26. Cohabitation in Britain - a Legal and Political Jihad Against Men

By Robert Whiston FRSA October 2006

This article was written in response to the Law Commission’s

"Cohabitation: the Financial Consequences of Relationship Breakdown” detailed in the DCA‘s ‘Consultation Paper No 179’ and issued in May 2006. (http://www.lawcom.gov.uk/docs/cp179_overview.pdf).

“Cohabitation: the State-Sponsored Slither into Slothfulness”

A submission challenging the Consultation Paper’s views was made

on behalf of Men's Aid in July 2006

Preamble

Discussion of the present Consultation Paper (‘Cohabitation: the Financial Consequences of Relation-ship Breakdown’, 2006) can only begin to make sense when one has an understanding of previous Law Commission initiatives. This has occurred over the last 30 years and has been accompanied, if not supplemented by, governmental ‘liberal’ proposal, changes of emphasis in matrimonial law and ill- conceived legislative flights of fancy.

In recent years, it has become politically unacceptable to privilege marriage and to treat the institution as anything other than one of several equally acceptable lifestyle choices (see Prof Robert Rowthorn, 2001 and Appendices).

The political atmosphere has perhaps informed the media’s unfriendly attitude to what should be an open and freely debated topic.

For some reason, either from sheer ignorance or a tyrannical form of ‘liberalism’ – one that exudes intolerance towards anything that does not conform to its view of acceptability - has gripped the elite within our society.

The collapse of marriage is fundamentally among people who are of lower social class . . .. . . If you look at the USA for example, who were the group of women who were most likely to be married in their thirties and were least likely to divorce? Women with degrees.” – Prof Rowthorn. BBC TV, July 2000.

Whitehall’s fiscal policy has long ceased to distinguish married couples from unmarried couples who live together as if married. Critically, the ONS no longer makes any distinction in its statistics.

While it is true today that more couples choose to cohabit prior to marriage it is still less common as an alternative to marriage. Many couples move from cohabiting into marriage. Why then does government and the Law Commission want to threaten this natural procession borne out of our freedom to choose ?

Under one of the proposals we will in the future have to ‘register’ our decision to cohabit; perhaps pay for a permit, or be granted a ‘lechery licence’. Surely this would be the next logical step. The question then is will this apply to all of us, or only to serial monogamists’ and multiple polygamists ? We need to stop and ask who is ‘messing’ with our civil liberties, our basic human rights and freedoms.

Ideally, government policy should be expected to reflect this new social norm (i.e. transient cohabiting) but it does not. It reflects only the growing crude numbers of cohabiting couples and forgets the crucial caveat that the majority endure for less than two years and that there are still, numerically, more couples who are married. [1]

If reducing the importance of marriage to simply an alternative form of cohabitation has subsequently led to a higher turnover of partners, then reducing cohabitation to something regulated and institutionalised by the state will lead to similar changes. Statistics for second and third time marriages show they are far more likely to break up, and more quickly, than first-time marriages. It is not a great leap of intellect to suppose that this pattern will be replicated in the turnover of cohabitees if such actions are remunerated by the state each time

The Law Commission seems not to have extrapolated this possibility to cohabiting couples and more especially its impact on children of those families.

Teenage Wastelands

British and overseas studies continue to suggest that married families consistently do better than unmarried families on important “outcome” measures (e.g. the MCS; Carlson, 2006; Manning & Brown, 2006).

“The traditional nuclear family of mother, father and children that we see in this country and in many western countries is actually at the root of our democracy, of our democratic values. It creates strong, inner directed, self-confident, emotionally stable, socially-constructive human beings who have a sense of what it is to live in the world of duties and responsibilities to each other.” - Melanie Phillips ". July 2000. BBC TV.

However, funding for more UK studies that accept the premise that cohabiting might not be significantly increasing or is a natural evolution into marriage ‘in a post industrial era’, are becoming harder to find.

Discussion of the present Consultation Paper only begins to make sense when the track record of the Law Commission is examined. We are told in the 2006 paper that an almost casual comment from a debate in the Lord prompted the paper being written, namely that;

“During the passage of the Civil Partnership Act 2004 through Parliament, members of the House of Lords questioned the lack of legal remedies for couples who live together but either do not marry or (in the case of same-sex couples) register a new civil partnership.” [2]

This is not entirely true and on the face of it some might think it disingenuous or a bald faced lie. The fact is two years earlier in 2002 ‘Sharing Homes’, A Discussion Paper, was published [3] (one of many such papers) which focused – as had the previous ones dating back to 1995 - on how to share property between cohabiting couples belonging to one party after separation, i.e. disarticulate owner from house and home. In plain words, they were devising ways, i.e. targeting, how to share out other peoples’ property and houses.

Both the 2002 paper (on page 3), and the 2006 project are centred on the belief that “home as property” is the key to all other events. It is “the home” - and who should use it - that trumps all other claims. Anything to do with ownership and paying the purchase price (and rights accruing therefrom) are deemed irrelevant.

This then is not so much about granting or ‘enhancing’ cohabiting rights but more about redistributing property - preferably other peoples’ property, owned and paid for by someone else.

The Law Commission does not seem to comprehend that property and accruing rights for the purchaser is the raison d'etre for the success of western liberal democracy and why we have evolved ahead of others. It explains why we are not on a par with sub-Saharan Africa where, the UN reminds us, polygamy is widespread; 60% of women change partners (the disruption rate); and where 1/3 of her fertile years are likely spent with another man who is not the father of her children. [4]

Do we want that social chaos for Britain ? Sub-Saharan Africa does not have the complications of a ‘welfare state’ nor the wealth to support one. It does not have the state apparatus to apply rules, enforce laws, collect taxes, raise living standards, monitor inheritance and pay out benefits on a ‘needs’ basis. In Sub-Saharan Africa changing partners does not impact on the taxpayer or general community, only on the participants.

Meddling with the natural evolution of a culture means that today, despite a huge increases in the population, there are actually fewer Black Americans who are married than there were in 1900.

But it us more then just this; it is about an ideology as much as it is about the better regulating of the lower orders by the middle and upper orders; it is about allegedly sharing out fairly the property and the home of a couple, i.e. usually the man’s, premised on a middle class idea of wealth and work - a concept that does not fully grasp that the hourly charge out rate in the legal profession is equivalent to the weekly take home pay of many millions of working class men and fathers.

The Law Commission conveys the quaint belief that women still do not go out to work in large numbers and therefore need to profit financially from any separation.

If anything, women are now close to 50% of the total workforce in Britain.

Indeed, as is evidenced from Working Family Tax Credits (WFTC) data, it is often the case that £250 - £300 per week is the combined weekly income of both working parents and its purchasing power needs to be topped up by government.

Over these derisory amounts - and the property such sums can command - the Law Commission now wants to divide up but in favour of only one party - the female. [5]

Single motherhood, i.e. never-wed mothers, is encouraged by the states WFTC with £1,700 in Child Benefit and £175 p.w. Childcare Element paid to both lone parent and married couple family units - but only to mothers. [6]

Does the Law Commission intend that this ‘wealth stream’ (i.e. from the earners of £13,000 to £23,000 pa), should be claimed and paid only to females; that it should be used to off-set any settlement of property. If so, isn’t the Law Commission thereby recognising that without the earning power of the father in the first place, no cohabiting with children would have been possible ? [7] So why penalise him ?

Thereafter, where would the separated couple live ? If the average house price is around £160,000 the weekly rent is always a function of current house prices. Housing demand would be doubled from the need for one unit of accommodation into two units.

Only in the instance of same-sex couples will each party ever hope to have a fair apportionment at separation – so long as both are treated as females.

The New Orchestrated Orthodoxy

For the Law Commission not only is a 40 year old ideology at stake but so too are reputations that have been 40 years in the making.

The evolution of progressively uncoupling society from the notion of marriage has a long pedigree that can be traced to the 1920s of John B. Watson, an American psychologist, who predicted:

“In fifty years, unless there is some change, the tribal custom of marriage will no longer exist.”

In the 1930s, Gramsci, an Italian Marxist conceived that to institute a new culture in a society it is first necessary to destroy the old culture by infiltrating its institutions. For this to succeed, age-old doctrines and moral teachings, education and ‘the family’ must all be reduced to irrelevances and discarded wholesale.

We can only speculate just how significant is ‘reputation’ and the loss of face, for England’s Law Commissioners. They know that in one or two other English speaking countries some progress has been made towards ‘enfranchising’ non-married partners, i.e. non-spouses and non-owners, to benefit from the legalised confiscation of property by the courts (circa 1975 – 85). In other circumstances and in another century this was called ‘carpet-bagging’.

However, the Law Commissioners must also be aware that those countries, Canada, Australia and New Zealand are ‘new’ countries with newly arrived and diverse peoples that lack a common heritage. They do not have a shared 1,000 year tradition of property law and a birthright stretching back more than two millennia.

The Law Commissioners must also know, but perhaps does not like to say, that the most progressive forms are found in the less populated nations, e.g. New Zealand (Pop’n 4.4m). Other nations with similar laws on inheritance by cohabitees, e.g. Sweden, Denmark, also have comparatively small populations.

If we focus simply on New Zealand we see that by all sound measures it is in steep decline with regards social pathologies. [8] Dr. Patricia Morgan’s 200 page book “Family Matters: Family Breakdown and its Consequences”, analyses the events that have led to New Zealand’s decline and continued tail spin. It is “the poor”, the Maoris, the children and the unmarried that are suffering most from the social reforms. In New Zealand rewarding female cohabitees who spilt-up from their male partner is having no visibly beneficial effects.

It is therefore little wonder that the Law Commission feels driven to admit at one stage, despite its 30 years campaign and reports in its favour, that:

“We have concluded that it is not possible to devise a statutory scheme for the determination of shares in the shared home which can operate fairly and evenly across all the diverse circumstances which are now to be encountered.” [9]

Those 2002 sentiments were short lived. A week is along time in politics, so it should come as no surprise that a few years later the Law Commission should allegedly be asked (see p ii) to make fresh proposals. [10]

It communicates to the student that there must be ‘an agenda’ operating behind the scenes.

