Family Proceedings Act 1984 provided strong endorsement of the clean break through amendments to the Matrimonial Causes Act 1973. First, it duly abolished the minimal loss principle. It failed to replace this with any other overarching objective, but did insert a requirement into section 25(1) that the court exercising its financial remedies jurisdiction must give first consideration ‘to the welfare while a minor of any child of the family who has not

131 

HL Debs, 21 November 1983, vol 445, cols 52–53. Maggie Drummond, The Times (31 December 1983). 133  HC Deb, 13 June 1984, vol 61, cols 1007 (Jo Richardson MP), 1009 (Tony Blair MP). 134  Lord Hailsham, HL Deb, 21 November 1983, vol 445, col 98. 135 Letter, The Times (14 July 1983). 132 

Post-Divorce Maintenance and the Clean Break 125 attained the age of eighteen’. This reflected the greater importance attached to the position of children as the ‘victims’ of divorce, which had assumed growing significance in debates over divorce since the Morton Royal Commission in the 1950s, and which is discussed further in Chapter 6. Secondly, it made clear that the court may dismiss a claim for periodical payments without consent,136 so that a clean break settlement may be imposed whenever the court thinks it appropriate. Thirdly, it imposed a duty on the court to consider the making of a clean break, by requiring it ‘to consider whether it would be appropriate so to exercise [its] powers that the financial obligations of each party towards the other will be terminated as soon after the grant of the decree as the court considers just and reasonable’.137 Where the court considers that an immediate clean break would not be appropriate, and that periodical payments should be ordered, it is encouraged nonetheless to work towards an eventual ending of the parties’ financial ties, by being directed to consider the possibility of making these for a fixed rather than ‘joint lives’ duration—a ‘deferred clean break’ as it has become known: [T]he court shall in particular consider whether it would be appropriate to require those payments to be made or secured only for such term as would in the opinion of the court be sufficient to enable the party in whose favour the order is made to adjust without undue hardship to the termination of his or her financial dependence on the other party.138

It should be noted that the statute requires the court to consider whether this is feasible without undue hardship. Thus, some hardship may be tolerated; the question is one of degree.139 The uncertainty of the wife’s ability to achieve future financial independence must be weighed against the possibility that the fairness of a capital settlement would be undermined if she were to be able to come back later for higher payments. vi.  Predominance of Clean Break Settlements The enactment of the 1984 reforms, and the undoubted impetus this gave to the courts’ utilisation of the possibility of an immediate or deferred clean break between the spouses, eventually led to the much more conscious use

136 

Thus reversing Dipper v Dipper [1981] Fam 31, CA, discussed in section III.C.iii. Section 25A(1). 138  Section 25A(2). A further amendment, inserted as s 28(1A), bolsters this provision by enabling the court to direct that a fixed-term order may not be extended. 139  See, eg, the comments by Mostyn J in SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR 1124, [28]. 137 

126  A Clean Break of their property adjustment powers to achieve justice in divorce. Despite the reassurances given in Parliament to worried first wives that clean break settlements would be rare and the new powers ‘cautiously exercised’,140 the advantages to both husbands and wives were readily apparent. It was not just short, childless marriages, or those where there was ample capital available, where the clean break could work. Wherever a wife was uncertain about a husband’s reliability in making payments,141 or needed capital help in order to continue to live in the former matrimonial home or move to a new property, or was dependent upon social security anyway and so would see no benefit from spousal (or child) maintenance, trading off a claim to maintenance payments in return for a larger share of the capital made sense. We have already noted the advantage to husbands of losing their spousal ‘millstone’, even if the trade-off might often mean that husbands had to make a fresh start not only emotionally but from the ground up financially as well. Chris Barton and Alastair Bissett-Johnson found that the number of spousal maintenance orders made since the 1984 Act declined from around 30,000 in 1985 to around 9,000 in 1998.142 Unfortunately, the statistics no longer distinguish between spousal and child maintenance orders.143 Emma Hitchings’ study of solicitors handling ‘everyday’ ancillary relief cases in 2010 found solicitors reporting less opposition to ongoing financial ties, either through periodical payments or Mesher orders. This may have been the result of the House of Lords’ laying down an overall principle of fairness and use of the ‘yardstick’ of equality to check that this was achieved, in White v White.144 The rationale for continuing to provide spousal maintenance is that where the couple lack sufficient capital to achieve such ‘equality’, it might be necessary to provide some ongoing support for the economically weaker spouse in order to achieve a fair outcome.145 It has also been suggested that the economic recession since 2008 made clean breaks less attractive since, with house prices falling, the capital available to the parties could not meet their respective needs. But the ‘evidence’ appears anecdotal and

140  HL Deb, 21 November 1983, vol 445, col 54, Lord Rawlinson, col 76, Lord Roskill; HC Deb, 16 February 1984, vol 54, col 399, Sir M Havers, AG. 141  For historical data on levels of non-payment, see OR McGregor et al, Separated Spouses: A Study of the matrimonial jurisdiction of magistrates’ courts (London, Duckworth, 1970). 142 C Barton and A Bissett-Johnson, ‘The Declining Number of Ancillary Relief Orders’ [2000] Fam Law 94. 143  Ministry of Justice, Family Court Statistics Quarterly, July to September 2016 (2016) at www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2016, Table 13. 144  White v White [2001] 1 AC 596. 145  As demonstrated most vividly in McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618: wife provided with £250,000 per annum—one-third of husband’s net income—because the family had insufficient capital to achieve a fair clean break settlement.

Post-Divorce Maintenance and the Clean Break 127 confined in practice to wealthier couples.146 The most recent studies based on detailed examination of court files do not show a meaningful revival of spousal maintenance.147 Indeed, there is a clear ‘steer’ in favour of the clean break in the more recent case law. In Matthews v Matthews,148 for example, where the wife was the primary carer of the two children aged 6 and 3, the Court of Appeal dismissed her appeal against the refusal of Mostyn J to make a nominal spousal maintenance order. Although she had experienced difficulty in obtaining secure full-time employment in banking or insurance, she had a higher earning capacity than the husband, a self-employed plumber. ­Tomlinson LJ considered that although the courts have been given a discretion under the statute, it is an exercise of discretion in which Parliament has indicated that there should be a clear presumption in favour of making a clean break, in the sense that that is something which the court is mandated to consider, whether it would be appropriate to bring about a complete break between the parties, so far as concerns financial matters, as an initial consideration.

Mostyn J similarly asserted in SS v NS (Spousal Maintenance)149 that if ‘the choice between an extendable term and a joint lives order is finely balanced the statutory steer should militate in favour of the former’. A deferred, if not an immediate, clean break must therefore be considered and, if appropriate, adopted. Thus, in L v L (Financial Remedies: Deferred Clean Break),150 Eleanor King J regarded the wife as having a sufficient ‘safety net’ in the form of capital—a farm she was developing into a business—rather than in the form of an extendable term of maintenance. There are exceptions— where, for example, it is wholly speculative as to when a wife would be in a position to achieve self-sufficiency151—but the trend towards a clean break and a more robust approach to expecting wives to return to the workplace has become firmly embedded in both the jurisprudence and the parties’ expectations.

146  See, eg, L Cowell, ‘Clean Break Orders and Spousal Maintenance: where are we now?’ at www.familylawweek.co.uk/site.aspx?i=ed129295. 147  See, eg, H Woodward, ‘“Everyday” financial remedy orders: do they achieve fair pension provision on divorce?’ [2015] Child and Family Law Quarterly 151, at 161, 164: of 369 court cases completed between 2009–10, 46 (12.5%) included spousal maintenance orders, of which just 6 (2%) were joint lives orders for more than a nominal amount. To similar effect, E ­Hitchings, J Miles and H Woodward in their as yet unpublished study of final orders on divorce. 148  Matthews v Matthews [2013] EWCA Civ 1874, [2014] 2 FLR 1259 at [15]. 149  SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR 1124 at [46]. 150  L v L (Financial Remedies: Deferred Clean Break) [2011] EWHC 2207 (Fam), [2012] 1 FLR 1283. 151  See, eg, Murphy v Murphy [2014] EWHC 2263 (Fam).

128  A Clean Break IV.  TRIUMPH OF THE CLEAN BREAK?

The law prior to the reform of 1970 had developed the spousal maintenance duty as a ‘soft obligation’. The parties could negotiate on separation whether the husband was required to continue to support the wife, and if so, by how much. Although they could not oust the jurisdiction of the courts to determine the matter, under either the private law or social security law, any agreement that the parties had made and their conduct towards each other were highly relevant factors influencing the court’s decision. If the court found that there had been the appropriate fault on the part of the payer to justify an order’s being made (a highly discretionary exercise), it then exercised an equally wide discretion to determine the amount to be paid. The shift to irretrievable breakdown of the marriage as the basis for divorce demanded a re-examination of the basis on which maintenance was to be awarded, although this was not simply because ‘fault’ was being taken out of the equation, but rather because divorce was now being seen as the legitimate repudiation of a marriage that no longer delivered emotional self-fulfilment. This created a problem in the 1960s for abandoned wives in traditional male breadwinner-housewife marriages who had no financial independence, and the minimal loss principle was carried over from prior case law as a basis on which their continuing support could be justified. If the payer spouse was now being told that he might remarry ‘by permission of the law’,152 as Lord Denning put it, and assume new family responsibilities, the question then arose as to whether that principle was in fact sustainable. Yet at the time of the development of the idea of the ‘clean break’ and the debates on the 1984 Act, there was little sustained effort to articulate a reasoned answer to the question later posed by Mostyn J in SS v NS (Spousal Maintenance):‘why on the dissolution of a contract of marriage such a liability [of post-divorce support] can or should arise in the first place’?153 It was only in the twenty-first century that the House of Lords elucidated a new conception of the divorcing spouses as equals in relation to financial remedies, with these to be applied on the basis of three key ­principles—meeting needs, compensating relationship-generated disadvantage and ­sharing matrimonial assets.154 As discussed in Chapter 7, this view of marriage recognises both the equal value of the contribution made by many women through their role as carers rather than breadwinners, and the unequal position of many women compared with their husbands in terms

152 

Lord Denning, HL Deb, 21 November 1983, vol 445, col 56. SS v NS (Spousal Maintenance) [2014] EWHC 4183 (Fam), [2015] 2 FLR 1124, per Mostyn J at [26]. 154  White v White [2001] 1 AC 596; Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618. 153 

Triumph of the Clean Break? 129 of their earning capacity, precisely because of their devoting themselves to making that non-financial contribution through care work. But as the employment of married women has expanded, the argument that married women should be financially self-sufficient has also gained sway, despite the preponderance of part-time, insecure and lower-paid work undertaken by wives with children.155 This sits alongside the view of marriage as purely an emotional relationship with no necessary implications for lasting financial ties. The hegemonic dominance of the clean-break settlement demonstrates the triumph of the view that there should be financial autonomy in and certainly after the marital relationship. Thus, marriage appears no longer to entail a maintenance obligation as such, but rather a duty to share (not necessarily equally)156 the marital acquest, in whatever form is suitable. That might involve ongoing support if that is the only way in which a fair outcome overall can be secured, but the issue is one of method rather than principle. The courts’ increasing use of the concept of commitment in the sense of a promise or an emotional allegiance to the other spouse, which was discussed in Chapter 1,157 chimes with this reduction of any continuing obligation of support to a spouse (or ex-spouse). As marriage has come to be seen as an emotional tie between two people, the financial bonds between them become as temporary and contingent as their feelings for each other. But the centrality of the ‘good’ of emotional self-fulfilment means that there is a moral imperative to live according to this contingency too. The ‘gold-digger’ must not marry for money, and the ‘alimony drone’ must not divorce for money either.158 In particular, the claimant must avoid, so far as possible, acting as a financial (and emotional) brake on the freedom of the other to make any subsequent relationship a success, by seeking ongoing financial support. The task in the next chapter is to consider whether the parental obligation to maintain one’s child has been subject to the same imperatives.

155 

See ch 2, section II.F.i. Sharp v Sharp [2017] EWCA Civ 408. 157  See section V.A.ii. 158  See S Thompson, ‘In Defence of the “Gold-Digger”’ (2016) 6 Onati Socio-Legal Series 1225. 156 See

5 Can’t Pay? Won’t Pay! The duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation … laid on them not only by nature herself, but by their own proper act, in bringing them into the world …1 A paradox of the current era is that while everyone acknowledges that absent parents should support their children, so few parents actually do so …2 ‘What’s all this about sole custody?’ ‘You know what. If you want joint custody, you pay your share.’3

I.  DUTY TO STATE, MOTHER OR CHILD?

W

E SAW IN the last chapter that the obligation to take care of one’s spouse through the provision of financial support, both during and after a marriage, has largely disappeared as marriage has come to be regarded as a partnership of equals, and as it has become acceptable to leave a relationship that fails to provide emotional self-fulfilment and to begin a new one, as unencumbered as possible with the baggage from earlier ties. These same drivers of emotional self-fulfilment and individualism operate in relation to the children produced in such relationships. With personal commitment as the basis for the recognition of legal ties, it appears to be accepted, and acceptable, to form new parent/child as well as adult intimate relationships, and to give priority to those new relationships. Yet alongside this reality there is a general acceptance in social policy that it is justified to impose the obligation to take care of a child through financial support on his or her parents. However in fact, the recognition of this obligation as an enforceable private law duty is of relatively modern

1  Sir W Blackstone, Commentaries on the Laws of England, 13th edn (London, A Strahan, 1800) vol 1, ch 16. 2 D Chambers, ‘The Coming Curtailment of Compulsory Child Support’ (1981–82) 80 Michigan Law Review 1614. 3  The Full Monty (1997).

Limiting the Burden on the State 131 origin—historically, the duty to the child was moral, not legal.4 The general principle of non-intervention in family life meant that, so far as the intact family was concerned, the state took no interest in how he or she was being maintained, unless the child was criminally neglected.5 A parent’s only legal duty to maintain a child was owed to the state to reimburse any outlay of support that was provided to the child under the Poor Law, not directly to the child, nor even to the mother.6 The development of the law since Blackstone’s time can be regarded as falling into three main chronological periods: the ‘Poor Law’ era up to the nineteenth century, where the aim was to protect the interests of the state; the ‘private maintenance’ era beginning in the Victorian period, which was focused on the interests of the mother as primary carer; and the ‘child support’ era from the 1990s to the present, which purports to safeguard the interests of the child. The chapter charts the development of the law through these three eras, exploring on whom the obligation of support has been imposed, and to whom it is owed; how the amount of support has been determined; for how long it is paid; and how it has been enforced. The historical backdrop of the Poor Law is briefly explored, before turning to the development of the private law obligation and then devoting the bulk of the chapter to the pendulum swings in policy concerning the child support system. II.  LIMITING THE BURDEN ON THE STATE

A.  The Poor Law As women have always been the primary caretakers of children, fathers have been much more likely than mothers—and much more able—to leave their children in order to find work elsewhere, or to find a new partner. Until the nineteenth century, the authorities took little or no interest in such children unless they became a charge on the parish.7 During this period, the only duty legally imposed upon parents was to the state, to limit the expenditure on ‘relief’ by the parish for their children by shouldering the cost themselves.8 4  Bazeley v Forder (1868) LR 3 QB 559; Healing v Healing (1902) 19 TLR 90. Cf the view of Baroness Hale in R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48, [2006] 1 AC 42 at [69]. 5  Now contained in Children and Young Persons Act 1933, s 1. Neglect can also justify the making of a care or supervision order under the Children Act 1989, s 31(2). 6 An example of an ‘indirect duty’ as propounded by M Maclean and J Eekelaar, The ­Parental Obligation (Oxford, Hart Publishing, 1997) 6. See ch 1, section III.B. 7  For an authoritative account of the law, see N Wikeley, Child Support: Law and Policy (Oxford, Hart Publishing, 2006) especially chs 2, 3. 8  Poor Relief Act, 1601, s 6.

132  Can’t Pay? Won’t Pay! The system appeared open to considerable abuse.9 In the early nineteenth century, concern about this was compounded by an increased rate of illegitimate births and a growth in the number of people dependent upon parish relief. Such concern, combined with the influence of liberal economic theory and Malthusian beliefs about the consequences of unchecked population growth, prompted the major overhaul of the system contained in the Poor Law Amendment Act 1834.10 This was mainly concerned with what was seen as a growing dependency culture amongst the able-bodied poor on ‘outdoor relief’ (ie the provision of cash to relieve pauperism or to supplement inadequate wages). The cure for this was seen to lie in the principle of ‘less eligibility’, which would act as a deterrent to would-be claimants by making the lifestyle attached to the provision of ‘relief’ (compulsory admission to the workhouse and separation of family members from each other) less attractive than even the lowest paid employment would provide. In fact, since the provision of workhouses was expensive, outdoor relief remained widespread, and for ‘respectable’ widows and deserted wives it remained the norm.11 But the particular stigma to be attached to the unmarried mother meant that she was expected to go into the workhouse, where she would be separated from the child once (or rather if) the child survived infancy.12 Where a deserted wife and children were provided with relief, of any kind, the Poor Law guardians had to apply to the justices of the peace for an order requiring the husband to pay weekly or other maintenance directly to them to cover the cost. Thus, a husband owed a legal duty to the state to cover the cost of his family’s maintenance, which he did not (yet) owe to the family itself.13 Subsequent versions of this provision remained in place until superseded by the child support scheme in the 1990s.14

9  Report from His Majesty’s Commissioners for Inquiring into the Administration and Practical Operation of the Poor Laws (London, B Fellowes, 1834). 10  Wikeley (n 7) 49–51 11  Though it might be delayed for up to a year in the case of widows, to encourage husbands to take out life assurance (a strategy which could backfire—see D Wilson, Mary Ann Cotton: Britain’s First Female Serial Killer (Hook, Waterside Press, 2013), the eponymous subject of which killed several husbands and children in order to collect on the policies taken out on their lives), and withheld from separated wives to ensure that the ‘desertion’ of the husband was not a collusive attempt to secure support: M Finer and OR McGregor, ‘The History of the Obligation to Maintain’ in Department of Health and Social Security (Chair, Sir M Finer), Report of the Committee on One-Parent Families (Cmnd 5629, 1974) vol 2, app 5, paras 68–69. 12  Wikeley (n 7) 55. 13 Poor Law (Amendment) Act 1868, s 33. Once women were able to own their own property, liability was extended to a wife to maintain her children (and grandchildren), ­ although the husband had the prior liability: Married Women’s Property Act 1870, ss 13, 14, and Married Women’s Property Act 1882, ss 2, 20, 21. 14  The power still appears in the Social Security Administration Act 1992, s 106, but this is prospectively repealed by the Welfare Reform Act 2009, sch 7, pt 1.

Limiting the Burden on the State 133 B.  The Problem of ‘Bastardy’ A child born outside marriage, as a ‘filius nullius’, had no legal link at common law with any person, including his or her parents, and no right to custody, maintenance or education from them.15 Such children did not therefore fall within the kinship ties set out in the Poor Law, and the liability to support them was contained in other legislation—the ‘bastardy laws’.16 The Royal Commissioners in 1834 had little to say about deserted wives and their children, but they did have strong views and radical proposals regarding bastardy.17 Their report ‘painted a lurid portrait of illicit sexuality, crafty single mothers, and a multiplying pauper population, all of which substantiated the position that mothers should bear the costs of illegitimate pregnancy alone’.18 Their recommendation was that putative fathers should bear no liability at all for their illegitimate children, the whole burden falling on the mother or, where she was unable to support the child herself, on her parents as liable relatives. They argued that women would soon learn to avoid fornication if they knew that the stigma and the financial cost would lie entirely upon them, and to do otherwise would—yes—undermine the institution of marriage.19 Rather like the history of the Child Support Act, considered in section IV, the initial enthusiastic reception by parliamentarians and the general public of the new Poor Law rapidly gave way to criticism and demands for further change.20 The Poor Law Commissioners were directed to review the law, and in 1844, on their recommendation, there was a sharp reversal of policy. They now recommended that a mother should be given a direct right of action (affiliation proceedings) against the putative father, regardless of whether she was receiving relief.21

15 I Pinchbeck, ‘Social Attitudes to Illegitimacy’ (1954) 5 British Journal of Sociology 315. The mother of the child was only recognised as having the right to custody in Barnardo v McHugh [1891] AC 388. 16 The parents were also subject to criminal penalties for their fornication: Vagabonds Act 1609, s 7, and to community sanctions and those of the Church courts: see OR McGregor et al, Separated Spouses: A study of the matrimonial jurisdiction of magistrates’ courts (London, Duckworth, 1970) 166–67; and M Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge, Cambridge University Press 1987) 150–53, 268–81, 335–40. 17  See U Henriques, ‘Bastardy and the New Poor Law’ (1967) 37 Past and Present 103. 18  L Forman Cody, ‘The Politics of Illegitimacy in an Age of Reform: Women, Reproduction and Political Economy in England’s New Poor Law of 1834’ (2000) 11(1) Journal of Women’s History 131, 139. 19  Poor Law Commissioners, Sixth Annual Report (London, Poor Law Commission, 1840) app B, 92. 20  Not least through the Rebecca Riots in West Wales between 1839 and 1843, in which the male protagonists disguised themselves as women. The main focus of discontent was the erection of tollgates, but the violent outbursts extended to the intimidation of putative fathers where mothers had been unable to get justice after being seduced: see D Williams, The Rebecca Riots (Cardiff, University of Wales Press, 1986) 136–47, 241. 21  Poor Law Amendment Act 1844; the justices could order the putative father to pay a maximum of 2s 6d per week and up to 5s per week for the first six weeks after birth.

134  Can’t Pay? Won’t Pay! In this period, then, the concern of the state that parents meet their obligation to maintain their children was clearly focused on the cost to the public purse; there was little or no notice taken of the needs or interests of the children. After all, the authority of the father (of a legitimate child) was absolute, and he was to be trusted, and entrusted, with the welfare of his offspring unless and until his abuse or neglect of this caused difficulty22 (and expense) to the state.23 Illegitimate children were more of a problem. The very fact that they lacked a legal tie to kin, and that they were likely to be in the care of the economically more vulnerable parent—the mother—meant that the prospect of their becoming a charge on the parish was probably greater than in the case of a legitimate child.24 III.  PROTECTING THE POSITION OF MOTHERS

A.  The Direct Claim for Maintenance It might seem somewhat counter to notions of Victorian morality that the first concession to mothers of a direct cause of action against fathers for maintenance for their children was made to single women with illegitimate children. But this was the outcome of the policy changes made to the Poor Law under the influence of economic liberalism, not a response to some awakening of moral conscience. Cultural attitudes to parenthood did gradually change, however, with a growing sentimentality attached to the role of the (married) mother.25 The first statutory remedy given to the mother of legitimate children that encroached upon the father’s complete authority over his legitimate children was the Custody of Infants Act 1839, the result of the campaign by Caroline Norton. The Act enabled a wife (provided that she had not committed adultery) to seek an order for custody in respect of children under the age of 7 years.26 Cases were heard by the Court of Chancery, and only wives from wealthy backgrounds would be in a position 22  For which wardship might be used: see Wellesley v Wellesley (1828) [1824–34] All ER Rep 189, HL. The decision of Lord Eldon, LC in the Court of Chancery is reported in detail in The Annual Register (1827) 297–310. See S Abramowicz, ‘English Child Custody Law, 1660–1839: The Origins of Judicial Intervention in Paternal Custody’ (1999) 99 Columbia Law Review 1344. 23  For discussion of the problematic legal status of private maintenance agreements between (wealthy) separating parents, see L Stone, Road to Divorce (Oxford, Oxford University Press, 1990) 153–58, 170–80; P Pettit, ‘Parental Control and Guardianship’ in RH Graveson and FR Crane (eds), A Century of Family Law (London, Sweet & Maxwell, 1957) 58. The Custody of Infants Act 1873 eventually provided that such agreements were enforceable so long as they were for the child’s interests. 24  Cody (n 18). However, an agreement between a single woman and putative father for the support of their illegitimate child was enforceable: Hicks v Gregory (1849) 8 CB 437 and Jennings v Brown (1842) 9 M & W 496. 25  See ch 2, section III.A and ch 6, section II.A. 26  See ch 6, section II.

Protecting the Position of Mothers  135 to take such proceedings. Indeed, the Act did not deal with maintenance, it being assumed, it seems, that such wives would have the wherewithal to support their children if they sought custody of them.27 Subsequent legislation, most especially that dealing with judicial divorce and other matrimonial decrees, did make provision for maintenance, but policy decisions had to be taken regarding which children in a family the husband should be required to maintain in such circumstances. i.  Whose Children? After a marriage or relationship breaks down or is terminated by death, a parent will often have children in a new relationship, and will often become a step-parent to the new partner’s own children. The authorities have long recognised that it may make sense in policy terms to assume that obligations are more likely to be fulfilled in respect of the family with which the obligor is currently living than in respect of the one he or she has left behind, or which has left him or her. On that basis, the law has, from time to time, imposed legal obligations on those fulfilling the social role of parent, despite a lack of blood ties between the adult and the child. This would be particularly important at a time of high mortality, where step-families formed through the remarriage of a widowed parent were common and there was no other living ‘parent’ to look to for support. When the Matrimonial Causes Act 1857 instituted civil proceedings for nullity, divorce and judicial separation, it provided specifically for orders to be made with respect to the custody, maintenance and education of children, ‘the marriage of whose parents is the subject of [the suit]’. In other words, the children had to be those of the marriage.28 Subsequently, legislation extending the jurisdiction of the magistrates to award maintenance to deserted wives referred to the husband’s being ordered to pay a weekly sum for the wife’s support ‘and the support of her family’.29 The 1834 Poor Law had extended the liability of a husband to require him to maintain any legitimate and illegitimate children his wife had when they married.30 The purpose of the later legislation was to provide deserted wives with a means of support that would obviate the need to seek relief under the Poor Law. The intention was therefore deliberately to widen the husband’s ‘matrimonial’ liability in the same way; otherwise a wife with children from a prior relationship might still have to have recourse to the parish.

27  Though see Bazeley v Forder (1868) LR 3 QB 559 for a case where the wife successfully relied on her ‘agency of necessity’ (see ch 4, n 8) to require the husband to pay for clothes for the child. 28  Section 35. 29  Married Women (Maintenance in Case of Desertion) Act 1886, s 1(1). 30  Section 57.

136  Can’t Pay? Won’t Pay! When the legislation governing the magistrates’ matrimonial jurisdiction was consolidated in 1895, it accordingly referred to the husband’s wilful neglect to provide reasonable maintenance for the wife ‘or her infant children whom he is legally liable to maintain’.31 In Hill v Hill,32 it was held that a ­husband could be ordered to pay maintenance for his wife’s children from a former marriage because he was legally liable to support them under the Poor Law. But at the next update of the legislation, the phrase ‘is legally liable to maintain’ was omitted, and in the 1950s the Morton Royal Commission on Marriage and Divorce33 thought that Hill v Hill was no longer good law. It recommended that it should be possible to make an order in any matrimonial proceedings, in respect of children who had been ‘accepted’ into the family and supported by the respondent, thus reviving the wider concept, which became known by the shorthand term of ‘child of the family’. The Commission offered little by way of reasoning for the expansion of liability, beyond implying some sort of fault-based causal ground: as it put it: The children … have been taken into the family and it is their home which has been broken up in consequence of the matrimonial dispute between the spouses; the latter should not be allowed to disclaim the responsibilities assumed when the children were taken into the family.34

The change that was made to the law was narrower than that proposed by the Royal Commission. It provided that when dealing with divorce proceedings, a court could make certain orders in respect of ‘a child of one party to the marriage … who has been accepted as one of the family by the other party’.35 But as the Law Commission later noted, there was no logic in requiring that the ‘accepted’ child be that of one of the parties to the marriage. A child who is not related by blood to either spouse (perhaps a stepchild from a former marriage), might still have been ‘accepted’ into their family and require support if that marriage breaks down. It accordingly recommended36 widening the definition to cover any child who ‘has been treated’ by both parties as a child of the family.37

31 

Summary Jurisdiction (Married Women) Act 1895, s 4. Hill v Hill [1902] P 140. 33  Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956), para 573. 34  ibid, para 393. 35 Matrimonial Proceedings (Children) Act 1958, s 4. The magistrates’ matrimonial jurisdiction was brought into line by the Matrimonial Proceedings (Magistrates’ Courts) ­ Act 1960, s 16(1). 36  Law Commission, Report on Financial Provision in Matrimonial Proceedings (Law Com No 25, 1969), para 28. 37  Matrimonial Causes Act 1973, s 52, as amended. The same definition applies to the magistrates’ jurisdiction: Domestic Proceedings and Magistrates’ Courts Act 1978, s 38. A child placed by the authorities with the parties as a foster child is excluded. 32 

Protecting the Position of Mothers  137 The substitution of ‘treated’ for ‘accepted’ was intended to indicate that the respondent need not have had a full appreciation of the facts (eg that the child is not biologically his) yet still have considered the child as part of his family.38 The inclusion of social parenthood as a suitable criterion for the imposition of a liability to support can be justified on various grounds. A person fulfilling the social role of parent, at least where he or she married the parent, can be seen to have ‘taken on’ that parent along with the children he or she already had, thereby demonstrating what might now be called his or her ‘commitment’ to the whole family. It also reflects the fact that the children have been part of the family unit; they—as much as the respondent—may have regarded him or her as fulfilling a parental role.39 B. Quantum Any sum awarded for child maintenance must take account of several factors, including how much is required to cover the cost of the child’s upbringing, and how much the parent can afford. How is the cost to be shared between the two parents, and how far should ‘maintenance’ go beyond meeting a child’s basic needs to reflect a higher standard of living enjoyed by the non-resident parent? i.  The Cost of Raising a Child When living under the same roof, it is unnecessary to divide up everyday expenditure according to discrete beneficiaries, except for personal items such as clothing (and even this can be reduced by ‘hand-me-downs’ from older to younger children), or matters such as the cost of education or nursing care. The cost of buying or renting the house or putting food on the table is not disaggregated amongst the different family members, even though the overall cost will rise as family size increases. Ira Ellman and Tara O’Toole Ellman40 argue that one of the common defects of attempting to produce standardised guidelines for child maintenance is a failure to recognise that such common items benefit the child and should be included when calculating the overall cost, as well as the specific costs identifiably incurred in relation to the child. Determining what a child ‘needs’ for support is a

38 

Law Commission (n 36) para 30, fn 61. The relationship need not be that of a ‘step’ parent: see Re A (Child of the Family) [1998] 1 FLR 347, CA (grandparent). 40 I Ellman and T O’Toole Ellman, ‘The Theory of Child Support’ (2008) 45 Harvard ­Journal on Legislation 107. See also, C Bryson et al, Child maintenance: how would the British public calculate what the State should require parents to pay? (London, Nuffield Foundation, 2015) 13–14, 22. 39 

138  Can’t Pay? Won’t Pay! controversial issue. One reason for the intensity of the debate is that it can come as a shock to the parent asked to support a child to realise how the money can mount up when the sums required are calculated separately for the first time.41 This failure to recognise the true costs of bringing up children perhaps explains why court orders for child maintenance historically tended to be seen as a residual matter of limited importance. In the magistrates’ jurisdiction, for example, support for the children seems initially to have been expected to be found from the sum ordered for the wife/mother. Even though a cap of £2 per week was placed on the sum that could be ordered for the wife in 1886, no separate figure was set for the children until 1920, when a maximum of 10 shillings per child was introduced. That figure was not based on any particular evidence or logic beyond the view that this was the amount a husband/father of a large family, ‘whom, ex hypothesi, he has deserted’, earning £5–£7 per week, should be expected to pay.42 The implication is that such a man deserved to be punished for his desertion by losing possibly over half of his income. But the result was likely simply to put him into arrears and then prison for non-payment.43 In fact, the statutory maxima were never commonly imposed, and even orders made by the High Court were usually set below them.44 This, of course, was primarily because the payer would be unable to afford them. ii.  The Resources of the Payer From the 1857 Act onwards, the courts have been required to have express regard to the means of the husband/father when determining maintenance. There would, after all, be no point in setting an order at a level that he could not pay. Coupled with this was the eventual recognition that he might have acquired a new family, whether within a new marriage or not, whom he was now supporting. The reality of his circumstances—including the fact that he had acquired new ‘commitments’—needed to be recognised. By the 1970s, it was said that no hard and fast line can be drawn between ‘legal’ and ‘moral’ obligations. Such obligations frequently involve the support and maintenance of children, and in this context nice distinctions between whether or not they are enforceable in law at any relevant time are often impracticable of application and in any event undesirable.45 41 

Wikeley (n 7) 68, 126. HL Deb, 29 November 1920, vol 42, col 712. 43 See Cobb v Cobb [1900] P 294, discussed in ch 4, section II.A.iii. 44  McGregor et al (n 16) 81, 83. The maxima were abolished on the recommendation of the Graham Hall Committee: Home Office (Chair, Judge Jean Graham Hall), Report of the Committee on Statutory Maintenance Limits (Cmnd 3587, 1968). The High Court had been given jurisdiction to make free-standing matrimonial maintenance orders (with no cap) in 1949: Law Reform (Miscellaneous Provisions) Act 1949, s 5. 45  Roberts v Roberts [1970] P 1, 7, per Rees J. 42 

Protecting the Position of Mothers  139 iii.  First Consideration to the Welfare of the Child As discussed in Chapter 4, the ‘minimal loss’ principle governing financial remedies in the 1970s was intended to ensure that the ‘innocent’ wife divorced against her will would not lose out (or would lose out as minimally as possible). The legislation provided that the minimal loss principle also applied to the children of the family.46 The Law Commission did not explain why this should be so, other than that it reflected the established approach of the courts to settling a guilty wife’s property in favour of the children.47 No doubt it was also assumed to be obvious that any financial detriment to the children caused by the divorce should be minimised so far as possible. When the Law Commission reviewed financial relief in the 1980s, it initially paid little attention to the position of the children.48 But when it reported its conclusions following consultations, it noted a ‘wide measure of agreement … that the law should seek to emphasise as a priority the necessity to make such financial provision as would safeguard the maintenance and welfare of the children’.49 Children—unlike middle-aged wives—had come to be perceived as the ‘innocent victims’ of divorce,50 and this provided the Law Commission with a very handy way of appearing to meet the concerns of both the husbands’ and first wives’ lobbies. The Law Commission acknowledged that there was a widespread ‘impression that the making of provision for the children is regarded as a matter of secondary importance’, and it recommended that courts should be provided ‘with adequate data about the actual costs of providing for the needs of children’.51 The implication was that not only was child maintenance an afterthought, but that little thought was given to quantifying it. The Law Commission thought that there would be two clear advantages if the legislation made it clear that ‘the interests of the children should be seen as a matter of overriding importance’: First, adequate recognition would be given to the value of the custodial parent’s role, whilst discouraging the belief that [periodical] payments may be regarded as an automatic life-time provision intended for the benefit of the custodial parent (usually, of course, the wife) perhaps for many years after the children have ceased to live with her. Secondly, it is (we understand) often the case that the allocation 46 

Matrimonial Causes Act 1973, s 25(2). Law Commission (n 36) para 82, fn 82. 48  Law Commission, The Financial Consequences of Divorce: The Basic Policy: A Discussion Paper (Law Com No 103, 1980) para 6. 49 Law Commission, The Financial Consequences of Divorce: The response to the Law Commission’s Discussion Paper and recommendations on the policy of the law (Law Com No 112, 1981) para 24. 50  See, eg, C Piper, ‘Divorce Reform and the Image of the Child’ (1996) 23 Journal of Law and Society 364; ch 6, section IV.A. 51  Law Commission (n 49) paras 24–25. 47 

140  Can’t Pay? Won’t Pay! of a larger proportion of the overall maintenance provision for the children’s benefit makes the maintenance obligations more acceptable to the payer (usually, of course, the father).52

The Law Commission’s arguments demonstrate how the bitter pill of the clean break for the wife was meant to be sweetened by the argument that the husband/father would be more likely to keep up—and pay more by way of—payments for the children if he were not required to support the wife for the long term as well. Other than the anecdotal opinion of registrars,53 there was no empirical evidence to justify this view. The Law Commission’s recommendation that ‘the provision of adequate financial support for children should be an overriding priority’54 was not fully adopted. Instead, the Matrimonial and Family Proceedings Act 1984 provided that ‘first consideration [shall be] given to the welfare while a minor of any child of the family who has not attained the age of eighteen’.55 As commentators have made clear ever since, ‘first consideration’ does not mean ‘overriding’ or ‘paramount’ (the term used when a court is determining a question concerning the child’s upbringing).56 Rather, it means that priority should be given to the children but that other factors may influence the decision, particularly the need to secure housing for both the primary carer of the children and the non-resident parent. However, it does signal that the needs of the children should not be treated as an afterthought and must be factored into the overall settlement so that the reality that the carer and children form one economic unit can be adequately considered and accommodated. As Wikeley points out,57 the wide powers to reallocate the parties’ property on divorce provided a means of satisfying both the ‘first consideration’ requirement and the clean break principle, and enabled the law to reflect the social and legal acceptance that ‘there is a life after divorce’.58 There are advantages for children as well as adults in a clean break settlement. The first requirement that the children need to have satisfied is for a secure home; if they can remain in the former matrimonial home, that may avoid the need to move to a new school and new neighbourhood, providing more stability and continuity in their lives at a time of emotional flux and uncertainty. A property settlement that allocated the (bulk of the) value of the home to the primary carer of the children so that they could remain living

52 

ibid, para 24. Law Commission (n 48), para 6, fn 23, citing W Barrington Baker et al, The Matrimonial Jurisdiction of Registrars (Oxford, Centre for Socio-Legal Studies, 1977) 32. 54  Law Commission (n 49) para 46. 55  Section 3(1), amending Matrimonial Causes Act 1973, s 25(1). 56  Children Act 1989, s 1(1). 57  Wikeley (n 7) 108. 58  Delaney v Delaney [1990] 2 FLR 457, 461, per Ward J. 53 

Protecting the Position of Mothers  141 there thus provided that important stability for the children and enabled a clean break between the spouses to be achieved (if the carer gave up her claim to maintenance in return). But where the absent parent’s income was limited, and especially when he or she had taken on new ‘commitments’ to a second family (be they legal or moral obligations), it might only make financial sense (or at least seem fair) to do this if the trade-off for losing a share of the capital was to waive or reduce the resident parent’s right to receive child maintenance as well as spousal support. In the 1990s, it transpired that such a financial clean break in respect of both the wife and the children in the first family was probably rather common.59 This is not surprising, for not only might it make good financial sense, but it reflected the view that predominated up to that time that it was not particularly important for children to retain close ties with their absent parents; indeed, it might be psychologically advantageous for children to develop deeper relationships with those primarily caring for them.60 A non-resident parent, then, might have a moral duty to step back and let a step-parent assume a primary parenting role in the household. In such circumstances, the parent might well form a new family to compensate for the loss of the first, and if that parent was not in contact with the children, it made it easier to assert that he or she should not have to pay for them either. C.  Provision for Children Born Outside Marriage As noted in section II.B, unmarried mothers were given a direct right to seek maintenance in 1844, which became known as affiliation proceedings. Unlike the matrimonial jurisdiction, this was not based upon establishing some kind of fault. It did not require the woman to show that the putative father had failed to maintain the child. This can be seen as, on the one hand, evidencing the lack of any real obligation by the father to the mother or child to provide support—since the duty did not have to be shown to have been breached—but, on the other, as indicating a direct obligation to maintain, enforceable simply by virtue of his proven parental status. However, if the father agreed to support the child, such an agreement could be an enforceable contract, and it was in both parties’ interests to avoid the shame of affiliation proceedings,61 so that the reality was that only where he was refusing or failing to support would proceedings be taken. But either way, the obstacles placed in the way of the mother seeking to bring an

59 

See G Davis et al, Child Support in Action (Oxford, Hart Publishing, 1998) 25. the influential views of J Goldstein, A Freud and A Solnit, Beyond the Best Interests of the Child (New York, Basic Books, 1979), discussed in ch 6, section IV.A. 61  See, eg, James v Morgan [1909] 1 KB 564, 566: putative father had been ‘anxious not to be brought before the magistrates’. 60  See

142  Can’t Pay? Won’t Pay! action, especially the requirement of corroboration, probably meant that many fathers escaped liability. By the 1960s, the Graham Hall Committee noted that the disparity between the rising number of births outside marriage (then around 60,000 per annum), and the relatively small number of affiliation order applications (around 8,000) might be explained in part by the putative father’s ‘assuming a measure of responsibility for his child’, as evidenced by the fact that the birth was jointly registered62 and the assumption that a significant number of parents were cohabiting. But where orders were made, as with matrimonial proceedings, the statutory maximum ‘was hardly ever reached’, and McGregor et al noted the ‘low earning power’ of the fathers.63 They found that half of complainants were dependent upon social security and that the majority of unmarried mothers were managing with neither a court order nor a private agreement with the father. They concluded that ‘these ­mothers either cannot or will not complain to the court’.64 If they wanted to establish a permanent relationship with the father, taking him to court was likely to be counter-productive, and the unpleasant quasi-criminal atmosphere of affiliation proceedings was hardly conducive to encouraging an application. i.  Reform of Affiliation Proceedings As social attitudes became more accepting of sex and child-bearing outside marriage, evidenced by the rising number of such births,65 the stigma of illegitimacy became anachronistic as well as invidious. The Law Commission reviewed the law at the end of the 1970s, and it was reformed in 1987. The recommendation was to end the discriminatory effects of the law on the child so far as possible; the long delay in enacting the Law Commission’s recommendation was due to a change of view as to how best to achieve this.66 The central proposal as regards financial provision for the child was to equate legitimate and illegitimate children’s rights in relation to both parents; this meant that the same powers should be available to secure the child’s financial position regardless of the parents’ marital status. Thus, the Law Commission recommended that the wide powers to make property adjustment orders (and unlimited lump sums) that could

62  Graham Hall (n 44) para 109; see also McGregor et al (n 16) 185. A similar argument was later used as a rationale for extending parental responsibility to such fathers: Children Act 1989, s 4(1)(a), as amended. 63  McGregor et al (n 16) 179. 64  ibid, 187. 65  See ch 2, section II.B.i. 66  Cf Law Commission, Illegitimacy (Law Com No 118, 1982) with Illegitimacy: Second Report (Law Com No 157, 1986). The Law Commission’s recommendations regarding financial support for the child were unaffected by the change of approach.

