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July 23rd 2015 print

Barry Maley

An Honourable Estate?

Parenting and child-care payments cost many millions of dollars, giving governments a large stake in the stability or otherwise of families. Would it not be sound policy for the state to deem de facto couples subject to the same rules of separation as divorcing, formally married couples?

wedding cake plitMajor casualties of the institutional ravaging that began fifty years ago are marriage and family formation and the assumptions and expectations that maintained their stability.

Most institutional decay begins with the ideological de-legitimation of the objectives, moral beliefs and conduct that keep an institution alive, accompanied by the disappearance of the various legal-political arrangements and policies that support it. Whether the advent of same-sex marriage would accelerate that process is an open question that will not be pursued here. There is already enough evidence of breakdown, or at least substantial weakness, to reflect upon.

The “ideal type” of marriage used to be understood as a form of male-female, quasi-contractual bonding predicated on the formation of an enduring and exclusive heterosexual relationship and the creation of a family and household, whether or not children are born to the husband and wife. Genetic theory tells us that if a child is born it will carry the genes of both mother and father, and a powerful, innate, future-oriented genetic interest is thus generated within the couple that will determine, in the ordinary course of events, that they—and especially the mother—will assiduously care for the child and promote its wellbeing into adulthood. (Non-biological fathers and the casual drop-in boyfriends of many single mothers lack the genetic tie to the children they live with and can be dangerous companions.)

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A cluster of moral-cultural norms and legal-political measures underpinning that ideal type fifty years ago have since disappeared in response to the following changes (and to list them is not necessarily to denounce them):

The advent of sexual libertarianism, feminism and equal opportunity for women; the disappearance of the stigma on pre-marital sexual intercourse; the legitimation of abortion and pre-marital cohabitation; the availability of reliable and cheap contraception; the attack on bourgeois values; the advent of technological changes enhancing the dissemination of cultural change via radio, television, internet and social media, in literature, drama and popular entertainment; the advent of unilateral, no-fault divorce.

The effects of these changes were many and varied:

The presumptions of sexual exclusivity and fidelity in marriage were undermined along with the disappearance of the concept of child ‘”legitimacy”; the social stigma on divorce disappeared; the divorce rate increased, along with the decline in the assumption of marriage permanency; the investment in a marriage and domestic arrangements became more uncertain; the relative costs of children and pressure on the single-income family increased; welfare dependency following divorce or separation increased; the need for confidence in marriage declined and the marriage rate fell; the proportion of step-, blended and sole-parent families increased; the incidence of child abuse and neglect increased, and also the proportions of under-performing and emotionally disturbed children of divorce; there became more lonely adults; out-of-home child care became established; the fertility rate halved between 1960 and the present.

These, then, are the present circumstances attending marriage and the background against which men and women nowadays may contemplate—or dismiss—matrimony and family formation. It is obvious that that decision is accompanied by a range of risks and uncertainties that were formerly constrained by law and normative expectations. Consequently, both parties to a marriage and any children they may have are now hostages to self-interested decisions that are easier to make without penalties in law or normative stigma. What was formerly an institution framed to provide an environment fostering commitment and trust, and thus a degree of certainty and continuity in marriage and child-rearing, became chancy and uncertain. It was thus more vulnerable to destruction by self-interested motives; and this has turned out to be the case.

The divorce rate has more than doubled and the marriage rate has declined. By 2011, for the first time in Australia, there were more unmarried adults than married adults. Cohabitation has increased substantially along with a growing proportion of children in cohabiting families with a high rate of break-up. The immature children of failed marriages and cohabiting parents who have broken up, have been shown by a mass of reliable studies to suffer a range of behavioural and emotional problems and, in many ways, to be subject to many life disadvantages in adulthood compared to the children of intact families.

For example, statistics gathered by the United Kingdom Office of National Statistics show that the children from married families have fewer mental health disorders compared to children from cohabiting, always-single, and widowed or divorce or separated families. The percentages of child incidence of mental health disorders in the following family structures were as follows:

For married couples: 3.5 per cent for emotional disorders and 3.6 per cent for conduct disorders.

For cohabiting couples: 4.4 per cent for emotional disorders and 7.8 per cent for conduct disorders.

For always single: 5.1 per cent for emotional disorders and 10.9 per cent for conduct disorders.

For widowed, divorced or separated: 7.6 per cent for emotional disorders and 9.3 per cent for conduct disorders.

It is clear from the evidence that divorce and separation under the present regime can cause substantial problems and injustice for those involved. This was not always the case. Before the advent of no-fault, unilateral divorce, it was possible for men and women who wanted to divorce to reach agreement on separation and so arrange things that the post-divorce settlement met the optimum conditions acceptable to both parties. Although not described as such, this was effectively divorce by mutual consent and avoidance of a court case. For those with less than divorce-demanding problems, the marital-fault regime encouraged problem-solving and determination to make things work if at all possible.

In a study Raquel Fernandez and Joyce Chen Wong investigated the socio-economic consequences for men and women in the United States of the change from divorce by consent to a unilateral system of divorce without consent. They found that, on the whole, women would fare better under mutual consent whereas men would prefer a unilateral system. And, further, that economic status affects this outcome. On average, men in the top three economic quintiles are made better off by a unilateral system, and so are the top two quintiles of women, while the remaining women prefer mutual consent. They conclude that in a mutual-consent divorce regime the reluctant spouse must be compensated in order for a divorce to be agreed, while a unilateral regime does not impose this restriction. It allows a party to walk away from marriage without conceding compensating benefits to the reluctant party, who is forced to confront the changed married patterns and household choices. A consequence of all this is that poorer individuals fare worse by losing the economies of marriage, and poor women, in particular, tend to avoid marriage.

These findings suggest that there is a case for re-evaluating our present unilateral divorce system with the objective of creating a fairer system that would induce more confidence in marriage and, hopefully, less divorce.

Overall, the evidence favours marriage (even in its present state) as a more propitious environment for rearing children compared to unmarried cohabitation, and it should be encouraged.

The federal government offers parenting and child-care payments costing many millions of dollars annually, and pays many more millions in welfare payments to those adults and children economically disadvantaged by family instability. The state therefore has a large stake in the stability or otherwise of families. Would it not be in the interests of children (and taxpayers) for the state to deem a cohabiting couple who have a child and who are accessing child and child-care payments and perhaps welfare also, to be subject to the same rules of separation as a divorcing, formally married couple? This would provide an incentive for stability and less separation and serve the national interest.

But this would not solve all the problems of instability and the retreat from marriage by young adults. Many factors other than those already mentioned influence the marriage rate. Unemployment is important; especially for poorly educated young working men who are unattractive prospects as husbands. It is also important to discourage young women from choosing to have children as sources of welfare income.

A country with a just and stable family system and lighter taxation would be a better and stronger country; and probably a more fertile one, since our present birth rate cannot maintain the population level without immigration.