It is interesting to note the emerging patterns of reform proposals not because of their apparent novelty or diversity but rather the very opposite, i.e. because of their overwhelming uniformity and synchronisation. Forty years ago it was no-fault divorce that convulsed the imagination of every English speaking nation.

Why ?

Now it is cohabitation. The years since 2000 have seen the various national Law Commissions become seized with the idea of making cohabitation workable and on a par with marriage. Again, why ?

Instances of other global orchestrations include the CSA, same sex unions, no smoking and drink-driving bans, how to divide up matrimonial property and pushing unwed mothers put to work.

Launching any new idea is never an easy task but the extra-ordinary idea of gifting someone else’s

property to a cohabitee must have daunted even those politicians who have seen lesser Bills stumble at less insurmountable obstacles.

In the case of legalised and state regulated cohabitation, the topic of this paper, who or what is the engine that keeps raising these questions enough times, and in enough of the right places, and with enough vigour and enthusiasm to get legislation moving down the slipway ?

Who is it who greases the surfaces to move the dead weight of an idea out of dry dock and onto the slipway ready for launching ?

The shared property idea was floated and promptly knocked on the head as a hare brained scheme in the 1970s. In the 1990s it was briefly resurrected but then promptly abandoned.

The public’s moral compass, battered and weakened by the media and Stonewall’s persistent allegations of its ‘homophobia’, looks now as if it might not be in a position to offer up resistance to shared property for cohabitees (the result is, of course, the unintended reciprocal, creating a climate of hetero-phobia).

A government can be likened to a computer – a mechanism with no brains and no policies of its own. To function it depends on using the input of others (software) and hope it is free of viruses.

One is forced to conclude that operating either within, or on the peripheries of, or both, is a cabal that wants to see their own pet agendas achieved acting either as a software programme or a virus.

For instance, two Bills proposing same-sex union legislation have been debated in Parliament over recent years. On October 24^th 2001, Jane Griffiths MP introduced the ‘Relationships (Civil Registration) Bill’ into the House of Commons under the Ten Minute Rule. [11]

In January 2002, Lord Lester of Herne Hill introduced the Civil Partnerships Bill into the House of Lords. It was more detailed than Jane Griffiths’ and was the subject of extensive debate at Second Reading. Lord Lester withdrew his Bill a month later (6th February 2002) following further Government assurances that a cross-departmental review of civil partnerships was underway.

Both Jane Griffiths MP and Lord Lester of Herne Hill have reasons and interests in promoting same sex legislation.

The subsequent review was co-ordinated by the Civil Partnerships and Sexual Orientation Team at the Women and Equality Unit of the Cabinet Office. A third attempt was made in 2004 resulting in the Law Commission’s 2006 paper.

Throughout all these forays, and conveniently to hand, were pre-existing papers on this very topic stretching back more than a decade. The Law Commission’s paper of 2002, for instance, draws our attention, at para 5.39 (page 82), to same-sex partners being empowered to make a binding and express “property agreement” to be evidenced in the register regarding the future allocation of their property - something heterosexuals are denied by matrimonial law.

In the view of many that power should be as far as matters should have been taken.

· We will show how the Law Commission is so ‘forward-thinking’ that it has modernised this country back into the confusion of the 18^th century.

· We will show how the curse of ‘irregular marriages’ once thought consigned to a dusty corner of history’s, might be resurrected and the societal agony they caused relived by another generation of women.

· We will explore that where cohabitation is terminated by death that the survivor may well have to petition the court, meet all the criteria, and battle another cohabitee in the same way that was all too common in the 16^th to18^th centuries.

· But what we will not see in this reckless back-to-the-future adventure by the Law Commission is a relapse into the offence of ‘criminal conversations’, for that implies a degree of maturity, a level of morality and an acknowledgement of personal responsibility that present day legislators prefer to deny us.

Where death does not cause the termination of cohabitation the former cohabitant (presumably the female), the Law Commission believes, she should be able to apply to the court for financial provision on the basis of economic disadvantage suffered by the party and of any child of the family.[12]

For this pleading to have merit the Law Commission must tacitly be admitting that cohabiting with a man provides an enriched standard of living that would not otherwise be available. Doing the government’s stated intent of lifting women and children out of poverty therefore brings a penalty for men.

Authoritarian Liberalism

Cohabitation is but a distraction from the main event which is still marriage; and we tend to forget that the ONS finds that most women want to marry and 90% of divorced women have divorced only once in their life. This no doubt related to the high-value commitment placed upon it. Contrast that with the lack of a high-value commitment by cohabitees of whom one could almost say 90% change two years.

“The married family structure is the one structure that delivers commitment. This is about permanence. It is a solemn promise about permanence, given in good faith, which should only be broken in extreme circumstances. ... This idea that there really was a golden age of the family really is a straw man that must be shot down. Equally absurd is the idea that the married family is uniquely responsible for subservience and brow-beaten individuals. This is not just a caricature; it bears absolutely no relation to the sort of families that we've seen through the centuries.” - Melanie Phillips: ‘Soul of the Nation’. BBC, July 2000.

The probability that a married woman will became divorced before 40 years of age is 50% (in 1993 it was 41%). Cohabitations often last less than 2 years.

The probability that a women will be widowed trebles after she reaches 50 years of age. At that age she can look forward to 30 years of pension payments.

At 50, 60 or 70 years old her cohabiting days are over. Who then does the Commission have in mind to maintain her standard of living, care for her and meet her running costs ?

We have no objection to ‘tinkering’ or the principal of ‘persistent tinkering’ if ‘tinkering’ could be shown to be successful, but the Law Commission’s ‘tinkering’ has not been successful, in fact, it has been spectacularly and persistently ruinous.

The Law Commission is, in essence, at odds with society and at war with nature - and that is one war it cannot hope to win.

Older and wiser Commissioners have now been touched by their own errors and failures e.g. Deech and Hoggett, and their extended families too are now falling apart.

The world has experienced one Weimar collapse and subsequent holocaust in the 20^th century - does the Law Commission want to be known for repeating both in the 21^st century ?

Professor Rowthorn identifies the technique that is absolutely typical in debates and policy papers when reforms are afoot. [13]

For instance, in regards step-families, the technique is to show superior examples that at their best they can be as successful as intact married couples.

Again, with lone-parenthood only prime examples are cited as if they are typical; and again all that can be said is that at ‘its best’ it can be just as good as married couples.

However, as Professor Rowthorn reminds us, social policy has to be made on the basis of averages; not on the basis of fictitious claims nor on the basis of a successful but exclusive minority of a subsection.

Our conclusion is that this battle can be won by the Law Commission in the short-term, but if things do not work out as planned will the Commissioners fall on their swords or unload their dishonour onto the next generation of Commissioners ?

Robert Whiston

On behalf of Men’s Aid

Milton Keynes, UK

1. A Legal and Political Jihad

In returning to the topic of legitimising cohabitation the Law Commission is attempting to complete what for them is ‘unfinished business’.

The Law Commissioners are once again trying to launch another frontal assault on a target which, over the last 30 years, they have failed to overwhelm. [14]

In the absence of any public clamour for change this behaviour, if not obsessive, is certainly taking on the air of a hobby horse. For some reason yet to be revealed, marriage is viewed as an ideological irritant.

The only success the Law Commission has savoured in a 30-year-long campaign is the incremental erosion of marriage as the pre-eminent vehicle of choice into which children are born. That questionable success has come at the incalculable damage wrought on ‘the Underclass’ of society. [15]

The Law Commission fails to face up to the inevitable fact that the consequences of their proposals substantially reduce people’s sense of liberty and their freedom of choice.

To give mature adults the choice between a). marriage and b). cohabitation but with the same penalties on separation as marriage, is no choice at all.

If, for various reasons some heterosexual couples wish not to marry they have (at present) the options of cohabiting or recording their commitment more formally at a Registry Office. These are the same options offered to same-sex couples since legislation has legalised their ‘unions’ at Registry Offices.

Is the Law Commission proposing that homosexual and lesbian couples should loose their right to cohabit and be given only the option of registering their union ? No, they are not. But apparently this is precisely what the Law Commission intends for heterosexual couples.

Choices are being expanded, it would appear, for homosexuals but closed for heterosexuals.

Heterosexuals may have a choice but it is a choice in name only.

Worse is to follow. The astuteness of the Law Commission will effectively be taking advantage of inexperienced young adults who are not mature enough or cognisant of the price they will be forced to pay when they freely enter a period of cohabitation which they may view as a ‘trial marriage.

These young men, and it will be only men, stand to be ‘fleeced twice (at a minimum), once’ when they innocently enter into cohabitation and secondly, later in life, they will be are fleeced as they pass through the divorce courts.

The argument that they can avoid such a fate if they don’t marry if made obsolete by the new proposals. They will be fleeced as if they were married and there is every possibility that with the frequency and transience of cohabitation they could well lose all their accumulated assets 6 or 7 times in their lifetime. This is a wholly destructive prospect for society to consider. The collateral damage will be enormous.

Society at large and politicians in particular are at last waking up to the long term costs of these failed policies. The consequences for the state are simple. Subsidies to Single Mother Households (SMH), and by implication cohabitation, cost the British nation over £13 billion pound every year (at 1996 prices). [16]

Theoretically the Law Commission should be diametrically opposed to Talibanisation. Instead it is endorsing the same sort policies that jihadists would inflict under of the rigidity of a Kaliph.

Having time and again been thwarted in their ambition to sweep away marriage, the Law Commission remains unrepentant. They appear to be unaware that the breakdown in cohabitation shows a strong ethnic prevalence which will be explored in a separate chapter.

Had the Family Law Act 1996 not proven unworkable we can only guess at what life would be like under its proposed tyranny - replete with its quagmire of ‘property adjustments’ (i.e. transfers through legalised confiscation) to a new class of people, the ‘associated person’.

2. The ‘Home Sharer’ Proposition

Society can thank the Law Commissioners for much of our present day divorce laws and the shambolic disarray that everyone concedes they represent.