Protecting the Position of Mothers  143 be exercised on a divorce should be available to a court deciding on provision for a child born outside marriage. While such powers are not generally used to make property orders in favour of a child himself or herself,67 they may be made in favour of the caring parent in order to benefit the child as well—most frequently through the reallocation of rights over the family home. The rationale for making the powers available in the case of non-marital children was three-fold. First, the parents’ relationship (now recognised as increasingly likely to have involved cohabitation) might well have lasted as long as a marriage. Secondly, the child’s financial position might be in as much need of protection as that of a marital child. Thirdly, and in parallel with the ‘clean break’ philosophy governing divorce, ‘it could well be particularly desirable to give the court power to make what would often be intended to be a once-and-for-all settlement in those cases where the father intends to have no further relationship with the child’.68 In envisaging a one-off capital settlement in favour of the child, the Law Commission was articulating an assumption that, in contradistinction to its argument that many children born outside wedlock were growing up in stable cohabiting unions hardly any different from marriages, some would be the products of casual liaisons where the father would not be interested in developing close ties with the child (or the mother). The approach now looks curiously old-fashioned. It has not survived the strong shift that has taken place in the attitude adopted in family law and policy towards the importance of a continuing relationship between a non-resident parent and the child.69 The objection that such powers would be ‘tantamount to giving the mother … a right to support for her own benefit’ was rejected; generally, the provision of capital would simply be to provide a home for the mother and child to live in, not an investment intended to fund ongoing or indefinite support. Moreover, the mother and child formed a unit whose needs were interrelated.70 The Law Commission pointed out that even in affiliation proceedings, the court was already required to take account of the mother’s needs, and in Haroutunian v Jennings the Divisional Court had been clear that the father could be required to pay ‘towards the services rendered by the mother to [the] child’.71

67 

See this chapter, section III.D. Law Commission, Illegitimacy (Law Com No 118, 1982) para 6.6, emphasis added. 69  See ch 6, sections IV et seq. 70  Law Commission, Illegitimacy (Law Com No 118, 1982) para 6.7. 71  Haroutunian v Jennings (1980) 1 FLR 62, 66 (1977), per Balcombe J. See the discussion of the case in C Smart, The Ties That Bind: Law, marriage and the reproduction of patriarchal relations (London, Routledge & Kegan Paul, 1984) 110–11. 68 

144  Can’t Pay? Won’t Pay! ii.  Standard of Living The possibility of making capital provision and of including in any ‘maintenance’ an amount intended to reflect the cost of the care provided by the mother to the child, opened up the question of whether, and if so how far, account should also be taken of the father’s standard of living. That standard of living must inevitably be reflected in the consideration given to what the father could afford to pay; we have seen that many fathers simply lacked the wherewithal to pay ‘meaningful’ amounts of maintenance for their children, especially where they had taken on the responsibility for a new family. But what if the father is wealthy? The legislation, now contained in schedule 1 to the Children Act 1989, does not specify the family’s prior standard of living as a factor to which the court must have regard (whereas it is referred to in the matrimonial jurisdiction), an omission which Hale J explained as due to the fact that the parties might not have cohabited.72 But one might have thought that the payer’s standard of living should have been referred to, given that the issue had been addressed in the previous case law.73 However, it is not straightforward to determine the rationale for insisting that the child share in the parent’s lifestyle. In Chapter 1, it was argued that the legal obligation on the parent is best explained as derived from causation—the fact that the parent has brought the child into the world—and the same argument is implicit in the modern courts’ view that the child is entitled to be brought up in a standard of living that ‘reflect[s] in some degree the father’s ­circumstances’.74 Perhaps another way of putting it is that suggested by Hale J: ‘the child is entitled to be brought up in circumstances which bear some sort of relationship with the father’s current resources and the father’s present standard of living’.75 Wikeley addresses the issue slightly differently. He argues that children have a fundamental human right to have their basic living needs met, but in addition, ‘at the very least a legitimate expectation that they will benefit from the standard of living enjoyed by both their parents, irrespective of with which parent they actually happen to reside’.76 This is because, in his view, ‘child support is not simply a question of ensuring that food is put on the table and clothes on the child’s back. Rather, child support is about improving the child’s overall life chances’, and if the parent can afford to do that then he should. An additional argument is that where the child has ongoing contact with the non-resident parent, he or she should not witness

72 In

J v C (Child: Financial Provision) [1999] 1 FLR 152, 156. Haroutunian v Jennings (n 71). 74  PG v TW (No 2)(Child: Financial Provision) [2014] 1 FLR 940, [105]. 75  J v C (Child: Financial Provision) [1999] 1 FLR 152, 160. 76  Wikeley (n 7) 10. 73 

Protecting the Position of Mothers  145 a wide disparity between the standard of living enjoyed by that parent and his or her primary carer, still less by himself or herself.77 In cases where a father is somewhere between ‘affluent and fabulously rich’, the Court of Appeal has suggested that the court should first determine the kind of home in which he should provide for the child and the mother to live. This will bear on the level at which other expenses should be met through a lump sum, including provision for furnishings, equipment and a car. In fixing the periodical payments element of the award, Thorpe LJ included school fees, maintaining the home, everyday expenses, and those such as presents and trips, holidays and entertainments. But he also recognised that the cost of doing the care ‘work’ for the child must be met: [T]he court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial.78

D.  Duration of Provision for Children If there is a fairy tale element in such cases, whereby Cinderella79 may find herself provided with a palace for her and her mother to live in, the courts’ approach to the duration of provision for the child evokes the clock striking midnight and the coach turning back into a pumpkin. English family law is strikingly mean to children once they reach adulthood—‘child’ maintenance generally means maintenance for a person who is a child, not a person who is the child of a particular parent. The objective of the parental obligation is, as it has always been, to provide support for the child until he or she is able to be financially independent (whether or not he or she is in fact independent), and that point is currently regarded as occurring when the child ceases education or reaches the age of majority.80 About 80% of children

77 

A principle first established in the divorce case, Calderbank v Calderbank [1976] Fam 93. Re P (Child: Financial Provision) [2003] EWCA Civ 837, [2003] 2 FLR 865 at [49]. See S Gilmore, ‘Re P (Child)(Financial Provision)—Shoeboxes and comical shopping trips—child support from the affluent to the fabulously rich’ [2004] Child and Family Law Quarterly 103. The amount must not include a ‘profit element’ for the mother: PG v TW (No 2)(Child: Financial Provision) [2014] 1 FLR 940. 79 The Cinderella analogy was used by Ward J in A v A (A Minor: Financial Provision) [1994] 1 FLR 657, 667, in explaining that the child’s living standard, funded by the father, would inevitably also benefit her half-sisters, since they could hardly be brought up in the same home at a demonstrably lower level of comfort than she would enjoy. 80 Unless there are special circumstances Matrimonial Causes Act 1973, s 29; Domestic Proceedings and Magistrates’ Courts Act 1978, s 5; Children Act 1989, sch 1, para 3. 78 

146  Can’t Pay? Won’t Pay! currently continue in secondary education until they are 18, around 40% go into higher education, and welfare benefits are limited in respect of young people aged under 25. The need for ongoing support has therefore grown in recent years, and the limitation of the non-resident parent’s obligation to pay maintenance (except where expressly extended to cover the period of tertiary education or training) seems miserly, particularly when it is likely that the child will continue to live with the ‘caring’ parent, who will therefore continue to fulfil his or her ‘non-financial’ obligation to the child—and contribute towards the ‘child’s’ financial requirements as well. This emphasis on a child’s being financially independent as soon as possible after he or she reaches the age of majority is reinforced by the courts’ approach to the making of property adjustment orders. Such orders are not supposed to be made in favour of children in the absence of special circumstances causing further dependency.81 Thus courts exercising the Schedule 1 jurisdiction to secure accommodation for the child during his or her dependency will order that the property that is acquired must revert to the paying party once the child reaches adulthood.82 In the divorce jurisdiction, the drawbacks of such an eventual eviction can be avoided by preserving the home or its full value in favour of the primary carer, precisely so that (inter alia) she (or he) and the children can remain living together even after the children have grown up.83 But no such options are available to a court dealing with children born outside marriage, because the non-resident parent is regarded as owing no duty to the carer that could justify a prolongation of the arrangement. IV.  SUPPORTING THE CHILD

A.  Replacing the Courts By the end of the 1980s, the private maintenance era had produced an approach whereby, for children whose parents were married, divorce provision rather than maintenance per se was generally used to deal with their financial needs on marriage breakdown.84 As part of the divorce settlement, periodical payments for children might be traded off or reduced in return for the mother’s obtaining outright ownership or a larger share of the c­ apital

81  Chamberlain v Chamberlain [1973] 1 WLR 1557; Lilford v Glynn [1979] 1 WLR 78, CA. 82  J v C (Child: Financial Provision) [1999] 1 FLR 152. 83  Hanlon v Hanlon [1978] 1 WLR 592, CA. 84  See J Eekelaar and M Maclean, Maintenance after Divorce (Oxford, Clarendon Press, 1986); G Davis et al, Simple Quarrels: Negotiating Money and Property Disputes on Divorce (Oxford, Clarendon Press, 1994).

Supporting the Child  147 value of the home.85 Children born outside marriage were now covered by a more generous and equal financial regime than hitherto, but this was likely to be relevant only to those born to better-off fathers. As Davis et al found in the 1990s, many fathers had come to regard maintenance payments as optional—an act of generosity on their part. Alternatively they might be prepared to make some contribution just so long, in their eyes, as they could afford it. When they took on another major financial commitment, they would stop paying.86

All of this was effectively subsidised by the social security and tax systems.87 But the growing number of lone-parent families,88 of whom an increasing proportion were dependent on social security,89 particularly exercised the concerns of the Government of the time. For the Conservative Prime ­Minister, Margaret Thatcher, the obligation towards one’s children had great significance, especially when it came to the public finances.90 Far from a ‘clean break’, her slogan was ‘parenthood is for life’. The idea of moving on and starting again in a new family without ensuring that one’s first family was adequately provided for was not acceptable: Government too must be concerned to see parents accept responsibility for their children. For even though marriages may break down, parenthood is for life. Legislation can’t make irresponsible parents responsible. But it can and must ensure that absent parents pay maintenance for their children, for it is not fair for them to expect other families to foot their bills too.91

The system of child maintenance therefore underwent fundamental reform and moved into the ‘child support era’. This period saw the introduction of an administrative rather than judicial system,92 with a Child Support Agency (CSA) established to calculate and enforce the child maintenance

85  Hanlon v Hanlon [1978] 1 WLR 592, CA. The Court regarded as a legitimate trade-off for the husband’s losing his entire interest in the home, the wife’s agreement (which it was ­recognised could not be binding) to forgo periodical payments for the children, ie to make a clean break in respect of the children. Cf discussion in this chapter, section III.B.iii. 86  Davis et al (n 59) 156. 87  ibid, 3. 88  See ch 2, section II.E. The Government found that the number of lone-parent families in Great Britain had risen from under 600,000 in 1971 to over 1 million in 1986, forming 14% of all families with children: Department of Social Security (DSS) et al, Children Come First: The Government’s proposals on the maintenance of children (Cm 1264, 1990) vol 2, i. 89  From 330,000 families in 1980 to 770,000 in 1989: ibid. 90  Expenditure on social security for lone parent families rose from £1.4 billion in 1981/82 to £3.2 billion in 1988/89 (at 1990 prices): DSS et al (n 88) vol 2, para 1.4.1. 91  M Thatcher MP, Pankhurst Lecture to the 300 Group, 18 July 1990, at margaretthatcher. org/document/108156. 92 Child support, like social security, applies to the whole of the United Kingdom and N Ireland, although there are some points of difference, eg in Scotland, a child aged 12 or over can apply himself or herself for an order: s 7(1).

148  Can’t Pay? Won’t Pay! payable by the ‘absent’, or ‘non-resident’, parent93 of the child. This would be done according to a detailed formula rather than through the exercise of discretion, so as to ensure consistency and predictability.94 The scheme was presented as an essential part of a wider programme to review and reform the family justice system, which embraced the bulk of child law (through the enactment of the Children Act 1989) and divorce reform (through the work of the Law Commission). The payment of child maintenance was seen as part of the parent’s legal and moral obligation to care for (and take care of) the child, who had ‘a right to care from his or her parents’.95 Unfortunately, the system that was introduced was highly complex, and it proved impossible to make it work efficiently. The history of the administrative failings of the system has been well told96 and is not repeated here; instead, the focus is on the key principles and reasoning that underpinned the system in its various manifestations, to examine what these reveal about the Government’s understanding of the child support obligation that it was seeking to enforce and how this changed in the light of experience. i.  Basis of Liability The Child Support Act 1991 provides that ‘each parent of a qualifying child is responsible for maintaining him’.97 A child is a ‘qualifying child’ if one or both of his parents is, in relation to him, a non-resident parent, that is, not living in the same household with the child.98 Unlike in private law maintenance, then, the principle of the child support scheme is that parents are liable to support their own children but not other ‘children of the family’. Step-children are expected to be supported by their own parent, rather than by the step-parent. This may run counter to the reality in many families.99 It also exposes a significant gender difference in attitudes towards the maintenance obligation. For example, Mavis Maclean and John Eekelaar

93  The terminology in the Child Support Act was changed in 2000 (by the Child Support, Pensions and Social Security Act 2000, sch 3), because ‘absent parent’ was regarded as derogatory: see Wikeley (n 7) 241. 94  DSS et al (n 88), vol 1, paras 1.5, 2.1. 95  ibid, Foreword. 96 For a lively and telling exposition, see Davis et al (n 59), and note in particular the extended explanation of the formula by a child support officer reported at 14–15. For detailed criticism of the political errors made, see A King and I Crewe, The Blunders of our ­Governments (London, Oneworld Publications, 2013) ch 6. 97 Section 1(1). For authoritative discussion of the genesis and operation of the Act up to 2006, see Wikeley (n 7); for a summary of subsequent developments, see N Lowe and G Douglas, Bromley’s Family Law, 11th edn (Oxford, Oxford University Press, 2015) 800–25. 98  Child Support Act 1991, s 3(1), (2). 99  Davis et al (n 59) 9.

Supporting the Child  149 found in their study of the ‘parental obligation’ that there was ‘a strong attachment of mothers to a support obligation founded on natural parenthood, whereas the fathers relate the obligation much more closely to social parenthood’.100 Fathers were more likely to think that the presence of stepchildren should affect the amount of maintenance made available to support children in the first family, and that the mother’s re-partnering should result in a transfer of the burden of maintenance to the children’s new social father. The researchers concluded that ‘fathers adjust the extent of the obligation which they feel they owe towards their natural children by reference to their subsequent social parenthood whereas mothers do not think they should do this’.101 And as one of the mothers interviewed by Davis et al put it, ‘I think basically his commitments to his relationship are more important than his commitment to his children … I think [his new partner’s] child, because she is living with them, gets whatever he has to give.’102 A second gendered difference concerns whether the extent of contact between the non-resident parent and the child should affect the amount of maintenance payable. If care of the child is shared, so that he or she spends significant amounts of time with the parent designated as the ‘non-resident’ parent, it would seem fair to reflect that in a reduction of the amount of money that same non-resident parent has to pay, since he is incurring costs, in the same way as the designated ‘parent with care’, through his actual care of the child. But if the parent is not having contact with the child at all, either because he fails or chooses not to do so, or because the parent with care will not permit him to do so, should that also affect his liability? The child support scheme recognises shared care arrangements through a reduction in the amount payable, but otherwise makes no automatic link between contact and maintenance.103 As a matter of principle, this must be right—the child’s needs and the ability of the non-resident parent to meet the cost of them are not affected by the absence of contact, so there seems no reason why the child should lose out because of that.104 But the relationship is not necessarily viewed in this way by the public,105 and research has certainly found an association between the amount of contact and the likelihood and reliability of payment of child support, with good contact arrangements more likely

100 

Maclean and Eekelaar (n 6) 141. ibid, 142. 102  Davis et al (n 59) 191. See to similar effect, N Wikeley et al, Relationship separation and child support study, Research Report No 503 (London, DWP, 2008) 116, 117. 103  Child Support Act 1991, sch 1 para 7 (as amended). Where the child lives in a shared care arrangement, the amount of child support may be reduced; and where the time spent is equal, there is no liability under the Act: Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677) reg 50. 104  G Douglas et al, ‘Contact is not a Commodity to be Bartered for Money’ [2011] Fam Law 491. 105  At least where contact is prevented by the parent with care: see Bryson et al (n 40) 25–26. 101 

150  Can’t Pay? Won’t Pay! to be associated with regular payment.106 Again, attitudes towards the issue are strongly gendered, with mothers more likely to regard the liability to pay as an absolute one regardless of contact arrangements107 and non-resident parents more likely to view payment of maintenance as entitling the parent to contact.108 ii.  The Formula Approach The creation of a formula to determine the quantum of child support provided an opportunity to think through the issues of principle that the courts had previously grappled with piecemeal, including how far maintenance should be based on a share of the payer’s income, or on the costs of the child’s upbringing.109 Further matters for consideration were the extent to which the child should share in the wealth of the non-resident parent over and above his or her basic needs; how far the primary carer should herself be expected to contribute to the ‘maintenance bill’ as well as through the provision of her care, and how that care should be factored into the equation; and how the needs of a parent’s second family should be balanced against those of his first. As initially proposed and enacted, the formula sought to encompass all of these issues. It did so by tying such details to the rates payable under the social security system and drawing on features of the formula that had previously been used by the authorities to recoup the cost of benefits from the ‘liable relative’ in social security law.110 The effect was to emphasise that the aim was to reduce the costs incurred by the taxpayer, rather than to benefit the child. This aspect was accentuated by the requirement imposed on social security claimants to authorise recovery by the CSA of child support from the non-resident parent to offset the amount paid in benefits, even though (initially) this would result in their receiving none of the money recouped.111 When allied with the fact that the amounts that emerged after the formula had been worked through were often much higher than the ‘going rate’

106  Maclean and Eekelaar (n 6) 126–30; Wikeley et al (n 102) 63–64; C Bryson et al, Kids aren’t free: The child maintenance arrangements of single parents on benefit in 2012 (London, Nuffield Foundation, 2013) 62–63. 107 N Wikeley et al, National Survey of Child Support Agency Clients, Research Report No 152 (London, DWP, 2001) 150. 108  Wikeley et al (n 102) 113. 109  See Ellman and O’Toole Ellman (n 40); Wikeley (n 7) 23–27. 110  For an outline, see N Lowe and G Douglas, Bromley’s Family Law, 10th edn (Oxford, Oxford University Press, 2007) 929–47. 111  Child Support Act 1991, s 6, as originally enacted. Refusal (without ‘good cause’) to cooperate so that the father could be traced could result in a reduction in benefits. For discussion of this, and its subsequent abandonment, see Lowe and Douglas (n 110) 936; and Lowe and Douglas (n 97)803.

Supporting the Child  151 of maintenance to which people had become accustomed, child support rapidly came to be seen as a penal tax on fathers.112 The level of errors made in working out the maintenance figure was initially extremely high, and cases could take years to resolve.113 The basic problem that the CSA faced was that the more comprehensive the formula was made in order to capture key features—costs, income, dual contribution, shared care, and so on—the greater the scope for error and omission. Just like the Poor Law in 1834, almost immediately the scheme came into operation, the general support for it (at least at the level of principle) that had enabled the Government to get the Child Support Act 1991 through Parliament quite easily, gave way to an enormous volume of complaints from almost everyone affected, except perhaps the children, who were not asked what they thought.114 A key feature of the child support regime was that it generally excluded the jurisdiction of the courts to make periodical payments (but not capital or property provision) orders for children. This was to encourage use of the Child Support Act and to ensure (in theory) consistency and certainty of outcome, since the formula, rather than judicial discretion, would set the level of maintenance.115 However, the Act provided that if the parties could reach agreement on maintenance, the courts would still be able to make such orders by consent. In light of the failings of the system, solicitors advised their clients that they would be better off (both financially and emotionally) negotiating a private agreement subsequently embodied in a consent order rather than resorting to the CSA. Just as the magistrates had been the matrimonial jurisdiction for the working classes in the maintenance era, until supplanted by the divorce courts, so the CSA became the system used by those who were too poor, or too conflicted or poorly advised, to avoid it. B.  Reforming Child Support The avalanche of criticism that occurred when the child support scheme was implemented in 1993, led rapidly to reform. A pattern was soon established—while both fathers and mothers complained about the working of

112 Davis et al (n 59) 11, 31, 41. For the same view in the USA: see D Chambers, ‘The ­Coming Curtailment of Compulsory Child Support’ (1981-82) 80 Michigan Law Review 1614, 1624. 113  See Davis et al (n 59), ch 4. 114  But see unpublished data collected by T Ridge and J Millar for their study, Work and Well-Being over Time: Lone Parents and Their Children Research Report No 536 (London, DWP, 2008) discussed by Douglas et al (n 104) 494. 115  There were some exceptions: see Lowe and Douglas (n 97), 820–23.

152  Can’t Pay? Won’t Pay! the Act, fathers’ grievances were dealt with while mothers’ were d ­ ownplayed or ignored. As the Government admitted, ‘changes are needed to the system to ensure that it is more widely acceptable to absent parents and that more maintenance is actually paid to parents with care’.116 The Government’s first reaction was to try to make the system more efficient and to introduce amendments to moderate some of its most rigid features. Most importantly, the principle that the formula would cater for every case was abandoned. The possibility of seeking a ‘departure’ from the formula was introduced for ‘a small proportion of exceptional cases which cannot be fairly treated by any universal formula’.117 But these changes had limited impact, because, if anything, they added to the complexity of the scheme and the CSA simply lacked the staff and expertise to cope. Later reforms therefore narrowed the range of circumstances in which such departures could be permitted.118 By the late 1990s, non-resident parents’ continuing complaints were increasingly combined with growing agitation at what was presented as the anti-father bias of the courts in determining residence and contact ­arrangements.119 The incoming Labour Government sought to respond to fathers’ lobbying on both fronts, and at the same time address its own priorities of modernising the welfare state and tackling child poverty. It had identified that there were over three million children growing up in poverty, over half of whom were in one-parent families.120 Child support was seen as a means of reducing these numbers while re-emphasising the message that parents must take their responsibilities to their children more seriously. For the Government, parental commitment, in the sense of personal dedication to the child, had to be recognised and fostered. This commitment amounted to more than taking care of the child through the payment of money; fathers had an important role to play in providing emotional and practical support.121 The message was directed to both parents—mothers were accused of frustrating fathers’ legitimate claims for contact, but fathers were seen as avoiding their duty of financial support.122 Children, it was asserted, ‘do best when they have two ­positive and committed parents’. But the child support system, in many people’s eyes, ‘treats money as the only thing that matters. It gives the message that

116 DSS,

Improving Child Support (Cm 2745, 1995) 7, emphasis added. ibid, para 2.1. 118  Now called ‘variations’. See Child Support Maintenance Calculation Regulations 2012 (SI 2012/2677) reg 71. 119  See ch 6, section V.C. 120 DSS, A new contract for welfare: Children’s rights and parents’ responsibilities (Cm 4349, 1999) vii. 121 DSS, Children First: a new approach to child support (Cm 3992, 1998) 13. 122  ibid, 15, 11. 117 

Supporting the Child  153 a non-resident parent’s obligations begin and end with a cheque in the post.’123 It also served to increase parental conflict, thus making it harder for parents to work together to sort out all of the arrangements for their children—practical, emotional as well as financial—that were required after they separated. Children’s welfare therefore required a more fundamental re-think of the system. The Government sought to square the circle of appeasing angry fathers by reducing the amount of child support they were required to pay, whilst simultaneously lowering child poverty. It did so by having the state overtly assume the burden of meeting more of the cost of child support. Under the original child support scheme, the shortfall caused by non-payment of maintenance—around a third of what was owed124—had been met through social security payments anyway. Now, that was expressly acknowledged. The new approach abandoned the attempt to factor in both the costs of the child and the individual circumstances of the payer, with a much s­impler formula based on a slice of income model. Henceforward, non-resident ­parents would pay a percentage of their net income (15%, 20% or 25% of net income, according to the number of children to be maintained), having made deductions for the cost of any children in their second family.125 This would result in around 70% of non-resident parents paying less than under the original formula.126 The percentage approach represented an attempt to calculate the costs of raising a child, based not on subsistence rates derived from social security but on the amount spent on children in intact families. As Ellman and O’Toole Ellman point out, expenditure is not the same thing as cost.127 On the other hand, and at least partly in line with public opinion,128 this approach does, at least to an extent, recognise the child’s right or expectation to share in the wealth of the absent parent over and above having her or his basic requirements met.129 In contrast to the original Thatcherite approach, which gave preference to meeting the needs of the absent parent’s ‘first’ children over those of his current family, the new formula sought to treat first and second families more ‘even-handedly’: ‘We do not want the system to force fathers to choose between supporting their first and second families. And we do not want to 123 

ibid, 11. A new contract for welfare (n 120) 8. 125  ibid, 9. 126 DSS, Children First (n 121) iv. 127 Ellman and O’Toole Ellman (n 40) 115. For further consideration of this issue, see I Ellman et al, ‘Child Support Judgments: Comparing Public Policy to the Public’s Policy’ (2014) 28 International Journal of Law, Policy and the Family 274, especially fn 28. 128  Bryson et al (n 40) 13. 129  The Government was minded to impose no maximum cap on the amount that would be derived from applying the percentage, but a last-minute amendment to the legislation introduced a cap of £2,000 net weekly income, which produced a maximum payment of £500 per week (for three or more children): see the discussion by Wikeley (n 7) 333. 124 DSS,

154  Can’t Pay? Won’t Pay! see children in a second family impoverished to support the children in the first family.’130 The Government concluded, nonetheless, that ‘On balance, we think that the new scheme should show a slight preference to children in the first family, because non-resident parents should expect to meet these responsibilities first.’131 Yet in fact, the method adopted, of taking account of the parent’s new responsibilities, resulted in a preference toward children in the second family. The Government gave this example: Terry and Julie are separated. Their child lives with Julie. Terry has formed a new relationship with Alice, with whom he has one child. Terry’s take home pay is £300 per week. Child support is worked out by first deducting 15 per cent for Alice’s child, leaving £255. Terry’s child support for his first family is then 15 per cent of £255, or £38.132

But it can be seen that the deduction given for the second (Alice’s) child is £45—£7 more than that for the first child. It was not surprising, therefore, that a parent’s child support liability was expected to decrease under the new formula. In reaching this compromise, and despite claiming to put the first family first, the Government implicitly accepted the view that the nonresident parent is entitled to move on and establish a second family at the cost of the first.133 C.  Family-based Arrangements The Government confidently predicted that these reforms, which came into operation in 2003, would produce higher rates of compliance than the original formula, but this did not prove to be the case. In 1997, the House of Commons Social Security Select Committee noted that £700 million in unpaid maintenance had accumulated.134 By the end of 2006, £3.792 billion was owing, and there was a steady rate of about 10% of arrears for the total amount assessed annually.135

130 DSS,

Children First (n 121) 25. A new contract for welfare (n 120) 11, emphasis in original. 132 DSS, Children First (n 121) 25. 133 The formula was subsequently changed again, to use gross, rather than net, income, to ‘allow increased transparency, greater simplicity and consistency in approach with calculating entitlement to other payments’: Sir D Henshaw, Recovering child support: routes to responsibility (London, DWP, 2006) para 114. For limitations of using HMRC data based on gross income, see J Albeson, Children deserve more: challenging child maintenance avoidance (London, Gingerbread, 2017) 16–18. 134 HC Social Security Committee, Fifth Report, Child Support HC 282 (1996–97) (London, HMSO, 1997) para 10. 135 Child Maintenance and Enforcement Commission, Child Support Agency National Statistics, December 2011 (2012) at www.gov.uk/government/uploads/system/uploads/­ attachment_data/file/222888/csa_qtr_summ_stats_dec2011.pdf, 25, Graph 5, 23. 131 DSS,

Supporting the Child  155 Unsurprisingly, the Government concluded that even the simplified system was too complicated to be capable of effective delivery, and it commissioned an independent review intended to produce a comprehensive ‘redesign’. Sir David Henshaw’s report, which both the Labour and then the Coalition Government largely accepted, carried the same central message as the original Thatcher Government had asserted, that the responsibility for child support lies with the parents and not with the state. But it pursued the logic of this to conclude that it is therefore for parents, and not the state, to determine how that support will be delivered in the first instance. Recourse to state machinery for assessing, collecting and enforcing child support should be a last resort, rather than the default position. The new message was that arrangements made by agreement were preferable to those arrived at under the formula, because they ‘tend to result in higher satisfaction and compliance and allow individual circumstances to be reflected’.136 Thus, only where parents ‘cannot or will not agree [should the state need] to be able to intervene and ensure that the children receive financial support. If parents seek to evade their responsibility then the state has a role to ensure compliance.’137 On Henshaw’s recommendation, benefit claimants were therefore no longer required to authorise recovery of maintenance, and any payments made were no longer deducted from their benefits.138 This resulted in a 19% reduction in the proportion of single parents on benefit living in poverty,139 but in achieving this, the Government was waiving the right the state had exercised since the Elizabethan period to require reimbursement from a liable relative of its spending on a ‘deserted’ family. The message being promulgated through these reforms, that parents should be ‘empowered’ and ‘helped’ to make their own private arrangements in preference to using the statutory system, was a reflection of broader attempts to encourage the use of non-judicial resolution of family disputes after relationship breakdown.140 It was also reinforced in Henshaw’s ‘re-balancing’ of the system by discouraging recourse to the child support ­system altogether. The Coalition Government sought to support parents

136  Henshaw (n 133) 5, 13. See M Willitts et al, Children in Britain: Findings from the 2003 Families and Children Study (FACS), Research Report 249 (London, DWP, 2005) 127. 137  Henshaw (n 133) 2. 138  Child Maintenance and Other Payments Act 2008, s 15; Social Security (Miscellaneous Amendments) (No 4) Regulations 2009 (SI 2009/2655). 139 Bryson et al (n 106), Tables 3.3, 3.4, para 4.3.2. For analysis of an earlier partial disregard of maintenance, see C Skinner and G Main, ‘The contribution of child maintenance payments to the income packages of lone mothers’ (2013) 21(1) Journal of Poverty and Social Justice 47, 57. 140 See M Maclean and J Eekelaar, Lawyers and Mediators: The Brave New World of Services for Separating Families (Oxford, Hart Publishing, 2016).

156  Can’t Pay? Won’t Pay! ‘to reach arrangements between themselves before conflict and disharmony have set in’,141 and its proposals carried a strong normative message of the superiority of ‘family-based arrangements’:142 A family-based arrangement is one in which both parents agree on how to provide child maintenance for their child, how much and when, independently of the CSA or the courts. It is more flexible than other types of arrangement, emphasises collaboration between parents rather than conflict and helps to keep both parents involved in their child’s life after separation.143

Yet the evidence of the potential for, and reliability and sustainability of, private arrangements is complex. While studies have found higher rates of compliance amongst parents with voluntary maintenance agreements or court orders (by consent),144 much appears to depend on the relationship between the parties. Wikeley et al found that an agreement or court order was much more likely if the couple had married or cohabited, and ‘the more informal the prior relationship between the parents, the more likely it was that there would be no maintenance arrangement in place at all’.145 Bryson et al found that the quality of the post-separation arrangement is also a strong factor in the likelihood of making or keeping to such an arrangement.146 They also noted, as one might expect, that private arrangements tend to be made first, with resort to the child support system only occurring when they break down or prove unachievable. Child support was therefore only the ‘first resort’ of parents by dint of the original mandatory requirements on benefit recipients imposed by government. In so far as it remains the ‘default’, this is precisely because there is no available effective alternative. Parents are ‘nudged’147 into accepting the message of avoiding the statutory system in two ways. First, it is no longer possible to apply for child support without first having a ‘gateway conversation’148 with an adviser. The parent is expected to consider his or her choices before making any full application to the statutory scheme, but although those at risk of abuse

141  Department for Work and Pensions (DWP), Strengthening families, promoting parental responsibility: the future of child maintenance (Cm 7990, 2011) 10. 142  For other normative statements in family law about parenting, see the discussions by C Piper, The Responsible Parent (London, Harvester Wheatsheaf, 1993); H Reece, Divorcing Responsibly (Oxford, Hart Publishing, 2003). 143  DWP (n 141) 10. 144  N Lyon et al, Families with children in Britain: Findings from the 2004 Families and Children Study (FACS), DWP Research Report No 340 (London, DWP, 2006) 319–21, Tables 15.5b, c, and d; Wikeley et al (n 102) 68–69; 91–93; Bryson et al (n 106), Tables 7.3, 6.3. 145  Wikeley et al (n 102) 69. 146  Bryson et al (n 106) 98. 147  It is ‘is all about encouraging the right sort of behaviours’: DWP, Supporting separated families; securing children’s futures (Cm 8399, 2012) 17. 148  ibid, ch 3.

Supporting the Child  157 should be fast-tracked through this into the statutory system, a family-based arrangement is apparently still expected to be sought first.149 Usefully, in future, parents will be able to obtain a reliable ‘indicative calculation’150 of the maintenance that would be due under the child support formula, in order to inform their own private negotiations and assist them to come to an agreement. Such an agreement can either remain entirely ‘family-based’ (that is, potentially non-enforceable),151 or the parties can seek a consent order from the courts if they are prepared to pay for this. Secondly, if a parent wants to persevere with using the child support system, this now comes, literally, at a price, because charging (which had been part of the original vision but had been dropped early on because of the poor record of the CSA) was re-introduced in 2014. Moreover, parents are encouraged—by the imposition of further charges—to make arrangements with each other for ‘Direct Pay’ (ie payments made between themselves) rather than to rely on the statutory collection service.152 D.  Collection and Enforcement Even where the collection service is used, the statutory authorities have been poor at getting the sums owed and apparently loath to make use of the range of enforcement measures at their disposal. At December 2016, arrears stood at nearly £4 billion, of which £3.1 billion was uncollectable. Yet it is scarcely cost-effective to try to collect much of this money: £500 or less is owed in 44% of arrears cases.153 149 See HC Work and Pensions Committee, Child Maintenance Service: 14th Report of Session 2016–2017 (HC 2016–17, 587), paras 23, 24. 150  Child Support Act 1991, s 9A, added by Welfare Reform Act 2012, s 138. This is not yet in force, but they can currently use an online calculator for a provisional indication. 151  A privately negotiated arrangement may be a binding contract if made by deed, or if there is consideration. If it is a ‘maintenance agreement’ within the terms of the Children Act 1989, sch 1 para 10 or the Child Support Act 1991, s 9(1), it cannot restrict the parties from making use of the courts’ powers, (provided that they retain jurisdiction), or of the statutory child support scheme, and it can be varied by the courts, provided the parties consent. 152  Child Support Fees Regulations 2014 (SI 2014/612). A charge of £20 is levied on making an application. If the statutory service is used to arrange for collection of the sums due, there is a 4% deduction from the payments made to the parent with care, and a 20% charge on top levied on the non-resident parent. The application fee is waived for domestic violence victims (reg 4), but the HC Work and Pensions Committee, Child Maintenance Service (2017) para 43, found this does not work effectively, with victims forgoing maintenance rather than risk further abusive intimidation. About a third of applicants have the fee waived: DWP, Child Maintenance Service 2012 Scheme—Experimental Statistics August 2013–March 2017 (2017) at www. gov.uk/government/uploads/system/uploads/attachment_data/file/616423/2012-statutorychild-maintenance-scheme-aug-2013-mar-2017-experimental.pdf, 6. 153 HC Work and Pensions Committee, Child Maintenance Service (2017) paras 55, 59. Much of the arrears relate to children who are now adults: para 55. It should be noted that the rules of the system mean that arrears accumulate even before a calculation is completed: see Wikeley (n 7) 442–44.

158  Can’t Pay? Won’t Pay! The statistics regarding enforcement are equally unimpressive. Automatic deduction of maintenance from earnings was imposed in 74,550 cases in 2007–08, collecting £277 million, declining to 43,300 cases in 2014–15, but yielding £295 million.154 This measure can clearly be an effective means of recovering child support where the non-resident parent is in regular employment, but the decline in its use is presumably due to the reduction in recourse to the collection service as more parents adopt Direct Pay. Other measures of enforcement are more directly coercive, and can only be made by a court order, but they too have declined from an already modest base, and the use of committal to prison has apparently stopped, with no suspended committal orders made since 2012–13.155 Of course, the number of parents committed to prison for non-payment is hardly a sign of either the success or the failure of the system, and Wikeley has rightly pointed out that if there are serious problems in enforcing orders which are issued with the full majesty of the court process, then these difficulties may be all the more acute when child support liability orders are generated by a government agency [which] lacks either the appropriate enforcement tools or the corporate will to tackle non-compliance effectively.156

Yet it is precisely the fact that the child support system was supposed to possess the corporate will that makes its failure so glaring. The Work and Pensions Committee thought that the Child Maintenance Service (which replaced the CSA) ‘ought to strike fear into would-be evaders of parental responsibility’, but it seems to have continued to be the ‘toothless dragon (or vegetarian tiger)’ that the CSA was in the 1990s.157 The reforms made since 2006 seem to have successfully diverted many parents from the enforceable and enforced aspects of the child support scheme, legitimating the long-standing view that child support is optional and certainly negating the idea that it is a tax on parenthood. Attitudinal research suggests that the public generally favours the view that the obligation to pay child maintenance should be legally enforceable, and Belinda Fehlberg and Mavis Maclean have argued that ‘we have come a long way towards achieving the primary objective of the Thatcher a­dministration

154 DWP, Child Support Agency Quarterly Summary of Statistics for Great Britain: ­December 2015 (2016) at www.gov.uk/government/uploads/system/uploads/attachment_ data/file/502345/csa-quarterly-summary-statistics-dec-2015.pdf, Table 17. 155  ibid. Referrals to bailiffs for distress of goods declined from 14,765 cases in 2007–08 to 4,235 in 2014–15, and charging orders from 1,125 to 810. 156  Wikeley (n 7) 472. 157  HC Work and Pensions Committee, Child Maintenance Service (2017) para 70; Davis et al (n 59) 97. For the difficulties experienced by lone parents in using the system where the non-resident parent’s true financial circumstances are not fully taken into account, see Albeson (n 133).