As part of that disarray the last 30 years has seen a huge transfer of real estate and permanent wealth from people who earned it to people who cannot sustain it (from men and fathers to women and wives respectively). This has huge implications outside the personal, social and the legal which we do not have time to go into at this juncture.

The cause of the problem is simply the court’s attempt, when divorcing, to stretch one man’s income (which may be very limited) across the competing demands of two households.

This is such a ‘no-brainer’ and has always been recognised as such that poet Jonathan Swift (1667 – 1745) believed that divorce should be ‘consigned to the relatively wealthy’ and that ‘it would be disastrous for ‘the poor’. As a satirist, essayist, and a political pamphleteer he could see the misery endured by his contemporary John Milton. His divorce tracts were written by a man who, Swift observed, had married to a shrew. [17]

For many, ‘Home Sharer’ might appear to be a new term but it has pedigree dating aback to 1995

when the Law Commission first unveiled their ‘Home Sharers’ proposals copied from legislative ideas from the Antipodes. [18]

In their 2006 paper they remain committed to pressing ahead with proposals to give cohabiting couples the same ‘rights’ as their married counterparts (for that is how it is seen). This can only mean that in the mind of the Law Commission and or the judiciary being married and cohabiting are one and the same thing. It must therefore come as a blow for them to realise this is not how the public wishes to see both ‘marital’ options.

The proposed rights on separation include never allowing men to benefit; meaning in contested cases only women can win-out. In uncontested cases that the right to transfer the overwhelming majority of the couples’ money and assets will always be towards the woman - never the man [Ref. Para 1.27 and 2.65 of their 2006 proposals].

If the law is sometimes best described as an ass, then ‘Equality before the law’, is a very sick donkey, indeed.

All ten of the examples in their 2006 paper itemising possible scenarios of relationship breakdown favour, ( inadvertently we would like to think ?), the female – regardless of whether there are children of the couple or not (and why should he pay anything if they are not his children ?).

In this gender neutral world there is one example cited (‘Example 5’ at Para 4.44 & 4.45) where the male should ‘win out’, i.e. qualify for compensation, but the Law Commission slams the door shut on that scenario. This serves only to demonstrate a degree of sexism that should have been extinguished 30 years ago.

At this point the definition of equality as exemplified in the Canadian Charter of Rights and Freedoms is instructive (see also Annex A).

“Policies that appear to be "neutral" can lead to discrimination if, in their application, they have a disproportionate impact or adverse effect on women”.

What lateral thinking allows preferential treatment in “policies and programs to treat different individuals and groups in different ways” to be shrugged off as if achieving equality ?

The Law Commission’s frame of mind can only indicate obstinacy at work or a totalitarian disregard for an individual’s property and liberal rights. It is the ‘authoritarian liberalism’ described by Melanie Phillips and which feels no compunction in neutralising ancient rights and forfeiting freedoms.

It is a style that encourages a Soviet style regime of property and wealth confiscation that presently only operates against couples foolish enough to get married.

Family stability, and its converse, family breakdown, is a simple but compelling measure with which to investigate different outcomes between married and unmarried couples with young children.

Whenever ‘outcomes’ are compared children of married couples are superior on all scales to children of unmarried couples. [19]

3. Property

What is most dishonest about this proposal - and there are several instances - is the disingenuous and knowingly wilful use of gender neutral wording. The authors know full well that, if accepted, the implementation of the proposals will see the new law applied rigorously against one sex (men) and always in favour of the opposite sex (women). What is proposed is nothing short of carpet bagging.

When a divorce case does not follow the conveyor belt ‘norm’ it makes the headlines. This happened to Heather Martin-Dye, aged 54. When she divorced her second husband, Mr Martin-Dye, a former British Airways pilot, the court, quite bizarrely, ordered that £3.6 million to be paid to her ex-husband. [20] Details of this extra-ordinary and very atypical case can be found at Appendix A.

An example of a reactionary ruling, again by the somewhat-out-of-touch Mr Justice Thorpe is that of custody denied the ‘house husband’ Even though he had given up his job and career to look after the couples’ children Thorpe ruled in favour of his working wife who said she intended to give up work so she could look after the children.

That she was awarded the house and ancillary assets is a common place feature; that it should come so soon after promising ‘noises’ about equality and the ‘faltering system’ by both Thorpe and Butler Sloss was disquieting [21] (see Appendix B).

Traditionally, owning property has brought with it a degree of power and influence, not least the ability to borrow, to use it as leverage and thus accumulate more wealth. We have all bought-in to this concept. But one could be forgiven for believing that currently both the advantages of ownership and that of creating more wealth are under threat. A slow transition in the ownership of property and homes has been underway and when a critical mass of transfers has been achieved it may only be by the repeal of legislation that owning property becomes worthwhile once again. [22]

It is crucial for fathers to realise that children, not a dazzling career or the invention of a world-beating patented device, are the key and the passport to future health and happiness (and wealth). Owning any property, but particularly a house, is a hazardous occupation. Equally, it presently serves no purpose for a man to build up emotional ties with his children as it can almost be guaranteed that one day, somewhere in the future, they will be snatched away from him. [23] Whoever is awarded the children by the court will be given the house and all other assets. It’s as crude as that. For men ‘women and marriage’ have in the present climate become two unwanted economic hand grenades.

Cohabitation has always been the escape route from total financial annihilation. If the Commission gets its way, no longer will only married and divorced women be perceived as potential and actual predatory animals but all women in general will fit the economic hand grenade epitaph.

Extending the property annihilation caveats to cohabiting men serves only to widen the impact and increases the fallout of such explosives power. If this comes about we should expect only that men’s health will decline and their suicides increase.

The trend in parenting awards since the Children Act 1989 (which became effective in 1991) has shown that far from fathers being treated equally or having a fair chance at playing the important active parenting role they deserve, they have been sidelined.

In an ideal world state confiscation of property is intolerable but routine confiscation might be met with less hostility if a quid pro quo for more post separation access and custody was offered as an off-set. But since this does not happen for married fathers it is most unlikely to happen for unmarried, i.e. cohabiting fathers.

In the 5 years leading up to 1991 the opposite was true, as the table below (see Fig 1) demonstrates. There was an increasing momentum towards joint custody, something we now call ‘shared parenting’, a dynamic that the Children Act 1989 should have enhanced. The trend varied regionally with the highest rate of awards in the south and south east with where 25% of custody awards were joint or ‘shared’ (the Law Commission’s own working papers point this out in ‘Supplements - Working Paper No. 96’, published 20 years ago in 1986).

Fig 1. Child custody after divorce (England and Wales)
Custody	1986	1987	1988	1989	1990	1991
To mother	63,150	61,506	60,988	59,577	63,736	59,066
To father	7,249	6,876	6,440	6,370	6,514	6,525
Jointly	13,009	13,223	13,771	14,766	18,468	22,897
Others	603	749	882	1,000	-	-
Total	84,011	82,354	82,081	81,713	88,718	88,488
% to mother	75.2%	74.7%	74.3%	72.9%	71.8%	66.8%
% to father	8.6%	8.3%	7.8%	7.8%	7.3%	7.4%
% jointly	15.5%	16.1%	16.8%	18.1%	20.8%	25.9%
Source: Judicial Statistics, courtesy of SPIG http://www.spig.clara.net/stat2/custody.htm

Fig 1 illustrates a time when custody awards were increasing from 84,000 to 88,000 and where joint custody (aka shared parenting) was gaining ground (up from 13,000 to 23,000), at the expense of mother-only custody (63,000 down to 59,000).

Since 1991 the mother-only custody trend has been reversed and ‘shared parenting’ or joint awards have all but been eliminated in the family division. The rare awards to fathers are usually premised on the incompetence or ‘unfit’ status induced by drug and/or alcohol addiction of the mother.

After 1991 the selection of custody arrangements was amended to ‘residence’ which could either be joint or sole (in the case of the latter contact visit status was offered to the father). ‘Joint residence’ has been made impossible by Child Benefits payments which government says they are unable to divide between two parents (re: Sprawson report).

The Sprawson Report identified "the Department for Work' and Pensions s computer system”, which was first installed in 1975, as lacking “the sophistication and flexibility of more modern systems and cannot accommodate complexities [and]... is unable to process ... the consequence of allowing for split entitlement" for all parents. [24]

The change has meant that directly comparable statistics are not available. Any comparisons, therefore, have to be made in an indirect way.

For example, the proportion of lone parents, by sex, who head-up households (see Fig 2), implies that since 1971 SMH increased by 1990 to 92%. And whereas in the pre-1991 era custody to fathers (SFH) was falling only gradually (7,249 to 6,526) in Fig 1, Fig 2 shows a collapse from around 12% to 7%.

Fig 2. Proportion of fathers and mothers who are head of lone parent households
	1971-73	1979-81	1990-92
Mothers	86.0%	87.2%	92.2%
Fathers	13.7%	12.8%	7.8%
Source: ONS. Population Trends

Subsequent data from Population Trends indicates that father custody is today (2004- 06) down to less than 5%. A comprehensive analysis of the actual numbers of Lone Parents by marital status is shown below in Fig 3 (note how in 1971 the numbers lone fathers was almost the same as for lone mothers).

Fig 3. Lone Parents - Actual numbers ('000)

Source: ONS. Population Trends

In an effort to lessen the impact of statistics produced by fathers groups and claims of bias, the DfES asked the ONS (Office for National Statistics) to estimate how many parents were going to court to seek contact orders. Claims by fathers groups of system failure, system overload, and of endemic bias against fathers has always been dismissed by Whitehall.

The ONS published its results, “Non-Residential Parental Contact with Children” in March 2004. The report was based on a “representative sample” of 935 adults - 649 were resident parents and 312 were non-resident parents, and 26 respondents were both (so are counted in both categories). Joan Hunt in common with other researchers subsequently quoted the ONS numbers in her learned papers:

“Only a small minority of parents use the law to sort out contact arrangements. A survey by the Office for National Statistics (ONS) found that around 1 in 10 parents had court orders”.