A Culture of Non-Compliance 159 to bring about society-wide acceptance of the responsibility of parents for all their children’.158 But the trend in policy seems to be that the obligation is ceasing to be regarded as a legally enforceable duty, regardless of the rhetoric used by governments to pretend otherwise. V.  A CULTURE OF NON-COMPLIANCE

In 2006, in his review of the child support scheme, Sir David Henshaw suggested that ‘a culture of non-compliance has developed’, which had enabled non-resident parents to believe they could ignore the CSA and get away with it.159 But this chapter has shown that compliance has always been weak, and it has always been possible for deserting spouses and parents to evade paying for their families. The data from studies covering the past 60 years demonstrate how stubbornly difficult it has proved to increase the proportion of families receiving ‘child maintenance’ from an absent parent. For all the enormous effort (and public money)160 expended over the years on attempting to secure maintenance for children, it seems to have proved impossible to design and implement a system whereby more than around a third of poorer families with a non-resident parent are likely to receive any such support, be it regular or irregular.161 As the contingent and impermanent nature of family ties has become more apparent, the use of law as the means of enforcing financial obligation to children as well as to partners appears to have become more and more problematic. In particular, ‘family-based’, ie private, arrangements have come to reflect a moral superiority attached to private ordering and agreement, which are characterised as more civilised forms of dispute resolution likely to reduce conflict and thus benefit the child. In this discourse, it has become almost immoral to seek to enforce the maintenance duty—the applicant may be painted as a vindictive parent pitted against the reluctant payer, rather like the first wife who has been cast as a financial millstone round the ex-husband’s neck.

158  C Bryson et al, Child maintenance: How much the state should require fathers to pay when families separate (2013) at www.bsa.natcen.ac.uk/media/38851/bsa30_child_maintenance.pdf, 5, Table 1; B Fehlberg and M Maclean, ‘Child Support Policy in Australia and the United Kingdom: Changing Priorities but a Similar Tough Deal for Children?’ (2009) 23 International Journal of Law, Policy and the Family 1, 15. 159  Henshaw (n 133) 31. 160  In 2006, Henshaw reported a net cost of running the child support system of around £200 million per annum: ibid, para 13. 161  McGregor et al (n 16, Table 106) showed that in 1957, 33% of separated wives were in receipt of maintenance. The proportion in later studies fluctuated between a low of 23% of lone parents on benefit in 1989 to a high of 50% of such parents in 1981: DSS, Children Come First: The Government’s proposals on the maintenance of children (Cm 1264, 1990) vol 2, 11. In 2012, the proportion was 36% of lone parents on benefit: Bryson et al (n 106) Table 3.3.

160  Can’t Pay? Won’t Pay! The increasing emphasis on the importance of emotional self-fulfilment for the adult has been coupled with the growing focus on the emotional welfare of the child, to stress the centrality of the parent/child bond. But whereas previously, the non-resident parent’s obligation to the child in satisfying that bond would have been seen in primarily financial terms—‘taking care of’ the child—now, the emotional and psychological aspects, as well as ‘care work’, assume higher significance, and the parent’s duty to the child is no longer to be satisfied by the delivery of a ‘cheque in the post’. It is not surprising, then, that payment or non-payment of child support may be associated with the right to have, or to deny, contact with the child. Non-resident parents demonstrate their personal commitment to whichever children they choose—those in their current family and/or those in the family they have left behind. And increasingly, if they choose the latter, it is because they wish to assert that commitment through ‘caring’ rather than ‘paying’. Thus, as we explore in the next chapter, ‘commitment’ is less and less likely to be understood as a synonym for parental obligation, and is increasingly seen as the rationale for the assertion of a parental right.

6 Parenthood is for Life [W]here the parents have separated and one has the care of the child, access by the other often results in some upset in the child. Those upsets are usually minor and superficial. They are heavily outweighed by the long term advantages to the child of keeping in touch with the parent concerned so that they do not become strangers, so that the child later in life does not resent the deprivation and turn against the parent who the child thinks, rightly or wrongly, has deprived him, and so that the deprived parent loses interest in the child and therefore does not make the material and emotional contribution to the child’s development which that parent by its companionship and otherwise would make.1

I.  OBLIGATION OR RIGHT?

I

HAVE ARGUED in earlier chapters that the law has increasingly facilitated a person’s search for emotional fulfilment when a relationship has failed to deliver this, by permitting him or her to ‘move on’ and form a new partnership and start a new family. However, it could be argued that the most important obligations parents have are to ‘care about’ and ‘care for’ their children, and that these are continuing obligations regardless of what happens to the relationship between the adults. As Margaret Thatcher said, ‘parenthood is for life’.2 There certainly appears to have been a shift in thinking about post-separation parenting, away from a ‘logic of substitution’, whereby it was assumed that, after separation and divorce, parents would re-partner and the step-parent in the household of the parent with primary care would substitute for the non-resident biological parent, towards a ‘logic of durability’, with the original relationship between the child and his or her parents enduring across two households rather than in one.3 Can it be argued that this emphasis on continuing parental care runs 1 

M v M (Child: Access) [1973] 2 All ER 81, 88, per Latey J. Thatcher MP, Pankhurst Lecture to the 300 Group, 18 July 1990 (1990) at ­margaretthatcher.org/document/108156. 3  I Théry, ‘“The Interest of the Child” and the Regulation of the Post-divorce Family’ (1986) 14 International Journal of the Sociology of Law 341, discussed by R Van Krieken, ‘The “Best Interests of the Child” and Parental Separation: On the “Civilising of Parents”’ (2005) 68 MLR 25. 2 M

162  Parenthood is for Life counter to the trend of individualism and individualisation elucidated so far in this book, or does the focus on individual self-fulfilment in fact apply in this context as well? If there is such an ongoing obligation to care, in either the emotional or the physical sense, it would appear to be in stark contrast to the apparent diminution of the duty to provide financial support for the child explored in Chapter 5. In previous chapters, although the obligation imposed by the law on a spouse or a parent might have been characterised as ‘soft’ at best, there was no doubt that the legal tie being created or regulated was appropriately described as an ‘obligation’. But the question of how bringing up a child is to be regulated where the parents do not live together is more complex. The nature of the legal tie itself and the concepts used to delineate it have long been contested: is there a right or a duty to care on the part of a parent? The view that parents might need rights, but only as the concomitant to their duties to the child, can be traced back to Blackstone,4 and in Re Agar-Ellis; Agar-Ellis v Lascelles,5 Brett MR stated: The law recognises the rights of the father because it recognises the natural duties of the father. Now the natural duties of the father are to treat his child with the utmost affection and with infinite tenderness, to forgive the child without stint and under all circumstances …

The duty to treat the child with the utmost affection might, in modern ­language, be reformulated as a duty to ‘care about’ the child, which, as Carol Smart has argued,6 has formed the basis for the current emphasis on the importance of contact, or time spent, with the non-resident parent— usually the father—in ensuring the child’s developmental welfare. In turn, conceptualising such contact as a parental duty rather than as a right fits judicial pronouncements since the 1970s, such as in M v M quoted at the start of this chapter, that contact is a right of the child rather than that of the parent.7 In international law, the position is equally complex. Article 8 of the European Convention on Human Rights of course gives ‘everyone’ the right to respect for their family life, and this has been interpreted by the European Court of Human Rights as including post-separation ­contact, but such a right applies to both the parent and the child.8 As Stephen Gilmore points out, moreover, the Convention does not in itself guarantee

4  Sir W Blackstone, Commentaries on the Laws of England, 13th edn (London, A Strahan, 1800) vol 1, 451. 5  Re Agar-Ellis; Agar-Ellis v Lascelles (1883) 24 Ch D 317, 327–28. 6  C Smart, ‘The Legal and Moral Ordering of Child Custody’ (1991) 18 Journal of Law and Society 485, 489. 7  M v M (Child Access) [1973] 2 All ER 81, 88, discussed in section IV. 8  See, eg, Elsholz v Germany (App no 25735/94) (2002) 34 EHRR 58.

Obligation or Right? 163 a right to ‘­contact’ per se.9 By contrast, Article 9(3) of the United Nations Convention on the Rights of the Child expressly requires states to ‘respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests’. Article 24(3) of the EU Charter of Fundamental Rights similarly states that ‘Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’ But in all three instances, since they are instruments of public international law, the correlative duty falls on the state to ‘respect’ the right;10 it is not imposed on the parent, and ‘respect’ can be manifested in a variety of ways. International law therefore sheds little light on the place of ‘caring’, in the form of continuing contact with and involvement in the life of the child, as a right or an obligation in private law. Indeed, family judges in England and Wales have in recent years sought to avoid the language of rights in this context, referring instead to a ‘principle’ or an ‘assumption’ of ongoing contact (in contradistinction to a ‘presumption’).11 This chapter accordingly discusses how far the law has sought to categorise what has at various times been referred to as custody, care, access, contact or involvement in the life of a child as a matter of parental obligation or as a matter of parental right. In so doing, it explores how far the law has been used to support the personal commitment of a parent to a child, and how far it has imposed structural commitments in order to maintain their relationship. The main focus is on how the law has regulated direct face-to-face physical involvement, including periodic ‘contact’ (as it is now usually termed), by a parent with his or her child. It is important to note at the outset, however, that, at common law, a child born outside marriage had no legal ties with anyone, apart from the mother’s liability to support him or her under the Poor Law. Only in the late nineteenth century was it considered that the mother had rights in respect of the child, and only in 1959 was the father able to seek custody.12 The position of children born outside wedlock was made equal to that of legitimate children in 1987, and since the enactment of the Children Act 1989, the law, and the principles, have been the same.13 The discussion following

9  S Gilmore, ‘Disputing contact: challenging some assumptions’ [2008] Child and Family Law Quarterly 285, especially 299–300. 10 See Re C (A Child) (Suspension of Contact) [2011] EWCA Civ 521, [2011] 2 FLR 912, [47] per Munby LJ. 11  Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 334, 342 (per Butler-Sloss P), 362–64 (per Thorpe LJ). For criticism, see Gilmore (n 9). 12  Barnardo v McHugh [1891] AC 388, HL; R v New (1904) 20 TLR 583 (right of mother); Legitimacy Act 1959, s 3 (right of father to seek custody). 13  For discussion, see S Cretney, Family Law in the Twentieth Century: A History (Oxford, Oxford University Press, 2003) ch 15.

164  Parenthood is for Life r­egarding developments up to the 1980s focuses on the position of married parents and their children, because the substantive questions being addressed in this chapter were raised in this context. The discussion of the law after 1989 should be read as applying to all children, regardless of their parents’ marital status. II.  PATERNAL RIGHT AND MATERNAL CONCESSION

The story of how the law gradually changed from a position at the beginning of the nineteenth century, where a father had sole and total ‘guardianship’ over a legitimate child, to a recognition by the end of the century of the importance of the mother in bringing up the child, and also of taking some account of the welfare interests of the child, has been written many times and need not be recounted at length here.14 The interest here is on how those developments were underpinned conceptually by notions of appropriate parental roles—the father as the pater familias and the mother as carer— and how those roles were to be recognised legally. The first legislation permitting a mother to obtain custody of a legitimate child or to be allowed ‘access’ to the child, was not passed in recognition of her having parental rights. Indeed, Caroline Norton, the original campaigner for reform, did not claim any ‘rights’ for mothers. Rather, she sought a remedy against her husband as a relief from the rigour of the law, and mothers were seen as being granted a concession to the normal rule of paternal power.15 The Custody of Infants Act 1839 (Talfourd’s Act) expressly prohibited a wife who had committed adultery from being granted either custody or access. Although no such statutory bar was included when judicial divorce was introduced in 1857, the courts applied the same principle.16 As ­Stephen Cretney notes,17 it was explained in Seddon v Seddon that it would ‘have a salutary effect in the interests of public morality that it should be known that a woman, if found guilty of adultery, will forfeit … all right to the custody of or access to her children’.18 Even as the Victorian cult of ­motherhood 14  See, for older analyses of the history, P Pettit, ‘Parental Control and Guardianship’ in RH Graveson and FR Crane (eds), A Century of Family Law (London, Sweet & Maxwell, 1957); S Maidment, Child Custody and Divorce (London, Croom Helm, 1984) 4–7. 15  Custody of Infants Act 1839 (Talfourd’s Act); custody could be awarded initially until the child reached the age of 7; the age was raised to 16 in 1873 and 21 in 1886. See M Shanley, Feminism, Marriage, and the Law in Victorian England 1850–1895 (London, IB Tauris, 1989). Parties might privately agree to the mother’s having physical custody or access, but she had no right to this: see L Stone, Road to Divorce England 1530–1987 (Oxford, Oxford University Press, 1990) 170–80. 16  Clout v Clout and Hollebone (1861)164 ER 1047; Bent v Bent and Footman (1861) 164 ER 1047; Handley v Handley [1891] P 124, CA. 17  Cretney (n 13) 576. 18  Seddon v Seddon (1862) 2 Sw & Tr 640, 642. In fact, she did not have a ‘right’ to custody or access.

Paternal Right and Maternal Concession 165 began to elevate the status of wives and mothers,19 the judiciary continued to apply the sexual double standard not only to treat a wife’s adultery as more serious than that of a husband, but also to equate her matrimonial ­misconduct with unfitness to have custody of or even access to her children. By contrast, a husband’s spousal or other misconduct would only have implications for his continuing rights in respect of his children if it bore directly on his parenting. An adulterous father did not forfeit his parental authority by his misconduct.20 Unless he brought the child into contact with his mistress, his adultery was irrelevant to his common law right to custody.21 A.  The Purpose and Benefits of a Custody or Access Order When judicial divorce was introduced by the Matrimonial Causes Act 1857, the court was required to make such provision for the children on a divorce or judicial separation as it deemed ‘just and proper’. A guilty wife, as noted, would not receive custody or access, and the needs of the children were rarely mentioned.22 A guilty husband might, or might not, be awarded custody; in some cases, fathers might be given custody of sons or elder children, while mothers kept the daughters and infants.23 A father would be awarded access as an aspect of his paternal guardianship of the child,24 unless he presented a significant risk to the child’s physical or moral welfare.25 Access was apparently viewed as something that was relevant to and desired by a parent rather than a child—it was, after all, called ‘access’, and was ‘to’ the child. In Codrington v Codrington,26 for example, the court considered that the ‘obvious intention of the legislature was to gratify the natural affection of both parties for the children’.

19 See J Gillis, A World of Their Own Making: Myth, Ritual, and the Quest for Family Values (Cambridge, MA, Harvard University Press, 1997) 73ff. The Custody of Infants Act 1873 replaced the 1839 Act and did not repeat the statutory bar, but when the power to award custody to a mother was extended to the magistrates’ courts, it was included: Matrimonial Causes Act 1878, s 4(2). 20  Ball v Ball (1827) 57 ER 703, 704, per Sir Anthony Hart VC. 21  R v Greenhill (1836) 111 ER 922. The mother fled abroad with the children. Public outrage at this case assisted in the passage of Talfourd’s Act a few years later: Shanley (n 15) 136–38. 22  Although where the court was concerned about the children, it could direct that wardship proceedings be taken: Matrimonial Causes Act 1857, s 35. 23  Hamilton v Hector (1872) LR 13 Eq 511; Symington v Symington (1875) 2 Sc & Div 415, 423, HL (an appeal from Scotland). 24  Hyde v Hyde (1859) 29 LJPM&A 150—this father was also to have custody once the child reached the age of 14. See the account of guardianship given by the Law Commission, Family Law Review of Child Law: Guardianship (WP 91, 1985) para 2.7. 25  Swift v Swift (1865) 55 ER 637: father sexually abused 7-year-old daughter. 26  Codrington v Codrington (1864) 164 ER 1367, 1370.

166  Parenthood is for Life By the later part of the nineteenth century, there was greater sensitivity to the position of the child. The Guardianship of Infants Act 1886 provided that in deciding on custody, the court was to have ‘regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father’.27 The reference to welfare extended earlier reform in the Custody of Infants Act 1873, which had provided that terms regarding arrangements for children included in separation agreements could be regarded as valid and binding, unless they were not for the benefit of the child.28 What might such benefits be? There was, of course, material provision. There was also physical caring, and a mother’s care became increasingly valued as of central significance to family life.29 There was religious and moral welfare. But also, in Symington v Symington, where the four children were split between the two parents (sons to the father, daughters to the mother), the Lord Chancellor considered that they should all have access to their respective non-resident parent, so that none ‘may grow up without as full knowledge and as full intercourse as the case will admit of both parents’.30 This is quite close to the modern justification for contact between a nonresident parent and child. This rationale was reiterated in Re A and B (Infants),31 where both parents had committed adultery. Chitty J thought it important for all the children to ‘be brought up in their tender years on terms of affection with one another’, and also ‘that they should know both their parents’. He made, in effect, what would subsequently be called a shared residence order, with the two older children spending six months with each parent. The father appealed, arguing, in line with the older cases, that he should only be deprived of custody if his (mis)conduct justified it, but the Court of Appeal were clear that the 1886 Act was ‘essentially a mother’s Act’, which had ‘very greatly extended the rights of mothers’.32 In particular, they rejected the ‘double standard’ approach to conduct, viewing the Act as requiring that the spouses’ conduct as well as their wishes were to be judged on an equal basis as between husband and wife.

27  Section 5. For firm support of the express reference to welfare, see ‘The Infants’ Bill’, The Spectator (24 April 1886) 9. 28  Section 2. 29 Gillis, A World of Their Own Making (1996). 30  Symington v Symington (1875) LR 2 Sc & Div 415, 423, HL, per Lord Cairns LC. 31  Re A and B (Infants) [1897] 1 Ch 786, 789, CA. Each parent had condoned, ie forgiven, the other’s adultery. 32  ibid, 790. D Wright, ‘Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858–1866’ (2004) 38 University of Richmond Law Review 903, 908, 954, found in her survey of the initial operation of the Divorce Court that such orders were made even then, and she points to Henry James’s novel, What Maisie Knew (1897), as an example of a fictional account of such a case, with the child caught in the middle between the parents.

Paternal Right and Maternal Concession 167 The 1886 Act and this case reflected an increased liberalism and emphasis on individual autonomy for both men and women. But the view that emotional fulfilment entitles a parent to move on and form a new family was also used to deny access. In Handley v Handley, the court applied the ‘logic of substitution’ and declined to order a father to allow his adulterous ex-wife to have access to their children, even though he had initially done so, because he had now remarried and formed a new family. ‘His marrying again made a great difference. He might well say, “This lady has broken up my first home, and if I do not take care she may break up my second home.”’33 This is not an approach that is regarded as generally appropriate in the current era when it comes to contact, although, as was shown in Chapter 5, it has been given more traction in relation to maintenance. B.  The Welfare of the Child What may be striking to modern readers of Re A and B (Infants) is the lack of attention to the welfare of the children, even though, as one judge in the case pointed out, its inclusion in the 1886 Act had displaced any suggestion that the wishes of the father took priority. However, a greater emphasis on the emotional needs of the child did begin to permeate decision making. In Re McGrath (which was a guardianship case concerning orphans), Lindley LJ set out a more modern approach to the concept of welfare:34 [T]he welfare of the child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child is to be considered as well as its physical ­wellbeing. Nor can the ties of affection be disregarded … The right of the infant in this respect is the co-relative of the duty of its guardian and of the court.

This new understanding helped temper slightly the punitive approach to adulterous mothers. In Mozley Stark v Mozley Stark and Hitchins,35 for example, the Court of Appeal held that the mother’s adultery was not to be ‘regarded for all time and under all circumstances as sufficient to disentitle the mother to access to her daughter, or even to the custody of her daughter’. It stressed that ‘the benefit and interest of the infant is the paramount consideration, and not the punishment of the guilty spouse’.36 33 

Handley v Handley [1891] P 124, 128, per Lindley LJ, CA. Re McGrath [1893] 1 Ch 143, at 147, 149. In Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677 [27], Munby LJ commented, ‘[t]hose words are as true today as a century ago’. 35  Mozley Stark v Mozley Stark and Hitchins [1910] P 190, CA. For discussion of this case and other decisions adopting a ‘welfare’ approach in advance of the 1925 Act, see JC Hall, ‘The Waning of Parental Rights’ (1972B) 31 CLJ 248, 250–51. 36  Mozley Stark v Mozley Stark and Hitchins [1910] P 190, CA, 193, 194, per CozensHardy MR. 34 

168  Parenthood is for Life As is well known, the treatment of the child’s welfare as ‘the first and ­ aramount consideration’ became a statutory requirement when the Guardp ianship of Infants Act 1925 was enacted. Stephen Cretney has shown that this formulation was deliberately chosen in preference to making welfare the ‘sole’ consideration.37 He notes that Viscount Cave, in tabling the amendment, argued: The Act of 1886 provides that the court shall consider the conduct of the parents, and the wishes as well of the mother as of the father … The conduct of the parents is surely material in considering what is to become of their children. The wishes of the parents, who may possibly agree, ought also to be considered, and may very likely be of more value than the opinions of the judge himself not guided by those wishes. There are other matters which also ought to be considered … indeed, all the facts ought to be before the judge, and he ought to be entitled to take them into his mind in coming to a decision.38

And the Lord Chancellor, Lord Haldane, anticipating by nearly a century arguments about the relational dimensions of welfare,39 pointed out that ‘there may be other considerations which affect the welfare of the infant which should be taken into account. After all, the infant is a member of a social unit, the family.’40 It is therefore very doubtful that the Court of Appeal in Mozley Stark was intending to suggest that the ‘benefit and interest of the infant’ was the only consideration to be taken into account in custody disputes, and Cretney considers that, at least up until the end of the Second World War, the courts continued to regard the outcome of the main suit as usually determining the decision.41 III.  A RIGHT OF BOTH PARENTS

Cretney42 notes that in the post-war period, there was greater acceptance of the possibility of uncoupling the mother’s matrimonial misconduct from her capacities as a parent. This appears to have been a product of the rise in divorce consequent upon the war, with greater understanding of the difficulties of sustaining a marriage while one spouse was on active service.43

37 SM Cretney, ‘“What will the women want next?”: the struggle for power within the ­family 1925–1975’ (1996) 112 LQR 110, 130–31. 38  HL Deb, 9 July 1924, vol 58, col 349. 39  See J Herring, ‘The Human Rights Act and the welfare principle in family law—­conflicting or complementary?’ [1999] Child and Family Law Quarterly 223. 40  HL Deb, July 9, 1924, vol 58, col 350. See Maidment (n 14) 14 for consideration of this point. 41  Cretney (n 13) 577. 42  ibid, 576ff. 43  See, eg, Allen v Allen [1948] 2 All ER 413, CA; Willoughby v Willoughby [1951] P 184.

A Right of Both Parents 169 There was also, however, more concern about the detrimental impact of divorce on the children.44 This was perhaps prompted by increasing popular exposure to psychological and psycho-analytical theories about child development, especially John Bowlby’s theories on attachment and ‘maternal deprivation’.45 However, while the ‘tender years’ doctrine, that young children should be cared for by their mothers, was certainly relied on by judges,46 it did not receive the wide endorsement that was apparent in the United States.47 In Re B (An Infant),48 Lord Evershed MR declared that there was no tender years ‘rule’, albeit that ‘as a matter of human sense a young child is better with its mother and needs a mother’s care’. The misconduct of the mother in leaving the husband, having fallen in love with another man (although she ended that affair), was still regarded as of significance. Lord Denning took the same view in Re L (Infants).49 He considered that despite welfare being the court’s first and paramount consideration, ‘the claims of justice cannot be overlooked’. The mother had had an affair, and it would set ‘an exceedingly bad example’ if she could break up the home and then demand the right to take the children with her. A mother’s duty involved not only looking after her children, ‘but making and keeping a home for them with their father, bringing [them up] in the love and security of the home with both parents’. In Re L, the mother was seeking ‘care and control’, that is, the day-to-day care of the child,50 and was to be denied this as punishment for her adultery. But where a mother only sought access, the higher courts could be more tolerant. In S v S,51 a mother had been regarded by the first instance court as ‘neglectful and selfish’ because she had left her children behind when she left the husband for another man (of course, had she taken them with her, like the mother in Re L had done, she would also have been regarded as ‘selfish’). But the Court of Appeal considered it natural for a mother to wish to see her children, and in ‘the ordinary way that would be no more than the basic right of any parent’.52

44  Official inquiries into the problems of divorce were set up: see the Committee on Procedure in Matrimonial Causes (Chair, Denning J), Final Report (Cmd 7024, 1947), which led to the establishment of court welfare officers, and, after the idea was taken up by the Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956), the ‘welfare check’ on the arrangements for children before decree absolute could be granted. This was repealed by the Children and Families Act 2014, s 17. 45  J Bowlby, Child Care and the Growth of Love (Harmondsworth, Pelican Books, 1953). 46  Re S (An Infant) [1958] 1 WLR 391. 47  See R Laing Klaff, ‘The Tender Years Doctrine: A Defense’ (1982) 70(2) California Law Review 335. 48  Re B (An Infant) [1962] 1 WLR 550, 551, CA. 49  Re L (Infants) [1962] 1 WLR 886, 890, CA. 50  See section III.A. 51  S v S [1962] 1 WLR 445, 448, CA. 52  ibid, per Willmer LJ.

170  Parenthood is for Life With the concept of irretrievable breakdown replacing fault as the ground for divorce at the end of the 1960s, the courts increasingly considered that, just as with decisions regarding financial support,53 matrimonial misconduct was just one factor to be taken into account in determining which parent should care for a child. This stance was emphatically confirmed in Re K (Minors)(Children: Care and Control).54 The father was a curate; the mother began an affair and told him that she wanted to leave him and take their two young children with her. She sought custody, and the father responded by making the children wards of court. The first instance judge awarded the mother care and control, largely because of the children’s young age, or as he had put it, ‘the dictates of nature which make the mother the natural guardian, protector and comforter of the very young’.55 The Court of Appeal upheld his decision. No one had suggested that the mother should be refused access, so the children would still be exposed to her ‘immoral’ liaison with her partner, even if they were in the father’s day-to-day care. Ormrod LJ considered that if the father had not been a minister of religion, there would have been no question of the mother’s not having their care, given that she was ‘perfectly competent’.56 The new, more sympathetic approach to the wish of either husbands or wives to leave unsatisfactory relationships, together with the rejection by the House of Lords in J v C57 of the view that an ‘unimpeachable’ parent’s rights should prevail over the best interests of the child, inevitably meant that the old approach to evaluating a wife’s ‘misconduct’ for the purposes of determining custody or access had to be left behind.58 Rather like in ­financial remedies cases, the rejection of (a wife’s) ‘conduct’ as a determining factor in parenting cases apparently proved difficult for some (men) to accept, but henceforward, the courts were clear that unless such conduct affects the parent’s parenting abilities, it is irrelevant. A.  Splitting Rights Susan Maidment has pointed out that the term ‘custody’, as used in the 1839 Act, must have meant ‘physical’ custody or possession, since only the father 53 Where, indeed, such misconduct is generally to be left completely out of account: see ch 4, section III.C.v. 54  Re K (Minors)(Children: Care and Control) [1977] Fam 179, CA. 55  As reported by Stamp LJ, ibid, 187. He was also concerned about the sub-optimal childcare arrangements proposed by the father, which depended upon a rota of willing ladies of the parish to substitute for the mother. 56  [1977] Fam 179, 190–91. 57  J v C [1970] AC 668, HL. See N Lowe, ‘J v C: Placing The Child’s Welfare Centre Stage’ in S Gilmore, J Herring and R Probert (eds), Landmark Cases in Family Law (Oxford, Hart Publishing, 2011). 58  Re L (Infants) was disapproved by the Court of Appeal in S (BD) v S (DJ)(Children: Care and Control) [1977] Fam 109, CA.

A Right of Both Parents 171 had the legal guardianship of his legitimate child59 and, after all, it was for the opportunity for a mother to have her child with her that Caroline Norton had campaigned. Fathers were not expected to do the physical care work for the child. If they had no willing female relative to take on the task, such as the child’s grandmother, or had not found a new wife, and could not afford the cost of full-time childcare or boarding schools, they were unlikely to seek custody in the physical sense, but they might well have wanted, and expected, to retain the right to make decisions about the child’s upbringing. As ideas about the importance of mothers, particularly for the welfare of young children, grew, the courts developed ways of satisfying both the ‘justice of the case’ and the child’s needs. They split off the ‘care and control’ of the child and understood the concept of ‘custody’ in its broader sense of the full ‘bundle’ of parental rights. The father could be awarded ‘custody’ in order to retain his authority over the major decisions affecting the child, such as choice of school,60 while the mother did the actual day-to-day caring. As Denning LJ explained in Wakeham v Wakeham,61 this also recognised that the father, if the innocent party in a divorce, ‘is at least entitled to a voice in the upbringing of the child’. Such split orders eventually fell out of favour, since it could be inconvenient if the child’s actual carer was unable to give consent to certain decisions, for example in relation to medical matters, while the ‘custodial’ parent, who could give such consent, was absent.62 In Jussa v Jussa,63 the court considered that where both parents were ‘unimpeachable’ (and it is noteworthy that, by 1972, when this case was decided, the fact that the mother had left the father was not regarded as ‘misconduct’ on her part), if they were capable of cooperating over matters regarding the children, joint custody rather than a split order was appropriate and desirable, even though the children would be living with the mother. Such an order, it was thought, gave both parents decision-making power in relation to the children, but in the event of disagreement, the issue could be taken to a court for determination.64 The legal significance of ‘custody’ was complicated both by legislative reforms65 and judicial pronouncements during the 1970s and

59 

Maidment (n 14) 24. eg, Re W (An Infant) [1964] Ch 202, CA. In Jane v Jane (1983) 4 FLR 712, CA, where the mother was a Jehovah’s Witness, she was given care and control, while custody was vested in the father so that he could give consent to blood transfusions for the child. 61  Wakeham v Wakeham [1954] 1 WLR 366, 369, CA. 62  Maidment (n 14) 24. 63  Jussa v Jussa [1972] 1 WLR 881. 64  For which provision had been made by s 1(3) of the Guardianship Act 1973. Cretney (n 13) 573–75, says that no reported case was ever taken to court under that provision. 65  The Children Act 1975, ss 85 and 86, divided custody into ‘legal’ and ‘actual’ custody, corresponding to rights and duties on the one hand, and physical possession on the other. The Domestic Proceedings and Magistrates’ Courts Act 1978, ss 8 and 88 enabled specific rights or duties comprised within ‘legal custody’ (other than ‘actual custody’—defined as ‘actual possession’) to be allocated to the other party to the marriage. 60  See,

172  Parenthood is for Life 1980s.66 In particular, in Dipper v Dipper,67 the Court of Appeal stated that no matter who had been granted a ‘custody’ order, both parents retained the right at least to know and be consulted over major decisions affecting the child. In the mid-1980s, researchers for the Law Commission found that 77.4% of custody orders made on divorce were granted solely to wives, 9.2% to husbands and 12.9% jointly, but reflecting the confusion over the significance of the term ‘custody’, there were significant regional variations, with joint custody three times more likely to be awarded in the south of England than the north (and with wide variations even within areas).68 It did not follow that ‘joint custody’ meant ‘shared care’, that is, that the children spent significant amounts of time living with each parent— such cases were rare and limited to dividing the child’s time during school holidays or where the parents lived in close proximity to each other. Overall, 89% of cases resulted in the wife’s having primary care of the children. Just as in earlier times, husbands were more likely to have care of older children, or sons. IV.  A RIGHT OF THE CHILD

By the 1980s, regardless of whether a judge tended to make joint or sole custody orders, the Law Commission researchers found that there was a consensus ‘that, where possible, both parents should continue to be involved in their children’s upbringing after divorce’,69 and in the great majority of cases access was ordered alongside custody. Yet relatively few reported decisions before the 1990s concerned ‘access’ as distinct from ‘custody’, and in particular, little guidance was given on the detailed arrangements that should be made.70 Where a parent was granted access, ‘liberal’, ‘generous’ or ‘reasonable’ access was expected to take place by agreement between the parents; it did not need to be spelled out. But once access became viewed as a ‘right’ of both parents, regardless of matrimonial fault, and once ‘custody’ was regarded either as something that could be

66  For a full account and analysis, see Maidment (n 14) 23–40; Law Commission, Review of Child Law: Custody (WP No 96, 1986) paras 2.34–2.50. 67  Dipper v Dipper [1981] Fam 31, CA—which was also important for the development of the clean break principle, discussed in ch 4. 68  J Priest and J Whybrow, Custody Law in Practice in the Divorce and Domestic Courts: Supplement to Working Paper No 96 (London, HMSO, 1986) paras 4.21, 5.2 et seq. For ­comparative data from other studies, showing that the proportion of joint custody orders rose from around 5% in the early 1970s to around 18% by the mid-1980s, see ibid, 98–100. 69 ibid, para 5.6. As seen above, this was not entirely a modern sentiment: Symington v Symington (1875) 2 Sc & Div 415, 423, HL, above, text accompanying n 30. 70 Law Commission (n 66), para 2.56; M Freeman, ‘Disputing Children’ in S Katz, J Eekelaar and M Maclean (eds), Cross Currents: Family Law and Policy in the US and England (Oxford, Oxford University Press, 2000) 456.

A Right of the Child 173 awarded to both parents, or as having no particular significance in terms of ‘rights’ anyway, ‘access’ appears to have become an issue more likely to be contested and to become the subject of reported decisions. By the 1980s, around 9% of access orders made in the divorce courts were for ‘defined’ access, and some of these were variations of earlier, undefined orders, which had proved problematic.71 The Law Commission considered that there were ‘far more disputes, and far greater difficulties of enforcement in access than in custody itself’.72 And whereas earlier, access had been viewed as something that existed for the gratification of the parent, the greater emphasis on the child’s welfare as first and paramount now focused the court’s attention on its benefit (or detriment) to the child. In B v B (B (An Infant) Intervening),73 for example, the parents had separated when their son was aged 4 years, and the wife later divorced the husband for cruelty. There had been continuing litigation over the father’s access, and from the age of 11 the boy had refused to see him. The Court of Appeal upheld the trial judge’s decision that access would not do the boy ‘any good, and might very well do him harm’.74 Although the father argued that the onus lay on the mother to facilitate and promote access, the Court refused to criticise the trial judge for having told him to try to develop a better relationship with the child, and although it accepted that the mother may have influenced the boy’s views, it regarded itself as powerless—‘we are confronted by a grave problem to which no proper answer can be given by any human court’.75 A rather different and highly influential view of access was subsequently taken in M v M (Child: Access).76 The mother left the father and child, and the father was granted custody. The spouses’ relationship was very acrimonious, and both formed new partnerships. The father refused to let the mother see their son when she became pregnant by her new partner. The boy was upset and unsettled, and the magistrates refused to make an order. Upholding their decision on appeal, Wrangham J stated that the companionship of a parent is in any ordinary circumstances of such immense value to the child that there is a basic right in him to such companionship. I for my part would prefer to call it a basic right in the child rather than a basic right in the parent. That only means this, that no court should deprive a child of access to either parent unless it is wholly satisfied that it is in the interests of that child that access should cease, and that is a conclusion at which a court should be extremely slow to arrive.77 71 

Priest and Whybrow (n 68), para 6.10. Law Commission (n 66), para 4.27. 73  B v B (B (An Infant) Intervening) [1971] 1 WLR 1486, CA. 74  ibid, 1492, per Davies LJ. 75  ibid, 1494. 76  M v M (Child: Access) [1973] 2 All ER 81. 77  [1973] 2 All ER 81, 85. Nonetheless, the mother was refused access. 72 

174  Parenthood is for Life The Court’s focus on the child and the rejection of any suggestion that ‘a parent has any proprietorial right to access’, were influential in setting the future parameters of policy debates on sharing parenting time. But it is also worth noting that the courts at this time tended to regard access as unenforceable if the child was unwilling, and that this was the case even if the unwillingness stemmed from the custodial parent’s lack of cooperation. The high-water mark of this approach came in Churchard v Churchard.78 The children took the mother’s side when the marriage broke down, and refused to see the father despite his obtaining an access order. He applied to have the mother committed for contempt because of her refusal to make the children see him. The Court of Appeal, while criticising the trial judge for ‘debarring’ the father from access, agreed that there should be no contact for the time being. Ormrod LJ noted that none of us understand the nature of the trouble but it seems to occur mostly in children of this sort of age—10 and 8—and it takes the form of an implacable refusal by the children to see their father and a very determined stance being taken by their mother (or the custodial parent) in support of the children and their refusal and an almost equally implacable determination by the non-custodial parent to achieve access. I use the phrase ‘achieve access’ intentionally because I do not think that in these cases the parents pay very much attention to the real welfare of the children concerned. The battle is a battle essentially between parents continuing on from the past.79

He regarded the father’s attempt to have the mother committed to prison for contempt of court as ‘inevitably futile’, and cautioned that to apply for a legalistic but futile remedy, because it is the only thing left to do, is, in my judgment, the last hope of the destitute. The court is only concerned with the welfare of the children and ought not to trouble itself too much about its own dignity.80

If committal should not be attempted, neither was a variation of custody appropriate—the children were devoted to their mother, and strongly disliked their father; placing them in local authority care, which had also been mooted, was unjustifiable. So far as access was concerned, the time had come to say ‘enough is enough’. The parents had to ‘behave like adults and accept the situation’, and there was nothing in reality that the courts could do. A.  Access and the Welfare of the Child This approach, which was later criticised as outweighed by the need for court orders to be obeyed,81 and which is certainly out of favour in current 78 

Churchard v Churchard [1984] FLR 635, CA (1980). ibid, 636. 80  ibid, 638. 81  A v N (Committal: Refusal of Contact) [1997] 1 FLR 533, 541, CA. 79 

A Right of the Child 175 legal policy,82 is strongly reminiscent of the line taken in the 1970s by Joseph Goldstein, Anna Freud and Albert Solnit, in their highly controversial work, Beyond the Best Interests of the Child.83 They stressed two fundamentals: the child’s need for ‘unbroken continuity of affectionate and stimulating relationships with an adult’, and the child’s ‘intense sensitivity to the length of separations’.84 Their primary argument was that a child needs to form a bond with a carer, termed the ‘psychological parent’, regardless of whether that person is genetically related to the child. This led them to conclude that once that bond is formed, it should not be altered or interfered with, and thus the carer should have the power to determine whether or not anyone else has contact with the child. It followed, in their view, that the ‘custodial parent’ on a divorce should decide how the child is to be raised, and a non-resident parent should have no legally enforceable right to maintain a relationship or have contact with the child.85 For Goldstein et al, the child would do best being left to settle down in the privacy of their reorganised family with one person in authority, upon whom they can rely for answers to their questions and protection from external interference. … Meaningful visits for the child can occur only if both the custodial and non-custodial parents are of a mind to make them work. If so, a court order is both unnecessary and undesirable. If not, such orders and the threat or actual attempt to enforce them can do the child no good.86

The position taken by the Court of Appeal in Churchard and the message of Goldstein et al that power should lie with the custodial parent came to be strongly resisted by most ‘informed opinion’, because it did not, and does not, fit the zeitgeist, which emphasises the equality of parents, the importance of a continuing relationship with both to the welfare of the child, and the child’s own ‘rights’. In a later powerful critique of their work,87 Michael Freeman castigates their liberal support for family (that is, parental) autonomy and their conservative view of children’s capacities. Where Goldstein et al had pointed out that courts—rightly in their view—were powerless to order the noncustodial parent to visit the child, Freeman argues that this ‘ignore[d] the moral force of law’. He boldly declares that ‘Of course, a non-custodial parent who refuses to have contact with his child is in contempt.’88 Yet the Law Commission, reviewing the law in the 1980s, noted that while