If there were 61,356 Contact orders in 2004 (see Annex B, Table 1), then the number of parents separating each year should have been, if the 1 in 10 is accurate, in the region of 610,000 divorces and separations. Fig 4 shows that at no time has divorce reached that level. Instead it has ‘plateau-ed’

Fig 4. Number of Divorces 1961 – 2003 (GB and UK ) (includes annulments)

Arrow – see Chp 19 below

Source : ONS http://www.statistics.gov.uk/cci/nugget.asp?id=170

at about 160,000 divorces per annum and of theses only 120,000 (on average) have involved children. The figures listed in Hansard also do not appear to add up when measured by the number of Residence orders granted at 30,006 (see Annex B, Table 1).

Clearly the ONS estimate of 1 in 10 (or 10%) stated in their report is wrong.

An increasing number of scholars and researchers are coming to the conclusion that official British data cannot relied upon to be dependable or accurate and that it is too often tainted and biased. (See Appendices F & F1).

Criticism is occasionally heard that fathers groups are too quick to link payments and compensation with seeing their children. This mischievous allegation is quickly refuted by posing a series of reciprocal or reverse tests for mothers.

In life, there are a certain number of ‘inevitabilities’, for instance, there is the inevitability of growing-up and maturing, which is followed by the inevitability desire to marry and have children etc. Divorce can only follow marriage, but cohabitation can either precede, or follow marriage, or even punctuate it.

In the past the transfers of wealth followed only upon marriage and death. In the recent past these vehicles have been joined by two more vehicles, 1). via divorce and 2). via the allocation of children, i.e. custody.

Shared parenting obviously threatens this trend in asset assignment. The Law Commission is undeniably obsessed with securing the financial security of the women. The way in which it always puts women’s interests ahead of protecting the interests of children, appears, if not old fashioned then slightly Marxist, and the way in which it has unfailingly tried to smash the property owners’ rights is consistent with an anarchistic view of society, re: “Property is theft”. [25]

Those who experienced the Soviets reallocation of wealth cannot help but see the Law Commission as a reincarnation. Both before the Cold War, in Poland in 1939 and in eastern satellites after 1946, property of the middle class were confiscated.

In every town middle class families were forcibly ejected from their houses, flats and shops by Soviet troops and the penniless, landless and uneducated installed in their place.

Property Transfers Values

The frequency and value of property transfers increased through the 1990s – not to mention the ease. Women, who at one time could only gain from being ‘gifted’ property by the state after a divorce, can, with the Law Commission’s proposal, equally profit without doing this or incurring the expense of a wedding ceremony.

In the early to mid 1990s, women aged 25-54 were most likely to live in ‘owner occupier’ houses with 78% of married or widowed women living in houses with mortgages. But divorced or widowed women, in the 55+ category were more likely to own outright their home (59% and 49% respectively). Put simply, divorce gives a clear 10% advantage over widowhood. Overall, a total of 70% of women were living in owner/occupier properties / houses.

The ONS did not count men, so it must supposed they are the other side of the same coin, the dead and the dispossessed (or, to put it Soviet terms, the number of peasants provided with better housing by the state is known but the number of the bourgeoisie dispossessed, left homeless, sent to Gulags and generally ‘disappeared’ in not known).

It would be reasonable to speculate that by today, 2006, the ratio of property transfers has increased (post Thatcher). It would also be reasonable to speculate that these women enjoy fully paid up mortgages. ONS figures from the early 1990s show that one year after divorce 66% of women still lived in the matrimonial home (10% fully paid mortgage and 57% with a mortgage being paid). This must mean that 67% of divorced men did not. In addition, widows naturally benefited from their husband’s premature death or ‘death in service’ clause to fully pay their mortgage.[26]

Women are unlikely to take out polices to benefit their spouses in a comparable manner.

Fig 5 shows in percentage terms both male and female lone parents and the type of house occupied. With 95% of custody awards routinely granted to mothers very few lone parents are male which results in their over representation in Fig 5. For instance, if male lone parents are owner occupiers in 12% of cases then that 12% might represent only 500 male parents. Conversely, if female lone parents are owner occupiers in 8% of cases this could represents 40,000 or more, female lone parents in actual numbers. [27]

Fig 5. Lone parents with dependent children: by tenure, (April 2001, GB)

Source: Office for National Statistics; Focus on Families; UK. Pub 7 July 2005

While a proportion of Local Authority housing or privately rented accommodation is occupied by women, Fig 5 shows overwhelmingly that lone mothers absorb a disproportionate amount of such housing stock (48% and 20% = 68%),. Only divorced created lone mothers are likely to live in houses with mortgages or mortgages already paid (7% and 25% = 32%).

We can state the position with regards female property ownership/occupation with a high level of confidence since data capture by government is fem-centric. This means that with few exceptions ONS surveys quiz women regardless of status, the ONS cannot speak with authority with regard to what happens to divorced fathers since no one ever enquires. We have to assume that fathers are the reciprocal, i.e. the balancing item in numbers and percentages of all the points made above.

This has led to two unseen consequences. Firstly, it has meant that a reciprocal number of men no longer had a home after divorce, thus fuelling inflationary demand. Secondly, it has meant that today’s higher house prices simply reflect that constant inflated demand where the supply side cannot respond quickly enough.

The first marked increase in house prices was during Edward Heath premiership in the early 1970s coinciding with the enactment of the 1969 divorce reforms The second, during the 1980s was, perversely, during a hypothetical decrease in marriage but at a time of increased court powers (circa 1984) and an increase in cohabitation.

Given that until now there has been no pecuniary reward for separation its introduction might prompt a continuing ‘catch-up’ in house prices or a step change comparable to the 1969 divorce reforms. Either way, cohabitation is a social phenomenon known for its high turnover (instability) while the housing market is renowned for its volatility. When these combine a stable and predictable housing scene is therefore always under threat.

Conversely, it can be argued in favour of the pre-1969 regime, where both parties had to agree to the

divorce and arrange how to afford it, plus each party did not know for certain how custody would be awarded, that those factors acted as a psychological ‘brake’ to suppress the desire to reach for divorce as the first solution, and hence lowered the demand for housing and lead to greater price stability. [28]

The present high divorce rates (1980 to 2006), coincide with increases during the same period of what have traditionally bee seen as the “twin curses” of cohabitation and illegitimacy. Both have always posed problems for society in practical terms and as a marker for dissipation and moral apathy.

These social curses have been encouraged rather than addressed by the reformers and their policies. Over time a third and a fourth curse has emerged - a declining population (birth rate) and single occupancy households leading to a housing shortage with the conversion of many ‘family’ houses into flats.

The sex discrimination against men and fathers, rampant in the 1980s and 1990s, is still with us. Property rights under the 2006 Law Commission’s proposals will apply rigorously against one sex (men) and in favour of the opposite sex (women). No where is this clearer than in the Example 5.

All the scenarios cited by the Law Commission involve either “implied trusts” or “proprietary estoppel”, or “resulting trusts” or “constructive trusts”. These artificial constructs are currently used as vehicles to override defences and bequeath to women title and occupation of the matrimonial property – whether they have paid a money contribution towards the mortgage or contributed ‘in kind’. In divorce proceedings today the claim of “unreasonable behaviour” brushes aside all reason and the same will happen to any defence of property rights mounted by an owner. [29]

The Law Commission proposes to extend these artificial constructs to cohabiting couples. To this complex recipe for redistribution will be added the complication of express or implied “common intention”. What a field day this will present for lawyers !

By the operation of ‘proprietary estoppel’, ‘implied trusts’ etc, judges hearing contested cases have created and developed new matrimonial and property laws that were not contained in any Acts of Parliament. This was possible because Parliament asked them to use their ‘discretion’ in such matters. Experienced judges concede that in practical terms many such power to have been used abusively and wantonly. The Law Commission nonetheless wants to extend this ability to abuse cohabitees when they separate. An abuse that may lead to action in the ECHR.

In Britain the awarding of property and wealth to non-spouses as if it were spousal matrimonial property would overturn 1,000 years of established property law and custom. This and other drawbacks were pointed out to the Law Commission in 1996 when consideration was first given to their Home Sharer plans. [30]

The outcome for men is that 30 years of meddling has resulted in the ownership of property and

thereby an individual’s investment in the greater community losing its appeal. Society ends up with ‘implied ownership’ - ownership in name only with control, enjoyment, benefit and possession passing to any party who has not purchased it. What will society look like when once valuable assets suddenly lose their attraction and have no buyers ?

The proposals for handing over property are clear cut examples of institutionalised sexism. These proposals directly and indirectly discriminate against one class of person – men and fathers.

4. Fact File

From reliable sources, including for example, Lord Justice Dunn [31] and Ruth Deech, we learn that new legislation cannot be trusted to be enacted as intended. The black letter of the law is today a fiction. Judges can and do warp laws to suit their own penchants and agendas, e.g. Denning. The Law Commission has succumbed to this penchant for private agendas and is a prime example of how an ideology can grip an institution.

In the lead up to the 1969 divorce reforms (and subsequent reforms) former Law Commissioners have revealed how the Law Commission both knowingly and deceitfully mis-used statistical data in order to push through its radical legal reforms (see ‘Hoggett and Deech’ chapter below).

It would therefore not go amiss to remind, or inform the Law Commission if they do not already have the data, of the following facts and figures regarding cohabitation.

1. An analysis of BHPS data suggests that on average half of cohabitations last around 2 years or less (the main reason given for change of status is marriage to partner). [32]

2. Figures from ‘Social Trends’ (ONS No 27, Table 2.13) show that 12% of lone parent women leave to form new households every year, i.e. go to live with parents, live with boyfriend etc.

3. At that ‘departure rate’, 50% of all lone mothers would have a duration of lone parenthood of 4.7 years before it altered, i.e. cohabit or marrying. see B2, p29.

4. 3/5's of cohabiting women were never married. 1/3 were widowed, 2/3's were divorced or previously married in the previous year.

5. Overall cohabiting unions dissolve completely at 9% per annum while 16% turn onto marriages. Therefore, half of all cohabiting last less than 2.7 yrs.