82 

See this chapter, section VII. Goldstein, A Freud and A Solnit, Beyond the Best Interests of the Child (New York, Basic Books, 1979). 84  ibid, 6, 11. 85  ibid, 38. 86  ibid, 117, 119. 87  M Freeman, ‘The Best Interests of the Child? Is The Best Interests of the Child in the Best Interests of Children?’ (1997) 11 International Journal of Law, Policy and the Family 360. 88  ibid, 364, 381. 83  J

176  Parenthood is for Life access had been judicially described as a right of the child, ‘an access order is in effect an order to the custodial parent to permit the non-custodial parent to exercise his access; we are not aware of any case in which steps have been taken to oblige a non-custodial parent to see his child’.89 Freeman much preferred the findings of a different American study, by Judith Wallerstein and Joan Kelly. Their central message was of the importance of sustaining the relationship with the non-resident parent, rather than permitting it to wither.90 This was also much more palatable to policy makers, and has formed the cornerstone of the policy drive to encourage post-separation contact and shared parenting ever since. V.  A PARENTAL RESPONSIBILITY

In the mid-1980s, confusion over the meaning and effect of ‘custody’ orders and a concern to ensure that mothers were indeed regarded as having rights equal to those of fathers, led the Law Commission to attempt a fundamental reframing of parental authority. As has been discussed elsewhere,91 most fundamentally, it proposed replacing references to parental ‘rights’ with the concept of ‘parental responsibility’, which it considered more accurately reflected the ‘everyday reality of being a parent’.92 The Law Commission thought that granting joint custody might encourage more non-resident parents to take an active role and reduce the ‘winner takes all’ impression that sole custody might give.93 More significantly for future policy debates, it suggested that it might be more sensible to approach the issue of which parent had which powers after divorce by regarding the division of responsibility between parents as ‘temporal rather than qualitative’, so that the arrangements reached should be concerned more with ‘time sharing’ than the ‘allocation of specific bundles of powers and responsibilities to one or other’.94 It tentatively favoured an approach ‘in which parents retain their equal parental status and share their child’s time between them’.95 In the Law Commission’s eventual Report,96 it therefore proposed that after divorce, parents should retain what would henceforth be referred to as

89 

Law Commission (n 66) para 2.57. J Wallerstein and J Kelly, Surviving the Breakup (New York, Basic Books, 1980). See N Lowe and G Douglas, Bromley’s Family Law, 11th edn (Oxford, Oxford University Press, 2015) 330–31. 92  Law Commission, Family Law: Review of Child Law: Guardianship and Custody (Law Com No 172, 1988) para 2.4. 93  Law Commission (n 66), para 4.36. 94  ibid, paras 4.51–4.52. 95  ibid, para 7.5. 96  Law Commission (n 92), para 4.6. 90  91 

A Parental Responsibility 177 parental responsibility, on an equal basis. Reflecting the reality that ­parents’ responsibilities are largely exercised, and exercisable, only when the p ­ arent has the child with her or him—that is, they ‘run with the child’97—the practical question to be settled should be where the child was to live and how much he or she would see of the other parent, rather than determining which parent would exercise which rights and control over the other. To this end, the Law Commission proposed a new menu of orders, including ‘residence’, to determine with whom the child should live; and ‘contact’, to specify whom the child would see, ‘or otherwise have contact with’.98 It regarded ‘contact’ as having important differences from ‘access’; it would not be defined in terms of the parent having access to the child but would provide for the child to visit, stay with or have other forms of contact, such as letters or phone calls, with the parent.99 A.  A Duty to Facilitate Contact The Law Commission, then, regarded parents as having ‘responsibilities’ and ‘duties’ rather than rights. It thus defined a contact order as one ‘requiring the person with whom the child lives or is to live to allow the child to visit or otherwise have contact with another person’. This put the contact obligation on the parent with whom the child was living to allow (and indeed, to facilitate and promote) contact with the absent parent. But the Law Commission made no suggestion that the absent parent had an equivalent obligation or ‘responsibility’ to ensure that contact was maintained, even though it had adopted the Wallerstein and Kelly view of the importance of contact for the wellbeing of the child. As enacted in the Children Act 1989, in the terms proposed by the Law Commission, ‘contact’ was an obligation of the primary carer. Disputes over contact became framed as disputes over how far that carer would be permitted to frustrate the exercise of contact by a non-resident parent, rather than how far the latter could be compelled to meet the child’s need to know and have a meaningful relationship with him or her.100

97 

ibid, para 4.8. ibid, para 4.11. 99  ibid, para 4.17. For international reflection of the shift from a conception of ‘access’ as a parental right to ‘contact’ as a right of the child, see the Council of Europe Convention on Contact concerning Children (2003) ‘Preamble’. 100 See J Wallbank, ‘Parental Responsibility and the Responsible Parent: Managing the “Problem” of Contact’ in R Probert, S Gilmore and J Herring (eds), Responsible Parents and Parental Responsibility (Oxford, Hart Publishing, 2009) especially 301–04. 98 

178  Parenthood is for Life B.  ‘Implacable Hostility’ or Legitimate Fear? In Churchard v Churchard,101 Ormrod LJ had referred to the implacability of the children in refusing to see their father, of the mother in supporting their stance and of the father in his pursuit of access. In later cases, m ­ others were accused of ‘implacable hostility’ when they refused to fulfil their ­statutory obligation to allow the child to have contact with the non-resident parent.102 Such a term may imply an unreasonable stance. Yet there may be a rational basis for the position taken, such as where the father has been violent towards the mother,103 or their relationship has broken down before or soon after the child’s birth and the mother clearly wishes to move on with her life, unencumbered by the father’s involvement with the child.104 As awareness of the danger of domestic abuse to both the mother and the children developed at the turn of the millennium, a more understanding and nuanced approach to a mother’s refusal to permit contact was expressed by some of the judiciary. Both Hale J and Wall J, for example, pointed out that it is not ‘implacable hostility’ to have good reason to fear coming into contact with another person.105 The issue of how far the primary carer’s obligation to facilitate contact should be limited in such cases was considered by both policy makers and the courts. The Children Act Sub-Committee (CASC), established by the Lord Chancellor’s Advisory Board on Family Law, undertook an inquiry into the interrelationship of domestic violence and contact. Its final report recommended the provision of practice guidelines for courts, to ensure that the issue of violence was adequately addressed in proceedings, but did not propose a change in the substantive law.106 The report was made available to the Court

101 

[1984] FLR 635, CA, (1980) discussed in section IV. See, eg, Re B (A Minor) (Access) [1984] FLR 648. 103 See, eg, Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, CA: father ­harassed mother and broke an undertaking to leave her alone. 104 See Re O, ibid; Re J (A Minor)(Contact) [1994] 1 FLR 729, CA; A v N (Committal: Refusal of Contact) [1997] 1 FLR 533, CA. Compare the indulgence shown to an ‘upright and honourable’ husband who threatened to divorce his wife if her first husband—who was trying to show his ‘commitment’—was allowed contact with the child of the former marriage, because this ran counter to his cultural beliefs, which were ‘sincere’ albeit ‘unyielding’: Re B (Contact: Stepfather’s Opposition) [1997] 2 FLR 579, CA. 105  Re D (Contact: Reasons for Refusal) [1997] 2 FLR 48, CA: mother’s current fears were legitimate, but the father, who had shown ‘lack of commitment’, could apply for contact in the future; Re H (Contact: Domestic Violence) [1998] 2 FLR 42, CA: father needed to demonstrate willingness to amend his behaviour towards the mother and show ‘consistency of commitment’ to the children. 106 CASC, Contact between Children and Violent Parents: The Question of Parental Contact in Cases where there is Domestic Violence (London, CASC, 2000). There was an earlier consultation paper published in 1999. The guidance was issued and underwent some amendments (including in response to a report by H Saunders, Twenty-nine Child Homicides (Bristol, WAFE, 2006) on cases where a non-resident parent had killed children (and sometimes the resident parent) whilst exercising contact), before being further updated in response to an updated report by WAFE, Nineteen Child Homicides (Bristol, WAFE, 2016). The current version of the 102 

A Parental Responsibility 179 of Appeal and the parties in Re L, V, M, H (Contact: Domestic Violence),107 which brought together four cases where a father’s application for direct contact had been refused because of his violence. Additionally, two experts, Claire Sturge and Danya Glaser, were asked to provide an overview for the Court of the state of psychological and psychiatric knowledge about the effects of domestic violence on children and the implications for continuing contact.108 They concluded that where a parent has been violent to the child’s carer, there is a ‘need to show positive grounds as to why, despite this, contact is in the child’s interests in order for an application to be even considered’.109 However, the Court of Appeal declined to regard domestic violence towards the resident parent as a reason in itself to deny, or set up a presumption against, the non-resident parent’s having contact with the child.110 This was because every case will turn on the particular facts: as Thorpe LJ put it, ‘there is a spectrum within the broad categorization of domestic violence from the slap that may have been provoked to premeditated murder’.111 Yet the experts’ report suggested at least two reasons why the Court was wrong to take this view. First, violence may be directly or indirectly psychologically harmful to the child who witnesses or is aware of it. Secondly, a violent partner is more likely to use violence directly against the child. But the Court of Appeal considered that the long-standing perceived benefits of knowing and having an ongoing relationship with the father should continue to be recognised, albeit that courts should be more aware of the existence and consequences for children of violence occurring within families. In so doing, it eschewed a competing presumption in favour of contact, but did accept, in the words of Thorpe LJ, that there is a legitimate ‘assumption’ in favour of this. As Stephen Gilmore points out,112 the subtle distinction Thorpe LJ sought to draw between the two concepts is likely to be missed by many of those implementing the law in practice (still less, one would now add, by litigants in person), and so it subsequently proved.113 guidance may be found in Ministry of Justice, Revised Practice Direction 12J—Child Arrangements and Contact Orders: Domestic Violence and Harm (London, Ministry of Justice, 2017). See further, this chapter, section VII.A. 107  Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 334, CA. For discussion, see F Kaganas, ‘Re L, V, M, H (Contact: Domestic Violence)—Contact and Domestic Violence’ [2000] Child and Family Law Quarterly 311. 108  C Sturge and D Glaser, ‘Contact and Domestic Violence—The Experts’ Court Report’ [2000] Fam Law 615. 109  ibid, 623. 110  See also Re H (Contact: Domestic Violence) [1998] 2 FLR 42, CA: domestic violence should not be a bar to contact, but the decision must depend upon the individual circumstances. 111  [2000] 2 FLR 334, 370G. CA 112  Gilmore (n 9), especially 305–07. 113  Courts and Cafcass were inconsistent in their application of the guidance laid down by the Court of Appeal on how to handle cases involving domestic violence, and research found that violence continued to be downplayed when contact was being decided: see HMICA, Domestic Violence, Safety and Family Proceedings (London, HMICA, 2005); A Barnett, ‘Contact at all costs? Domestic violence and children’s welfare’ [2014] Child and Family Law Quarterly 439.

180  Parenthood is for Life In his judgment, Thorpe LJ questioned the value of regarding contact as the right of anyone, including the child, given that, as he pointed out, the creation of a right of the child does not lead to corresponding duties on parents. The errant or selfish parent cannot be ordered to spend time with his child against his will however much the child may yearn for his company and the mother desire respite. The court’s power is restricted to those cases in which the absent parent seeks and the parent with care opposes either the principle or the detail of contact. Furthermore it must be recognised that contact is no more than a mechanism for the maintenance and development of relationships and the court’s powers are restricted to regulating the mechanism and do not extend to the underlying relationships.114

Thorpe LJ was echoing the realism of Ormrod LJ in Churchard as to the limitations of the courts but, rather like Goldstein et al, his position lacked support. C.  Contact and Commitment Carol Smart has argued that fathers’ demands in relation to their role in modern parenting have mirrored those that mothers themselves have made of fathers—‘closer emotional involvement, greater commitment, shared care and shared responsibility’.115 Personal, emotional commitment to their children has been seen by both fathers and policy makers as worthy of recognition, even if that commitment does not extend to the mothers of their children—or even to their children’s financial support.116 In the 1990s, Smart argued that caring about one’s children had thus come to be regarded as of equal value as caring for them.117 Yet in the new millennium, fathers have sought to spend more time with the child, including through extended periods of overnight contact, merging into shared, alternating care where the child lives with each parent and thus is cared for by both of them.118 Tied in with the case advanced by fathers was the assertion that the courts were biased against them when it came to determining which parent should have primary care and how extensive contact should be. It was noted in section III.A that in the 1980s, only around 10% of custody orders made

114 

[2000] 2 FLR 334, 364. Smart, ‘Preface’ in R Collier and S Sheldon (eds), Fathers’ Rights Activism and Law Reform in Comparative Perspective (Oxford, Hart Publishing, 2006) viii–ix. 116  R Collier and S Sheldon, Fragmenting Fatherhood: A Socio-Legal Study (Oxford, Hart Publishing, 2008) 127 et seq, 141. 117  C Smart, ‘The Legal and Moral Ordering of Child Custody’ (1991) 18 JLS 485. 118  But note some mothers’ concern that the care work is done by the father’s new partner, or a grandparent or relative rather than by the father himself: see H Rhoades, ‘The No Contact Mother: Reconstructions of Motherhood in the Era of the New Father’ (2002) 16 International Journal of Law, Policy and the Family 71, 78–79. 115  C

Enforcing Contact 181 on divorce were granted to fathers. Even in the roughly 12–13% of joint custody orders, care and control was generally given to mothers,119 which reflected the fact that mothers tended to be the main carers of children. The position has not changed significantly—at the height of the fathers’ campaign in the first decade of the millennium, around 90% of children in lone-parent families lived with their mothers, and in 2016 the proportion was 86%.120 The proportion of children not having any contact with their fathers (or more accurately, their non-resident parents) has been estimated at between 10% and 40%, with Peacey and Hunt reporting in 2009 that most estimates conclude the figure is around 30%.121 But there is no evidence of systematic bias against fathers by the courts. Rather, the studies of court orders have consistently found that these tend to confirm the position prior to the litigation,122 which in turn reflects the general view that arrangements should maximise stability for the child and minimise upheaval.123 Moreover, where fathers have sought contact, as distinct from residence, courts have faithfully applied the prevailing view that this is desirable in virtually all cases. In the mid-1980s, only 3.3% of applications for access were refused;124 20 years later, only 2.5% of applications for contact made in 2004 were refused by the court.125 VI.  ENFORCING CONTACT

A.  Enforcing an Obligation to Allow Contact Given the likelihood that contact will be ordered in the vast majority of cases, it is not surprising that there will be a proportion of these 119 

Priest and Whybrow (n 68) para 5.31ff and Table 6, at 98. Families and Households 2016 (2016) 5, at www.ons.gov.uk/peoplepopulation­ andcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/ 2016#married-or-civil-partner-couple-families-are-the-most-common-family-type. See also, Family Justice Review (Chair, D Norgrove), Interim Report (London, Ministry of Justice, 2011) para 5.33. 121 V Peacey and J Hunt, I’m not Saying it was Easy … contact problems in separated ­families (London, Gingerbread, 2009) 7, 17; N Wikeley et al, Relationship separation and child support study, Research Report No 503 (London, DWP, 2008) Table 3.6, at 57. 122  For an overview of published research, see E Giovannini, Outcomes of Family Justice Children’s Proceedings—a Review of the Evidence Research Summary 6/11 (London, Ministry of Justice, 2011). 123  C Smart et al, Residence and Contact Disputes in Court, Vol 1, Department for Constitutional Affairs Research Series 6/03 (London, Department for Constitutional Affairs, 2003) 18. For a more recent study confirming this finding, see M Harding and A Newnham, How do County Courts Share the Care of Children Between Parents? (London, Nuffield Foundation, 2015) 20–21, 80. 124  Priest and Whybrow (n 68) para 6.18. 125 J Hunt and A Macleod, Outcomes of applications to court for contact orders after parental separation or divorce (London, MoJ, 2008) 240. 120 ONS,

182  Parenthood is for Life where the primary carer is unwilling to cooperate and disobeys the order. In A v N (Committal: Refusal of Contact),126 the Court of Appeal firmly rejected the approach taken in Churchard that the right to contact cannot, ultimately, be enforced, and upheld a mother’s committal to prison for contempt. The Court was concerned to ensure that the message goes out in loud and in clear terms that there does come a limit to the tolerance of the court to see its orders flouted by mothers even if they have to care for their young children. If [the mother] goes to prison it is her fault, not the fault of the judge who did no more than his duty to the child …127

In 2001, the CASC, having investigated contact and domestic violence,128 went on to review more broadly what arrangements there should be for facilitating contact between a child and the non-resident parent, and the enforcement of contact orders.129 It found a ‘general dissatisfaction’ with the legal process as a mechanism for resolving contact disputes, expressed by both mothers and fathers.130 While mothers were concerned that courts paid inadequate attention to allegations of domestic violence by the nonresident parent, fathers complained that they were not able to play a full part in their children’s lives, and that mothers were able to frustrate contact because orders were inadequately enforced via fines and threats (but very rarely the imposition) of committal to prison for contempt of court. The Sub-Committee sought to determine how to foster parental commitment to the general principle that ‘the welfare of children will be best served by (i) their having regular contact with their parents and other members of their family; and (ii) the maintenance of as good a continuing relationship with their parents as is possible’.131 It argued that even where parental communication has broken down, contact could still work, ‘provided that both [parties] are committed to their children having a relationship with both parents’.132 It recommended a two-stage approach, beginning with an essentially non-punitive phase in which the non-cooperative parent would be directed to attend an information meeting or a parenting programme, or some other form of advice service.133 If these proved ineffective, the court would be empowered to impose an order with a penal sanction. Fines or imprisonment would be measures of genuinely last resort.134

126 

A v N (Committal: Refusal of Contact) [1997] 1 FLR 533, CA. ibid, 541, per Ward LJ. 128  See section V.A.i. 129 CASC, Making Contact Work: A Report to the Lord Chancellor on the facilitation of arrangements for contact between children and their non-resident parents and the enforcement of court orders for contact (London, CASC, 2002). 130  ibid, para 1.2. 131 CASC, A Consultation Paper issued by the CASC of the Lord Chancellor’s Advisory Board on Family Law: Making Contact Work (London, CASC, 2001) paras 2.1, 2.9. 132  ibid, para 2.28. 133  CASC (n 129) 120, paras 28, 29. 134  ibid, para 14.53. 127 

Enforcing Contact 183 The same strategy was advocated by Bracewell J in V v V (Contact: Implacable Hostility).135 The mother had refused to permit contact by the father during several years of litigation, except under threat of committal to prison. The judge considered that the father was ‘totally committed’ to preserving his relationship with the children136 and could provide satisfactory alternative primary care for them. She therefore granted him a residence order, even though they had always lived with the mother.137 Bracewell J argued that ‘without the weapons to use against what is in essence a small group of obdurate mothers, the ability of judges to do better for fathers is strictly limited’.138 Yet in another case, where the mother had been committed to prison for contempt, and numerous measures had been tried to promote contact over a five-year period, the father ultimately had to give up his attempt to secure contact with his son because of the distress being caused to the child.139 As Helen Rhoades has shown in examining enforcement in Australia, reasons for the refusal of contact are often more complex than such cases might suggest. She notes mothers’ concerns about the capacity of the other parent to care for the children properly; anxieties about the other parent’s new partner; logistical or financial difficulties; unresolved feelings about the relationship and mutual hostility.140 Unless these issues are addressed, it is unlikely that contact will be ‘made to work’. Despite these complexities, the Government subsequently issued proposals largely reflecting the CASC recommendations, and asserting its view, in line with that of the judiciary, that it is ‘in the interests of the child to have a meaningful ongoing relationship with both parents and so the system needs to be much better at securing this outcome’.141 It noted that there had been a shift in social attitudes, ‘with more parents, both fathers and mothers, wanting to play active roles in their children’s upbringing’.142 The Children and Adoption Act 2006 was enacted to implement the two-stage approach recommended, and empowers the courts to make ­ ‘activity directions’ during family proceedings and attach ‘activity condi-

135 

V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam), [2004] 2 FLR 851. ibid, [42]. 137 Compare Re K (Contact: Committal Order) [2002] EWCA Civ 1559, [2003] 1 FLR 277, where Bracewell J’s decision to transfer residence in similar circumstances was overturned because she had not adequately considered the welfare needs of the children. 138  V v V (Contact: Implacable Hostility) [2004] EWHC 1215 (Fam), [2004] 2 FLR 851, [10]. 139  Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam), [2004] 1 FLR 1226, [4]. 140  Rhoades (n 118) 75ff. 141  Department for Constitutional Affairs et al, Parental Separation: Children’s Needs and Parents’ Responsibilities (Cm 6273, 2004) 2. See also Department for Constitutional Affairs et al, Parental Separation: Children’s Needs and Parents’ Responsibilities: Next Steps (Cm 6452, 2005). 142  Department for Constitutional Affairs et al, Parental Separation: Children’s Needs and Parents’ Responsibilities (n 141) 7. 136 

184  Parenthood is for Life tions’ to final court orders.143 Both may require a parent to participate in an activity intended to help to improve the ‘involvement’ of either parent in the child’s life. The activities include programmes such as anger management and information and advice sessions, including the ‘separated parents information programme’ (SPIP), which helps you understand how to put your children first while you are separating, even though you may be in dispute with your child’s other parent. The course helps p ­ arents learn the fundamental principles of how to manage conflict and difficulties.144

Breach of a condition (but not a direction) is enforceable, since it constitutes part of the order itself. A person found to be in breach (either of an activity condition or some other provision in the order) may be required to do unpaid work in the community (known as an ‘enforcement order’) or pay compensation for loss incurred as a result (for example, the costs of travel for contact which does not take place), and may ultimately be subject to fines and committal to prison.145 There are no national statistics available to indicate the number of directions or conditions made, or indeed the general enforcement powers available on breach of an order. The Family Justice Review found from unpublished court data that in 2010, there were nearly 1,000 applications for enforcement orders in respect of contact orders but only 55 such orders were made. Over the same period, there were 13 applications for ­financial compensation, with only four orders made.146 Liz Trinder and ­colleagues found that of 1,383 applications for enforcement in 2011–12, only 31 enforcement orders were made. These figures may be set against 38,405 children who were the subjects of contact proceedings.147 However, given that a punitive approach was intended to be the absolute last resort, the low proportion of cases dealt with through penal measures is properly in keeping with the policy. It is therefore important to note how effective the ‘educational’ measures contained in the Act have been. Researchers evaluating the initial working of SPIPs found that parents were generally supportive of the programmes, and were positive about their purpose and focus. However, in terms of

143  Children and Adoption Act 2006 Act, ss 1–5, inserting ss 11A–11P into the Children Act 1989. The Children Act was amended in 2014 so that the provisions noted here apply generally to what are now known as child arrangements orders and are not limited to contact. 144 Cafcass, Separated Parents Information Programme (SPIP) at www.cafcass.gov.uk/ grown-ups/separated-parents-information-programme-(spip).aspx. 145  Children and Adoption Act 2006, ss 4 and 5, inserting ss 11J–11P into the Children Act 1989. 146  Family Justice Review (Chair, D Norgrove), Final Report (London, Ministry of Justice, 2011) para 5.35. 147 L Trinder et al, Enforcing contact orders: problem-solving or punishment? (Exeter, ­Exeter Law School, 2013); and L Trinder, Enforcing child contact orders: are the family courts getting it right? (Exeter, Exeter Law School, 2013).

Enforcing Contact 185 effectiveness in promoting contact, they found a positive impact on contact rates of only about eight percentage points, seemingly through converting cases where there had been ‘no contact’ into some, but not frequent, c­ ontact. The programmes did not seem to have any impact on parental relationship quality, and attendance did not seem to reduce resort to court.148 B.  Enforcing an Obligation to Maintain Contact? Mothers have sought to emphasise that loss of contact may be due to fathers’ failing to keep in touch and take an active role,149 rather than their being prevented from doing so, but this has rarely been acknowledged.150 ­However, in its Green Paper preceding the Children and Adoption Act 2006, the Government stated: The Government believes that both parents have a responsibility to ensure their child has meaningful contact with the other parent. The non-resident parent has a responsibility to sustain their relationship with their child, while the resident ­parent has a responsibility to enable this to happen.151

The Parliamentary Committee scrutinising the draft bill in 2005 had noted the ‘substantial body of cases’ where the non-resident parent either ­withdrew from the children’s lives, or was inconsistent or unreliable, and had asked the Government to consider allowing the primary carer to ask the court to impose an activity direction or condition on the non-resident parent.152 The Government rejected this because it thought it would be detrimental to the child: We would be concerned about the implications that would arise if contact orders were to be used to force someone, against their wishes, to have contact with a child … [T]here are serious issues raised about the potential distress, or even harm, such contact could cause to the child or children involved.153

No doubt, there would be questions as to the child’s welfare if an attempt were made directly to enforce a duty to maintain contact, but it is striking 148 L Trinder et al, Building bridges? An evaluation of the costs and effectiveness of the Separated Parents Information Programme (PIP) (London, Department for Education, 2011); L Smith and L Trinder, ‘Mind the gap: parent education programmes and the family justice system’ [2012] Child and Family Law Quarterly 428. 149  See Peacey and Hunt (n 121) 68–70. 150  Rhoades (n 118) 77–78. 151  Department for Constitutional Affairs et al, Parental Separation: Children’s Needs and Parents’ Responsibilities (n 141) 8, para 6. 152 HC/HL Joint Committee on the Draft Children (Contact) and Adoption Bill, Draft ­Children (Contact) and Adoption Bill: Report (HC 2004–05, 400–1) para 38. 153  Department for Education and Skills, The Government Reply to the Report from the Joint Committee on the Draft Children (contact) and Adoption Bill (London, Department for Education and Skills, 2005) 2 para 2.

186  Parenthood is for Life how ready the courts and policy makers are to regard the welfare of an unwilling child as advanced by contact with a willing parent,154 but rarely to consider how an unwilling parent might be induced to recognise his or her ‘responsibility to sustain [his or her] relationship’ with a willing child. Even where the courts appear to have recognised that fulfilling a child’s interest in having a relationship with both parents is a mutual obligation on those who share parental responsibility, this is in the context of reiterating the duty on the primary carer to facilitate, rather than on the non-resident parent to pursue, the maintenance of that relationship.155 VII.  A PRESUMPTION OF CONTINUING PARENTAL INVOLVEMENT

Fathers’ groups had lobbied before the 2006 enactment for a change to the substantive law, to introduce a statutory presumption or requirement that parenting should be shared post-separation, or at least that the ‘involvement’ of both parents is to the child’s benefit.156 In its Making Contact Work Report, the CASC had referred to the ‘fundamental assault’ made by such groups on the underlying philosophy which gives one parent ‘residence’ and the other ‘contact’, when the objective should be to achieve the full involvement of both parents in the care and upbringing of their children post separation. The remedy proposed was the introduction and expectation of ‘shared care’, a presumption of shared parenting irrespective of the ability or willingness of the parents to work with each other. Shared care, it was stressed, did not mean an equal division of children’s time between their parents: the time actually spent was a matter for negotiation and discussion. What was important was that the court order should be a recognition that both parents had important parts to play in their children’s lives. … The point was well argued, and is plainly one of importance.157

154  As in Re W (Contact: Joining Child as Party) [2001] EWCA Civ 1830, [2003] 1 FLR 681 [16], per Butler-Sloss P: ‘[T]his father is the only biological father this child will ever have. The child has a right to a relationship with his father even if he does not want it’. 155  See, eg, Re W (Direct Contact) [2012] EWCA Civ 999, [2013] 1 FLR 494, especially [72]–[78], per McFarlane LJ; Re H-B (Children)(Contact) [2015] 2 FCR 581, especially [79] per Sir James Munby P. 156  For a full discussion of the background, see F Kaganas and C Piper, ‘Shared parenting—a 70% solution?’ [2002] Child and Family Law Quarterly 365; F Kaganas, ‘A presumption that “involvement” of both parents is best: deciphering law’s messages’ [2013] Child and ­Family Law Quarterly 270. For discussion of ‘shared residence’ orders, which, like joint custody ­earlier, came to be used as a means of enabling both parents to feel more fully involved in the child’s life, see P Harris and R George, ‘Parental responsibility and shared residence orders: parliamentary intentions and judicial interpretations’ [2010] Child and Family Law Quarterly 151. For discussion of how social norms and policies have become more positive towards shared care arrangements over time, see L Trinder, ‘Climate change? The multiple trajectories of shared care law, policy and social practices’ [2014] Child and Family Law Quarterly 31. 157  CASC (n 129) 7, para 8.

A Presumption of Continuing Parental Involvement 187 However, the Labour Government rejected the idea of a presumption in favour of shared care, on the basis, first, that arrangements for children should reflect their individual needs and circumstances. Secondly, the principle of shared parenting was already enshrined in the law through the fact that in most cases, both parents already share parental responsibility.158 Notwithstanding their rejection, the need to deal with fathers’ continuing demands lay in part behind the Government’s decision to establish an independent Family Justice Review panel in 2010. This reviewed the question of whether ‘more should be said in legislation around the level of contact that a child should have with both parents (and others, for example grandparents) to enable their relationship to be meaningful following separation’.159 The panel noted that contact is awarded in most cases anyway, and that there are limits to the law’s capacity to create workable contact arrangements if there had only been limited shared care of the child prior to separation. However, its interim view was that there would be merit in inserting a general statement of intent … into the Children Act 1989. This would reflect the case law on contact, reinforcing the importance of the child continuing to have a meaningful relationship with both parents, alongside the need to protect the child from harm.160

The panel thought that such a statement would provide guidance to parents seeking to make arrangements without going to court and would ‘reinforce the starting point of the courts, which has been recognised in case law, for the minority of cases that do require judicial determination’.161 However, it changed its mind in the final report, having been convinced by the argument that any such amendment to the law would simply distract from the principle that the welfare of the child is paramount, pure and simple.162 As the panel noted, many respondents to the consultation ‘conflated our more limited proposal with a move toward a presumption of shared parenting. Such confusion itself illustrates the dangers of any attempt at legislative change.’163

158 Department for Constitutional Affairs et al, Parental Separation: Children’s Needs and Parents’ Responsibilities (n 141) paras 42, 43. Cf HC Constitutional Affairs Committee, Family Justice: the operation of the family courts: Fourth Report of the Session 2004–05 (HC 2004–05, 116-1) para 47, which adopted a suggestion put forward by the President of the Family Division, Butler-Sloss P, that courts should be required to have regard ‘to the importance of sustaining a relationship between the children and a non-residential parent’ when deciding what would be in the child’s welfare. 159  Family Justice Review, Interim Report (2011) para 5.69. 160  ibid, para 5.77. 161  ibid, para 5.78. 162  Family Justice Review, Final Report (2011), para 4.40. The panel was particularly influenced by further evidence of the experience in Australia, which had introduced a complex presumption in 2006: paras 4.35–4.36 and references cited therein. 163  ibid, para 4.31.

188  Parenthood is for Life A. ‘Involvement’ Notwithstanding this considered view by an independent review team, the Coalition Government that inherited its work rejected the conclusion, considering that ‘many people continue to have concerns about the proper recognition of the role of both parents by the courts’.164 Since the focus of attention was on the perception of bias against fathers by the courts, it is not surprising that the remedy was to seek to arrive at a legislative statement, as the Family Justice Review had initially recommended, ‘of the importance of children having an ongoing relationship with both their parents after family separation, where that is safe, and in the child’s best interests’.165 The Government was not therefore seeking to change legal practice. Rather, its aim was to ‘send a clear signal’ in order to influence the attitudes of parents, to produce a belief that the law would recognise the value of shared parenting and that therefore the parents might as well reach an agreement embodying that principle, without troubling the courts. The true purpose of the proposed legislation was, as the Parliamentary Committee charged with scrutinising the draft bill pointed out, ‘to tackle a perception of bias within the Courts that we have previously concluded has no basis in fact’.166 The Government described the mischief the provision was intended to tackle in this way: [I]n too many cases one parent is left in a position where it is very hard to retain a strong and influential relationship with his or her child. This can result in children losing contact completely with one parent (usually the father), often with a lasting impact on their lives. The Government firmly believes that parents who are able and willing to play a positive role in their child’s care should have the opportunity to do so.167

The emphasis was therefore still on the non-resident parent’s being prevented (impliedly by the resident parent) from retaining (thus implying that there was such a relationship in the first place) a strong relationship with the child. This was linked to ‘lasting impact’ (implicitly detrimental) on the child’s whole life. The Government was only interested in the damage done where a willing as well as able parent is prevented from playing a positive role in the child’s care. It was not concerned about the neglectful absent ­parent. The exercise, in other words, was about the right of parents to express and have recognised their personal commitment to the child, and the obligation of the primary carer to facilitate and promote that commitment. 164  Ministry of Justice/Department for Education, The Government Response to the ­Family Justice Review: A system with children and families at its heart (Cm 8273, 2012) para 60. 165  ibid, para 61. 166  HC Justice Committee, Pre-legislative scrutiny of the Children and Families Bill: Fourth Report (HC 2012–13, 739-1) para 153. Emphasis added. 167 Department for Education/Ministry of Justice, Co-operative Parenting Following ­Family Separation: Proposed Legislation on the Involvement of Both Parents in a Child’s Life’ ­(London, Department for Education/Ministry of Justice, 2012) para 3.2.

A Presumption of Continuing Parental Involvement 189 The decision of the Family Justice Review ultimately not to recommend any addition to the welfare principle had been strongly influenced by research on the effects of a similar (but more complex) legal change in Australia in 2006. This showed that a requirement on courts there to have regard to the benefit to the child of a ‘meaningful relationship’ with the nonresident parent after separation had resulted in a downplaying of the risk of domestic abuse by that parent, and a conflation of ‘meaningful relationship’ with ‘time spent’ and equal parenting time.168 The Government was therefore at pains to reassure opponents that its proposed introduction of a similar provision would not have such effects.169 The provision introduced by the Children and Families Act 2014 into the Children Act 1989 requires courts considering making certain private law orders in relation to a child as respects each parent … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare. … ‘involvement’ means involvement of some kind, either direct or indirect, but not any particular division of a child’s time.170

The Government had earlier agreed to change the title of the proposed clause from ‘shared parenting’ to ‘welfare of the child: parental involvement’ in order to ‘promote a clearer understanding of the clause’s purpose’.171 Yet the effect is to communicate still further the idea that welfare of the child is synonymous with the involvement of (the non-resident) parent.172 In its report on Nineteen Child Homicides in 2016, Women’s Aid argued that the presumption might indeed have had ‘the effect of strengthening the court’s emphasis on enabling contact and minimising perceptions of risk’, thereby reinforcing the ‘“contact at all costs” culture’ in the family courts.173 In response, the guidance on handling allegations of domestic abuse in child 168 H Rhoades, ‘Annex G, Helen Rhoades evidence in relation to shared parenting’ in ­Norgrove, Final Report (n 146) 216–20 and sources cited at 224. 169 Ministry of Justice/Department for Education (n 164) para 62; Department for Education/Ministry of Justice, Co-operative Parenting Following Parental Separation: ­ ­Proposed ­Legislation on the Involvement of Both Parents in a Child’s Life: Summary of ­consultation responses and the Government’s response (London, Department for Education/ Ministry of Justice, 2012) 4. 170  Children Act 1989, s 1(2A), (2B), inserted by s 11 of the Children and Families Act 2014. 171 Department for Education, Children and Families Bill 2013: Contextual Information and Responses to Pre-Legislative Scrutiny (Cm 8540, 2013) paras 26, 33. 172 See F v L (Permission to Relocate: Appeal) [2017] EWHC 1377 (Fam) at [11], where Russell J criticised the Family Court for taking an ‘unsophisticated, over-simplistic approach … to attempt to adhere to the amendments to the Children Act brought in by the Children and Families Act 2014 by making an order for shared care which is an even split of time and to compel parents to co-operate’ even when they are ‘antagonistic and unsupportive’. 173 WAFE, Nineteen Child Homicides (Bristol, WAFE, 2016) 12, 37. For an early empirical account of such a culture, see R Bailey-Harris et al, ‘From Utility to Rights? The Presumption of Contact in Practice’ (1999) 13 International Journal of Law, Policy and the Family 111, drawn on by Thorpe LJ in Re L, V, M, H (Contact: Domestic Violence) [2000] 2 FLR 334, 369, in rejecting a ‘presumption’ but not an ‘assumption’ of contact: see section V.A.i.

190  Parenthood is for Life arrangements disputes was revised in 2017 to emphasise the need in every case to consider ‘whether the statutory presumption applies, having particular regard to any allegation or admission of harm by domestic abuse to the child or parent or any evidence indicating such harm or risk of harm’.174 But even if the courts handling the minority of disputes that are taken to court revise their approach in line with the guidance, it is unlikely that parents settling arrangements between themselves would know, let alone understand, the significance of such ‘technical’ amendments. VIII.  AN OBLIGATION TO BE ‘INVOLVED’?

The last question to consider is whether the 2014 Act introduced any new obligation on a parent, either with primary care or as the non-resident ­parent, to seek to ensure that the child’s welfare is indeed furthered by the ‘involvement’ of both in the child’s life? It will be recalled that the duty imposed by a contact order was a requirement on the carer to ‘allow’ the child to have contact with the other person. The drafting reflected the Law Commission’s concern to replace the notion of parental rights with its new concept of parental responsibility, but the language also reflected the traditional conception of ‘access’ as a concession allowed to the other parent. It is not surprising that contact disputes were therefore understood as arising from the refusal of the carer to permit contact to take place—only the carer had any legal obligation to ensure that contact was happening, and only the carer could be placed under sanctions for failure to do so. The Children and Families Act 2014 replaced the contact order with the child arrangements order, defined as an order regulating arrangements relating to with whom and when a child is to live, spend time or otherwise have contact with any person.175 This does not of itself impose an obligation on either parent to do anything, unlike the old contact order. But there is no reason why a warning notice, which must be attached to the order, should not indicate that a failure by either parent to meet the terms set out in it will be subject to enforcement measures. This would certainly ‘send a message’ about the importance that is supposedly attached to ‘involvement’ in the life of the child by both parents. As Tim Loughton MP enthusiastically declared during a debate on the Children and Families Bill, [the presumption is] about the responsibilities of parents and the rights that ­children should have. They have a right to have both their parents as involved as possible … it is not about parental rights; it is about parental responsibilities. That includes the responsibilities of parents who have done a runner. The legislation 174  Ministry of Justice, Revised Practice Direction 12J (2017) para 7, at www.justice.gov.uk/ courts/procedure-rules/family/practice_directions/pd_part_12j#para4. 175  Children Act 1989, s 8(1), as amended by s 12 of the 2014 Act.

An Obligation to be ‘Involved’? 191 will make it clear to them that they have a responsibility to their children, whether they are on the scene or not.176

The reforms might therefore be regarded as imposing a mutual obligation on parents to further the child’s welfare through continuing ‘involvement’ in the child’s life, in recognition of Théry’s ‘logic of durability’. If that is so, it would seem to run counter to the thesis advanced so far that the law has followed and enabled the assertion of liberal individualism and emotional self-fulfilment, with its emphasis on leaving behind an unsatisfactory relationship in the search for a better one. However, the courts have yet to reject the view that it would not be in a child’s best interests to enforce contact against an unwilling parent. The obligation to maintain involvement in the child’s life is seen as a moral one, not a legal one: it is still accepted—as it must be—that the law cannot require a parent to ‘care about’ a child. Just as with child support, then, policy makers have sought to send an exhortatory ‘message’ about responsible parenting after separation. But some parents who have formed new families may find it difficult to maintain close relationships with children of an earlier relationship, and may feel torn between old and new. They may feel that it is preferable for all concerned to make a ‘clean break’ or to allow contact to diminish over time, particularly if those children are living in a household with a step-parent. Overall, it seems that the decision whether to form or maintain a personal commitment to a relationship with a child remains a matter of ‘right’, and the right remains that of the parent, whatever the rhetoric of the law may say. In so far as there is a legal obligation to maintain involvement, that appears still to be regarded as a commitment imposed on the primary carer alone. Chapters 3 to 6 have examined the ways in which the law has been used to recognise and enforce social and moral obligations of care between family members. This chapter has shown how such an obligation may also be understood as a right. The next chapter completes the analysis by exploring how the performance of care ‘work’ may itself be regarded as providing the rationale for the recognition of rights and reciprocal obligations.

176 

HC Deb, Children and Families Bill, 25 February 2013, cols 76, 113–14.

7 Who Cares? [T]o greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and child-carer. Mutual dependence begets mutual obligations of support.1 As a society that enshrines the virtue of independence, defines instrumental work as superior to emotional work, seeks to distance itself from basic life events, and devalues the actions of women, we have tended to ignore the experience of caregivers.2

I.  CARE-GIVING AS AN OBLIGATION

I

N EARLIER CHAPTERS, I argued that the material aspect of care— ‘caring for’, or in Joan Tronto’s more nuanced categorisation, ‘taking care of’ and ‘care-giving’3—has primarily been recognised and regulated (but imperfectly enforced) through the legal concept of maintenance for a spouse or child. Care-giving, as well as the emotional aspect of care— ‘caring about’—were both bound up in the marital duty to cohabit. That duty, or rather its breach, was monetised when it was accepted that the law could not coerce love or care, and it became part of the duty to maintain after separation as well as during marital cohabitation, until largely superseded by the clean break. In the parent/child relationship, caring about and care-giving have been recognised through the concepts of access, contact and shared care arrangements, with the focus of attention shifting between promoting the interests of the parents and the welfare of the child. But as noted in Chapter 1, those calling for caring to be placed at the ­centre of family law seek two things. First, they wish to have care ­recognised

1  Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 at [11], per Lord Nicholls. 2  E Abel and M Nelson, ‘Circles of Care: An Introductory Essay’ in E Abel and M Nelson (eds), Circles of Care: Work and Identity in Women’s Lives (Albany, NY, State University of New York Press, 1990) 4. 3 J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, ­Routledge, 1993) 105–08.

Care-Giving as an Obligation 193 as giving rise to enforceable claims by the care-giver, as well as obligations to undertake care. Secondly, they advocate such recognition regardless of the form and type of family in which it is done. This chapter therefore explores how far the law has recognised caring as the basis for a legal claim, including when this takes place beyond the marriage/civil partnership and parenthood models. It draws in particular on the extension of legal recognition to ‘caring relationships’ in certain States in Australia, which provides a valuable case study of how, and with what effect, a ‘functional’ model of family law focused on caring might operate. It should be noted that at earlier times, and in other jurisdictions, the obligation to care, usually manifested as a duty to provide financial support, has been imposed on a wider range of kin than the traditional nuclear family considered in earlier chapters, through the notion of ‘family solidarity’ and presumably on the basis of the blood tie. Other jurisdictions may continue to impose such a duty in order to relieve public expenditure.4 In this jurisdiction, although the authorities stressed the ‘natural’ obligations of kinship as a justification for expecting relatives to take the primary responsibility for support and care,5 Janet Finch has shown that ‘for the most part the “extended family” … has never really come into the picture in terms of legal definitions of who was responsible for whom in families’.6 This reluctance to place the primary burden of support on kin outside the narrow nuclear family consisting of spouses and children demonstrates two things. First, it shows that resistance to the idea of a binding obligation to provide financial support to family members is as long-standing as the attempt by the state to inculcate it. People may well feel a sense of obligation to their relatives, but as Finch and Mason have shown, this is a matter of discretion and negotiation informed by the context of their particular family situation, not a question of rules.7 Secondly, it helps to explain the ambivalence towards making financial transfers even within the narrow nuclear family. The idea that there is an obligation to support one’s spouse 4  See, eg, for ‘filial’ duties on adult children towards their parents, M Oldham, ‘Maintenance of the Elderly and Legal Signalling—Kinship and State’ in F Ebtehaj et al (eds), Kinship Matters (Oxford, Hart Publishing, 2006); F Swennen and L Verhaert, ‘Intergenerational solidarity and elder care in the Law Countries’ [2015] Child and Family Law Quarterly285; A Lee, ‘Singapore’s Maintenance of Parents Act: A Lesson to be Learned from the United States’ (1995) 17 Loyola International and Comparative Law Review 671. Modern extension of liability reflects particular local concerns: see, eg, Jamaica’s Maintenance Act 2005, which focuses particularly on the obligation on grandparents to support their grandchildren, while India’s Maintenance and Welfare of Parents and Senior Citizens Act 2007 focuses on elder care by descendants. 5  M Crowther, ‘Family Responsibility and State Responsibility in Britain Before the Welfare State’ (1982) 25(1) Historical Journal 131, 133. 6 J Finch, Family Obligations and Social Change (Cambridge, Polity Press, 1989) 123. The Poor Law required parents and grandparents to support children and grandchildren, and adult children to support their parents, but did not impose duties on wider kin. 7  See J Finch and J Mason, Negotiating Family Responsibilities (London, Routledge, 1993) discussed in ch 1, section IV.

194  Who Cares? and one’s children may be accepted at the level of principle. However, it may be displaced by the belief that families are made up of individuals whose own circumstances make the application of the principle inappropriate for them, particularly when there is a competing pressure and incentive towards ­emotional self-fulfilment. The final point to make in relation to the attempted imposition of an obligation of kinship care, concerns the provision of care work, rather than care in the form of financial support. Finch suggests that policy on the provision of social care assumes that a latent structure of responsibility between relatives does exist and can be drawn upon [but] … it is really only relationships between primary kin, which are likely to contain a commitment of the order sufficiently reliable to provide consistent support.8

As is well understood, it is also the case that the bulk of caring is, and is expected to be, undertaken by women. Even if the breadwinner/housewife model has receded from modern family life, women, as mothers, grandmothers and daughters (in-law), are still assumed to have more time available for caring than men and thus ‘to get locked into sets of commitments which entail giving time and labour’.9 Men’s approach to care and the expectations made of them to provide it are more limited and more contingent.10 This observation therefore supports the argument that both the concept of structural commitment—commitment as burden—and care as the form that burden takes are gendered. So the job of caring is primarily undertaken by close female relatives, and social and cultural norms also operate as moral precepts. Lastly, we need to note that those moral expectations generally view kinship as a requirement for the imposition of the caring obligation. A person has traditionally been seen to ‘belong’ to their kin group in a way that has not applied to membership of other social groups, even close friends. This in turn helps explain why close kin are seen as the obvious and appropriate sources of help and support for those in need, and why friends would not normally be regarded as under an obligation to assist them, even if they might voluntarily take on that role.11 II.  CARE-GIVING AS A CLAIM TO A REMEDY

Those who wish to place care more overtly at the centre of (family) law and policy are not primarily advocating that care be viewed as an obligation to 8 

Finch (n 6) 126. Finch and Mason (n 7) 169. 10  Finch (n 6) 40. 11  Finch and Mason (n 7) 169. 9 

Care-Giving as a Claim to a Remedy 195 be imposed on a particular family member, or even reciprocally on different family members—although that is part of their argument in advocating a more equitable sharing of the burden of care, particularly of ­children.12 Rather, they seek greater valorisation of caring, through the grant of remedies for losses incurred by those who undertake caring work,13 or through claims for recognition of the personal commitment entailed in, and of the moral worth that should be attached to, such work.14 Such relationships of care may be conceived as being diametrically opposite to the ‘fluid’, ‘pure’ relationships of modern society portrayed by Giddens.15 They may involve continuing devoted care ‘work’ often over many years, and are taken to demonstrate deep personal commitment by the carer. Indeed, caring ­outside the spousal (or quasi-spousal) or parent/child relationship is usually regarded as undertaken altruistically, although cultural expectations may mean that a particular relative, such as a daughter, may feel she has little ‘choice’ in taking responsibility for the care of an elderly parent. Take, for example, the evidence of one claimant in South Australia: There was no question that my mother would continue to live with me as long as she wanted or until further arrangement. That was simply assumed by both of us. I accepted that responsibility because I was the youngest daughter and none of my other siblings wanted to care for her.16

Caring, then, should be seen as creating a right to recognition for the work involved. For Martha Fineman, the duty to meet this right lies on the state, since care performed within the family relieves the state of the burden of providing it. Lucinda Ferguson similarly argues that the state should bear the liability to compensate for caring, since the deficit suffered by the carer is structural.17 But regardless of how far, as a society, we might wish to reinvigorate collective rather than individual responses to meeting need, there are valid arguments, as discussed in Chapter 1, for imposing both the ­obligation to care and the obligation to recognise caring on individual members of a family relationship.18 12 

See, eg, J Herring, Caring and the Law (Oxford, Hart Publishing, 2013) 223. See, eg, the approach taken by the Law Commission to unmarried cohabitants at the end of a relationship: Law Commission, Cohabitation: The Financial Consequences of R ­ elationship Breakdown (Law Com No 307, 2007). 14  M Fineman, The Autonomy Myth: A Theory of Dependency (New York, The New Press, 2004) ch 2; Herring (n 12) 232. 15  See ch 1, section V.C.i. 16  Taddeo v Taddeo [2010] SADC 61 at [159], discussed in section III.B. 17 L Ferguson, ‘Family, Social Inequalities and the Persuasive Force of Interpersonal ­Obligation’ (2008) 22 International Journal of Law, Policy and the Family 61. 18  See ch 1, section VI. But for a cautionary warning of the potential to privatise caring responsibilities through the recognition of caring relationships, see N Barker, ‘Why care? “Deserving family members” and the conservative movement for broader family recognition’ in J Wallbank and J Herring (eds), Vulnerabilities, Care and Family Law (Abingdon, ­Routledge, 2014) 68–71. 13 

196  Who Cares? So the issue that next arises is to determine what is meant by ‘family’ in this context. If we adopt the functional family argument that the form of such a relationship should not determine eligibility to make such a claim, then it is the caring for the other party, and the interdependence this creates, that itself brings about the ‘relationship’ that the law should then recognise, and from which obligations may then in turn flow. Anne Bottomley and Simone Wong argue, for example, that ‘marriage-like’ relationships may require legal recognition for two reasons: ‘first, economic vulnerability which has arisen from “caring” within a relationship and, second, unravelling the consequences of bringing to an end a lifestyle predicated upon a commitment to “sharing”’.19 Others have similarly argued that personal commitment, often as demonstrated by the practice of caring, justifies the legal recognition of cohabiting relationships.20 And as was argued in ­Burden v United K ­ ingdom,21 a non-conjugal relationship—there, between two elderly, unmarried, sisters—may also involve people having ‘lived together, in a stable, committed and mutually supportive relationship, all their lives’, which deserves recognition. In Australia and Canada, the functional approach was significant in extending the protection already given to heterosexual ‘de facto spouse’ relationships to same-sex couples.22 And the view that ‘form’ really should not matter enabled the extension of such recognition to non-conjugal partnerships whose relationships are overtly based on ‘caring’ rather than intimacy or even companionship.23 Various rationales have been put forward for the argument that c­ aring should give rise to a claim, particularly for financial recognition. They include the benefit enjoyed by the care recipient as a result of the carer’s contribution; the loss or detriment suffered by the carer as a result of her or his care work; and the moral value of the personal commitment made by the carer to the care beneficiary.

19 A Bottomley and S Wong, ‘Introduction’ in A Bottomley and S Wong (eds) Changing Contours of Domestic Life, Family and Law: Caring and Sharing (Oxford, Hart Publishing, 2009) 3. 20  A Barlow and G James, ‘Regulating Marriage and Cohabitation in 21st Century Britain’ (2004) 62 MLR 143. See ch 1, sections VI.B and VII. 21  Burden v United Kingdom (2008) 47 EHRR 38 at [10]—although their claim was based on discrimination that meant that they could not take advantage of the tax exemption for ­married and civil partners from inheritance tax. For discussion in the context of care relationships, see B Sloan, Informal Carers and Private Law (Oxford, Hart Publishing, 2013) 209–11; Barker (n 18); Herring (n 12) 192–93. 22  J Millbank, ‘The role of “functional family” in same-sex family recognition trends’ [2008] Child and Family Law Quarterly 155. 23  The focus in this chapter is on Australian developments, for an overview of which see J Goodie and T Summerfield, ‘What’s in a Name? Family, Identity and Social Obligation’ (2002) 6 University of Western Sydney Law Review 210. In Canada, see the Adult Interdependent Relationships Act (SA 2002, c A-4.5) (Alberta).

Care-Giving as a Claim to a Remedy 197 A.  Care as Contribution in a Marriage Such recognition of care has been part of the law, and part of legal thinking, for a considerable time. In the 1950s, when the gendered division of labour into breadwinner husband and housewife was strong, the Morton Royal Commission argued that the divorce court should be given wider powers to ‘enable the court to give effective recognition, in appropriate cases, to the wife’s contribution to the marriage, whether by her work in the home or by the help she has given her husband in building up or running his ­business’.24 When the Law Commission proposed reforms to financial remedies on divorce in the wake of the Divorce Reform Act 1969, it agreed that the court should be required to consider the extent to which each [spouse] has contributed to the welfare of the family, including not only contributions in money or money’s worth (as in the determination of rights to particular items of property) but also the contribution made (normally by the wife) in looking after the home and family. This should meet the strongest complaint made by married women, and recognized as legitimate by the Morton Commission in 1955, namely that the contribution which wives make towards the acquisition of the family assets by performing the domestic chores, thereby releasing their husbands for gainful employment, is at present wholly ignored in determining their rights.25

In the modern law, therefore, the ‘contribution’ made by a spouse to the ‘welfare of the family, including any contribution by looking after the home or caring for the family’, is a factor that must be considered when the court is deciding what financial provision to make on divorce.26 As is well known, this provision marks the fundamental distinction between a ‘family law’ and a ‘property law’ approach to resolving disputes over family property when a relationship breaks down, since the latter can generally only take account of financial contributions to the acquisition of property in determining equitable shares in its ownership.27 Of even greater importance, the House of Lords made clear in White v White28 that, in seeking to achieve a fair financial outcome on divorce, there is no place for discrimination between husband and wife and their respective roles … If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets.

24  Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956) para 692. 25  Law Commission, Family Law: Report on Financial Provision in Matrimonial Proceedings (Law Com No 25, 1969) para 69. 26  Matrimonial Causes Act 1973, s 25(2)(f). 27  See J Miles, ‘Property law v family law: resolving the problems of family property’ (2003) 23 Legal Studies 624. 28  White v White [2001] 1 AC 596.

198  Who Cares? There should be no bias in favour of the money-earner and against the homemaker and the child-carer.29

In a divorce, the court is required to have regard to a number of different factors in addition to ‘contribution’, so that the overall provision made will be the product of several considerations, and, for those who are not significantly wealthy, will be focused on meeting the parties’ needs in the future. One should not therefore concentrate too much on one particular factor such as contribution. However, the question remains, both in the divorce context and, as we shall see, regarding the ending of other relationships, of how to determine what rationale is being applied to this valorisation of care? Is it that undertaking care work benefits the other spouse and family members, and is therefore to be rewarded? Is it that it causes the carer a loss that is to be compensated? Or is it that it demonstrates a commitment to the other spouse or to the marriage that is to be recognised?30 The Morton Royal Commission and the Law Commission seem to have considered that non-financial contributions help build up the family assets by enabling the bread-winner to devote himself to his work. In White v White, Lord Nicholls also referred to greater awareness of the extent to which one spouse’s business success, achieved by much sustained hard work over many years, may have been made possible or enhanced by the family contribution of the other spouse, a contribution which also required much sustained hard work over many years.31

On this view, the wife’s efforts should be rewarded, by allocating her an appropriate share of ‘the husband’s’ assets (and indeed, the assets should be regarded as ‘theirs’). This perspective sees caring as a means whereby the carer works to build the family and thereby earns her share of the family wealth. It means that if the spouse fails to perform her caring role adequately, or for long enough, then her share should be reduced, because she has not earned an entitlement to a ‘full’ share.32 The problem with this approach is that it reinstates discrimination between the spouses, by treating financial contributions as the benchmark against which the caring contribution is to be measured. The carer’s non-financial contribution is compared with that of the bread-winner and may be found wanting, while his possible lack of nonfinancial contributions (he might be a neglectful husband and father who has built up his wealth because he is interested only in his job) is ignored.33 29 

ibid at 599 ff, per Lord Nicholls of Birkenhead. For consideration of the distinction between compensation and reward, see Sloan (n 21) 24. 31  White v White [2001] 1 AC 596, 606. 32 For discussion of the issue of duration of marriage affecting the size of share, see J Eekelaar, ‘Asset Distribution on Divorce: The Durational Element’ (2001) 117 LQR 552, c­ ritiqued by L Glennon, ‘Obligations Between Adult Partners: Moving From Form to Function?’ (2008) 22 International Journal of Law, Policy and the Family 22, 39–40. 33 A point made by Thorpe LJ in Lambert v Lambert [2002] EWCA Civ 1685, [2003] Fam 103, at [45]. 30 

Care-Giving as a Claim to a Remedy 199 Lord Nicholls also noted that there is now ‘increased recognition that, by being at home and having and looking after young children, a wife may lose for ever the opportunity to acquire and develop her own money-earning qualifications and skills’.34  On this view, loss or detriment suffered as a result of caring should be compensated, and this reasoning was endorsed in Miller v Miller; McFarlane v McFarlane,35 which specifically addressed a case where the wife had given up her career to devote herself to the family. Giving compensation for such ‘relationship-generated disadvantage’, as Baroness Hale put it,36 focuses on the loss caused by caring, rather than on the intrinsic value of the caring itself. As she explained: If the other party, who has been the beneficiary of the choices made during the marriage, is a high earner with a substantial surplus over what is required to meet both parties’ needs, then a premium above needs can reflect that relationshipgenerated disadvantage.37

But it follows that if the carer does not suffer a loss, perhaps because she had no career to give up, she will not receive a compensatory award.38 Lisa Glennon therefore argues that, in considering the ongoing contribution to welfare made by a primary caregiver after divorce or separation, ‘conceptualizing the continued contributions of the primary caregiver exclusively on the basis of the negative implications on their market position may be seen as an impoverished analysis’.39 Caring may not have benefitted the other party or the family in terms of assisting the acquisition of assets, nor generated a loss for the carer, but a further argument for recognising it is that it provides non-tangible as well as tangible benefits. The courts have certainly interpreted section 25(2)(f) of the Matrimonial Causes Act 1973 as endorsement of the principle that the ‘soft’ skills of making a home and caring for children are to be recognised as a benefit in themselves.40 They have also treated non-financial contributions as demonstrating the spouse’s commitment, both to the marriage and to family members. In Miller; McFarlane, for example, Lord Nicholls stated: ‘Marriage, it is often said, is a partnership of equals. … This is now recognised widely, if not universally. The parties commit themselves to sharing their lives. They live and work together.’41  

34 

White v White [2001] 1 AC 596, 606. Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618. 36  ibid, [140]. 37  ibid, [138]. 38  SA v PA (Pre-Marital Agreement: Compensation) [2014] EWHC 392 (Fam) [2014] 2 FLR 1028. 39  Glennon (n 32) 46. 40  See, eg, Duxbury v Duxbury [1992] Fam 62n, CA. 41  [2006] UKHL 24, [2006] 2 AC 618, [16]. 35 

200  Who Cares? As Thorpe LJ argued in Lambert v Lambert: If all that is regarded is the scale of the breadwinner’s success then discrimination is almost bound to follow since there is no equal opportunity for the homemaker to demonstrate the scale of her comparable success. Examples cited of the mother who cares for a handicapped child seem to me both theoretical and distasteful. Such sacrifices and achievements are the product of love and commitment and are not to be counted in cash.42

His Lordship was of course stressing the incommensurability of caring and money-earning, rather than suggesting that such care is not to be ‘recognised’ in financial terms at all because it is altruistic. But Glennon sees the emphasis on marriage as an equal partnership as displacing—and downgrading—the significance given to contributions to welfare taking place after the marriage has ended. She argues that this is because at that point, the sharing principle gives way to the continuing needs of, or disadvantage suffered by, the primary caregiver,43 and Brian Sloan suggests that ‘contributions … have been sidelined’.44 This may be overstated: the point is rather that viewing marriage as an equal partnership means that non-financial contributions during the marriage are equated with financial ones, raising, rather than diminishing, their significance. Moreover, it is hard to see how post-marital caring contributions can be valued for the purposes of deciding what financial provision is to be made in respect of them, without focusing on the future needs, or loss, of the person who will be performing them—how else can they be quantified given that the marriage is over? The caring undertaken in a marriage, however, is underpinned by the mutual commitment evidenced in the act of getting married itself. Since marriage is now regarded as an equal partnership, this commitment should entail sharing both the benefits and the burdens equally. It is logical, therefore, to assume that assets will be shared equally. In Miller; McFarlane the House of Lords stated that ‘sharing’ is the third rationale (alongside needs and compensation) for financial allocation on divorce.45 This fits well with the impetus to allow couples to leave their marriage in the pursuit of greater self-fulfilment elsewhere, with a line drawn under the profit and loss account and a financial clean break between them.46 However, in Sharp v Sharp,47

42 

[2002] EWCA Civ 1685, [2003] Fam 103, [45]. Glennon (n 32), 40. 44  Sloan (n 21) 184. 45  [2006] UKHL 24, [2006] 2 AC 618, [16], [141]. 46  See ch 4, section IV. 47  Sharp v Sharp [2017] EWCA Civ 408. The Court of Appeal rejected the view that ­Charman v Charman (No 4) [2007] EWCA Civ 503, [2007] 1 FLR 1246 (where it held that the ‘principle’ of equal sharing should not be postponed to the end of the court’s deliberations) had instituted such a presumption. 43 

Care-Giving as a Claim to a Remedy 201 the Court of Appeal rejected the view that the shares should presumptively be equal. It did so in order to achieve ‘fairness’ in favour of the spouse (in this case the wife) who had generated substantial ‘unilateral assets’ during the marriage (ie assets not intended to be shared between the parties). But it should also follow that where the burdens created by the marriage fall unequally on one party, the other should be required to redress the balance; otherwise, he or she gains an unfair advantage and is unjustly enriched. This means that the parties may well end up with different proportions of the available assets. B.  Care, Commitment and Cohabitation The position regarding evidence of mutual commitment may or may not be the same for other intimate or domestic relationships.48 It was noted in Chapter 1 that research on the attitudes of married and cohabiting partners reveals the obvious truth that there can be degrees of personal commitment, and that it is not always clear whether the commitment is to the person or to the relationship, still less to a particular set of (legal) consequences that should result in the event of the relationship’s ending.49 This is not to argue that because marital or civil partners have demonstrated their mutual commitment publicly, they have thereby shown a greater or worthier degree of commitment than cohabitants. For it was also seen that there may be few, if any, differences between spouses and cohabitants in the nature and level of personal commitment that they express for one another, and that age, religion or the presence of children may be more important factors than marital status in this regard.50 Rather, the point is that unless formalised in some way, such as by registration (including marriage) or some form of contract, it may be difficult to show that there has been a mutual commitment to the relationship, and to its being viewed as a partnership giving rise to reciprocal rights and duties.51 This creates a dilemma for law and law reformers in 48  Glennon (n 32) argues that a functional approach would eschew distinguishing between relationships on the basis of their form, and thus not necessarily treat marriage and cohabitation differently, but she does not address the question of commitment. 49 See ch 1, section V.C.i. See C Smart and P Stevens, Cohabitation Breakdown (York, Joseph Rowntree Foundation, 2000) 24–28; A Barlow et al, Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford, Hart Publishing, 2005) 56–65; A Barlow and J Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’ [2010] Child and Family Law Quarterly 328. 50  See J Lewis, The End of Marriage: Individualism and Intimate Relations (Cheltenham, Edward Elgar Publishing, 2001) 135–45; J Eekelaar and M Maclean, ‘Marriage and the Moral Bases of Personal Relationships’ (2004) 31 Journal of Law and Society 510. 51 To similar effect in the context of rejecting a ‘partnership’ approach to determining cohabitants’ property rights on separation, see Law Commission, Cohabitation: The ­Financial Consequences of Relationship Breakdown—A Consultation Paper (CP No 179, 2006) para 6.101, discussed in this chapter, section II.B.ii.

202  Who Cares? deciding what can be the basis for granting such rights and imposing such duties. The question to consider now, therefore, is how far caring is used outside the marital context as a proxy for commitment, or to demonstrate a ‘contribution’ to the relationship, which earns an entitlement to a share in property, or is seen to create a compensable ‘relationship-generated loss’. The focus is mainly, but not exclusively on cohabiting partnerships, because cohabitation is the most common intimate adult relationship outside marriage. But it should be borne in mind that the boundary between cohabitation and ‘living apart together’ may be difficult to draw, and property law, unlike divorce law, does not, in any case, use the emotional or sexual intimacy of the partners to determine their legal entitlements on the breakdown of their relationship. This means that people in relationships arising purely out of the giving and receiving of care, may also make use of property law remedies. i.  Property Law and the Recognition of Care There is no special regime available in English law akin to divorce law, to allocate assets between the parties when a relationship outside marriage (or civil partnership) breaks down. All that can be done is to determine their ownership of such assets (which for most couples will be limited to the ­family home), under the usual rules of property law. It has been argued that property law has become subject to a process of ‘familialisation’, with the courts attempting to recognise the distinctive context of family relationships when determining the ownership of the family home, through exercising a measure of discretion in deciding the parties’ respective shares.52 However, the baseline for any property claim of a constructive trust remains that the applicant has made some form of financial contribution to its acquisition, which can be traced back to the parties’ ‘common intention’ to share the beneficial interest.53 As the Law Commission summed up, ‘Non-financial contributions alone—running the home, raising the children, undertaking repairs and so on—and the potentially substantial economic sacrifices that they entail … will not give rise to any beneficial share.’54 52  A Hayward, ‘“Family property” and the process of “familialisation” of property law’ [2012] Child and Family Law Quarterly 284, drawing on J Dewar, ‘Land, Law and the Family Home’ in S Bright and J Dewar (eds), Land Law: Themes and Perspectives (Oxford, Oxford University Press, 1998). 53  Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432; Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776. The size of share they intended may be demonstrated by the parties’ ‘whole course of dealing’ over the length of their relationship: see Oxley v Hiscock [2004] EWCA Civ 546, [2004] 2 FLR 669. For the kinds of issues the court can take into account in this course of dealing, see Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, per Baroness Hale at [69]. Sloan (n 21) 83, suggests caring could be taken into account at this stage. See also Law Commission, Law Com No 307 (n 13) app A, for its full account of the law. 54  Law Commission, CP No 179 (n 51) para 4.12.

Care-Giving as a Claim to a Remedy 203 Nonetheless, property law can recognise a non-financial contribution as raising a claim to a remedy, but only if it can be shown that it was provided in reliance on a promise by the beneficiary of the care that it would be rewarded, through a claim based on proprietary estoppel.55 In contrast to a ‘contribution’ required to establish a constructive trust, which must be traced back to the parties’ ‘common intention’ to share the beneficial interest, the applicant must show reliance on an assurance or a representation made by the respondent. Importantly, such reliance may take the form of non-financial activities, and it is in this regard that the doctrine has been successfully used to vindicate a claim based on caring. In Greasley v Cooke,56 for example, the defendant was initially employed as a live-in housemaid. She formed a relationship with one of the sons of the family, and after the father died in the 1940s, she remained in the home, cohabiting with the son, doing the housework and, in particular, caring for his mentally ill sister, without payment. In the 1970s, after both the son and his sister had died, she was given notice to leave the property by the beneficiaries of the estate. The Court of Appeal held that an equity had arisen in her favour, and that she should be permitted to remain in occupation as long as she wished. In so holding, the Court noted the ‘unpleasant’ and difficult job that had been entailed in looking after the sister, which seems to have taken the defendant’s caring work above and beyond what might be expected to be the norm in a cohabiting relationship, where it would not be unusual to care for the children (and perhaps the parents) of the partner. Moreover, the fact that she had joined the household as a paid employee, who had then worked without pay, strengthened the Court’s conclusion that she had acted to her detriment, since as a housemaid or housekeeper, she could have sought another post elsewhere. It seems, then, that had she formed her relationship with the son first, and then moved in with him, it would have been harder for her to demonstrate the requisite degree of detrimental reliance.57 It can hardly be argued that this kind of claim offers a particularly robust and certain means of recognising care work, nor even that ‘care’ is its central focus. Estoppel cases commonly deal with unpaid work,58 rather than unpaid care.59 Moreover, the doctrine is an equitable remedy, ­operating 55  This comprises three elements. First, the defendant must have given some representation or assurance to the claimant; secondly, the claimant must have relied on that assurance; and, thirdly, this reliance must have led to the claimant’s suffering some detriment: Thorner v Major [2009] UKHL 18, [2009] 1 WLR 776. For consideration of the applicability of property law to the specific context of caring, with a focus on estoppel claims, see Sloan, (n 21) ch 2. 56  Greasley v Cooke [1980] 1 WLR 1306, CA. 57  See the discussion of this issue by Sloan (n 21) 58–60. 58  See, eg, Thorner v Major (n 55); Gillett v Holt [2001] Ch 210, CA; and Davies v Davies [2016] EWCA Civ 463, [2016] 2 P & CR 10, all of which concerned working on farms. 59  But see Campbell v Griffin [2001] EWCA Civ 990, [2001] WTLR 981 where a lodger gradually assumed a housekeeping and caring role for the elderly home-owners, and received a lump sum after both died; and Jennings v Rice [2002] EWCA Civ 159, [2003] 1 FCR 501,

204  Who Cares? on the ‘conscience’ of the property holder on the basis that the claimant has been (mis-)led to act to his or her detriment, and the focus is on the alleged representation as much as on the reliance. The rising incidence of ­non-marital cohabiting or other intimate relationships,60 and the consequent difficulties when these break down, requires a much more reliable, predictable and fair means of determining claims than case law can provide. Many other jurisdictions have successfully introduced statutory schemes to achieve this.61 English law, so far, has not. ii.  Caring, Cohabitation and Relationship-generated Disadvantage It has proved extremely difficult for policy makers in England and Wales to arrive at a suitable response to the problem. The most considered treatment of the financial problems arising on non-marital (cohabiting) relationship breakdown was provided by the Law Commission, which recommended an adjustive regime based on a ‘principled discretion’, distinct from the scheme applicable on divorce.62 Although it accepted that the ending of cohabiting relationships can result in hardship, it rejected the suggestion that such a regime should be based on relieving the ‘needs’ of the parties, primarily because ‘Cohabitants, unlike spouses and civil partners, have not made any legal commitment to provide for each other, and currently are under no legal obligation to maintain each other during their relationship.’63 Instead, the Law Commission argued that needs are a ‘sub-set of a wider principle, focusing on the economic impact of the parties’ contributions to the relationship’.64 Nor did it consider that ‘commitment’ would provide an adequate basis for a scheme, not least because, ‘while it might instinctively be felt that commitment should be the key to eligibility, that concept is rather difficult to define and identify for legal purposes. Resort to some sort of proxy for commitment is inevitable.’65 The Law Commission identified two such proxies. First, commitment could be demonstrated sufficiently by the fact that the cohabiting partners have had a child together,66 for, citing John Eekelaar, the ‘presence of a child in a common household demands a life plan … [involving] not merely support of one by the other (or mutual support), but the use of mutual resources

where an odd-job man and gardener gradually became the unpaid carer of an elderly widow who died intestate, and was awarded a share of her estate. 60 

See ch 2, section II.A.ii. See Law Commission, CP No 179 (n 51) app C. 62  ibid; and Law Commission, Law Com No 307 (n 13). 63  Law Commission, Law Com No 307 (n 13) para 4.20. 64  ibid, paras 4.24 et seq. 65  Law Commission, CP No 179 (n 51) para 5.64. 66  Law Commission, Law Com No 307 (n 13) para 3.31. 61 

Care-Giving as a Claim to a Remedy 205 (effort, money) in servicing a long-term project’.67 But Carol Smart and Pippa Stevens found cohabiting couples at the ‘contingent commitment’ end of the spectrum who could hardly be described as having worked out a ‘life plan’ simply because they had had children together.68 In so far as having children together might justify automatic eligibility to make a claim at the end of a relationship, it would seem more convincing to regard this as due to the fact that, as John Eekelaar also points out, having children ‘is a lifechanging event’, and the likelihood is that the parents’ economic position and life prospects are irrevocably changed as a result. Where a couple have not had children together, in the Law Commission’s view, ‘a minimum duration requirement would … serve as a mechanism for identifying those relationships likely to entail commitment of a level meriting specific legal protection’, and it noted that attitudinal research has indicated that length of relationship is regarded as a key factor influencing public opinion on whether remedies should be available to cohabitants.69 The Law Commission agreed with consultees that it may be seen as a ‘measure of the degree of interdependence, mutuality, commitment and stability [in a relationship] warranting access to a regime of financial relief’,70 but any particular qualifying period will inevitably be arbitrary. It suggested a range of two to five years, based on demographic information regarding the length of cohabiting relationships, and comparison with other jurisdictions.71 The Law Commission sought to base a claim either on the economic benefit retained by the respondent at the point of separation due to ‘qualifying contributions’72 made by the claimant, or, more usually, on the economic disadvantage incurred by the claimant in making such contributions.73 A qualifying contribution would be ‘any contribution arising from the cohabiting relationship which is made to the parties’ shared lives or to the welfare of members of their families’.74 This is clearly directed towards the kind of care work currently ignored by property law but recognised in divorce law, but the approach is to focus on the loss to the claimant that caring creates, not on the value of the care in itself. For example, if the claimant gave up work when the couple decided to have children, or to move to

67  Law Commission, CP No 179 (n 51) para 5.66, quoting from J Eekelaar, Family Law and Personal Life (Oxford, Oxford University Press, 2006) 49–50. 68  See Smart and Stevens (n 49) 26–27. 69  Law Commission, Law Com No 307 (n 13), para 3.39. 70  ibid, para 3.43. 71  ibid para 3.45. 72  Law Commission, Law Com No 307 (n 13) paras 4.43–4.51. 73  The Law Commission considered it unlikely that a ‘retained benefit’ could be shown to have arisen from a claimant’s non-financial contributions, apart from activities like working without pay in the respondent’s business (Law Commission CP No 179 (n 51) para 6.138), ‘because of the need to establish causation’ (Law Com No 307 (n 13) para 4.48). 74  Law Commission, Law Com No 307 (n 13) para 4.34.

206  Who Cares? another part of the country to benefit the respondent’s career, she would be able to claim for the loss she suffers in losing her place in the job market and forgoing earnings (and possibly a decent pension) in consequence. This approach, however, assumes a norm of a (male) life course in which the ‘sacrifice’ of a job or career is what is important and to be compensated, rather than an alternative focus on the creation of a family and the ‘support, love and ­affection’75 given to family members, which might be rewarded or recognised. On the other hand, it does avoid invidious assessments of the value of a partner’s non-financial contributions (she might be an awful cook, or the partner of a wealthy person, who never needs to go into the kitchen at all). The Law Commission noted the difficulty of putting a monetary value on these, pointing out that while some activities (housekeeping, etc) may be performed commercially, many aspects of what people do for each other within families are not of a commercial nature. As the Law Commission quoted from an Australian decision: No doubt a homemaker will invariably perform some, at least, of the tasks of a domestic servant but her contribution to the family unit will usually be infinitely greater than that. In many cases, she will be the uniting force and will provide the support, love and affection so necessary to maintain a happy family unit. … [T]he contribution of a homemaker and parent will usually extend to the performance of a myriad of tasks beyond the range of activities performed by a domestic servant.76

Indeed, it pointed out that the ‘economic sacrifice’ of the claimant might well be greater than the value of the services he or she actually performed.77 As seen, in the divorce context, financial and non-financial contributions are generally regarded as of equivalent value. But the Law Commission considered that such a ‘partnership approach’ cannot be taken to cohabiting relationships, because it is not immediately clear why, ‘in the absence of the clear commitment to a joint partnership inherent in marriage or some specific agreement reached by the parties’, the mere fact of cohabitation should justify such an ‘encroachment’ on the property rights of the partner who accumulated the assets.78 For the Law Commission, then, the law can, and should, distinguish between marriage and non-marital partnerships. In the latter, where the parties may not have made a clear commitment to each other to take on any obligations regarding the nature and duration of their relationship, the law should focus on the relationship-generated disadvantage suffered by the more vulnerable party through her economic sacrifices, 75 

ibid, para 6.122. Commission, CP No 179 (n 51) para 6.122, quoting Clarke JA in Black v Black (1991) 15 Fam LR 109, 117. 77  Law Commission, CP No 179 (n 51), para 6.125. 78  ibid, para 6.101. 76  Law

Caring Relationships 207 which are likely to have been caused by the caring role she has undertaken during the relationship.79 In the former, the parties’ mutual commitment evidenced by the fact of their marriage provides an independent basis for recognising the contributions of each and weighing them as of equal value. A spouse will be entitled to a share in the assets even if he or she has suffered no loss as a result of the contributions made to the family; a cohabitant would continue to leave the relationship without recompense unless he or she could point to the defendant’s enjoying a ‘retained benefit’. This distinction derives from the fundamental aim to maintain clear water between marriage as an institution and cohabitation as a family form. Other jurisdictions, such as Australia and New Zealand, have decided that they should broadly be treated alike.80 Indeed, some of the jurisdictions in Australia have gone further, by applying a functional approach not just to cohabiting relationships but also to those that are domestic rather than conjugal in nature. The next section explores the background and working of such reforms and the light they shed on the creation and regulation of caring rights and obligations. III.  CARING RELATIONSHIPS

Providing an explanation for the impetus for statutory regulation in ­Australia of what will here be described generically as ‘caring relationships’ is not entirely straightforward.81 Reform developed in part from the acceptance that the adverse consequences of the breakdown (or ending through death) of non-marital cohabiting relationships required a more effective legal response than could be delivered under property law, which had originated from the same case law on trusts and estoppel as in England and Wales.82 In creating a regime for cohabitants, it may have helped that these are g­ enerally 79  A similar approach has been taken in Scotland: Family Law (Scotland) Act 2006, s 28, on which see Gow v Grant [2012] UKSC 29. For the early cases in Scotland, see F McCarthy, ‘Cohabitation: lessons from north of the border?’ [2011] Child and Family Law Quarterly 277; and for research on the law in Scotland, see J Miles, F Wasoff and E Mordant, ‘Cohabitation: lessons from research north of the border?’ [2011] Child and Family Law Quarterly 302. 80  For Australia, see B Fehlberg et al, Australian Family Law: The Contemporary Context, 2nd edn (Melbourne, Oxford University Press, 2015) ch 13; P Parkinson, Australian Family Law in Context: Commentary and Materials, 6th edn (Pyrmont, Thomson Reuters, 2015) ch 19. For New Zealand, see the Property (Relationships) Act 1976 as amended, and commentary thereon, M Henaghan et al, Family Law in New Zealand, 17th edn, (Wellington, LexisNexis, 2015) ch 13. 81  For discussion, see Fehlberg et al (n 80) chs 4, 13–15; Parkinson (n 80) ch 19. See also Sloan (n 21) 211–15. 82 See, eg, New South Wales Law Reform Commission, Relationships: Report No 113 (­Sydney, NSW Law Reform Commission, 2006) para 3.22; Parliament of Tasmania Joint Standing Committee on Community Development, Report on the Legal Recognition of Significant Personal Relationships (Hobart, Parliament of Tasmania, 2001) 6, 26; ACT Legislative Assembly, Domestic Relationships Bill, 21 April 1994, 1118.