6. Overall, 15% of lone mothers change status within a year.

7. Families today consist of 27% where there is a lone parent, 34% in two parent relationships, and 15% where there are more than 4 people in a household i.e. father mother and 2 children)

8. Overall 6% of such women with Dependant Children change status every year.

9. 12% of women cease to be Lone Parents, i.e. they form a new relationship.

10. In 1993 there were 43% more households than in 1961 -because of cohabiting divorce and lone parents. This at a time when household sizes have reduced dramatically. (This is putting pressure on the Green Belt and local planners - RW). (2.5% increase in population versus 40% increased housing demand).

11. In 1996 an estimated 1.56 million men and 1.53m women were cohabiting (i.e., over the age of 16 and not single and not married). [33]

12. From 1991 to 1996 the numbers of divorced men cohabiting fell from 450 per 1,000 to 370 pr 1,000. The category ‘separated men’ shows the same decline (p13). (Is this a consequence of the CSA ? - Ed).

13. It is estimated that cohabitation will rise to 3m by 2021 AD. (p13).

14. Mortality for women with dependant children is less than that for childless women.

15. Economic factors, activity and circumstances and social security payments do affect life style and life decisions and divorce.

16. People in local authority accommodation are more likely to die and earlier than people in a mortgaged house - by a factor of 100 to 126.

17. 1 in 2 lone mothers live in social housing. [34] Married women are least likely to live in local authority accommodation (see Fig 5 above).

18. Those in socio-economic Class V have a 50% greater chance of a higher death rate than those in Class I.

19. In 2004 there were 7.4 million families with 13.1 million dependent children living in them in the UK. Most of these children (66 per cent) lived in a married couple family.[35] See Fig 7.

20. One in four dependent children lived in a lone-parent family in 2004. This was an increase from 1 in 14 in 1972.

21. The average number of children in a family declined from 2.0 in 1971 to 1.8 in 2004.

22. Married couple families were generally larger than other family types, with an average 1.8 children in 2004, compared with 1.7 in cohabiting couple and lone-mother families.

(Many of the above figures can be seen at the tables below, i.e. Fig 2 to 5).

Submissions from other interested groups will probably focus on the current levels and implications of cohabiting. It is therefore our choice to allow comparisons to be made by presenting figures that represent the situation during the mid-1990s when the Law Commission was first contemplating much of what it is now proposing to introduce vis-à-vis cohabitating.

Complicating the issue is the inevitability that single women may enter cohabitation but leave it as a single mother (Fig 6). Equally, married but divorced mothers may enter cohabitation with legitimate children but leave it as a single mother with legitimate and newly illegitimate ones (termed EMF, extra-martial fertility). Or the same mother can marry her current cohabitee and legitimise any children so born.

Fig. 6. Women leaving and entering co-habitation each year 1991-1994 (GB %)
Entering Cohabitation
Single	14%
Divorced	5%
Separated	4%
Widows	1%
Total Entering Cohabitation	23%
Leaving Cohabitation
Marry Partner	16%
Partnership dissolves Never Married	9%
Widow, Div'd, Sep't	4%
Total Leaving Cohabitation	28%
Source: Social Trends, No 27, Table 2.13.

Widows are the one category least likely to enter cohabitation. Numerically they are the smallest group and the percentage of this group choosing cohabitation is the smallest of all the categories. This may be due to social expectations, age, pension provisions, and/or lack of conflict between the parties before death.

Superficially, the Law Commission’s proposals may appear both worldly and worthy. They might even look as if they will set us on a course for a fairer and more just society but are the recipients of their largesse as innocent or as vulnerable as they make out ?

Indeed, can we afford such altruistic largesse even if they were deserving ? The results of previous legislative interference have shown that poverty increases, not decreases, e.g. Finer Report (UK) and the AFDC and the TANF schemes in the US (see Chap. 20. Intellectual Betrayal).

Cohabiting couples with or without children are numerically – though not exclusively - localised in the lower socio-economic brackets and the numbers ‘with children’ are actually number less than single mothers (Fig 7).

These lower socio-economic families tend to have the highest turnover of parents and problems of abuse - be it alcohol, drug use or neglect of children. They tend to absorb a disproportionate amount of resources and social worker manpower (Appendix C).

From The Guardian we learn that research from the Prime Minister's Strategy Unit has found that ‘problem families’, whose members commit crime, live on benefits, have generally poor health, and

cost the state £250,000 a year each. [36] When combined these families cost a total of £57.9bn every year – and the Law Commission is proposing changes that will significantly increase numbers to perhaps double the existing estimate of 1.3 million “poor” Britons who have these multiple social and domestic problems ? (Appendix C).

Fig 7.

Source: Office for National Statistics; Focus on families; UK. Pub 7 July 2005

Ten years ago research by Dr. Patricia Morgan (LSE) showed that 8 out of 10 children ‘taken into care’ came from families where the mother was not married. [37] Child abuse is a social scar that needs to be reduced, not encouraged.

For an impartial perspective we have to look outside the scope of Law Commission’s immediate concern and examine the bigger picture. We have to not simply focus on the box giving cohabitees more rights but the ramifications we will find in many of the adjacent boxes. For instance, across all races, joint custody which had been steadily increasing in the years leading up to the Children Act 1989 (peaking at 25.9% by 1991 when it was implemented) abruptly plunged while sole mother residency (which had been decreasing) suddenly began to increase.

· Was cohabitation a factor and is there a link with the alleged higher levels of domestic violence reported since ?

· Since the first wave of immigration from the West Indies, it has been the customary for Caribbean mothers to be single and head up household. If so, is this reflected in the statistics for awards of sole custody ? Is it, as a consequence, reflected in ONS defined “living arrangements” we see today, i.e. influencing young girls from other ethnic backgrounds to follow suit (see graphs below) ?

· The same pattern and frequency of single mother household (SMH) does not hold true for black mothers from African countries who are much more likely be married.

· Will there, as Richard Rosenfeld, a professor of criminology at the University of Missouri-St Louis predicts, be fewer women murdered as fewer marriages take place ? Probably not, because very few spouses are murdered by spouses at present.

· Conflating spouse with cohabitee is common and even experts, such as Prof. Rosenfeld, can get confused and start from the wrong premise. Proposals to equalise marriage with cohabiting will only add fresh impetus to already erroneous data.

· It is the two sub-sets of cohabiting couple and the boy/girlfriend relationship, that give rise to most murders of women. [38] (Appendix D to D2). To often they are wrongly aggregated into the total of married couples and even described as such, e.g. see ONS. Population Trends.

· Lone mothers are dependent, if divorcing on confiscation of the matrimonial home and if never married, on the provision of local authority housing or the private rented sector (see Fig 5). Lone fathers, by contrast, are no where near such a drain on state resources.

· Has the Law Commission concerned itself sufficiently with the Asian community’s customs and expectation ? Their proposals will in all probability overturn many age-old customs. In the tight communities that comprise Pakistani and Indian neighbourhoods the exchange, pledges and/or transfer of assets, wealth, property and money can occur immediately before or after marriage. Where marriages are frequently inter-family and inter-tribal (i.e. clan) this proposal can pose new sources of family or clan conflict, i.e. vendetta.

· The prospect of their established order being compromised by irreligious secular legal moves from the host community to empower what hitherto would be regarded as ‘non-family members’ until the wedding, will not go unnoticed.

· Should the Law Commission, therefore, expect its actions to result in a surge in ‘honour’ killings or perhaps murders where the police already find it nearly impossible to collect evidence to convict ?

· Cohabiting has several dynamics including distinct patterns, age, 'ethnicity’ and inter-racial factors (see graphs below).

An article by Leo McKinstry in the 'Spectator' entitled ‘The Age of Unreason ‘(April 23rd 2005) pointed to ONS figures indicating that, currently “55% of all births [were] to foreign born mothers”.

He went on to cast doubt on the received wisdom when he wrote, “.... In recent years .... we have been continually told about the substantial economic contribution that immigrants have made to Britain, said to be worth £2.5 billion a year.”

He also reminded politicians that, "When it comes to housing benefits or Income Support, blacks are twice as likely as whites to be claimants.”

This socio-economic group is also where we find cohabitation most prevalent and one wonders whether the Law Commission has paid enough attention to all the dynamics it will be affecting or whether it is happy to play the role of a modern Pandora ?

5. Cohabiting Patterns

The ONS reports that “Around six out of ten men and women in the UK live in a couple. Five in ten men and women are married and one in ten is cohabiting”. [39]

Self evidently the groups the Law Commission is trying to assist is very small – it is only female 50% of those 10% of couples who live as man and wife, i.e. 5% of that part of the population that can be classified as living as a couple (see Fig 7).

This persistent addiction to a sub-set within a minority amounts to a character defect verging on the Pavlovian. Legislators have fallen into this mode for the past 30 years and appear to have unlearnt how to legislate for the majority. The result is that the meaning of the word ‘democracy’ has, for all practical purposes, been lost to our lexicon.

By contrast, in the years leading up to 1969 the virtues of a new divorce reform Act were advertised as facilitating and encouraging the end of de facto illicit unions and to the benefit to everyone. Conceding that these unhappy couples were not a majority of the population it was argued it would benefit society at large if they could be ‘released’ and their illicit unions ‘legitimised’.

These unhappy couples were the product of unhappy matrimonial unions that could not be ended by the divorce laws as they then stood. There would be a ‘one off’ surge of around 250,000 petitions and then divorce numbers would return to their 60,000 average of the late 1960s.

This never happened.

Instead, Britain saw a fall in marriages ( Fig 8 ) but a rise in both divorce and cohabitation (aspects that both society and the Law Commission then viewed as ‘social curses’).

By 1998 demographic evidence revealed, that around 25% of non-married women under 60 and 26% of non-married men under 60 were cohabiting in England and Wales. [40]

Fig 8. Number of Marriages. England & Wales. 1961 - 1995 (000).

Source: ONS ‘Population Trends’, No 91, Table 22 [NB Divorce Reform Act 1969, enacted 1971].