208  Who Cares? referred to as ‘de facto’ partners in Australia, reflecting their initial characterisation as de facto spouses, that is, couples who live together as if they are married. This (together with early prohibition of discrimination on the basis of marital status),83 may perhaps have influenced ­Australian public opinion to treat cohabitation as effectively equal to marriage, and thus to move more quickly through and beyond the debates that have taken place in England and Wales regarding differing levels of commitment in married and cohabiting relationships. However, in the case of caring relationships, the analogy with marriage is inapplicable; the legal consequences of recognition of caring relationships need not therefore be made equal to those in conjugal unions. As we shall see, this has created some problems for courts interpreting the provisions that have been enacted, in the absence of clear legislative guidance on how such partnerships are to be evaluated. Legal provision for non-married couples was not originally a federal ­matter, and so each State or Territory adopted its own approach to the issue; and as each legislated in turn, the others drew on the examples and experiences of those that had gone before. New South Wales was the first State to provide a discretionary adjustive regime to handle the property and financial issues arising from the ending of cohabitation. Legislation was enacted in 1984, limiting eligibility to make a claim to heterosexual couples.84 Other States largely followed this model, but the Australian Capital Territory (ACT) adopted a different approach in 1994, providing property and financial remedies for parties to a ‘domestic relationship’, which not only covers heterosexual and same-sex couples, but is also wide enough to include partners in a caring relationship.85 In so doing, ACT adopted a ‘functional family’ approach, which Jenni Millbank proclaimed as ‘truly revolutionary’ because, ‘in moving to emotional and financial interdependence as the key indicators of a legally recognised relationship [the Act] rejected sex and cohabitation as the only criteria for a “real” relationship’.86 The breadth of the definition enabled the ACT government to forestall opposition from conservatives opposed to the recognition of same-sex couples, by focusing on the other kinds of relationship that would benefit. The Attorney-General, for example, referred to the ‘adult son or daughter who has given up a career to provide the domestic care for a parent in need’,87

83 

I am grateful to Stephen Still, A-G’s Department, Australian Government, for this point. De Facto Relationships Act 1984 (NSW), later renamed the Property (Relationships) Act 1984. 85  South Australia takes a similar inclusive approach: Family Relationships Act 1975 (SA), ss 11, 11A, as amended, provide that a domestic partner is someone who is in a ‘close personal relationship’—which means a ‘relationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis’. 86  J Millbank, ‘Domestic Rifts: Who is Using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14 Australian Journal of Family Law 163, 183. 87  ACT Legislative Assembly, Domestic Relationships Bill, 21 April 1994, 1118. 84 

Caring Relationships 209 and the example of the devoted child has been used frequently in subsequent debates in other jurisdictions as well as being reflected in the case law.88 Millbank and others have criticised this strategy as diminishing the importance of giving due recognition to the validity of same-sex ­relationships.89 Be that as it may, other States, again beginning with New South Wales in 1999,90 extended their existing provision for heterosexual cohabitants to include same-sex couples and, in some cases, to include people in caring relationships as well.91 Legislation was also passed to recognise caring partners for other purposes, such as designation as next-of-kin, and, in particular, to make provision for when a partner to the caring relationship dies. Given that many such relationships might involve an elderly person, this is an important extension, and several cases involving caring relationships have involved disputes over inheritance.92 Millbank argues, indeed, that a carer is unlikely to make a claim while the elderly person is still alive, but this has happened.93 Provision for financial remedies for both heterosexual and same-sex de facto couples became subject to federal jurisdiction in 2009.94 However, separate State legislation continues to apply to caring relationships. A.  What is Meant by ‘Caring’? The first issue to examine is what concept of ‘caring’ was used by the different legislatures.95 As discussed in Chapter 1, the notion of care can

88 

See this chapter, sections III.A, III.B. R Graycar and J Millbank, ‘The Bride Wore Pink … To the Property (Relationships) Legislation Amendment Act 1999: Relationships Law Reform in New South Wales’ (2000) 17 Canadian Journal of Family Law 227; R Graycar and J Millbank, ‘From Functional Family to Spinster Sisters: Australia’s Distinctive Path to Relationship Recognition’ (2007) 24 Washington University Journal of Law and Policy 121, 144–153; and, similarly in relation to Canada, see L Glennon, ‘Displacing the “conjugal family” in legal policy—a progressive move?’ [2005] Child and Family Law Quarterly 141, 146. For an express recognition by legislators that their definition was drafted in response to conservative opposition to the recognition of same-sex relationships: see Michael Atkinson A-G, South Australia House of Assembly, 3 December 2009, 5003. 90  Property (Relationships) Legislation Amendment Act 1999 (NSW). 91  New South Wales took the opportunity to add ‘close personal relationships’ to its legislation, as did South Australia. Tasmania and Victoria have ‘caring relationships’. For discussion of Queensland’s decision to exclude caring relationships, see L Willmott, B Mathews and G Shoebridge, ‘De Facto Relationships Property Adjustment Law—A National Direction’ (2003) 17 Australian Journal of Family Law 1, 22–23. 92  For cases on family provision and caring relationships which, in several cases, had mutated from sexual intimate partnerships, see Re Estate of Ham (dec’d): Bogan v Macorig [2004] NSWSC 993; Smith v Daniels [2012] NSWSC 604 (former same-sex partners); G ­ eoghegan v Szelid [2011] NSWSC 1440 (ex-spouse); Drury v Smith [2012] NSWSC 1067 (former de facto partner); McCarthy v Tye [2015] NSWSC 1947 (lodger and casual sexual partner). 93  Millbank (n 86) 181. See Taddeo v Taddeo [2010] SADC 61; Saravinovska v Saravinovski (No 6) [2016] NSWSC 964. 94  Provision is now contained in the Family Law Act 1975 (Cth), pt 1, s 4A; pt VIIIAB. 95  All the States exclude paid carers—‘care workers’—from the scope of their legislation. 89  See

210  Who Cares? be subdivided into the material and emotional, with distinctions further drawn in relation to the former between care ‘work’ and care in the form of ‘taking care of’ through monetary support.96 There are elements of each of these in the Australian definitions. For example, the ACT requires evidence of ‘a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other’.97 The ACT Attorney-General, in introducing the legislation, argued that the ‘common factor for applicants will be their contribution to financial resources of another, and that alone’. But he then added that applicants could demonstrate this through direct or indirect, financial or non-financial, contributions, ‘and the Bill specifically includes consideration of contributions which have conserved or improved property or financial resources, as well as through home-making and care of the other person or the care of a child of the relationship’. For good measure, he then stated that the applicant would need ‘to demonstrate a real personal commitment of a domestic nature to the welfare of the other person’.98 Bearing in mind that the ACT legislation had to encompass both ‘de facto’ and ‘caring’ partnerships, it is unsurprising that the contribution or commitment demonstrated by the applicant embraces physical care for the partner (or a child), financial support, improvements to property and accretions to wealth. In McKenzie v Storer,99 Stone J noted that the parliamentary debates had offered little assistance in determining the meaning of ‘support of a domestic nature’, but she found some guidance in the ACT government’s ­pre-legislative report on the subject. There, it was explained: People in domestic relationships may include those caring for an ill or aged parent or friend, grandparents providing a home for their grandchildren, or others who have committed themselves to the welfare of someone at their own expense … [T]he relationship is to involve a commitment which goes beyond friendship and neighbourliness—flatmates, people living in group houses, employed live-in housekeepers and other domestic employment … would not normally be entitled to seek relief.100

The factual situation the judge faced was atypical, since it involved two women who formed a close platonic friendship after the plaintiff’s husband died. The plaintiff had a learning difficulty and found it hard to cope with

96  Ch 1, section II.B; J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge, 1993) 105–07. 97  Domestic Relationships Act 1994 (ACT), s 3(1). 98  Terry Connolly A-G, ACT Legislative Assembly, Domestic Relationships Bill, 21 April 1994, 1117, emphasis added. 99  McKenzie v Storer [2007] ACTSC 88. 100  M Wallace, A Proposal for Domestic Relationship Legislation in the ACT (Canberra, A-G’s Department, 1993), Preface, emphasis added.

Caring Relationships 211 financial and official matters. The defendant helped her with these, and, being in steady employment but subject to debts, she offered to share the cost of the mortgage for buying a new property that the plaintiff wanted, part of which sum would go to paying off these debts. The transaction took place but the parties fell out, and the plaintiff sought a transfer of the defendant’s 25% legal interest as a tenant in common in the property; the defendant argued that if there was an eligible domestic relationship, she should receive a 50% share based on her contributions. Stone J noted that the Act was intended to have a broad application, but considered that ‘support of a domestic nature’ must bear some specific meaning, which she took as ‘having to do with the home, the household, or household affairs’.101 Holding that the relationship did fall within the Act (albeit as a borderline case), she found that it included both financial and non-financial contributions by the defendant beyond the costs of the mortgage. The former included covering some of the plaintiff’s personal expenses, repairs to the property and outgoings, while the latter included dealing with tradesmen on the plaintiff’s behalf, aiding the plaintiff in an application to have a fine waived, and assisting the plaintiff in her interactions with her children’s carers … [taking] calls at work relating to the plaintiff’s welfare and … time off work to care for the plaintiff during illness or to take the plaintiff to hospital. … The defendant also maintains that it was she who kept the … house ‘clean and tidy’.102

In addition, Stone J had regard to the Attorney-General’s comment in the assembly debates that one would ‘look for the motivation’ when determining whether a relationship qualified as a domestic relationship. She declared herself ‘satisfied that the defendant was motivated by feelings of friendship, sympathy and charity. I am also satisfied that, initially at least, the plaintiff was grateful to the defendant, and, … felt that the defendant’s act was that “of a true friend”.’103 It is arguable whether the kind of non-financial caring acts undertaken by the defendant here were the kind envisaged when the law was enacted. It can also be speculated whether they would have been regarded as s­ ufficient had the parties not in fact lived together, and had the defendant not made clear and direct financial contributions to the purchase of the property. If they would be regarded as sufficient, then very many good friends and neighbours might claim to be in an eligible relationship. The judge did not focus on the need to show a ‘material benefit’ here, no doubt because the payments to the mortgage would clearly constitute such a benefit. The case

101 

[2007] ACTSC 88 at [63]. ibid at [65]. 103  ibid at [66]. 102 

212  Who Cares? does not therefore provide a wholly clear indication of precisely what forms of ‘care’ are intended to justify a claim in ACT. In New South Wales, a ‘close personal relationship’ (other than a marriage or a de facto relationship) is similarly defined as being ‘between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care’.104 It was held in Dridi v Fillmore that both ‘domestic support’ and ‘personal care’ must be demonstrated.105 The parties had been in a same-sex relationship, which had ended, but they continued to occupy the defendant’s property together from time to time until their final break-up. Macready M rejected the plaintiff’s argument that there was a ‘close personal relationship’ in between the initial and final terminations. He held that there had been ‘domestic support’ in the form of the defendant’s providing free accommodation and meals (which he cooked) for the plaintiff. He also considered that shopping for both parties and washing clothes, etc could be forms of domestic support. However, the requirement to establish ‘­personal care’ was more problematic. Macready M noted some of the ‘primary meanings’ of ‘personal’: ‘“Of or pertaining to concerning of [sic] affecting the individual person or self; individual; private; one’s own. … Of or pertaining to one’s person body or figure; bodily” … personal care connotes care taken in connection with such matters.’106 He considered that while a person employed to carry out such activities would be excluded under the legislation, ‘a mother [caring] for her sick child or … a daughter for her elderly incapacitated mother’ would be included. On this analysis he rejected the argument that there had been any such ‘personal care’ during the time claimed. Nor did he think that matters such as ‘emotional support’ would by themselves have fallen within the composite expression. The expression seems to be directed to a different level of reality such as assistance with mobility, personal hygiene and physical comfort. Such activities obviously however will include an element of emotional support.107

Subsequently, Macready M’s rejection of emotional support as a sufficient form of ‘personal care’ was doubted. In Hayes v Marquis,108 the heterosexual couple had had a long relationship, which the trial judge held had moved from a ‘close personal’ relationship to a ‘de facto’ one. On appeal, McColl JA commented: Society recognises the importance emotional support can play in an individual’s well being. Psyche is just as much a personal attribute requiring sustenance as

104 

Property (Relationships) Act 1984 (NSW), s 5 as amended. Dridi v Fillmore [2001] NSWSC 319 at [13] and [102]. 106  ibid, [105]–[106]. 107  ibid, [108]. 108  Hayes v Marquis [2008] NSWCA 10. 105 

Caring Relationships 213 one’s physical self. The notion of ‘personal care’ should not be confined to matters relating to physicality.109

Of course, under the New South Wales legislation, there would still need to be evidence of ‘domestic support’, which seems to be well understood as entailing physical or material forms of aid. But apart from the context of shared parenting, where contact might be awarded to a non-resident parent (or possibly a grandparent) on the basis of his or her emotional care for and concern about the child, it is hard to envisage a situation where an applicant for some kind of legal recognition or remedy would not have been providing a degree of material care as well. Equally, apart from the provision of paid care, it is hard to envisage ‘caring’ which does not entail some element of emotional engagement. Some reported cases deal with volatile or ambivalent relationships yet conclude that a caring relationship has been made out.110 It may therefore be pitching it too high to suggest that the distinction between ineligible flat sharers and those who should be able to seek financial provision when the caring ‘relationship’ ends, lies in the existence of ‘deep personal affection or love’ between the parties.111 But it might be the view that some form of personal and/or mutual commitment ought to be present, which lies behind the insistence in all of the jurisdictions that the claimant was in a ‘relationship’ with the other and that this ‘relationship’ was limited to the two of them. Further, in Victoria and South Australia, it must be shown that they were a ‘couple’; and in New South Wales and South Australia, that they lived together. In other words, it is not ‘caring’ which is recognised in these jurisdictions, but a caring ‘relationship’. B.  What is a Caring ‘Relationship’? There is, in fact, a straightforward reason why all the jurisdictions limit a ­recognised relationship to one between two adults. It can be seen from the genesis of the laws why this is the case. As was pointed out in s­ ection III.A, they were enacted to extend legal recognition to non-marital ­partnerships, primarily same-sex relationships, which were henceforth to be treated (almost) as akin to—monogamous—marriages. It therefore made sense to limit them to two parties. Yet that logic does not apply to caring ­relationships.

109  ibid, [87]. Einstein J considered that the matter did not need to be decided, but thought McColl JA might well be correct. The third judge, Beazley JA, concurred with McColl JA. 110  Such as Dridi v Fillmore [2001] NSWSC 319, discussed above; Skarica v Toska [2014] NSWSC 34: elderly woman with dementia, now deceased, who had a long-term non-cohabiting ‘boyfriend/girlfriend’ type relationship with the elderly plaintiff seeking provision from her estate. 111 As was said by Gary Humphries, ACT Legislative Assembly, Domestic Relationships Bill, 19 May 1994, 1803.

214  Who Cares? As HHJ Nicholson pointed out in Taddeo v Taddeo,112 why should the situation of an adult son, remaining in the family home with one parent because he is unemployed, fall within the South Australia definition of a ‘companion couple’ relationship, while if both parents were living in the home, the three could not form a recognised unit? In England and Wales, why would it make sense for the two Burden sisters to be able to become civil partners, as they sought to argue,113 but not the three Brontë sisters (and their brother)? The practical reason put forward is to make it more difficult for ­house-sharers to make a claim, but it has little logic in the context of the provision of care, as is demonstrated by Saravinovska v Saravinovski (No 6).114 There, the New South Wales court was prepared to find a ‘close personal relationship’ between a father- and daughter-in-law, where she had been brought into the family from Macedonia to marry one of his sons and to take care of the whole household, including the mother-in-law. There were certainly elements in the case that made the father-in-law an appropriate defendant in proceedings for some form of financial redress for the plaintiff’s care work, not least because he was the ‘patriarch’ who controlled the family, its assets and its business. But the circumstances could equally have pointed to her ‘caring for’ several other members of the extended family. There is equally little logic in the requirement in New South Wales and South Australia that the parties live together.115 It is true that the same criticism can be made of regimes that only apply to cohabiting partners and exclude couples who live apart together, but it is more compelling in the case of carers, because it is common for a close relative who lives nearby, or a neighbour, to come in on a regular basis to care for an elderly or infirm ­person.116 The fact that the other jurisdictions do not impose a living together requirement suggests that this is not a key factor in determining whether parties can be regarded as in a caring relationship. In Taddeo v Taddeo, HHJ Nicholson was dealing with the case of the one unmarried daughter of the family remaining in the home (which was in the daughter’s sole name) for 25 years to care for the elderly mother. He was troubled by the additional requirement of the South Australian legislation that the parties must live together ‘as a couple’. As he cogently noted,

112 

Taddeo v Taddeo [2010] SADC 61, [69]. Burden v United Kingdom [2008] 47 EHRR 38: see section II. 114  Saravinovska v Saravinovski (No 6) [2016] NSWSC 964. 115  See Standing Committee on Social Issues, Domestic Relationships: Issues for Reform, Report 20 (Sydney, NSW Legislative Council, 1999) para 6.3. 116 In the UK, for example, in 2010, 61% of informal carers provided care to someone outside their own household, usually a parent: Centre for Policy on Ageing, Changing family structures and their impact on the care of older people (London, Centre for Policy on Ageing, 2014) 7. In Australia, the NSW Law Reform Commission reported that under half of those caring for a parent or person other than a partner or child, were living with them: Report No 113, Relationships (Sydney, NSW Law Reform Commission, 2006) para 1.53. 113 

Caring Relationships 215 intimate partners typically come together, from a position of independence, ‘to voluntarily join together with another such person to form a new relationship of mutual support and dependence—as “a couple”’. But where members of the one family come to live together, they start with an existing relationship that may already contain such elements of mutual support and dependence.117 The judge therefore had to have regard to the further statutory ‘indicia’ that apply to both ‘de facto’ and caring relationships, including in particular, ‘the degree of mutual commitment to a shared life’.118 He considered that [t]he central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending a mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living ‘together as a couple’. … Where the relationship in question concerns an elderly parent and child, there usually will be, in any event, a mutual commitment to each other. … However, where a parent and child relationship is concerned, a mutual commitment to a shared life would be of more significance. The point was taken up by the Attorney General in his second reading speech where he referred to the notion of ‘life-partner relationships’, … and the intention to capture two adults who live together in ‘an enduring personal relationship of mutual affection and support’.119

i.  Registered Caring Relationships Such mutual commitment is shown more easily where the parties have the option to register their relationship. Two States—Tasmania120 and­ Victoria121—provide for this. Victoria does not additionally provide for unregistered caring relationships to be recognised,122 seemingly because those in such relationships may not wish or expect to be subject to the same legal consequences as cohabiting couples, and it should therefore be a requirement that they choose to be so bound.123 In both States, the facility of registration is intended to provide public recognition of the parties’ commitment to ‘a shared life’ in the same way as a marriage (or civil partnership).124 117 

[2010] SADC 61 at [67]–[68]. Family Relationships Act 1975 (SA), s 11B(3)(e). 119  [2010] SADC 61, [84]–[87] emphasis added. 120  Relationships Act 2003 (Tas), s 11. 121  Relationships Act 2008 (Vic), s 5. 122  For arguments for and against providing a factual and/or a registration form of recognition, see S Wong, ‘Property Regimes for Home-Sharers: the Civil Partnership Bill and Some Antipodean Models’ (2004) 26 Journal of Social Welfare and Family Law 361, 367–69, and for general discussion of registration schemes, see O Rundle, ‘An examination of relationship registration schemes in Australia’ (2011) 25 Australian Journal of Family Law 121. 123 See Rob Hulls A-G, Victoria Assembly, Relationships Amendment (Caring Relationships) Bill, 12 November 2008, 4570. 124  See Rundle (n 122) 131–33. ‘De facto’ unions can also be registered in the four States (as a ‘civil partnership’ in ACT) as well as in Queensland and, from 2017, South Australia. 118 

216  Who Cares? Yet not a single ‘caring relationship’ had been registered in Victoria by August 2016 (from 2008), and fewer than five had been recorded in ­Tasmania (from 2003).125 Tracey Summerfield has argued in the context of same-sex partnerships that low levels of registration may be due to cultural norms, with couples previously excluded from legal recognition used to finding other ways of resolving problems arising from their relationship.126 It may certainly be the case that, even if they are aware of the concept,127 people in caring relationships may not see themselves as being in a ‘relationship’ at all, or at least not in one that is distinct (and with potentially different legal ramifications) from being the sibling, parent or child, or devoted friend of the other.128 ii. Vulnerability It is a requirement of registration in both Tasmania and Victoria that the parties produce a certificate from a legal practitioner that they have each received independent legal advice, so as to guard against exploitation. This requirement raises an important question (regardless of whether the relationship is registered) concerning who is the more vulnerable party in a caring relationship and who holds the balance of power—the carer or the cared-for person? One might assume that the weaker party will usually be the carer, who sacrifices his or her financial security in order to look after the—wealthier—person in need of care. Saravinovska v Saravonovski129 provides an example. That paradigm also reflects the common situation of economic inequality arising in traditional cohabiting relationships (which may be accentuated by structural gender inequality). But in some cases it may be hard to determine who is the more ‘vulnerable’. After all, a carer who, applying Fineman’s terminology, becomes ‘derivatively dependent’ through his or her caring role, is not necessarily more vulnerable than the ‘inevitably dependent’ person who is looked after. McKenzie v Storer illustrates the difficulty. The judge held that the defendant carer was not entitled to any share in the beneficial interest in the property the two friends owned as tenants in common. Effectively, the parties’ past payments balanced out and they had (she found) never intended the defendant to retain a beneficial interest but only a licence to live in the house until her own debts had

125  Personal communication from the Births, Deaths and Marriages Registries for Victoria and Tasmania, on file with the author. 126  T Summerfield, ‘Understanding the Law of the Family: A Question of Practice, not Interpretation’ (2002) 11 Griffith Law Review 44. 127 Millbank (n 86) suggests that there may be general ignorance about the law and its potential applicability. 128 See Taddeo v Taddeo [2010] SADC 61, [86]. 129  Saravinovska v Saravinovski (No 6) [2016] NSWSC 964.

Caring Relationships 217 been paid off through her mortgage contributions. This strict property law analysis reflected, in the judge’s view, the outcome that the discretionary regime should also produce. The Act therefore neither reduced the need to argue property law principles, nor produced an outcome any different from the application of such principles.130 It may be unsurprising that there seem to have been so few claims brought by those in caring relationships in the ACT.131 C.  The Rationale for Recognition The policy makers bringing in the legislation in the various jurisdictions have offered a variety of rationales for recognition of caring through a property adjustment award. In the ACT, for example, the Attorney-General explained that the legislation would allow a partner ‘to seek adjustment of the ownership of property … to reflect the value of their contribution’.132 In New South Wales, the Law Reform Commission noted that there is likely to be an ‘intermingling of the parties’ lives and a likelihood of financial interdependence’, but also referred to the legislature’s seeking to ‘provide an avenue for redress for people who suffer some detriment and are not compensated for it’.133 In Victoria, it was argued that caring relationships ‘are based upon a deep commitment of one person to another without financial remuneration’, and that they are similar to intimate relationships in that ‘either one [party] is reliant upon the other or both rely upon each other in the course of their day-to-day lives’.134 As was noted in relation to England and Wales, marriage (and civil partnership) has similarly been regarded as justifying a variety of reasons for providing a spouse with financial relief, including need, loss or detriment, contribution and commitment to an equal partnership. It might be suggested that the multiplicity of arguments presented for extending protection to caring relationships in Australia reflects a willingness to treat all partnerships

130  [2007] ACTSC 88. See also Ak-Tankiz v Ak [2014] NSWSC 1044: constructive trust found, but judge used discretionary regime to vary it to provide for immediate payment of value of share to the plaintiff. 131  See Millbank (n 86) 170, who found only one ‘non-couple’, ie caring relationship, claim litigated to trial in the first 4½ years of the Act’s operation, and only 3% of claims that would not have fallen under traditional de facto legislation. In NSW, the Law Reform Commission (n 116), para 3.7 reported that most claims that a close personal relationship existed were presented as alternatives to a claim based on a de facto relationship. 132  Terry Connolly A-G, ACT Legislative Assembly, Domestic Relationships Bill, 21 April 1994, 1116. Emphasis added here and below. 133 New South Wales Law Reform Commission, Relationships: Report No 113 (Sydney, NSW Law Reform Commission, 2006) paras 3.34, 3.21. 134 Wade Noonan, Victoria Assembly, Relationships Amendment (Caring Relationships) Bill, 4 December 2008, 4940.

218  Who Cares? equally, regardless of form, and a recognition that in their very diversity, they demonstrate different justifications for redress. However, in the actual application of the adjustive regime, the rationale is more limited. This is because all of the jurisdictions follow the approach taken in Australia to financial awards on the ending of a marriage or de facto relationship, which is to focus primarily on contribution with some recognition of need.135 In the case of caring relationships, the focus is narrower still, since only needs arising from the relationship can be taken into account.136 As the Law Commission of England and Wales pointed out in relation to provision for cohabiting relationships, it has proved difficult for the ­Australian courts to determine how a partner’s contributions should be taken into account, and how to value them, particularly when they are ­non-financial.137 The limited case law on caring relationships reflects this difficulty, and it may explain why a judge might decide, as in McKenzie v Storer,138 that the outcome produced on constructive trust principles happens to meet the justice of the case so that any award under the adjustive regime would be identical. In Saravinovska v Saravinovski,139 Kunc J took an approach akin to that used in estoppel cases in England and Wales, where the court seeks in a proportionate way to satisfy the equity arising from the circumstances, by determining ‘what order is required … sufficiently to recognise and compensate the applicant’s contributions’.140 The ‘compensation’ here is not for loss but rather to recognise the care given. The judge concluded that this was not a case of ‘“a practical union of lives and property” where [the claimant’s] contribution had “freed up” [the defendant] to build up his property assets’.141 As the judge noted, caring relationships can be considerably different from de facto unions: here the carer had her own spouse and children, and the cared-for person had his wife in the same home (indeed, the plaintiff looked after her until her death). Nor had the plaintiff’s housekeeping enabled the defendant to build up his business—he would have done that anyway. These are cogent factors—yet the judge went on to award a 30%, rather than 50% share of the family home, seemingly

135  Family Law Act 1975 (Cth), s 90SM and s 90SF (needs). For discussion, see Fehlberg et al (n 80) Ch 13, who argue (at 533) that it is also possible to compensate a spouse for relationship-generated disadvantage; and Parkinson (n 80) ch 17. 136  Domestic Relationships Act 1994 (ACT), ss 15, 19; Property (Relationships) Act 1984 (NSW), ss 20, 27; Relationships Act 2003 (Tas), ss 40, 47; Relationships Act 2008 (Vic), ss 45, 51. South Australia does not include reference to needs: Domestic Partners Property Act 1996, s 11. 137  Law Commission, CP No 179 (2006) para 6.81. 138  [2007] ACTSC 88 at [48]. 139  [2016] NSWSC 964, discussed in section III.B. 140  ibid, [452] quoting Brereton J in Kardos v Sarbutt [2006] NSWCA 11 at [38] (a de facto relationship case). 141  ibid, [458].

Recognition of Caring Relationships, or Recognition of Care?  219 for quite different reasons: the plaintiff’s own daughter had also done a substantial amount of caring over the later years; and the defendant had given the plaintiff and her husband financial support (including rent-free accommodation in the family home), which partially redressed the balance between them. IV.  RECOGNITION OF CARING RELATIONSHIPS, OR RECOGNITION OF CARE?

This chapter has explored some of the difficulties in attempting to widen the scope of the obligations arising from recognising caring as the core function of ‘families’. Where care is conceptualised as an obligation to be imposed on a particular family member, the law has not sought to enforce that responsibility through direct regulation of care work. Policy makers have had to accept that kin cannot be coerced into caring for each other, and that, as Finch and Mason have shown, the sense of obligation felt by kin is something that develops out of individual relationships and circumstances and is subject to negotiation.142 The opposite argument is that undertaking care gives rise to a right or claim, which imposes an obligation on others—including the care ­recipient—to recognise the care-giver, usually through financial support or recompense. In England and Wales, this has had most traction in the marital context, where marriage has been reframed as an equal partnership in which, regardless of the nature of the work undertaken by each spouse, both contribute equally to the ‘welfare’ of the family. Valuing that contribution can be (relatively) straightforward because the parties can be seen to have made a mutual commitment to that equal partnership and therefore to have accepted that—subject to needs or compensable additional loss or a decision not to share—the marital acquest should be shared. It is much harder to apply this approach to other relationships, unless they are all equated with marriage. Those who provide devoted care to another person, often over many years, present an archetype of ‘commitment’ far removed from the casual, contingent intimacy that is said to characterise modern pure relationships. They appear to demonstrate a conjunction of personal, moral and structural commitment that highlights the irony of extending legal protections to ‘temporary’ sexual or ‘conjugal’ relationships whilst ignoring those seemingly more deserving of recognition, and to justify the calls for a more ‘functional’ family law. But while there is logic to regarding cohabiting unions as ‘de facto’ marriages, and hence to be treated the same as marriage, the

142 

See ch 1, section IV.

220  Who Cares? analogy breaks down once one moves to different forms of relationship simply based on care. Although there is a dearth of empirical data, the limited information available does not suggest that the Australian jurisdictions provide either a predictable or a consistent form of recognition and private law provision for such relationships. There seem to be three main reasons for this. First, the use of ‘contribution’ as the basis for an award is problematic, because without the equal partnership approach that can be adopted in marriage cases, there is no measure by which to compare each party’s ‘contribution’, especially when it is non-financial. Should stressful and onerous physical care provided to a person with dementia justify a more than 50% share of that person’s assets? What if that person is extremely wealthy? Would it make a difference if the person has died? And is this kind of care more deserving than lower-level care performed over a much longer time span? The very comparison of forms of such care was deprecated by Thorpe LJ in Lambert v Lambert.143 Yet if the primary factor determining an award is ‘contribution’, it is hard to see how it can be avoided. The Australian cases discussed in section III demonstrate the difficulty of evaluating what the carer is ‘worth’ when pitted against other claimants to an estate, or the cared-for person himself or herself. A second difficulty lies in the location of caring relationships within the broad framework of marriage and de facto partnerships.144 The device of hiding same-sex relationships within a ‘functional’ family approach was an effective tactic for overcoming opposition and extending protection to these, but it fails (or declines) to recognise that the marriage model does not easily translate to the caring context, where modes of caring and care relationship may be very varied. But the fundamental problem is cultural and social. While family relationships are well understood, caring as the basis of relational ties may not be. Those who are already members of the same family may not regard themselves as in a caring ‘relationship’. A mother and daughter, two siblings or two friends have a relationship that, as HHJ Nicholson recognised in T ­ addeo v Taddeo, usually pre-dates any caring function they may take on.145 The negligible number of caring relationships that have been registered in Australia suggests that those who are in such a relationship may feel no need to formalise their ties, may not know of the possibility or do not regard it as an appropriate step to take. Yet this apparent under-inclusion of potential care partners within the ambit of the law’s protection may be

143 

[2002] EWCA Civ 1685 [2003] Fam 103, [45] discussed above at p 200. point cogently made by K Griffiths, Legal Recognition of Adult Relationships: When should the State recognise and regulate? (Cardiff, PhD thesis, 2017). 145  [2010] SADC 61, [85]. 144  A

Recognition of Caring Relationships, or Recognition of Care?  221 off-set by a potential over-inclusion, both of the range of those who may be regarded as within a caring relationship146 and through the imposition of mutual obligations on the parties. In some cases, as we saw, it may be the carer who is left with the liability, rather than the person who received the benefit of the care.147 There is a legitimate concern that a ‘relationship’ model is needed to avoid the risk that ‘caring’, per se, could leave the cared-for person subject to an open-ended liability towards all who perform care work for him or her. But a more effective way of providing redress to carers than shoehorning them and those they care for into the tight confines of a ‘partner’ type of relationship might be to provide particular remedies for the specific needs or losses they incur as a result of their caring. This might seem to halt the development of a more liberal and expansive approach to recognition of family forms, by taking the focus away from relational identity politics. But it might better reflect the structural commitments borne by carers, who cannot easily break free from the ties that bind them to those they care for. Chapter 8 considers how far the history traced in this and earlier chapters suggests that an appropriate balance between right and obligation, personal commitment and structural constraint could be achieved.

146  On which, see A Head, ‘The Legal Recognition of Close Personal Relationships in New South Wales—A Case for Reform’ (2011) 13 Flinders Law Journal 53, especially 80–83. 147  As in McKenzie v Storer [2007] ACTSC 88.

8 The Law of Family Obligations [A]ltruism is ‘compulsory’ for women in a way it is not for men.1 Individual interests in the domestic relations require to be secured in two aspects. On the one hand they must be secured as between the parties thereto. On the other hand they must be secured as against the rest of the world. As it is commonly put, the law has to give effect to the right of the one party to the relation against the other and enforce the corresponding duty toward the former … The law has never attempted to deal fully with the first of these tasks. Religion, boni mores and the internal discipline of the household have largely sufficed to secure the interests of the members of the household, as among themselves.2

I.  CARE, OBLIGATION AND COMMITMENT

T

HE PRECEDING CHAPTERS in this book set out to provide a ­retrospective examination of how family law has been used to impose, regulate and enforce obligations on family members. Rather than attempt a comprehensive treatment of the consequences of forming a recognised family unit, be it one based on marriage (or civil partnership), parenthood or something else, the focus has been on key case studies of the core positive obligations imposed by family law, which were selected for two reasons. First, they were intended to examine how far the concept of obligation has been effectively used through law, to promote and sustain caring within the family, in order to assess whether the law reflects an ‘ethic of care’ as well as ‘justice’. Taking care of family members through the medium of financial support, caring about family members through love and commitment, caring for family members through the performance of care work, and taking account of how family members feel and are affected by the care provided, have all found expression in various ostensibly binding and enforceable provisions of law. They are especially manifested in the 1  J Finch, Family Obligations and Social Change (Cambridge, Polity Press, 1989) 40, drawing on H Land and H Rose, ‘Compulsory altruism for some or an altruistic society for all?’ in P Bean et al (eds), In Defence of Welfare (London, Tavistock, 1985). 2  R Pound, ‘Individual Interests in the Domestic Relations’ (1916) 14 Michigan Law Review 177, 179.

Care, Obligation and Commitment 223 ­ rovisions regarding spousal and child maintenance, and provisions that p may be seen as seeking to solidify the emotional bonds of family life, through the duty to cohabit and the promotion of shared parenting. The case s­ tudies, particularly the discussion of ‘caring relationships’ in ­Chapter 7, sought to provide an opportunity to reflect on what the consequences of taking a more functional approach to the recognition of ‘family’-like relationships, based on caring, might look like. In so doing, the aim was to shift the focus of attention beyond relational identity issues, towards what happens ‘after equality’ (or some form of legal recognition) for diverse family forms has been achieved.3 Secondly, I sought to use the case studies to explore whether the change in our understanding of the notion of ‘commitment’, from a term meaning an obligation or a burden, to a more active form of promise and dedication, reflects a change in attitude regarding the nature and scope of legal obligations placed upon family members to care for each other. I traced the changes in the law relating to the core marital obligations to cohabit and support, and the core parental obligations of maintenance and what is now termed ‘involvement’, in order both to understand how far these reflected shifts in social attitudes and family behaviour and to explain why it has proved so difficult to enforce ongoing legal obligations when families split. The developments traced through the case studies suggest two primary reasons for the problematic nature of legal family obligation, both related to how we conceptualise and understand ‘family’ (whether as a noun, verb or adjective). The first takes us back to where we started in Chapter 1, with the assumption that family members are fundamentally bound together by altruism and love, affection, care and personal commitment. Family life actually does take place in the sphere of emotions and is marked by closeness, not in the domain of arm’s-length rationality. In reconceptualising this family life within the discourse of law, it may not be surprising that the fit between our differing ways of thinking—emotional and legal—is not a good one, or that at various times, those making the law conclude that the issue does not belong in the legal domain at all and is non-justiciable. The second reason lies in the way the law has constructed the legal family as a unit—and one that is constituted by the man. Historically, the rights of women and the status of children depended upon whether they were part of the man’s marital family. Under the influence of liberalism in the nineteenth century, many of the reforms discussed in the case studies have been about displacing the husband/father from the centre of the family and recognising the distinct interests of individual members of that ­family. But such individualism has ultimately served, I suggest, to favour men,

3 See R Leckey (ed), After Legal Equality: Family, Sex, Kinship (Abingdon, Routledge, 2015).

224  The Law of Family Obligations not women or ­children, because men are more easily able to leave one family unit and establish another. Under the further influence of liberalisation in the ­twentieth century, the law developed so as both to reflect and to facilitate the drive to emotional fulfilment that now underpins intimate relationships. The combined effect has been to safeguard male interests. Even when reforms have appeared to displace male dominance and promote female equality within the family, men’s greater economic power has always been re-asserted, diminishing the ability of law to compel men’s compliance with both financial and affective obligations. The discussion in this chapter now broadens the focus beyond the case studies themselves to elucidate these arguments. II.  ALTRUISM, FAMILY OBLIGATION AND NON-JUSTICIABILITY

The history set out in the earlier chapters suggests that the law on family obligations can be understood as passing through three different phases, depending on the extent to which the civil law has been seen as an appropriate mechanism for regulating what is otherwise regarded as the altruistic and private nature of family life. So, at the start of the modern period, family obligation was seen primarily as an issue of morality and religion, rather than of civil law. In the nineteenth and twentieth centuries, it came to be seen as a matter that was amenable to legal regulation through both public and private law, which could be used to improve family behaviour. But in the twenty-first century, it is seen as governed by emotion and psychological factors, and so once more best dealt with outside the justice system. A.  Family Morality and Religious Duty At the start of the period covered by the case studies, in the early nineteenth century, so far as the law was concerned, the nature of a person’s behaviour towards members of his or her family was primarily a matter of morality, governed by religion and hence controlled by the Church courts, rather than the civil law. The obligations of marriage contained within the concept of consortium were enforceable as between the spouses4 through the ecclesiastical courts in suits for divorce a mensa et thoro and restitution of conjugal rights, with, originally, spiritual sanctions (such as excommunication) for

4  The action for ‘criminal conversation’ or other tortious interference with the husband’s rights was against the wife’s lover: see L Stone, Road to Divorce England 1530–1987 (Oxford, Oxford University Press, 1990) ch 9. Stone (ibid at 233) points out that in nearly all other European countries, adultery was a crime.

Altruism, Family Obligation and Non-Justiciability 225 non-compliance with decrees. As was seen in Chapter 3, such remedies were in practice mainly invoked as a means to secure maintenance in the form of alimony or through making a private settlement, thus monetising the duty to cohabit. By the time the ecclesiastical jurisdiction was abolished, it had become recognised that the power of the Church to influence behaviour was diminished: even the threat or imposition of imprisonment did not guarantee a return by a deserting spouse to cohabitation. In this period, the civil law only became involved in family affairs when these impinged on the public purse, or property rights. The Poor Law was a necessary response to failures in family solidarity; the elderly or incapacitated, or a mother and her children, constituted a potential drain on the resources of the parish if they had no kin willing to support them. But despite potentially harsh punishments, including imprisonment, the authorities were often ineffective in recouping their costs, and were forced to recognise that it might be sensible to accept that men were more likely to support their current families than those they left behind. For the more prosperous, marriage settlements, separation agreements and wills might entail legal proceedings in the common law or Chancery courts, and these might concern ‘family’ issues, such as whether to enforce provisions for maintenance or how far to control a father’s rights of guardianship. But in so far as these cases might involve the ‘welfare’ of the parties’ children, this was understood in terms of morality and religious c­ onformity,5 and the civil courts were divided over how far they could allow the spouses to sidestep moral and religious precepts and evade the ecclesiastical jurisdiction and canon law principles by private agreement. The only time that maintenance for the wife (and perhaps the children through her claim) might come to the attention of a civil court was when a trader attempted to enforce a debt against the husband, and the court’s concern was with the issue as a commercial, not a family, matter. It does not follow that there was no interest in what went on within the privacy of the family unit. There was plenty of detailed scrutiny of how people behaved, both by the Church courts and by the civil courts when they did have to deal with a family matter. But the civil law followed the canon law and upheld the right of the husband or father to dictate the lives of ‘his’ family members in most instances, as right and proper, moral and Christian. There was little scope left in which the civil law could be used to ‘intervene’ and disagree with him.

5  See, eg, two wardship cases: Shelley v Westbrooke (1821) Jac 266: Shelley, as an atheist, was denied custody of his children; Wellesley v Beaufort (1827) 2 Russ 1, Wellesley v Wellesley (1828) [1824–34] All ER Rep 189, HL: father denied custody because he had scandalously flaunted his mistress and encouraged his children to swear. The decision of Lord Eldon LC in the Court of Chancery is reported in detail in The Annual Register (1827) 297–310.

226  The Law of Family Obligations B.  Law Reform and Obligation The case studies demonstrate a major shift in attitude during the nineteenth century regarding the role of government and the power of law to affect and improve human, including family, behaviour. The use of law to seek to reform behaviour became a key tool of social progress, along with sewers, gaslights and schooling. Various approaches were taken to reforming family law, and the law of family obligation, from using the coercion of the new Poor Law to try to encourage family members to provide financial support for each other, to making private law remedies available to women to obtain maintenance and custody of their children. Such reforms demonstrated the willingness of the state to guide individuals as to the appropriate family behaviour and norms they should be following, and the confidence that was felt in the effectiveness of law to influence family behaviour. The transfer of the function of policing family behaviour from the ecclesiastical to the secular courts in 1857 did not mean that ‘morality’, particularly sexual morality, was no longer a concern, of course. The case studies show how entitlement to both maintenance and custody or access was determined, to a considerable extent, until well into the twentieth century, by the sexual double standard, which released a husband from the duty to maintain a ‘guilty’ wife, proclaimed her unfit to care for her children and reinforced the shame attached to her misconduct, so as to act as a general deterrent to all women. Nonetheless, there was considerable faith amongst first-wave feminists and others in the power of law to influence and govern behaviour to the advantage of women, and to educate the lower classes in particular as to appropriate norms and attitudes of family conduct. Law reformers promoted the creation of new legal remedies, placed directly in the hands of women, such as a direct right to seek maintenance from a spouse or father, and new legal principles, such as a more sympathetic stance towards the claims of ‘motherhood’ in respect of custody and access to children. These developments were a result of the growing influence of both economic and social liberalism, and its accompanying recognition of the interests of individual family members, especially wives and mothers. This individualism seems to have become allied with the view, increasingly ­prevalent in the second half of the twentieth century, that the purpose of intimate relationships is to provide emotional self-fulfilment for the p ­ arties, and that they are entitled to search for this through a succession of relationships rather than to settle for an unsatisfactory status quo. It eventually became accepted legal policy that not only should no moral blame or stigma attach to most instances of marital breakdown, but that the individual’s wish to search elsewhere for emotional self-fulfilment should be facilitated, through a clean break from a spouse. Compare the sentiment of

Altruism, Family Obligation and Non-Justiciability 227 Sir William Scott at the end of the eighteenth century, with that of Ward J in the late twentieth: For though in particular cases the repugnance of the law to dissolve the ­obligations of matrimonial cohabitation may operate with great severity upon individuals; yet it must be carefully remembered that the general happiness of the married life is secured by its indissolubility.6 Whilst this court deprecates any notion that a former husband and extant father may slough off the tight skin of familial responsibility and may slither into and lose himself in the greener grass on the other side, nonetheless this court has proclaimed and will proclaim that it looks to the realities of the real world in which we live, and that among the realities of life is that there is a life after divorce.7

Reform of the law became necessary to allow those caught up in unsatisfactory marriages to free themselves, both emotionally and financially, through easier access to divorce, and the ability to achieve a financial clean break from the ex-spouse. But liberalism also extended to the responsibilities of individual family members. Women who sought equality of treatment in property law and economic opportunities were increasingly expected to make themselves capable of financial independence. The obligation of ­support was turned into an obligation to share the marital property. The message that financial self-sufficiency after divorce is the desirable goal had become dominant, notwithstanding the lack of economic equality between men and women. In the parent/child relationship, it seems that shifting attitudes, perhaps derived from psychological theory, perhaps from the gendered organisation of family roles, produced similar changes to the law. Legal policy moved away from focusing on marital misconduct as a sign of unfitness to parent, to an emphasis on the importance of the mother, and then of the father, to the child’s wellbeing. But just as it came to be recognised, in relation to marriage, that the obligation to cohabit could not be enforced through the restitution of conjugal rights decree or the refusal of divorce, so it was regarded as inappropriate to enforce an obligation on the non-resident parent to maintain contact with a child. Instead, that parent’s obligation towards his or her child was, until recently, primarily to be fulfilled through the payment of maintenance for the child. Attempts to use the law (both private, through civil court actions taken by the parent with care, and public, through enforcement by the social security authorities) to improve the level and ­frequency of maintenance were therefore made intermittently ­throughout

6 

Evans v Evans (1790) 161 ER 466, 467. Delaney v Delaney [1991] FCR 161, 165. But note that divorce can still be withheld because, although it is clear that the marriage has irretrievably broken down, the applicant fails to make out one of the specific ‘facts’ by which this must be proven: Owens v Owens [2017] EWCA Civ 182, [2017] 4 WLR 74. 7 

228  The Law of Family Obligations the twentieth century. The Child Support Act 1991 constituted, perhaps, the last major attempt by policy makers to use law as a tool to enforce ­family obligation, through what was meant to have been a concerted effort by the state to change the attitude of non-resident parents towards supporting their children. Its failure confirmed an inconvenient truth—that a desire to move on from an unsatisfactory relationship and try again takes priority for many parents over sustaining their ties to the children of that relationship. ­Moreover, establishing an apparently coercive regime to reinforce those bonds, while at the same time allowing the parent to leave the first family and start a new one in the search for emotional self-fulfilment, sent a mixed message that merely added to the chaos8 or antinomies9 that seemed to be inherent in family law and policy. C.  The Sphere of the Emotions Subsequent reforms appear to have reflected the view that it may be more effective to seek to use the law’s expressive capacity to send messages and attempt to nudge family members towards appropriate ways of dealing with each other.10 That approach coincided with and reflected a return to the view that family matters are largely non-justiciable. This time round, the reason was not because they concern religion and morality, and therefore do not pertain to the legal sphere, but because they concern human emotions, about which courts and lawyers have no particular expertise and for which legal remedies may be inappropriate and unhelpful. Pursuing the logic that had seen the abandonment of the decree of restitution of conjugal rights as a means of enforcing marital duty, irretrievable breakdown rather than spousal misconduct came to be accepted as the appropriate ground for granting a divorce. Moreover, the view advanced by the Law Commission that the divorce court should not conduct an inquest into whether a marriage has truly broken down irretrievably, marked a step back from the assumption that family law could be used as a device literally to pass judgment on family behaviour. It would be quite impracticable, and the spouses would be ‘better judges of the viability of their own marriage than a court can hope to be, even with the most elaborate and searching inquest’.11 So the function of divorce law, and of the courts administering it, came to be seen as determining the consequences of the breakdown of the ­relationship

8 

J Dewar, ‘The Normal Chaos of Family Law’ (1998) 61 MLR 467. A Diduck, ‘What is Family Law For?’ (2011) 64 Current Legal Problems 287. 10 J Eekelaar, ‘Family Law: keeping us “on message”’ [1999] Child and Family Law ­Quarterly 387; H Reece, Divorcing Responsibly (Oxford, Hart Publishing, 2003). 11  Law Commission, Reform of the Grounds of Divorce: The Field of Choice (Law Com No 6, 1966) para 71. 9 

Altruism, Family Obligation and Non-Justiciability 229 rather than adjudicating on the breakdown itself, and the parties were encouraged to settle those consequences between themselves. Despite the attempt to reframe family breakdown as a non-legal issue (as indeed, it is in most respects), the allocation of the marital resources and the determination of ongoing financial obligations are certainly m ­ atters that remain amenable to resolution in accordance with a legal frame of ­reference. The courts accordingly continued to lay down an immense body of case law concerning financial remedies on marital breakdown and divorce, and it has been proposed, but not yet enacted, that they should have the jurisdiction to exercise another, though different, ‘principled ­discretion’ to determine ­financial relations at the end of a cohabiting, rather than marital, ­relationship.12 Child maintenance, too, is an issue that can be cast in legal terms. Indeed, in the form of ‘child support’, it is subject to an excessively technical and vast body of rules, which require a very high level of legal expertise to understand and apply. This is unfortunate given that the rules are not administered by lawyers and are expected to be used by parents as a guide to making private ‘family based arrangements’ without any legal assistance. Yet even though money and property are still subjects that the law is regarded as capable of dealing with, both the spousal and parental obligations of support seem to have been recast as social or moral norms rather than legal duties. It is now acceptable to move on and form a new family, and the law must facilitate this. Spouses who try to block this by resisting a financial clean break, or parents whose demands for child maintenance are seen as excessive or unreasonable, are regarded as letting their emotions override their good sense and as acting immorally by using financial matters as a proxy for their unwillingness to face up to the end of the relationship. The discouragement of recourse by parents to the formal system of enforcing the child maintenance obligation is presented as an aspect of the law’s general inappropriateness for determining issues concerning the upbringing of children. Once marital misconduct ceased to be used as the touchstone for the allocation of custody or access, the focus shifted squarely to the ‘welfare’ of the child, a concept itself imbued with other moral judgments as to the appropriate behaviour and fitness of the respective parents. But the existence of competing psychological theories concerning child adjustment and the impact of divorce, and the inherent uncertainty of predicting whether arrangements for a child’s future care may be likely to advance his or her wellbeing, or expose him or her to harm, revealed the limitations of the court process. Judges cannot necessarily be sure that the decisions they make will actually be in the best interests of children, because they do not

12  Law Commission, Cohabitation: The Financial Consequences of Relationship ­Breakdown (Law Com No 307, 2007).

230  The Law of Family Obligations have the expertise to assess the psychological chances of success, and even with the assistance of experts, they cannot predict the future. Moreover, one finding from the research that does seem to command general support is the message that conflict between the parents is likely to be detrimental to the child’s development and adjustment. The very fact that there is a ‘dispute’ between litigants connotes that the parties occupy opposing positions and that these will be advanced forcefully in the court forum, with the potential to make the conflict between the parents even more bitter and distressing for the child. It can therefore be persuasively argued that disputes over children should be kept out of the family courts, since they are ultimately about nonjusticiable issues that would be better resolved elsewhere. Given that family breakdown is not regarded in policy terms as a ­(mental) health issue until it reaches a very serious level of distress on the part of either the adults or the child,13 the only people who can be charged with the responsibility for sorting out post-separation parenting arrangements are the parents themselves. In the modern, ‘reform’ era, divorce or separation had been regarded as ipso facto engaging the interest of the state and giving it both the right and the duty to ‘interfere’ in the privacy of the family for the good of society and the good of the children.14 But the new ‘communitarian’ turn at the end of the twentieth century and in the new millennium put the onus on parents to resolve any disputes they might have arising out of the end of the relationship, and focused on the ‘expressive’ and ‘channelling’ functions of law to do so.15 Law reforms now sought to steer parents towards information and guidance about good parenting and how to deliver it.16 They were advised to avoid the courts and resolve their disputes with the assistance of mediators. To try to make sure that they did so, legal aid for representation in most kinds of family disputes was withdrawn, so that unless parents had sufficient resources to pay or had the determination to act in person, they were likely to be deterred from taking their case to court.17

13  For criticism of this view, see G Douglas et al, ‘Supporting children when parents separate: a neglected family justice or mental health issue?’ [1996] Child and Family Law Quarterly 121. 14  See, eg, the role of the King’s/Queen’s Proctor to investigate divorcing parties to ensure they had not condoned, colluded or connived in the divorce: S Cretney, Family Law in the Twentieth Century: A History (Oxford, Oxford University Press, 2003) 178–88; and the requirement for the court to consider arrangements proposed for the children before granting a divorce: G Douglas et al, ‘Safeguarding children’s welfare in non-contentious divorce: towards a new conception of the legal process?’ (2000) 63 MLR 177. 15  C Sunstein, ‘On the Expressive Function of Law’ (1996) 144 University of Pennsylvania Law Review 2021; C Schneider, ‘The Channelling Function in Family Law’ (1992) 20 Hofstra Law Review 495. 16 C Piper, The Responsible Parent (Hemel Hempstead, Harvester Wheatsheaf, 1993); ­Eekelaar (n 10); Reece (n 10). 17  N Lowe and G Douglas, Bromley’s Family Law, 11th edn (Oxford, Oxford University Press, 2015) 10–14.

The Gendered Legal Approach to the Family Unit 231 Thus, a position has been reached where the state’s primary concern in regulating family obligations is to minimise the level of dispute between the parties in arriving at orderly arrangements for their lives and those of their children into the future. Seeking to use legal mechanisms to enforce family obligations once the relationship has ended runs counter to this objective, because it is assumed that it increases the likelihood of present and future dispute between the parties. By contrast, a clean-break financial settlement facilitates the desire of the spouse who wants to end the marriage, to leave the relationship behind and start afresh, because there will be no continuing financial ties to the ex-spouse. It also makes the negotiation of the necessary financial and property arrangements potentially more straightforward, since only the parties’ assets need to be divided, and these will usually be allocated either according to needs, or on a sharing basis that reinforces the notion of marriage as a partnership in which both spouses ‘contribute’, in their different ways, to the welfare of the family. Yet the logic of the clean break has not been carried over into the ­promotion of shared parenting after separation. Instead, here the law seeks to advance the welfare of the child through continuing involvement of both parents in the child’s life.18 Parents have been given a clear steer as to the appropriate style of post-separation parenting they should aim for, which, although not specifically determined by division of the child’s time, is likely to be understood as such. This in turn influences the amount of money to be transferred between the parents, since greater shared time means a more equal bearing of costs and less need to pay money over from one parent to the other. This is supposed to enable a simpler, more straightforward calculation of child maintenance, which the parties can sort out for themselves without needing to use the child maintenance service. Family obligation, then, in so far as it may still need to be articulated through family law, is not supposed to require the use of a family justice system to make it manifest. III.  THE GENDERED LEGAL APPROACH TO THE FAMILY UNIT

The second reason why it has proved difficult to enforce obligations lies in the gendered nature of family law. Even if this has been moderated by reforms aimed at women’s equality, and even if it can work in women’s favour, adopting a ‘gender neutral’ approach in a highly gendered world results in a continuing male orientation in understanding and effect. The traditional family was a unit, headed by the husband/father and with only its common interests recognised by the law—and, famously, as Blackstone explained, those interests were identical with those of the man, because by

18 

Children Act 1989, s 1(2A).

232  The Law of Family Obligations marriage, ‘the husband and wife are one person in law’.19 To suggest that a husband might be legally obliged to maintain his wife or children on anything other than a rhetorical level would have been meaningless. He d ­ etermined the way in which the family would operate and the state ­recognised him as having the power and authority to do so. If the wife or a child left the home against his wishes and without his having acted with cruelty, there could be no question of his being required to support them nonetheless.20 As the separate interests of individual family members other than the male head came to be socially recognised, so, gradually, the law was reformed to give effect to such recognition. But it is clear that each time a major advance in the position of the wife/mother was achieved, the advantage gained might be undermined through competing attempts to restore the husband/father’s dominant position in relation to ‘his’ family unit. So, under the canon law, and the law that succeeded it, the maintenance right of a wife who left her husband ‘without cause’ was suspended as long as she remained in desertion, and there is no evidence to suggest that the ­restitution decree was effective in reuniting a deserting husband with his wife. A husband might well have been resistant to the suggestion that he had an enforceable obligation towards a wife with whom he no longer wished to live, still less towards a wife who had herself taken the decision to leave, for the family ‘unit’ he had headed no longer existed. Even when women were granted the remedy of a maintenance order from the magistrates’ courts, this was of limited utility, since many husbands resisted the law through non-payment.21 Much more recently, in the 1970s, many husbands found it difficult to accept that matrimonial fault on the part of a wife had ceased to determine the financial provision she could receive on divorce. Their sense of grievance was compounded by the requirement on the courts to consider the minimal loss principle, that is, to consider what the parties’ financial position would have been if the marriage had not broken down, when making orders. What had been intended as a protection for wives divorced against their will, was presented as an assault on men either similarly abandoned by their wives, or struggling to establish life with a new partner and family. Powerful lobbying by men’s groups, with considerable support in Parliament, led to the dropping of the principle and the promotion instead of the clean break, which had been judicially endorsed by the House of Lords. While the clean break

19  Sir W Blackstone, Commentaries on the Laws of England (London, A Strahan, 1800) vol 1, 441. 20  It did not follow that agreements were not reached to provide such support, of course: see Stone (n 4) pt VII. 21 O McGregor et al noted the hostility of men to paying what they owed: Separated Spouses: A study of the matrimonial jurisdiction of magistrates’ Courts (London, Duckworth, 1970) 22, 87, 106, 130.

The Gendered Legal Approach to the Family Unit 233 enabled a woman to avoid dependence on maintenance from a potentially unreliable ex-husband, she still had to continue to hope for his compliance if she needed child maintenance as well, and she might well have to trade her long-term financial interests in exchange for current economic stability for herself and her children. The reverse was true for husbands—their ­earning capacity was not regarded as a marital asset subject to future sharing, so the short-term financial hardship they might suffer by giving up capital could generally be made up with higher income in the coming years,22 and child maintenance was set at a comparatively low level and poorly enforced. The clean break and the demand for an end to indefinite maintenance were predicated on viewing each family member as a separate individual. In the case of a wife, it was further assumed that she was socially and ­economically equal to the husband. A dependent wife then found herself in a quandary—if the family was no longer a unit, and she was ostensibly the equal of her husband, on what basis should she look to him for continuing support? Fortunately for wives, the judiciary has evinced some recognition of the economic reality behind the legal rhetoric, in setting out the ­principles (of need, compensation and sharing)23 that underpin financial remedies on divorce, including on an ongoing basis. But there have been continuing attempts to protect the interests of (usually) husbands by seeking to create exceptions or set boundaries to the scope of the principles through the developing case law24 or legislative amendments.25 The male orientation of the thinking about financial obligations between spouses is reflected in the terms of the debate: spouses (read, wives) are expected to demonstrate their ‘contribution’ through care ‘work’ in order to ‘earn’ their fair share of the marital assets. Assets brought into the marriage by one party should be left out of account unless they must be included in order to meet a spouse’s needs, because they do not form part of the assets of the family ‘unit’. The same inclusionary and exclusionary approach applies to the meeting of obligations to children. Significant elements of the cost of raising a child are absorbed within the overall costs of a family, and it is only when the unit

22 S Jenkins, Marital splits and income changes over the longer term (Colchester, ISER, 2008) 16. 23  Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618. 24  See G Douglas, ‘Women in English family law: when is equality equity?’ [2011] S ­ ingapore Journal of Legal Studies 18, including by the recognition of ‘stellar’ contributions to the ­welfare of the family, the ring-fencing of ‘non-matrimonial’ property, the reintroduction of a ‘ceiling of ‘needs’ for wives of the uber-rich, and the recognition of ‘unilateral assets’ generated and held by one party during the marriage. Of course, there will occasionally be wives who benefit from this approach as well as husbands—see, eg, Sharp v Sharp [2017] EWCA Civ 408—but this does not mean these exceptions are therefore appropriate. 25  Eg through the Divorce (Financial Provision) Bill 2017–19 (HL) introduced by B ­ aroness Deech, available at publications.parliament.uk/pa/bills/lbill/2017-2019/0026/lbill_2017-20190 026_en_2.htm#l1g1.

234  The Law of Family Obligations is broken up that these may become distinct and identifiable. Fathers who were happy to meet such costs when living with their children may baulk at doing so if they are no longer in (such close and continuous) contact with them, especially if they are in dispute with the mothers over the extent of that contact. Where they have children in a new relationship or have become a step-parent to their partner’s children, the new family now constitutes their family unit, and many will once more be happier to meet the costs of this unit, the benefits of which they share, than those of the family with whom they no longer live. Where the children of the first family are themselves now part of a new family unit established by their mother, the father may be particularly reluctant to pay money over to her, to spend on herself and her new partner, as he may see it. When the Child Support scheme was enacted to attempt to reinvigorate the effort to require fathers to maintain their children, the level of opposition by fathers was unparalleled in the history of family law. A series of concessions to meet fathers’ preference for their ‘social’ rather than biological/legal family, and indeed their preference for paying less altogether, duly resulted. A similar pattern can be seen in the development of the law on postseparation care for children. Once again, while there will certainly have been mothers for whom the law has worked very favourably, the general effect has been to ensure that fathers are not disadvantaged when a reform is put in place. When fathers lost their (near) absolute authority to determine whether mothers should have any continuing contact with their children after the marriage broke down, the impact was probably limited. Mothers were not given a right to custody or access but only the ability to seek a concession by way of order from the court, and ‘guilty’ mothers either were not eligible to seek an order or, once divorce became more common, would be refused it. They remained dependent upon the goodwill of the father to negotiate a private settlement giving them care or access to their children. Just when legal sentiment towards mothers became more tolerant, and they were placed in a more equal position with fathers, the ‘welfare of the child’ became more important and mothers’ matrimonial misconduct continued to be held against them on the basis that it showed they were not ‘fit’ parents. Even when that position became softened, fathers were able to retain their power and decision-making authority in respect of their children by the creation of split orders for custody to the father and care and control (ie the care ‘work’) to the mother. When mothers finally became more economically able to leave an unsatisfactory marriage and take their children with them, they could not secure a clean break from the father (as distinct from a husband’s securing a clean break from a wife) because contact, indeed sharing the child across both parents’ homes, has now become understood to be a right of the child and is believed to be in the child’s best interests, so long as the non-resident parent (still mainly fathers) wants it and is not

Obligations and Commitments in Family Law 235 a danger to the child. But if a father does not show such commitment then the value that his ‘involvement’ is supposed to bring to the child has to be forgotten—while mothers can be ‘made’ to permit contact, fathers will not be ‘made’ to exercise it. In Chapter 1, it was argued that the concept of commitment is gendered. It was suggested that for women, commitment may be more likely to be ­experienced as structural commitment or burden, because they are more likely to be engaged in care in the material sense of ‘caring for’ their children. In the past (and for many women, still), their greater economic vulnerability and dependence made it difficult for them to seek emotional self-fulfilment by leaving an unsatisfactory relationship. The earlier chapters have shown that the remedies provided by private family law, in conjunction with changing social attitudes to women’s employment and ‘role’, went some way to reducing these constraints, but usually at a cost in terms of reduced income and living standards and the likely continuing responsibility for the primary care of their children. Men, by contrast, may be more likely to experience commitment as ­personal, to be demonstrated by a promise, or other evidence of ­dedication, and to be shown in the form of ‘caring about’ their spouse or children. Postdivorce maintenance is discouraged in favour of a clean-break ­settlement, usually to the long-term advantage of the husband and disadvantage of the wife. Legal measures are not used (although as was noted in Chapter 6, they potentially could be) to enforce shared parenting against the wish of the non-resident parent, and are not used effectively to require the due payment of child maintenance. The result is that the wife/mother will bear the structural burdens created by the past marriage or relationship. The husband/ father’s ‘personal commitment’ will be used as the justification for him to have a right to continuing involvement with his child, while his lack of such commitment will be used to excuse his failure to fulfil his obligation to have such involvement. The extent to which either spouse or parent can ‘move on’ to find greater emotional fulfilment is clearly gendered too, and so, therefore, is the whole thrust of modern family legal policy.

IV.  OBLIGATIONS AND COMMITMENTS IN FAMILY LAW

In Chapter 1, I also suggested that legal family obligations should be described as ‘soft’ obligations because their applicability and extent are subject to negotiation between the parties (to the extent of being capable of being bargained away completely, as is the case with a clean break settlement waiving a spouse’s right to maintenance), and to the determination of the court applying a broad discretion that may result in an applicant’s receiving nothing at all (such as refusing a parent all contact with his child).

236  The Law of Family Obligations In this, they are similar to civil remedies in the law of obligations.26 Yet it is clear that the law has frequently proved to be unsatisfactory and ineffective as a remedial (adjustive)27 device through such ‘family law’ measures. Moreover, through deterrent measures restricting access to the courts, it now appears to be regarded as positively undesirable to make legal remedies available for the non-performance of obligations, even to the members of a disrupted family. At most, it might be argued that the extent of the law’s role is to proclaim the norms by which families should deal, by themselves, with the problems arising from the breakdown of the relationship and then leave them to get on with it. Of course, it could be argued that this has always been true, and that only a minority of spouses and parents ever resorted to the courts to resolve their disputes. But in the ‘reform’ era of family law, at least, the courts became more readily accessible to them, and they were not deliberately deterred from using them if they wished. The novel legal device of setting out guiding principles in legislation ­demonstrates this belief in the educational function of law, with the inclusion of declaratory statements that are more akin to principles proclaimed in a government White Paper or a Law Commission report, than to a statute. Take, for example, section 1 of the Family Law Act 1996, which was intended to set out the principles that would have governed a revised divorce law but which was never fully brought into force. While directed to the courts and those ‘exercising functions’ under the parts of the Act dealing with divorce and legal aid, it originally stated:28 (a) that the institution of marriage is to be supported; (b) that the parties to a marriage which may have broken down are to be encouraged to take all practicable steps, whether by marriage counselling or otherwise, to save the marriage; (c) that a marriage which has irretrievably broken down and is being brought to an end should be brought to an end— (i) with minimum distress to the parties and to the children affected; (ii) with questions dealt with in a manner designed to promote as good a continuing relationship between the parties and any children affected as is possible in the circumstances; and (iii) without costs being unreasonably incurred in connection with the procedures to be followed in bringing the marriage to an end; and (d) that any risk to one of the parties to a marriage, and to any children, of violence from the other party should, so far as reasonably practicable, be removed or diminished.

26 See M Tilbury, ‘Remedies and the Classification of Obligations’ in A Robertson (ed), The Law of Obligations: Connections and Boundaries (London, UCL Press, 2004) 20–21. 27  J Eekelaar, Family Law and Social Policy, 2nd edn (London, Weidenfeld & Nicolson, 1984) pt two. 28  Only paras (a) and (b) are still in force: Children and Families Act 2014, s 18(2)(a).

Obligations and Commitments in Family Law 237 Similarly, section 1 of the Children Act 1989 provides that: (1)

When a court determines any question with respect to— (a) the upbringing of a child; or (b) the administration of a child’s property or the application of any income arising from it,

the child’s welfare shall be the court’s paramount consideration. (2)

In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. (2A) A court … is as respects each parent … to presume, unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare.

This provision is directed to the court, but since parents are encouraged to resolve their disputes without resorting to litigation, it provides important guidance on what is expected of them. So too, section 1 of the Family Law Act set the ‘tone’ and approach that courts and professionals would have been expected to use in dealing with divorcing couples, thus guiding the couples themselves on how to divorce ‘responsibly’.29 When these kinds of exhortation are put together with the measures introduced to deter the use of the courts or the Child Maintenance Service in favour of private settlement, it seems as if we find ourselves both in Helen Reece’s post-liberal world of transmitting messages, and simultaneously in a neo-liberal one. In this neo-liberal world, the state has withdrawn from engagement with even post-separation families, and individual family members must battle with each other for their future security as best they can.30 A.  Laissez-faire Family Law? It could therefore be argued that it would now make sense for governments to accept that the law should overtly reflect the focus on emotional selffulfilment that drives people’s entry into, and exit from, intimate relationships in modern society, and the view that obligations within a family are voluntary and altruistic, and cannot be enforced against the will of the obligor. This has already effectively happened in relation to obligations before a final separation. The private law has never sought to enforce obligations in the intact family, and the spousal maintenance duty prior to divorce has (except for wealthy spouses seeking maintenance pending suit) largely 29 

Reece (n 10). a similar conclusion by a very experienced practitioner, see M Stowe, ‘One couple: one lawyer?’ [2017] Fam Law 737, 739. 30  For

238  The Law of Family Obligations become a dead letter. Even on divorce, the maintenance obligation between the spouses has largely disappeared, except where it stands in lieu of capital as part of an overall financial settlement on divorce. And it is accepted in relation to the position of a non-resident parent that he or she will not be compelled to have contact with his or her child after separation. In shaping future law, then, policy makers could draw directly on the understanding of social family obligations elucidated by Finch and Mason,31 as being derived from guidelines and sets of criteria rather than precise rules, and always negotiable to fit the parties’ individual circumstances. The function of the law would be primarily expressive. Building on some initial attempts that have already been published,32 the strategy would be to set out in statute and soft law—ideally in an accessible way—guidance for parties to use in negotiations, for example as to preferred arrangements for shared parenting, or preferred financial outcomes on divorce or cohabitation breakdown. To make negotiations simpler, the parameters could be drawn quite narrowly; for example, in divorce, the default could be that marital property should be shared equally, and periodical payments could be time-limited by statute.33 It would be recognised (as is already the case) that the official guidance could not constrain the parties either in terms of the arrangements they wished to make, or by requiring them to make any at all. It would be a matter for policy makers whether they thought it appropriate to offer any safeguards to redress any power imbalance between the parties in reaching their ‘settlements’, such as because of domestic abuse. It would be accepted that the state would cease to have an interest in the financial implications of a divorce (or breakdown) settlement and that it would bear the cost of maintenance of parents and their children if necessary, through the provision of social security as a safety net, if the other spouse/parent declined to do so. The parties would be encouraged to make property agreements before and during the marriage/relationship to limit scope for dispute later and to avoid, if they wished, the default outcome set out in statute. There would be little point in trying to prohibit child arrangements agreements contrary to the accepted understanding of the welfare principle because of different cultural or religious norms, since there would be no expectation that any arrangement made by the parents would need to be scrutinised, still less approved, by a court. The remedial role of the family justice system would

31 

J Finch and J Mason, Negotiating Family Responsibilities (London, Routledge, 1993). eg, Family Justice Council, Guidance on ‘Financial Needs’ on Divorce (2016) at www.judiciary.gov.uk/wp-content/uploads/2013/04/guidance-on-financial-needs-on-divorcejune-2016-2.pdf. A guide for litigants may be downloaded at www.advicenow.org.uk/guides/ survival-guide-sorting-out-your-finances-when-you-get-divorced. 33  As proposed by Baroness Deech in her Divorce (Financial Provision) Bill 2017–19 (HL), cl 5(1)(c) (see n 25). 32 See,

Obligations and Commitments in Family Law 239 be reduced because arrangements would be what the parties had ­chosen (either by agreement or default). They might or might not be enforceable as contracts, as is already the case with family-based arrangements for child support. The law would be presented as upholding the primary values of individualism and autonomy, in order to facilitate formal equality and the goal of emotional self-fulfilment. Family law would still have constitutive and protective functions. The former would be to determine people’s relational identity by setting out the rules of eligibility for marriage, parenthood and any other recognised f­ amily relationships (such as, in Australia, de facto and caring relationships). This could still be seen as a very important function in terms of making ­relationships public to others, and giving these relationships formal recognition by the state, but the status thus created would be somewhat empty since it would not import much by way of legal (as distinct perhaps from social) consequences, other than the provision of basic protection from abuse and some tax exemptions. It might become harder to justify the extension of legal recognition to more diverse kinds of relationship. After all, the arguments for reform of the law for cohabitants or others in caring relation­ships are focused on providing them with improved remedies, not on ­providing them with a status in and of itself. If the consequence of recognition is no meaningful improvement in the remedies available to them, then it is difficult to see what the point of ‘recognition’ other than for the purposes of relational identity would be. On the other hand, it could be argued that extending recognition of the relationship should be easier. Marriage could not be ‘undermined’ by extending ‘status’ of some kind to cohabitants or others, because marriage itself would have limited consequences.34 In many respects, of course, this is exactly the legal position that we have now. In this model, family law is about linkages, rather than ties. It usefully tells us who is legally connected to whom, but it takes little interest in attaching meaningful duties to the parties concerned. It hardly presents a positive picture of the value that is attached by society to families and the ‘work’ they do, and to promoting an ethic of care. The question arises, therefore, whether there is an alternative scenario, in which family law could do more to provide meaningful recognition of caring, both within traditional relationships and beyond. Here, one can learn from the Australian experience, as well as draw on the reform proposals made in England and Wales.

34 For early ‘functionalist’ calls to abolish the consequences flowing from marriage as a status, though with the goal of extending remedies rather than reducing them, see E Clive, ‘Marriage, An unnecessary legal institution?’ and B Hoggett, ‘Ends and Means—the Utility of Marriage as a Legal Institution’ in J Eekelaar and S Katz (eds), Marriage and Cohabitation in Contemporary Societies: Areas of legal, social and ethical change: an international and interdisciplinary study (Toronto, Butterworths, 1980).

240  The Law of Family Obligations B.  Remedial Family Law It could be argued that the key to achieving better recognition of care is to combine the law’s remedial and expressive functions more deliberately and consistently. The object of providing a legal ‘remedy’ is to make good a loss or repair a detriment, or to reverse an unjust enrichment. It was suggested in Chapter 1 that one can justify the imposition of obligations of care on those within a family on three possible bases. In the case of children, bringing a dependent child into the world or assuming the care of a child (say, through adoption) creates a duty to care in all its senses in respect of that child until he or she can function independently. In the case of adults, they can make a mutual commitment in marriage, or through other express forms of contracting, to care for each other, giving rise to binding obligations. Where such mutuality is absent, however, it was argued that it does not follow that just because one person provides care for another, that other should be duty-bound to make good any loss that results to the carer; otherwise, there would be no place for genuine altruism and the care recipient would have no agency and choice as to whether to accept or refuse the care.35 Something additional is required, and it was suggested that it is the fact that the care recipient has accepted the gains and benefits of the relationship that justifies the imposition of a duty to redress any imbalance between the parties. The idea that contribution, on the one hand, and acceptance (or acquiescence), on the other, together give rise to claims and obligations in respect of each other, reflects both an ethic of justice and an ethic of care. i.  Adult Relationships A remedial family law approach focusing on the losses and the gains of a relationship fits the modern liberal individualist approach, just like a cleanbreak settlement, by allowing adult parties at the end of their relationship to draw a line underneath it while redressing the economic imbalance that has arisen in consequence of it. It thus goes with the grain of current social ­attitudes. But unlike a pure focus on ‘disadvantage’, I suggest that by emphasising the willingness of the partner to receive the benefits of the relationship as well, it can be demonstrated that both parties gained (or expected to do so) as well as lost from the relationship.36 The law can then be moved away from viewing the claimant as a dependant and supplicant who is seeking

35  See J Eekelaar, Family Law and Personal Life (Oxford, Oxford University Press, 2006) 47–48; J Tronto, Moral Boundaries: A Political Argument for an Ethic of Care (London, ­Routledge, 1993) 106–08. 36  For a similar approach, albeit from the position that the stronger party should not be able to ‘freeload’ off the weaker, see M Weiner, ‘Caregiver payments and the obligation to give care or share’ (2014) 59 Villanova Law Review 135, 150.

Obligations and Commitments in Family Law 241 relief of her needs. Instead, it can be seen to be concerned with giving due recognition to the entitlements each party has accrued through the investments they both made in the relationship, and with providing fair recognition of both the gains and the losses each has incurred. A claim to provision at the end of a marriage can be based on the p ­ arties’ mutual agreement to an equal partnership, as evidenced by the marriage contract (subject to any lawful marital property agreement which says ­otherwise), so that the starting point for determining entitlement would be equal shares of the parties’ combined assets, as established in the current case law.37 But this would only be the starting point. The rationale of gain and loss should be used to determine the final outcome, because a crude application of a principle that mandates ‘equal shares of the marital acquest’ is unlikely to remedy the disadvantage suffered by the financially weaker spouse in many cases. As Baroness Hale has declared, the objective should be to ensure that both parties are provided with ‘an equal start on the road to independent living’.38 That requires a comparison of how readily each can adjust to, bear and make good the loss of the relationship, and, as is well understood by the courts, it may well therefore justify unequal shares and ongoing financial provision for the weaker party. Exactly the same reasoning logically applies to those in non-marital ­relationships. But the fact that spouses did enter into a (default) marital contract provides a simple point of distinction for those who would wish to treat marriage and non-marital relationships differently. By contrast, the regime envisaged for those who cohabit could be justified by the investment (the ‘sacrifice’ or ‘contribution’) made by the claimant, and willingly accepted or acquiesced in by the partner, but assessed according to the loss/gain incurred. (It is accepted that in many cases where the parties have l­imited means, the end result would be the same whether the parties had been married or not.) One could take a leaf from the Australian book by making the regime available to any partnership that demonstrated the ­provision and acceptance of care, if that would make reform more likely to be enacted. Or one could limit eligibility to cohabitants without upsetting marriage defenders, because all that this would be doing, in effect, is to widen (by statute) the scope of an estoppel claim. ii.  The Parent/Child Relationship I have argued that, in the case of a dependent child, causation is a sufficient basis for attaching the responsibility to care (in all its senses) in respect of 37  See ch 7. Whether any assets should continue to be ‘ring-fenced’ to reflect their pre- or extra-marital acquisition is a matter for debate: see Hart v Hart [2017] EWCA Civ 1306. 38  Miller v Miller: McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618 at [144], emphasis added.

242  The Law of Family Obligations that child to his or her parents. Where that care is not forthcoming, I suggest that the notion of relationship-generated disadvantage should be extended to recognising the detriment suffered by the child as a result. In respect of child maintenance, the point would be straightforward. Under the current child support rules, the full amount of any maintenance paid by the non-resident parent, no matter how small, goes on top of any social security payment to the parent with care and the children, and even small sums can help towards relieving poverty.39 The potential financial ­detriment to the child of the non-payment of maintenance by his or her parent, who could have provided him or her with a better living standard, is therefore obvious. It might be argued that where the primary carer is wealthy, and especially where the non-resident parent is not, the child would suffer no loss from the latter’s non-payment, and requiring him or her to pay a token amount is an empty gesture. It is true that the child may suffer no financial loss in such a situation, but it does not follow that he or she suffers no detriment. The ‘good’ of parental involvement in the child’s life, which is now part of the welfare principle under the Children Act, should apply to ‘taking care of’ the child in a financial sense as well as ‘caring about’ him or her in the emotional sense. The parent’s contribution of financial support therefore still reflects his or her own obligation to meet any detriment to the child. After all, if the parents were living together, they would, presumably, combine their assets to meet the ‘needs’ of the whole family, including the child. The parent who considers that the child is no longer part of his or her family unit and is not therefore ‘entitled’ to his or her financial support, should be on weak ground in nonetheless asserting any ‘right’ to involvement in the child’s life. If the parent instead wishes to assert that the child is still part of his or her family unit, there can be no argument against sharing the cost of raising the child, both through a shared care arrangement, if this is in the child’s interests, and through helping to meet the financial requirements of the child in the other household. But what if the non-resident parent has no interest in maintaining ­involvement with his or her child? Or the parent cannot, in the child’s best ­interests, be permitted to have any contact or care? I suggest that such a lack of engagement is as much a loss or detriment to the child as non-payment of maintenance. That, after all, is the prevailing belief applied to decisions on shared care and contact between a parent and child. If having a meaningful relationship with both of one’s parents is indeed a ‘right’ of the child then there is an obligation on the part of the parents to meet it, and to remedy or prevent the detriment the child would otherwise suffer. The disengaged

39  C Bryson et al, Kids aren’t free: The child maintenance arrangements of single parents on benefit in 2012 (London, Nuffield Foundation, 2013) Table 3.4.