This is, of course, a crude aggregated figure containing many sub-sets. For instance, of those who had not chosen a semi-permanent life style, 70% of women in 1993 had cohabited before their first marriage compared with 5% in 1968. [41]

With divorce no longer rare, other figures became available, i.e. for serial divorces. So that in the same year, 1993, we can look back and see that 90% of women had cohabited before their 2nd marriage, compared with 25% in 1968. [42]

We cannot draw comfort from patterns in cohabiting to off-set any decline in marriage. Social Trends No 27 (ONS, 1997) shows cohabiting as a series of short-term relationships, with only a very small minority lasting as long as marriages – even given the present relatively high rate of divorce.

The overall risk of family breakdown (by family type) is shown below in Fig 16 (Chp 23), and the fluidity of cohabiting, i.e. women leaving and entering co-habitation, is shown in Fig 6.

This hides the amount and depth of hurt felt by both men and women as unions dissolve. By advocating a mechanism to increase dissolutions the Law Commission will, to paraphrase Lord Mackay of Clashfern, not add anything to the sum of human happiness.

Cohabitation fails to compensate for the lost stability that marriage once gave to young children and adolescents. In fact, quite the opposite, the numbers leaving cohabitation exceeds those entering in any one year (see Fig 6 above). This is only made possible by the continued but diminished attractiveness of marriage especially to men. It is only now are we realising that cohabitation impacts the birth rate which in turn impacts the ability to pay pensions. As the trend line for the number of marriages has declined ( Fig 8 ) the number of births in the United Kingdom has fallen – down 200,000 from its 1948 level of 905,000 (Fig 11). An abbreviated table of legitimate and illegitimate births from 1961 to 1997 is shown in Fig 9.

The significance in the illegitimate trend is that of the broad family types shown in Fig 7, only the married couple would be self-supporting were government to evaporate overnight. The remaining life style choice 33% of all couples require significant and sustained funding over many years.

The importance of ‘family patterns’ is to assist national and local governments to meet vital market needs and service provisions, particularly future housing, schools, hospitals and employment needs etc. The basic information required would typically focus on;

the number of households types, e.g. terraced, detached

the number of households containing families

the number of families with children

the number of children per family

the number of bedrooms available

the age at which CFS (completed family size) is achieved

the number of childless couples

the number of ‘single mother households’ (SMH)

the number of unmarried couples cohabiting

the age at which conception / live birth occurs

From a statistical perspective, marriage and cohabiting are very different beasts and we would plead for the Law Commission to keep this very much in the forefront of their minds

Cohabitation is a ‘flow variable’, but marriage is a ‘stock variable’. Marriage is a 'stock variable' because theoretically it is a permanent state. When it does change it is usually only after significant period of time and therefore it can be counted allowing calculations and projections to be reliably made.

However, cohabitations is usually not permanent or semi- permanent; it is usually transient and is therefore a ‘flow variable’ (average 18 months). A flow variable’ can best be considered using an economic analogy. Cohabitation is akin to, say, ‘earned income’; it is generated in return for hours spent labouring and although it may be ‘pocketed’ this is temporarily for it is ultimately exchanged to pay bills or converted into other goods. This affects the amount of money shown on the bank statement which will be highly volatile depending on day the statement was printed.

As can be seen in items 21 and 22, (Fact File above), the average number of children in a family has not only declined from 1971 to 2004 but was dependent on family type. Below, Fig 9, summarises the trend in ‘live births’ from 811,000 in 1961 to only 642,000 in 1997. Two factors have to be born in mind; firstly that the increase in out-of-wedlock births has not offset the declining birth rate and is not anticipate to do so. Secondly, the cost of out-of-wedlock births is substantially higher – initially and over 20 years - than income-tax -yielding births inside wedlock.

Fig 9. Live Births
Outside Marriage
Year	1961	1971	1981	1991	[1996]	1997
	48,500	65,700	81,000	211,300	[232.7]	237,900
All live births
	1961				1996	1997
	811,300				649,500	642,100
Source: ONS Population Trends No 91, (Spring 1998). Table 9 & 10. page 62

Invalidating ‘Equity’

The Law Commission’s 2006 proposals do not address these aspects or even considers the ominous implications of its intentions. It fails to see that its plans will adversely affect an already wretched situation. It also fails to remember that the Equity maxims hold that “Equity will not aid the volunteer' and the female cohabitee is volunteering to cohabit and so should not be entitled to compensation - and more to the point is another maxim i.e. “Equity delights in equality”.

Despite the word ‘mother’, ‘women’ or ‘female’ never being mentioned in the Law Commission’s 2006 proposals the sole class of beneficiaries is clear. The word ‘wife’ is only mentioned occasionally where it enables the female cohabitee a degree of licence to qualify for widowhood benefits, e.g. claims for compensation under the Fatal Accidents Act 1976, for probate and a share of the estate, even in intestacy, via the Provision for Family and Dependants Act 1975, and any other insurance policy where the male partner is “deceased”.

When the frequency and prevalence of domestic violence is associated with cohabitation, and young

single women and social housing, then society should be surprised to learn that the Law Commission is advocating yet more cohabitation.

When ‘marital rape’ is usually code for rape by a cohabitee (an existing or former ‘partner’), it is reckless for the Law Commission to be advocating yet more cohabitation.

The cumulative effect will be to create huge disincentives to be emotionally engaged with the opposite sex, for to do so will entail a huge gamble by the male party.

However, if the Law Commission is to be believed this will, under the ‘equality’ banner, not be confined to heterosexual couples but extended to homosexual couples – though which partner the Family Division chooses to be crucified in the same way heterosexual men are currently crucified is very much open to question.

If the Law Commission persists with its cohabitation ideas, distinct patterns may emerge in the future. This could encompass the accelerated growth in Britain of the ‘singleton’, i.e., a child staying or living at home with its parents well into early adulthood. Already this is a feature seen in another wealthy country, Japan, which also faces declining marriage and birth rates.

Other discernable patterns might see the emergence of non-cohabitation along race and religion lines.

A spilt along ethnic lines may see Asian families via Asian young women becoming the main supplier, both in quantity and legitimacy, of racially homogenous children (see Ethnicity below).

We may even see, as a result of their non-cohabitation inclination, a type of ‘premium’ for Asian young women materialise from males among other ethnic groups including Whites.

We have already felt the impact on national GDP of divorce with a surprisingly high number of divorced fathers disengaging from the normal white economy and choosing the anonymity of the Grey or Black economy. Moves by the Law Commission to treat male cohabitees as if they were divorced would increase this number in the ‘Black economy’.

6. Ethnicity

Britain is comprised of three main ethnic groups which the ONS and others describe in shorthand terms as ‘White, Black and Asian’ (there are of course other minorities, e.g. Chinese, Peruvian and mixed race but these are numerically insignificant). [43]

The question of ethnicity cannot be divorced from cohabitation for several reasons that will become obvious in this and later chapters. The Law Commission may feel itself very competent but it is delusional and a competence based on a blinkered horizon. Its past record is one of offering up reforms without giving due consideration to the knock effects of its technical tinkerings. No one lives in a vacuum. New laws and legal changes cannot be viewed in isolation is disasters are to be avoided. There is no evidence that the Law Commission has ever been capable of this.

Prior to the 2001 National Census (i.e. in 1997), the total population of Great Britain was estimated to be 56.5m, composed of an ethnic minority population of 3.6 million (6.4%), and 93% or 52,936,000 Whites.[44] The 2001 census revealed that Whites now constituted 92% or 54m out of population 58.7m. In a period of 10 years from in 1992 to 2001 the ethic minorities had grown from 5.8% to 8%.

In Great Britain the number of people who came from an ethnic group other than White grew by 53% between 1991 and 2001, from 3.0 million in 1991 to 4.6 million in 2001. [45]

Regional variances mean that the Greater London area contained 85% of the total Black-African population in Britain and nearly 60% of the Black-Caribbean population (but less than 20% of the Pakistani population). However, the metropolitan counties of Greater London, Greater Manchester, West Yorkshire and West Midlands together contained nearly 75% of the ethnic minority population (Black and Asian), compared with less than a quarter of the White population. Some towns in the north and midlands have more Asian than White residents.

Ethnic customs and practices already diverge greatly in matters of marriage, cohabiting and births

outside wedlock. For instance, Asian women are least likely to give birth outside of marriage. The graph below (Fig 10), show that 14% of Asian teenagers give birth outside marriage compared to over 30% for White teenagers with Black teenagers the most likely, at 68%, to become unmarried mothers.

(NB. all the graphs in this chapter represent data from the early-1990s to the mid 1990-s).

For all groups this trend in birth outside marriage drops as the sample size reaches their mid to late twenties. Asian women then sustain a slight increase not seen in the other two groups but in the present or new era, begun since ‘9/11’which has witnessed the rise of Islamism. We can expect social and cultural pressures to suppress Asian out-of-wedlock births to minimal levels in all age groups.

Fig 10. Single mothers / illegitimate births (by age and ethnic group) (%)

Source: OPCS Population Trends. No 77. Autumn 1994

The cohabitation trend among White women is initially the highest but falls from 19% to 8% (see Fig 11). This corresponds with their expected transition from cohabitation and into marriage (see Fig 6). Cohabitation for Asian women starts at 2% and falls gradually to 0.1% by the time the 35-year-old age group is reached (Fig 11).

The decrease in cohabitation levels seen among Whites and Asians might be expected to extend to Black women but as can be seen from the same graph this does not occur. In fact, Fig 11 shows cohabitation actually increases in the 24 to 30 age groups among Blacks.

Except for Asian women, cohabitation never falls below 8% in the other two racial and ethnic groups and across all age range (16 to 35) it cruises at around 10% -14% level.

Between the racial and ethnic minorities there are huge discrepancies in educational attainment, with Black boys fairing worst and Asian boys fairing best. This tendency apparent to fathers groups for many years is only now beginning to be accepted by mainstream thinking.

The consensus, using standard measures, is that many White boys do only marginally better than Black boys but far worse than Asian boys. Not having a father is indicative of both educational under-achievement and future criminality.