Obligations and Commitments in Family Law 243 ­ arent should, therefore, understand that he or she is no less in default p for non-performance of the contact/involvement obligation than he or she would be for failing to meet the support obligation.40 Chapters 5 and 6 showed that parents with care are discouraged from taking legal proceedings (or invoking administrative processes) to try to enforce either of these obligations, and that when they do, the sanctions for non-compliance are often ineffective. Moreover, a ‘message’ focused on detriment to the child from non-involvement may still run counter to the possible preference of the non-resident parent to focus on his or her new family. Family law reforms that seek to move family law in a direction different from prevailing social norms are likely to be unsuccessful, as the child support experiment proved to be, if they are not reinforced by other aspects of social structure and organisation. It might therefore take a long time to persuade all parents of the importance of ‘involvement’ with and care of all of one’s children, in a safe and appropriate way. The ‘message’ is not ­sensibly going to be enforced through penalties or sanctions, but social attitudes to parenting have, clearly, changed very significantly in recent years. It has long been argued that safe and positive involvement in a child’s life, and a desire to support the child both financially and emotionally, are more likely to develop if care has been shared before the parents’ relationship founders, not just afterwards.41 As is very well known, that requires structural change in the workplace and the organisation of family and social life more generally, to enable both parents to play their part. Feminists have of course been calling for such change for many years, but that does not make it less important to seek to achieve. C.  Caring Relationships i.  Care and Support for Parents It was noted in Chapter 7 that care for parents or other kin, while seen as a matter of moral obligation, has generally not been regarded as a matter of legal prescription in England and Wales. Yet care for the elderly is going to be the most serious challenge facing social and family policy makers in the

40  The dangerous parent is also in default, but of course there should be no question of allowing, let alone enforcing, contact which puts the carer or the child at risk. 41  Ch 6. See Family Justice Review (Chair, D Norgrove), Interim Report (London, Ministry of Justice, 2011) para 5.73; J Wallbank, ‘Getting tough on mothers: regulating contact and residence’ (2007) 15 Feminist Legal Studies 189; J Wallbank, ‘(En)Gendering the fusion of rights and responsibilities in the law of contact’ in J Wallbank, S Choudhry and J Herring (eds), Rights, Gender and Family Law (Abingdon, Routledge, 2010); S Harris-Short, ‘Building a house upon sand: post-separation parenting, shared residence and equality—lessons from Sweden’ [2011] Child and Family Law Quarterly 344.

244  The Law of Family Obligations coming years. Some jurisdictions42 have imposed or re-imposed private or public law obligations of financial support on adult children. But in England and Wales, this is an unlikely possibility, especially given that it has proved so difficult to require even spouses or parents to make ongoing provision for their dependants. Moreover, one could argue that in British society, families are seen as the settings in which children can be raised to become independent adults, and the view that adults should be financially independent of each other is very strong. Although practical help (excluding childcare) may be provided more by children to their parents than vice versa, transfers of financial help tend to go down the generations rather than up (as the use of the ‘Bank of Mum and Dad’ to assist with housing costs makes clear).43 It would therefore be even harder to impose a legal obligation of support on adults towards their parents than it has been to do so in respect of each other and their children. Nor is it as obvious as might be thought that the obligation should be imposed. None of the three different rationales for family obligation previously identified applies to the adult child/parent relationship. The birth and upbringing of children are the result of decisions and actions taken by parents, not by the children themselves, so the children cannot be regarded as the moral cause of their parents’ vulnerabilities.44 Even where a parent might suffer a detriment in earning capacity due to child caring, from which the child gains through the love and care he or she receives, the child cannot be regarded as deliberately choosing or acquiescing in receiving such care. The parent/child relationship is not in any sense a contractual one. While a moral obligation on children to reciprocate forms of care might be asserted, Finch and Mason’s findings on the contingent and negotiable nature of kin ties suggest that it would be very hard to translate this into law. Indeed, more than a century of the provision of state pensions and benefits to meet the financial needs of the elderly suggests the central social and cultural importance of being regarded as having financial ‘independence’ from other adult kin. This can be coupled with the fact that elderly people may require extensive care work that cannot be undertaken by children who live far away, or who have their own responsibilities and obligations to partners and children. Whatever the solution to the problem of elder care might be, it does not seem to lie in private family law.

42  See, eg, A Lee, ‘Singapore’s Maintenance of Parents Act: A Lesson to Be Learned from the United States’ (1995) 17 Loyola International and Comparative Law Review 671; F Swennen and L Verhaert, ‘Intergenerational solidarity and elder care in the Low Countries’ [2015] Child and Family Law Quarterly 285. 43  Finch and Mason (n 31) 31. 44  And systems may exempt children whose parents were abusive or neglectful from having to support them: see Swennen and Verhaert (n 42) 291.

Obligations and Commitments in Family Law 245 ii.  Care for Others By contrast, the recognition of the performance of care as giving rise to a claim appears to be less problematic, since it would be justified—and limited—by the same contribution, detriment and acceptance as was ­proposed for cohabiting partnerships. But the experience of the regimes introduced in parts of Australia does not appear to suggest that they do much to recognise and reward the provision of care. If it were felt important to ensure that any such regime was not too all-embracing of ‘carers’, it would be necessary to introduce eligibility requirements similar to those in Australia as to the kind of relationship (a couple or partnership?) and the kind of care undertaken (unpaid care work only?), adding complexity to the law. Moreover, a private law remedy of this kind places an obligation to compensate on the care recipient, who might actually be more ‘vulnerable’ than the carer himself or herself. Unlike a marriage or cohabiting partnership, where the ideal of equality can itself be a driver of the compensation to be paid (through redressing the balance between the gainer and the loser), there is no reason why a care giver and care beneficiary should be treated as equals, any more than a parent and dependent child are. And perhaps the oddest consequence of the Australian approach is that the carer may himself or herself be the party required to provide the compensation—precisely because the law requires that there be a relationship of care between the parties, of which either may take advantage.45 D.  ‘Family-based’ Remedies It could be argued that viewing family obligations as necessitating a remedial jurisdiction for their enforcement ignores, on the one hand, the availability of contracts and, on the other, the increasing unavailability of the family justice system to those who lack the means to pay for legal assistance. It would certainly be possible, and perhaps desirable, to encourage more family members to contract with each other, or at least to ‘settle’ with each other the arrangements for a final ‘account’ of their gains and losses at the end of a relationship, or the future care and support of their children. Suitable protections could be put in place to try to minimise any inequalities of bargaining power.46 There would still need to be a remedial element to the law, however, if only to determine whether a given arrangement should be enforceable and, if so, to enforce it. Moreover, it would still be necessary to set out guidelines so that the parties have some yardstick or rule of thumb

45 

McKenzie v Storer [2007] ACTSC 88. See Law Commission, Law Com No 307 (n 12) pt 5; Law Commission, Marital Property, Needs and Agreements (Law Com No 343, 2014) chs 6, 7. 46 

246  The Law of Family Obligations by which to determine what would be a fair and acceptable arrangement. The drawback of such an approach is that the simpler the guidelines, the greater the risk of losing the nuance and individualised justice of a purely discretionary system such as that applied in litigation on financial remedies on divorce. But the infinite variety of individual families’ circumstances could be a safeguard against too crude a ‘formula’ being applied, so long as part of the ‘message’ being transmitted is that arrangements have to work in the interests of all the relevant parties. But how could this be delivered and guaranteed? In the absence of a dramatic change in policy towards access to justice, it is clear that it will require new forms of thinking about legal assistance and forms of arbitration, as well as advice. But it should really involve a more thorough-going reassessment of what this exercise is all about. ­Viewing remedies as an aspect of supporting family members’ wellbeing, through both financial and non-financial services (such as either public or privately provided insurance-based financial support, or the provision of health and welfare services) rather than narrowly focusing on relationship breakdown as a family law issue, might be a means of realising both the ethic of care and the ethic of justice.47 V. OBLIGATION AND COMMITMENT

The aim in writing this book was not to paint a picture of a decline in the moral standards of the family, nor to offer a conservative prescription intended to ‘bring back’ or impose a sense of moral rectitude. The law alone, and certainly family law alone, could not influence human behaviour in this way even if it were thought desirable. Rather, the purpose was to explore whether there has ever been a ‘golden age’ of family obligation, in which the law was used effectively to promote caring within the family, and, if not, to consider the reasons why. I also wanted to examine how the notion of ‘commitment’ has been reflected in understandings of the nature and scope of family obligations, and to reflect on whether this may have been a problematic development for family law. Confirming that the core obligations to support and to care for each other have never been particularly effectively enforced by family (or public) law helped explain why the child support experiment has been such a spectacular failure, why clean-break settlements were so quickly adopted despite their disadvantages for many wives, and why it has proved so problematic for parents to arrive at workable post-separation arrangements for their children. These are all affected by deep-rooted social and cultural norms of

47  See M Murch, Supporting Children When Parents Separate: embedding crisis intervention in family justice, education and mental health policy  (Bristol, Policy Press, forthcoming 2018).

Obligation and Commitment 247 family behaviour and attitudes, which law is ill-equipped to challenge. And the rise of the romantic, or companionate or pure relationship, and the drive towards individualism are stronger influences on how people will live their intimate lives than the prescriptions of law. The concept of personal commitment, meaning the making of active choices and allegiances which can change and be dropped in the ongoing search for emotional self-fulfilment, has come to supplant the idea of structural commitment in the sense of burdens that cannot be cast aside when they prove onerous and unsatisfying. But if we are to protect the interests of all of us who are, at some time in our lives, vulnerable or dependent, and if the values of love and caring are to be promoted, then all of the tools of social policy, and not just the law, will be required to enable people to meet their enduring family commitments as well as their demands for self-fulfilment.

248 

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260  Bibliography Reece, H, Divorcing Responsibly (Oxford, Hart Publishing, 2003) . Regan, M Jnr, Family Law and the Pursuit of Intimacy (New York, New York University Press, 1993) . ——, Alone Together: Law and the Meanings of Marriage (Oxford, Oxford University Press, 1999) . Rhoades, H, ‘The No Contact Mother: Reconstructions of Motherhood in the Era of the New Father’ (2002) 16 International Journal of Law, Policy and the Family 71. ——, ‘Annex G, Helen Rhoades evidence in relation to shared parenting’ in Family Justice Review, Final Report (London, Ministry of Justice, 2011). Ridge, T and Millar, J, Work and Well-Being over Time: Lone Parents and Their Children Research Report No 536 (London, DWP, 2008). Royal Commission on Divorce and Matrimonial Causes (Chair, Lord Gorell), Report (Cd 6478, 1912). Royal Commission on Equal Pay 1944–46 (Chair, Sir C Asquith), Report (Cmd 6937, 1946). Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956). Royal Commission on Population, Report (Cmd 7695, 1949). Royal Commissioners into the Law of Divorce, (Chair, Lord Campbell), First Report (London, HMSO, 1853). Rundle, O, ‘An examination of relationship registration schemes in Australia’ (2011) 25 Australian Journal of Family Law 121. Sarat, A and Felstiner, B, Divorce lawyers and their clients: power and meaning in the legal process (New York, Oxford University Press, 1995) . Saunders, H, Twenty-nine Child Homicides (Bristol, WAFE, 2006) . Schauer, F, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ (2010) 23 Ratio Juris 1. Schneider, C, ‘The Channelling Function in Family Law’ (1992) 20 Hofstra Law Review 495. Scott, E, ‘Social Norms and the Legal Regulation of Marriage’ (2000) 86 Virginia Law Review 1901. Scott, J and Clery, E, ‘Gender Roles’ in A Park et al (eds), British Social Attitudes 30 (London, NatCen, 2013). Shanley, M, Feminism, Marriage, and the Law in Victorian England 1850–1895 (London, IB Tauris, 1989) . Shipman, B and Smart, C, ‘“It’s Made a Huge Difference”: Recognition, Rights and the Personal Significance of Civil Partnership’ (2007) 12 Sociological Research Online 31 January. Skinner, C and Main, G, ‘The contribution of child maintenance payments to the income packages of lone mothers’ (2013) 21(1) Journal of Poverty and Social Justice 47. Sloan, B, Informal Carers and Private Law (Oxford, Hart Publishing, 2013) . Smart, C, The Ties That Bind: Law, marriage and the reproduction of patriarchal relations (London, Routledge & Kegan Paul, 1984) . ——, ‘The Legal and Moral Ordering of Child Custody’ (1991) 18 Journal of Law and Society 485. ——, ‘Preface’ in R Collier and S Sheldon (eds), Fathers’ Rights Activism and Law Reform in Comparative Perspective (Oxford, Hart Publishing, 2006).

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264 

Index Abse, Leo  122 access see also contact with non-resident parent contact distinguished  177 custody or access order  165–167, 172–173, 176–177 custody and  172 father’s rights  165, 166, 167 generally  161 mother’s rights  164–165, 166, 167, 170–171 purpose and benefits  165–167 rights of child  172–174 welfare of child  174–176 accountability responsibility and  8 activity conditions  183–185 activity directions  183–185 adultery action for criminal conversation  70n, 224n common law  101 condonation of  79n connivance at  79n consortium and  72 grounds for divorce  91 of husband  72, 78–79, 82, 86–87, 91, 165, 166–167 of wife  72, 76, 78–80, 87, 91, 101, 101n, 107, 109–110, 134, 164–165, 166–167, 168–169, 224, 226 affiliation proceedings illegitimate children  133–134, 141–143 aggravated assault husband convicted of  75n alimony adulterous wives  76 divorce a mensa et thoro  88, 99n, 100, 224 ecclesiastical courts  99–100, 99n, 100n, 225 meaning  88n restitution of conjugal rights  73, 76, 79–80, 82, 88–90, 92 wife’s right to claim  73, 76 anger management programmes  184–185 Arches Court  77 assets matrimonial see matrimonial assets ring-fencing  233, 233n, 241n unilateral  233, 233n

Australia caring relationships  207–221, 239, 245 cohabitation (‘de facto partners’)  207–209, 239 contact with non-resident parent  189 beneficence, duty of  4–5, 12, 28 birth rate, demographic data  42–44, 59–60 breadwinner/housewife model capitalism and family function  60, 62 care work  55–56, 194, 197 efficiency  62–63 erosion  24, 57 generally  37, 51, 54, 59–60 maintenance and  102, 115, 128–129 burden, commitment as  18–19 canon law see ecclesiastical courts capitalism and family function  60–63 care see also carer; caring relationship access/contact  192 beneficence  4–5 breadwinner/housewife model  55–56, 128–129, 194, 197 caring and the law  2–3 child care and housework  55–57 as claim to remedy  193, 194–207, 219–221, 244–245 commitment and  3, 7, 33–34, 199–200, 219–220, 222–224 custody and  171–172, 234 dependency  4 derivative dependency  7 duty of beneficence  4–5, 12, 28 emotional support  212–213 ethic of care  4–5, 7, 222 family members, obligations upon  28–32, 193, 193n, 243–244 filial duty  193n financial support  192, 193 forms of  5–6 gendered division of labour  62–63, 194 gendered psychology  33–34, 194, 197 interdependence  4 kinship and caring obligation  28–32, 194 meanings  5–7 moral obligation  29–30, 224–225 need  4

266  Index as non-financial contribution  197–201, 206–207, 217–218, 219, 220, 233, 241 obligation and  4, 28–32, 192–194, 193n, 219, 222–225, 240, 246 parent/child relationship  33, 192 parental duty of  11, 29, 130–131, 162, 240, 241 particularity  4 public and family responsibility for  6 relationship-generated disadvantage  128–129, 204–207, 217–218, 242 relationships fulfilling function of  7 shared care arrangements  149, 192 state as beneficiary of care work  28 unpaid care work  58–59 valuing  3 as work  6–7, 194 carer see also care child as  193n, 208–209, 210, 215, 243–244 cohabitees  201–207 commitment  217, 219–220 compensation for losses incurred  193, 194–207, 217–218, 219, 245 costs of  145 illegitimate children  143 mother’s role  166–167, 171, 234 non-financial contribution  197–201, 206–207, 217–218, 219, 220, 233, 241 property law and cohabitation  202–204 recognition  195, 197, 217–221 caring relationship Australia  207–221, 239, 245 cohabitants  196, 207–209 commitment  217, 219–220 emotional support  212–213 generally  7 meaning  210, 213–215 meaning of caring  209–213 non-conjugal  196 non-financial contributions  217–218, 219, 220 parent cared for by child  208–209, 210, 215, 243–244 rationale for recognition  217–219 recognition  217–221, 223 registered  215–216, 220 same-sex couples  208–209, 213, 220 vulnerability  216–217 child see children child arrangements order  190–191 child born outside marriage affiliation proceedings  133–134, 141–143 bastardly laws  133 cohabitants  143

common law  133–134, 163 custody  163–164 enforceable agreement to maintain  134n father’s right to seek custody  163 maintenance  133–134, 141–142, 146 mother’s rights  163 number of births outside marriage  43–44, 68, 142 parental rights  163–164 payments to support carer  143 Poor law  132–134, 135, 163 wardship  134n, 165n Child Maintenance Service  158, 237 child support automatic deduction from earnings  155 calculation of maintenance  147, 150–151 changing attitudes  14 collection  157–159, 157n contact with non-resident parent  149–150 enforcement  147, 157–159 family-based arrangements  154–157, 157n, 159, 229 fathers’ lobby  152–153, 181, 186–187, 232, 234 gateway conversation  156–157 generally  121, 147–159, 228, 246 Henshaw report  155, 159 indicative calculation  157 liability under  148–150 non-compliance  150n, 153–154, 157–160 qualifying child  148 recovery by CSA  150–151, 157 reforms  151–154, 157 second families  23, 147, 150, 153–154 shared care arrangements  149 social security claimants  150, 153 step-children  148 Child Support Agency (CSA)  147–148 recovery of payments by  150–151, 157 replacement  158 children see also custody; parent/child relationship access to see access accommodation, provision  140–141, 146 affiliation proceedings  133–134, 141–143 birth rates  42–44, 59–60 child care, demographic data  55–57 child support see child support clean break settlements  120–121, 140–141, 231, 233 community responsibility for  29–30 contact with see contact with non-resident parent

Index 267 cost of raising  133–134, 137–138, 233–234 as cost rather than asset  60, 61, 63, 67 custody see custody demographic data  42–44 duty of care  240 duty to support  130–131 education  135, 145 family  37 family size, democratic data  42–44 father’s authority over  134–135, 164–165, 223, 225 focus on the child  66–67, 68 illegitimate  43–44, 68, 132–133, 146, 147, 163–164 maintaining links after separation  67, 186–191, 223 maintenance payments see maintenance matrimonial home  118–119, 140–141, 146 mean age of mothers  42, 44 mother’s position  134–146 parental duty see parental duty parental responsibility see parental responsibility parental rights see parental rights relationship-generated disadvantage  242 rights  162, 172–176 second families  130, 150, 153–154 shared care arrangements  149, 192, 223, 231 standard of living  144–145 step-children see step-children wardship  134n, 165n, 170, 225n welfare of child  124–125, 139–141, 166, 167–168, 173–176, 189–190, 227, 229, 231, 234 Children Act Sub-Committee (CASC)  178–179, 178n, 182, 183, 186 civil partnership compensating relationship-generated disadvantage  217 family, status as  37 home rights  96n maintenance  105 separation order  95 clean break settlement advantage to husband  231, 235 advantages  126, 246 children  120–121, 124–125 140–141, 233 compensating relationship-generated disadvantage  128–129 consent order  119 court power to impose  125 deferred  125 facilitating new relationship  231

generally  106, 108, 116, 124–126, 128, 226–227, 232–233, 234–235 immediate  125 judicial endorsement  119–121 legislating for  123–125 matrimonial home  119–121, 140–141 pension and insurance rights  106, 124 predominance  125–129 sharing matrimonial assets  116, 118–119, 128, 146–147, 200–201, 227, 231 undue hardship  125 Cobbe, Frances Power  101 cohabitation Australia  207–209 births to cohabiting parents  44, 143 care and  196, 201–207 commitment and  20, 24–26, 30, 46, 196, 201–207 demographic data  39, 40–42, 45–46 dependency-causation  31–32 duration  205 duty of consortium  70, 71–76, 98 duty to cohabit  94–97, 98, 100–101, 192, 223, 225, 227 family, status as  37 financial relations on breakdown  229 financially weaker party  31, 33, 241 judicial separation  94 lone-parent families and  50 marriage of convenience  96 meaning  80n new marriage or cohabitation  130, 135, 147, 153–154, 161 New Zealand  207 non-financial contributions  202–204, 206–207, 241 obligation and  31 occupation order  96n pre-marital  40–41, 46, 68 pre-marital, and provision on divorce  20 property law  202–204, 207 proprietary estoppel claims  203–204, 203n reform of law  239 relationship-generated disadvantage  204–207, 217–218 restitution of conjugal rights see restitution of conjugal rights rise in  3 Scotland  207n separation, demographic data  45–46 social acceptability  40–41 uneven couples  25–26, 30 commitment as burden  18–19, 26, 36, 223 care and  3, 7, 33–34, 199–200, 222–224 caring relationships  217, 219–220

268  Index changing understanding of  36, 223 cohabitants  20, 24–26, 30, 46, 196, 200, 201–207 concept generally  18–28, 247 constraint commitment  26, 47 contact with non-resident parent and  180–181 decline in  3 as dedication  23–26, 223 desertion  95–96 developing  17, 18, 26 divorce and  46–47 ‘excessive’ and ‘obsessive’  22 family law policy  22–23, 235–246 gendered psychology  33–34, 235 implied  20 in legal discourse  18–22 marriage  24, 30, 46, 219, 240 moral  19, 26–28, 68, 224–225 moral worth and  19 mutual  30 non-financial contributions  199 as obligation  18–19, 222–225 obligation distinguished  32 parent/child relationships  21–22, 23, 33, 160 parental obligation  160 parental rights and  160 personal  26–28, 95, 96–97, 163, 235 as promise and dedication  19–21, 22, 223 ‘pure relationships’  24, 67, 195, 219, 247 separation  95–96 as social concept  23–28 structural  26–28, 36, 47, 68, 95–96, 163, 235, 247 use of term  3–4 voluntary  18, 102 wife’s childcare and domestic commitments  19 common law adultery  101 consortium  71–76, 224–225 custody  164–165 husband’s duty to maintain wife  96n, 99–100, 104 illegitimate children  133–134, 163 marriage per verba de praesenti  86 proceedings for cruelty  99 supplicavit  99n conjugal rights restitution see restitution of conjugal rights consortium adultery of husband  72 adultery of wife  72 alimony  73, 76

duty of matrimonial intercourse  71–76, 78 generally  70, 71–76, 78, 97, 98, 224–225 husbands right to  74 contact with non-resident parent see also access access and contact distinguished  177 activity conditions  183–185 activity directions  183–185 assumption of continuing involvement  189 Australia  189 child arrangements order  190–191 child unwilling  173, 174, 178, 186 commitment and  180–181 conduct of parents  169 contact order  177, 190 disparate standards of living  144–145 domestic abuse, danger of  178–180, 178n, 179n, 182, 189–190 duty to facilitate  177–180, 182, 185–186, 188, 190, 235 emphasis on  161–162 enforcement  173–174, 180–186 enforcement order  184 EU Charter of Fundamental Freedoms  163 generally  192 justification for  165–167 maintenance payments and  149–150, 160, 227–228 non-compliance  173, 174, 178–180, 224, 235, 238 parental obligation  162, 163, 175–176, 185–186, 188, 190–191 parental rights  162, 172, 173, 186–190 penalty regime  184, 190 perceived bias against fathers  152, 180–181, 188 proportion of children not having  181 psycho-analytical theories  175 re-marriage and  167 as right of child  162, 172–176, 233 sustaining  176, 180–181, 187, 187n UN Convention on the Rights of the Child  163 welfare of child  189–190, 231, 234 convenience, marriage of  96 court order obligations and  9 replacement  190 court welfare officers  169n courts, restricted access to  13, 230, 236–237, 245 criminal conversation action for  70n, 224n

Index 269 custody access order  172–173 adultery and  164–165 care and  171–172, 234 common law right  164–165 conduct of parents  166–167, 168–169 contact see contact with non-resident parent father having  170–172, 180–181, 234 illegitimate children  163–164 joint  171–172, 176–177, 181, 186–187 mother having  170–172 mother’s rights  168–172, 226 mother’s role  165–167 mother’s wishes  166, 168 psycho-analytical theories  169, 175 purpose and benefits of custody order  165–167 residence order  177 shared care arrangements  149, 192, 223, 231 shared residence order  186–187, 186n split order  171, 234 tender years doctrine  169 welfare of child  124–125, 139–141, 166, 167–168 demographic data average age of first marriage  38–39, 59 birth rate  42–44, 59–60 children  42–44 cohabitation  39, 40–42, 44, 45–46 divorce rate  45–48 employment rates  51–53 family size  42–44 fertility rate  42–43 gender pay gap  53–55 generally  36–37 households  45 illegitimate births  43–44, 68 lone-parent families  49–50 marriage  37–40 mean age of mothers  42, 44, 68 re-marriage  38, 39 teenage pregnancies  42 dependency dependency-causation  31–32 derivative  7, 31 desertion by husband  101, 135 by wife  101 commitment and  95–96 irretrievable breakdown of marriage  94 as offence  95 providing evidence of  86–88 statutory  82, 88 Direct Pay  157, 158 dispute resolution  154–157

divorce a mensa et thoro  78, 81, 88, 99n, 100, 224 accessibility  47 clean break see clean break settlement fault, focus on  101 fault and financial provision  109–110 frequency  91 grounds for  91, 91n, 228 insanity as ground  73, 77n, 91n irretrievable breakdown as ground  92, 94, 95, 102, 116, 128, 170, 228 judicial  87, 90, 107, 164, 165 maintenance payments following  106–108 modern function of divorce law  228–231 private Act to obtain  109 rates  45–48, 61, 68 as repudiation of marriage tie  117 stigma no longer attached to  226, 229 structural commitment and  47 suggested reforms  240–243 wife guilty party  107, 109–110 Divorce Court establishment  77, 226 restricted access to  13, 230, 236–237, 245 domestic abuse contact with abusive parent  178–180, 178n, 179n, 182, 189–190 power imbalance in settlement arrangements  238 separation order  101 of wife  101, 178–179 duty of beneficence  4–5, 12, 28 consortium filial  193n husband’s  99, 232 obligation and  8–10 parental see parental duty religious  224–225 rights and  162 to cohabit  94–97, 98, 100–101, 192, 223, 225, 227 Duxbury calculation  112 earnings see also breadwinner/housewife model; employment compensating relationship-generated disadvantage  128–129, 206, 217–218 gender pay gap  51, 53–55, 224, 227 women’s equality  118, 129, 227, 243 women’s weaker economic position  99, 128–129, 224, 233, 241

270  Index ecclesiastical courts alimony  99–100, 99n, 100n divorce a mensa et thoro  99n, 100, 224 husband’s duty to maintain wife  99, 232 penalty regime  77, 82, 224, 225 proceedings for cruelty  99 replacement by Divorce Court  77, 82 restitution of conjugal rights  70, 76, 232 transfer of function from  225, 226 employment see also breadwinner/housewife model; earnings child care and housework  55–57 compensating relationship-generated disadvantage  128–129, 206, 217–218 demographic data  51–53 individualisation and  65–68 lone-parents  51, 53 National Living Wage  55 sexual division of labour in the family  62–63 unpaid care work  58–59 women, generally  69, 129, 224, 227, 233 women’s employment rates  51–53 women’s equality  118, 129, 227, 243 European Convention on Human Rights post-separation contact with child  162–163 European Union Charter of Fundamental Rights post-separation contact with child  163 family altruism and obligation  224–231, 237–238 capitalism and family function  60–63 changing social attitudes  18 children  37 cohabitees  37 family size, democratic data  42–44 focus on the child  66–67 focus on the individual  59, 223–224; see also individualism gendered approach to  231–235 husband’s authority over  223, 225, 231–232 kinship  28–32, 194 legal conceptualisation  36, 223 lone-parent see lone-parent family meaning  36–37 moral obligation  224–225 non-justiciable matters  223, 224, 228–231 provisions seeking to solidify  223 religious duty  224–225 sexual division of labour  62–63 status as  37

voluntary commitment  18 welfare system and  63 Family Justice Review Panel  187, 189 family law educational function  236–237 laissez-faire  237–239 modern function  228–231, 236–237 remedial  240–243 restricted access to courts  13, 230, 236–237, 245 suggested reforms  238–246 Family Law Act 1996  96n, 236–237 family-based arrangements binding contract  157n generally  154–157, 159, 229 family-based remedies  245–246 father see also husband authority over child  134–135, 164–165, 225 custody of child  170–172, 180–181, 234 emphasis on importance  227 fathers’ lobby  152–153, 181, 186–187, 232, 234 illegitimate children  163 lone-parent families  57 perceived bias against  152, 180–181, 188 fertility rate demographic data  42–43 fidelity see also adultery obligation within marriage  11 filial duty  193n Finer Committee on One-Parent Families  45–46, 49–50 gendered approach to care work  33–34, 194, 197 to commitment  33–34, 235 to family unit  231–235 gender pay gap  51, 53–55 gendered division of labour  62–63, 194 to maintenance  148–149 men favoured by  232–235 to obligation  148–149 to parent/child relationship  148–149 grandparents caring relationships  210 sustaining contact with  187 Henshaw, Sir David Recovering child support  155, 159 household definition  45 demographic data  45 single-person  45

Index 271 housework demographic data  55–57 husband see also father adultery see adultery aggravated assault by  75n authority over child  134–135, 164–165, 223 custody see custody duty to maintain wife  96n, 98, 99–105 fathers’ lobby  152–153, 181, 186–187, 232, 234 individualism affective  64–65 capitalism and family function  60–63 children and  67 emphasis on  59–60, 62, 80, 130, 162, 223–224, 226–227 individualisation  65–69, 162 men favoured by  223–224 negotiation and  66 possessive  65 rise of liberal individualism  70, 97, 167, 226–227 irretrievable breakdown of marriage as ground for divorce  92, 94, 95, 102, 116, 128, 170, 228 maintenance orders and  128 James, Henry What Maisie Knew  166n judicial separation see separation kinship and caring obligation  28–32, 194 legal aid, withdrawal  230, 236 living apart together  31, 41–42, 45, 202 lone-parent family child care  57 cohabitation and  50 cost to state  147, 147n employment rates  51, 53 father-headed  57 number  49–50, 147 poverty  152 Loughton MP, Tim  190–191 maintenance see also alimony; child support affiliation proceedings  133–134, 141–143 assessment of amount payable  103–104, 108–114, 128–129, 137–141, 150–151 care and  145, 192, 193 child, generally  145, 146–159, 227–228 Child Support Act 1991  121, 131, 147–154

child’s welfare first consideration  124–125, 139–141, 229 civil partners  105 clean break see clean break settlement compassionate allowance  110 compensating relationship-generated disadvantage  128–129, 217–218 consent order  119 contact with non-resident parent and  149–150, 160 cost of raising child  133–134, 137–138 Custody of Infants Act 1839  134–135 deserted wives  135 Direct Pay  157, 158 Divorce Reform Bill  115–116 dum casta et dum sola condition  113–114 duration of orders  109, 113–114, 145–146 during marriage  96n, 98, 99–105 duty generally  98–99, 105, 130–131, 192 Duxbury calculation  112 ecclesiastical courts  99–100, 99n family-based arrangements  154–157, 157n, 159, 229–230 gender difference in attitude towards  148–149 High Court jurisdiction to award  92 husband guilty party  111–113 husband’s duty to maintain  96n, 98, 99–105, 136, 192, 223, 232 husband’s duty to state  132 husband’s entitlement to  101, 102 illegitimate children  132–134, 134n, 141–142, 146 irretrievable breakdown of marriage  128 law of agency  100 Law Commission reports  116–117, 121–123 lump sum  108, 111–112, 118–119 Mesher order  126 minimum loss principle  115–119, 121–124, 128, 139, 232 modern jurisdiction  102–103, 114–129 moral duty  130–131, 138 Morton Commission  114–115, 116, 136, 169n non-judicial resolution  154–157 non-payment  147, 153–160, 224, 232, 242, 243 one-third rule  104, 109, 110–111 parental obligation  160, 223 parental rights  160 pending suit  237 physical abuse of wife  101 Poor Law  100, 105, 131–134, 135, 136, 225, 226

272  Index post-divorce  106–108 present position  126–129, 238 private law power to seek  105, 130–131, 226 private maintenance era  131, 134–147, 225, 226–228 private separation agreements  100, 225 reasonable requirements  111–112 remarriage of recipient  109, 113–114, 115, 116 as remedy for matrimonial fault  100–102, 109–110 resources of payer  138 right to seek  100–104 shared care arrangements  149, 223, 231 sharing matrimonial assets  116, 118–119, 128, 146–147, 227 standard of living  144–145 step-children  135–137 unsecured periodical payments  108 wife guilty party  107, 109–110, 114 wife’s duty to maintain  101, 102, 105 wilful neglect to maintain  92, 101, 102, 105 Malthusian theory  132 marriage average age of first  38–39, 59 care as contribution to  197–201, 206–207, 217–218, 219, 220, 233, 241 commitment  24, 30, 46, 219, 240 of convenience  96 decline in rate  3 demographic data  37–40 duties and obligations  11 duty of care  240 emphasis on individualism  59–60, 62, 80, 130, 162, 223–224, 226–227 as equal partnership  199–200, 219, 233 fidelity, obligation of  11 marriage rate  37–38 moral obligation  224–225 negotiation and  66 non-financial contributions  32, 197–201, 206–207, 217–218, 219, 220, 233, 241 per verba de praesenti  86 as personal commitment  96–97 pre-nuptial agreements  13–14, 238 property agreements during  238 as public commitment  24 re-marriage or cohabitation  130, 135, 147, 153–154, 161, 167, 229 re-marriage statistics  38, 39 religious duty  224–225 self-fulfilment as goal  70, 80, 97, 102, 117, 128, 130, 160, 161–162, 224, 226–227, 228, 237, 247 sexual division of labour  62–63

matrimonial assets clean break settlement  116, 118–119, 128, 146–147, 200–201, 231, 232–233 future earning capacity  233 sharing  116, 118–119, 128, 146–147, 198–201, 227, 231, 233 matrimonial home children’s continued occupation  118–119, 140–141, 146 clean break settlements  119–121, 140–141, 232–233 duty to provide  96n minimal loss principle  115–119, 121–124, 128, 139, 232 Morton Commission (1956)  92, 108, 114–115, 116, 125, 136, 169n, 197, 198 mother see also wife access to child  164–165, 166, 167, 170–171 emphasis on importance of  227 illegitimate child  163 rights  168–172 role as carer  164–165, 166–167, 171 New Zealand cohabitation  207 Norton, Caroline  134, 164, 171 nullity refusal to perform conjugal duties  73 Oakes MP, Gordon  93 obligation act-incurring  10 altruism and  224–231, 237–238 bargaining over  13–14 binding nature  32 care-giving as  4, 192–194, 219, 222–224, 240, 246 cohabitation and  31, 227 commitment and  18–19, 32, 222–224 contact with non-resident parent  161–164, 185–186, 188, 190–191 court orders and  9 definition  8 dependency-causation  31 developing commitments  17, 18 direct and indirect  11 discretionary  14–15 as duty  8–10 duty and remedy  12 enforcement  228 family law generally  235–246 family members, upon  28–32 family obligation, nature of  12–15, 224–231 family relationships and  11–12

Index 273 gender difference in attitude towards  148–149 imposition of  4 interdependence and  30 kinship  28–32, 194 legal  3, 8–15 marriage, legal obligations  11 moral  29–30, 224–225 parental see parental obligation promise-incurring  10 religious  224–225 as remedy  11–12 rules and  9 as social norm  12, 15–17 sociological  3 ‘soft’  12, 24, 95, 105, 106, 128, 162, 235 voluntary  10 occupation order  96n outdoor relief  132 parent/child relationship access see access care  33, 192; see also care commitment  21–22, 23, 33 contact see contact with non-resident parent continuing, assumption of  186–191 father’s authority over child  134–135, 164–165 fathers’ lobby  152–153, 181, 186–187, 234 gender difference in attitude towards  148–149 involvement with child  67, 186–191, 223, 231 moral obligation  29–30, 148, 224–225 mother’s role, recognition  164–165 new marriage or cohabitation  130, 135, 231 parental duty see parental duty parental responsibility see parental responsibility parental rights see parental rights religious duty  224–225 shared care arrangements  149, 192, 223, 231 social role of parent  135–137, 149 step-children  135–137, 161 step-parents  141, 161 suggested reforms  241–243 unmarried fathers  21 parental duty contact/involvement with child  67, 162, 223, 231 duty of care  11, 29, 130–131, 162, 190–191, 240, 241

facilitating contact  177–180, 182, 185–186, 188, 190, 235 financial support for child  162 generally  11, 162, 240 moral obligation and  29–30, 148, 160, 161–164, 224–225 obligation as duty  8–11 parental rights and  11, 160, 162 parental obligation  11, 29–30, 160, 161–164, 223, 227–228 parental responsibility  8, 21, 62n, 176–177 child support  158 contact and commitment  180–181 duty to facilitate contact  177–180, 186 equal basis for both parents  148, 176–177, 227 generally  176–177, 227 joint custody  176–177 obligation to be involved  190–191 parental rights and  172, 176 shared  148, 177, 186–187 parental rights assumption of continuing involvement  186–191 commitment and  160 conduct of parents and  166–167, 168–169 contact with child  162, 172, 173, 186–190 custody or access order  165–167 duties and responsibilities  162, 172, 176 generally  161–164 illegitimate children  163–164 maternal concession and  164–168 mother’s rights  168–170 splitting  170–172, 234 welfare of child  167–168, 172–176, 189–190, 234 paternity leave uptake statistics  57 pension and insurance rights clean break settlements  106, 124 physical abuse see domestic abuse Poor Law  43, 49, 131–132, 225, 226 husband’s duty to maintain  100, 105, 131–134, 135, 136 illegitimate children  132–134, 135, 163 step-children  135 pre-nuptial agreement  13–14, 238 proprietary estoppel non-financial contributions  203–204, 203n psychological theories  169, 175, 179, 224, 227, 229 ‘pure relationship’ commitment and  24, 219, 247 generally  67, 195

274  Index rape, marital  81 Rathbone, Eleanor  52 Rawlinson, Lord  123–124 Rebecca Riots  133n residence order  177 see also custody shared  186–187, 186n responsibility, definition  8 restitution of conjugal rights abolition  85, 90–93, 94, 97, 228 alimony  73, 76, 79–80, 82, 88, 92 basis of action  76–78 consortium  70, 71–76, 78 cost of proceedings  85 court procedure  76–77 ecclesiastical courts  70, 76, 224 effect after 1884  82–85 establishing validity of marriage  85–86 generally  232 limits of decree  80 number of petitions for  90–91 penalty regime  77, 82, 224 providing evidence of desertion  86–88 purpose  78–82, 88 remedy of generally  70–71, 75–76, 224 restoration of cohabitation  80 tactical use of suit  81–82, 83, 85–90, 91, 97 used to secure financial support  83, 85, 88–90, 92 venereal disease  81 Royal Commission on Equal Pay (1946)  54 same-sex couple see also civil partnership Australia  208, 213, 220 care and commitment  196 Scotland cohabitation  207n self-fulfilment as goal  70, 80, 97, 102, 117, 128, 130, 160, 161–162, 224, 226–227, 228, 237, 247 separated parents information programme (SPIP)  184 separation adultery of wife  101, 101n civil partnership separation order  95 commitment and  95–96 divorce a mensa et thoro  78, 81, 99n, 100, 224 irretrievable breakdown of marriage  94, 95 judicial  82, 83, 91, 94, 135 private separation agreements  100, 225 separation agreement development  13, 82–83, 225 increasing use  13–14

separation order generally  84, 100–101 Matrimonial Causes Act 1878  75n single-parent family see lone-parent family single-person households demographic data  45 split order  171, 234 step-children generally  234 maintenance  135–137 parent/child relationship  161 Poor Law  135 step-parent parent/child relationship  141, 161 supplicavit  99n Taylor, Harriet  101 teenage pregnancy demographic data  42 tender years doctrine  169 Thatcher, Margaret  147, 161 Trollope, Anthony Kept in the Dark  72 United Nations Convention on the Rights of the Child  163 venereal disease restitution of conjugal rights  81 violence see domestic abuse wardship  134n, 165n, 170, 225n welfare check  169n welfare system effect on family  63 wife see also mother adultery see adultery custody see custody equality in marriage  199–200, 219, 227, 233 financial independence  227, 233 financial provision for see alimony; clean break settlement; maintenance guardianship or custody by husband  74, 75 husband’s duty to maintain  96n, 98, 99–105, 192, 223, 232 legal personality  102 mother’s rights  168–172, 226 non-financial contributions  32, 197–201, 233, 241 property rights  88, 99, 100 recognition of mother’s role  164–165, 197 sharing matrimonial assets  116, 118–119, 128, 146–147, 198, 200–201, 227, 231 weaker economic position  99, 125, 128–129, 224, 233, 241