Rolling forward 10 years (to 2004) we can speculate whether there would even have been a need to introduce ASBOs had fathers been present in more Black and White families when children were growing up. Higher cohabiting and illegitimacy rates among Whites and Black and the number of ASBOs issued would indicate there is some linkage (Appendix D2).

Fig 11. Cohabitation (by age and ethnic group) (%)

Source OPCS No 77. Autumn 1994, Population Trends.

A survey in the Caribbean revealed that only 22% of fathers who had 8-year-old children actually lived with their children (ref. The United Nations Children Fund).

Diversity between the ethnic sub-sets is again found when looking at the ‘living arrangements’ of the three main groups. We have already commented on the stricter social and marriage customs of the Asian community and this is reflected in their attitudes to education, work and, for instance, extra-marital sex. Unfashionable though it is in our present day society, men and religion play a strong role in shaping the Asian society.

For this reason the following three graphs are labelled Patriarchal, Matriarchal and Transitional, i.e. moving from Patriarchal to Matriarchal, to illustrate the differences that differently ordered societies can induce. The graph entitled ‘Patriarchal’ (Fig 12) typifies the social structure found in the Asian community where marriage is the expected norm. Matriarchal describes the more fem-centric West Indian social hierarchy.

This is not in any way to imply that West Indian men are lesser men but to indicate a regime where men are marginalised in households monopolised by women and mothers.

Broadly speaking, men play a pro-active and almost exclusive role in family life, local and social affairs in the Asian regime while in the West Indian regime men allow themselves to be far less ‘engaged’ with family or civic matters.

In the context of marriage, it would appear that Patriarchal regime achieves a greater probability of women attaining married status and of having children born inside marriage (Fig 12). Lone parent and cohabiting as we have seen above, in Fig 11, 12 (Asian Trend), are at minimal levels.

This is in stark contrast to Black family formation (Fig 13) where we find the number of married couples never exceeds that of lone parents and we can deduce that the prospect for women of marriage under this regime is significantly less. Instead of marriage, it is the two forms of single parenthood that dominate.

What is clear from the data (e.g. 'Focus on Women' – ONS Statistics), is that matriarchally-inclined or matrilineal societies, produce young women who not only start “families” at an earlier age but start

them unprepared and as ‘lone parents’, i.e. SMHs (Fig 10 and 13).

Fig 12. Patriarchal Societies by Marital status (Asian women)

Derived from OPCS No 77. Autumn 1994 Population Trends.

In addition they start them at an age when they would normally be expected to be at school / college and therefore we can suppose “that their career prospects are blighted” (ref. Focus on Women – ONS Statistics)

The trend first seen in the 1970s of reproducing every 16 years has now produced a situation where reasonably middle-aged women, in their mid 30s, can be grandmothers and slightly older women (50 ish) can be great grandmother. This may go some way to explaining why child costs paid as state benefits have increased rather then decreased as the numbers both have fallen (Fig 17. Treasury Expenditure). In economics this could be described as the velocity of circulation.[46]

Fig 13.

Derived from OPCS No 77. Autumn 1994 Population Trends.

The problems with velocity of circulation is that because for a limited time it can, of itself, sustain an unsustainable higher demand level it can be mistaken for real demand and real increases in GNP.

If divorce acts as if it were velocity of circulation, then we should not be surprised that at some time the average price levels (e.g. houses) increase and the economy (number of transactions) might overheat. If this is the case we should avert cohabiting numbers adding to the effect.

The matriarchal model (Fig 13, but also Fig 10), has significant medical drawbacks exposed by the advances in 20^th century medical science. It will probably not be unusual for there to be no common Y chromosome among the DNA of the children born into matriarchal families.

Bone marrow or organ transplants become more fraught than they need to be.

The matriarchal paradigm, although it displays a marked slump from 65% in the incidence of lone parenthood at age 16, it rarely falls below 50% in the 32 year old age group. This means that less than 50% of young women can ever hope to marry. Once, therefore, the repeat pattern is achieved it is often a cycle that cannot easily be broken and thus matrilineal or matriarchal is an appropriate description.

In addition, Fig 13 shows how cohabitation rates remains fairly constant regardless of age. This is marked contrast with the patriarchal model where the incidence is low to begin with and never rises above 20% (Fig 12). However, it should be noted that cohabitation rates are more frequent among Afro-Caribbean women than those from the continent of Africa, whose marriage patterns resemble more closely European families.

What is termed in this paper, the ‘Transitional Societies’ graph, refers to the White population and shows a possible mixed message being received by women in their early reproductive years, i.e. 16 - 23 (Fig 14). Although it shares with Fig 8 a strong marriage arch mimicking the patriarchal graph it is not between the ages of 16 and 23, the first choice between (compare with earlier graphs).

However, any confusion in choosing SMH or cohabitation status soon withers and declines by 50% (from approx. 20% to 10%, Fig 11) and lone parenthood falls from 32% to 12% at 34 years of age.

Fig 14. Transitional Societies. (Marital status).

Source: Population Trends No 77. Autumn 1994.

There is good reason to believe that the Law Commissions proposals would see the married trend become subservient to the Lone Parent line seen in Fig 13, or even dominate from the age of 20 onwards as seen in the trend line in Fig 10 for Black single mothers.

A good case can be made out for saying that young people (16 – 25) are demonstrating in Fig 14, confusion and appear undecided which path they should choose and which therefore is best for them. At present, after a hesitant start, it appears that most White girls and young women choose marriage, though at a later age. This reinforces ONS figures, which show that while marriage is not rejected it is deferred. This view is fully supported by both longitudinal and attitudinal surveys indicating that for 90% of women, their ultimate goal remains marriage and a family. It is reasonable to assume that with the data available the cross-over point, between married and lone parents, currently at 20 -23 will increase to 26-27 in the decade ending 2004.

The average age at which marriage takes place has been slowly rising over the last 15 years. At present the average age for a woman to marry is about 29. This fact is independent of the above graphs and should not be confused with the graphs which depict living arrangements by age and which are indicators of age of motherhood and marital and non-marital status.

According to the 2001 census, 59% of households with children are married, 11% are co-habiting and 22% lone parent families (the latter figure of 22% is roughly equally divided between never-married mothers and divorced women).

Significantly, the White cohabitation rate was already much higher than the Asian level in the mid-1990s, and could be said to roughly equate with the Black or matriarchal society level especially at the 16- 20 age group. (Fig 10, 11 and 13). Fortunately, the illegitimacy level has still some way to go – at least in percentage terms though, of course, numerically, there are far more pregnancies at present among White girl than there are Afro-Caribbean or Asian (Fig 10, 11, 13 and 14).

The significance of all the above factors can be seen in the variations displayed by the ethnic groups between:-

· male school achievement

· male entrance to university

· male employment

· male professional careers

· the period taken for a male to start a family after marriage

· male prisoners

· and even male suicide

Asian males do well in all the aspirational categories but in general terms Afro-Caribbean males tend to do poorly, e.g. in prisoners and suicide.

One culture is male inclusive while the latter encourages young single women to start families without knowing the disadvantages to their children of not having a regular, non-varying, unchanging man in their children’s life.

The effects of having no father present can also be seen in those children put into local authority ‘care’ - invariably (80%) come from SMHs or separated cohabitees. (Appendix E). Among Afro-Caribbean children there is a higher probability of no constant father or father figure – unlike Asian and White families. [47] Proportionately, Afro-Caribbean men are more likely than White or Asian men to achieve less using conventional benchmarks, to become involved in criminal activity, be more violent and be jailed.[48]

A married man’s traditional role is meeting the cost of his family needs and improving their standard of living. [49] To maintain its pledge to eliminate poverty the Labour government has been forced into becoming a surrogate ‘married man’s’ by making up the low incomes of SMHs and cohabiting couples. One example of state surrogacy is ‘Sure Start’, originally aimed at wayward and teenage SMHs, it costs the taxpayer £1.5 billion per annum.

Asian mothers tend not to place a strain on national resources because their husbands tend to fully finance their cost of living. This is true of married White women but only after the age of about 30 when more marry and resultant joint incomes increase to over £27,000.The outcome is that one regime, i.e. the matrilineal, represents a constant and substantial drain on Treasury funds while the other categories do not.

Despite a great deal of evidence showing that marriage benefits and protects both adults and children, successive UK governments have dismantled policy mechanisms that distinguish married from unmarried cohabiting families. This cannot be a function of Party Politics but the product of advice being given to all governments from some specific quarter.

Given the central importance accorded to ensuring optimal ‘outcomes’ for children espoused by all public policies, this can only demonstrate either total hypocrisy, sheer ignorance, a fear of converting words into action, or a reckless disregard. One of those options is endemic throughout Whitehall.

The lack of distinction between marriage and cohabitation in government policy and research is untenable if we are to believe that Whitehall is managed by erudite and cultured ‘mandarins’.

Moreover, analysts have for some years grown uneasy on the dependability of Whitehall produced data. They have complained about, among other things, the aggregation of distinct sub-sets and the conflation of terms. A prime example is category ‘married’ which is conflated with cohabiting couples. It appears to be a deliberate policy to add cohabiting couples to the married total and label the result “married couples”. (see Appendix F & F1 and Appendix G).

At a time when the state is increasingly requiring market players to be’ transparent’ it is incumbent upon the same state that their delivery, functioning and accountability is also transparent through the release of comprehensive and reliable statistics [50]

The government was publicly accused, in 2004, of suppressing an official ONS report by social statistician John Haskey that suggested Labour's generous welfare benefits encouraged single motherhood. This is not the first time interference has been felt. (see Appendix F, F1 and F2)

If the Law Commission’s proposals succeed in driving a wedge between the sexes, as outlined in the previous chapter (i.e. Ch 5. Cohabiting Patterns), it will have unforeseen, and probably negative results. It will impact differentially not only depending on income and general wealth but also racially. The creation of huge disincentives for males to become emotionally engaged with their children could have unpredictable and possibly catastrophic outcomes.

In the future, White women may find it difficult to find a man eager for emotional and / or sexual fulfilment, especially among her own racial group. Asian women have a culture of stricter marriage and chastity customs to fall back on and so will not feel so alienated.

Asian women are more prone to consanguinity, i.e. marriage within their own close family or extended ‘clan’ where wide age differences are not unusual. This is a dimension and direction that White men may find appealing and if called upon would volunteer a change of religion.

It is serial and polygamous traits that will most isolate White women and lead to unprecedented levels of miscegenation, i.e. increased inter-racial sexual congress particularly between White men and Black or Asian women. The children of resulting mixed race relationships may tend to have a crisis of identity and be confused as to which of their cultural heritages they should follow.

7. Race and Riots

The ethnic dimension of change is one we ignore at our peril. It has been unfashionable to the point of taboo to discuss racial tensions in any other terms but harmony and a ‘multicultural’ consensus. In reality that consensus has always been a political fig leaf and is, at last, breaking down with some hard truths laid bare. Much of the credit for the volte face and the ‘reality checks’ should go to the new chairman of the Commission for Racial Equality, Trevor Phillips, who has brought a sorely needed degree of realism to the issues. [51]

For three decades an underclass has been allowed to grow within Britain’s borders; [52] an underclass, sometimes referred to as the ‘socially excluded’, a term which fails to convey the immediacy or menace it deserves. In 1989 Charles Murray predicted that within a decade Britain's underclass would become proportionately as large as that of the U.S.

The urban poor of the inner cities especially when competing for funding for ‘pet’ ethnic projects has provided fertile grounds for tensions and conflicts among all the deprived sub-sets. The award of project funding is seen as conferring preference on one ethnic group over another. In some instances funding streams have totally withheld from Whites and they have been reduced to mere spectators in their own land.

How this will affect the perceptions of national identity and the ethnic equilibrium is open to question.

The same Leo McKinstry’s article mentioned earlier (the ‘Spectator’, 23rd April 2005) states;

"And the ethnic minorities are far more likely to be welfare recipients than are their white counterparts; 28% of all ethnic minority groups and 34% of all blacks receive income related benefits compared with 18% of whites."

This is not news and was the attitude of the white majority in many areas. The only difference is that someone ‘in authority’ has disclosed it and in so doing validated what had previously been dismissed and smeared as prejudice and ignorance.

To have written such an article five years earlier would have brought down odium on the author’s head and he would have been ostracised as if he were a holocaust denier.

Purportedly a Labour Party supporter, McKinstry is better placed than most to question policy and the ‘spin’ put on Press Release pumped out by the New Labour government. To then survive what would be the inevitable retaliations and personal attacks that so characterised recent media debates is today remarkable.

After the July 7^th 2001 riots in Bradford, Oldham (in June) and Burnley (May 1^st), policy makers woke up to the fact that multiculturalism in Britain wasn’t working, that disaffection was rife at street level and that many other interconnected policies were, therefore, on the brink of disintegration.

Council elections in Oldham had seen two BNP local councillors elected (in 2001) and this was repeated in several other towns. National political leaders, responded by berating the local electorate for foolishness, their short-sightedness, and for being so ‘gullible’. This demonstrated the contempt in which politicians held the electorate and how disconnected national leaders had become. [53]

By Dec 2001 there was a flow of reports analysing what had gone wrong and what were the factors. [54]

Of the many interesting points made three are noteworthy:

Firstly, multiculturalism, it appeared, had led instead to an undeclared, self-imposed ‘apartheid’ existence with the rate of mixed-race marriages in the town at less than 1%.

Secondly, in the year leading up to the riots there were 572 reported race related crimes in the Oldham area - 62% of the victims were White. This must have been a difficult counter-intuitive fact for politicians to accept, wedded as they were to political correctness.

Thirdly, paranoia among the far-left wing parties led to them circulating rumours and agitating civil commotion on the pretext that the far-right wing might be conspiring at something or other. But a legitimate democratic society at ease with itself, allows both far-left wing and the far-right wing to organise, i.e. ‘conspire’, to gain power in local elections.

The 'disconnect' between people and politicians continued in the following years and by 2004 the BNP were again successful in the Barking & Dagenham local council elections where government minister, Margaret Hodge, was the MP. She rocked the tabloid press in May 2006 when claimed that ‘8 out of 10 voters in Barking had considered voting BNP’. Mainstream politicians saw this as giving a massive boost to parties of the far right.

The power of rumour, racial tension and misunderstanding was again in evidence as the probable cause of the Handsworth riots in Oct 2005. Unlike the 1985 riots which saw black Britons fighting the police over drug arrests and lead to the burning of Asian shops and businesses, the 2005 riot was between individual members of the Black British (mainly Afro-Caribbean) and Asian British communities (drugs and property was not the issue).

‘Community leaders’ in these situations are very exposed and frequently impotent as the act of rioting always hands power to the mob. Community leaders’ involvement with the various agencies associated with ‘the establishment’, e.g. police, and local town hall, inadvertently isolates them from the members of their communities. The leaders then feel under siege from their own community and over-react to aspersions made by the host nation’s media. The ordinary community members is naively radicalised by activists from deeply ideological political parties [55] who are ‘parachuted’ in or ‘drift’ into the area and re-interpret feelings of deprivation into racial inequality and general anxiety which then feeds into mob violence in the name of a cause suggested to them. The power of the mob today should not be underestimated and if composed of the underclass then, as we have seen in northern towns, the police can do little more than attempt containment.

The passiveness, indeed absence, of the English mob in full cry is a comparatively new phenomenon.

The London mob of the 18^th century could intimidate a government. It was the Hanoverian kings, e.g. George I, who secured control of the streets by the passing of the Riot Act (1715) and introduced the Bow Street Runners (1749). Today’s lechery, lewdness and drunken behaviour seen in most of our town centres at night has a pedigree stretching back to Hogarth’s sketches of the mob, mother’s ruin (1751), and the Gin Riots (Gin Act 1736).

The old `reasoned' mantras of the received wisdom have led society into a political wasteland. The old paradigms that once served us have now failed. We are surrounded by the rotting hulks of social policies that at one time or another have been thrust upon us. Sympathetic civil servants have introduced legislation for minorities but marginalised both the majority and common sense. Future civil unrest / mob riots may become increasingly racially polarised with ‘living arrangements’ a key factor.

In the coming 5 years (to 2011) attention must be focussed on identifying and finding solutions. The Law Commission’s proposal attacks with secular ‘solutions’ both the religion of the ethnic cultures and the majority’s right to choose their particular pursuit of happiness.

It should be for ‘the people’ to determine governments – it is not for government, or even the Law Commission, to force its opinions on the people.

Although a sea change is underway in the mainstream discourse, many valuable years have been lost while researcher not on the preferred ‘A list’ were denied government funding. Those academics on the preferred ‘A list’ and the pressure groups ‘favoured’ by government - both of whom had invested their reputations in policies – still maintain the pretence of making inroads into the problems. In order to prevent activists from feeling ignored, and deferring the need for a comprehensive political re-think, this studied ignorance has also suited government.

If we are to survive relatively intact we have to capture and treat the malaise of both racism and sexism – meaning the inclusion of institutionalised sexism against men. We must avoid policies that are later revealed as nothing but sterile cul-de-sacs.

Government wrongly believes that it needs only to commit itself to better education for all, to pledge to eliminate crime, reduce poverty by increasing state benefits (but not to over-tax people) and find employment for as many as possible, for a harmonious society to emerge. This is wrong. It smacks of big government and big budgetary requirements when all that is needed is to re-adopt a sensible family policy for those topics to become self-correcting and almost self-funding

The biggest hurdle Government will have to overcome is the realisation that the role fathers is pivotal to all matters discussed in this submission. A re-emphasis on male employment is key. [56]

An increase in cohabitation will naturally see the rate of illegitimacy increase. Crucially it will also see the fatherlessness ratio and its prevalence and frequency rocket. ‘Fatherlessness’ results in higher levels of; morbidity; mortality; criminality; teenage pregnancies; mental health problems and suicide.

Each of those specific pathologies places additional costs of millions of pounds on government. The smart option would be to find ways to reduce those costs. Morbidity can come in the form of obesity and become the cause of premature death, mortality.

Addendum (Oct 2008). “The thin line between poor diet and child abuse”. Social workers have to decide whether to place him ‘in care’ an eight-year-old boy, Connor McCreaddie, weighing 14 stone and who has difficulty walking. To date he has broken four beds, six lavatory seats and five bicycles (the report does not mention that he and many other obese children are from single mother households).

The committee of MPs estimates that the cost of treating overweight and obese patients is at least £7 billion a year. They heard that obese children run a high risk of developing heart disease, diabetes, kidney failure and arthritis. www.timesonline.co.uk/tol/news/uk/health/article1434671.ece

Government needs to promote a civic identity (Crick’s virtu), where a culture values virtues and both the majority and minority interests are not ignored. The prospect of future riots can be reduced by investing in families and fathers today.

8. Illegitimacy

Why should we focus so intently on illegitimacy is a question easily answered. Children who do not have a father in their upbringing have a ‘blighted’ life - and this equally applies to children who have a succession of ‘fathers’ foisted upon them.

Their ‘life chances', when compared with any group of children that have been raised by their biological father, are considerable reduced and they suffer higher morbidity rates, mental health problems, commit suicide more often, turn to violence more quickly (and at an earlier age), end up in jail more often and have higher mortality rates than are more usually found in two-parent families (Appendix H).

Secondly, having no father indicates a scenario where there is no investment across a whole gamut of measures. For instance, no investment in the family unit, no emotional investment, no commitment, no long term planning in that unit, no investment in the immediate neighbourhood; no investment in self-improvement, less self-reliance and no investment by that family unit back into society.

One of the two exceptions to this pattern is the widowed mother and her children who do not exhibit any of the above pathologies. [57] The other exception is the ‘single father’ parent / household where he is either a widower or has won custody of the children. Children from these two subsets succeed as well as any child reared by the traditional two parent family.

Therefore, regardless of income levels the common denominator among children of single parents who ‘fail’, and who exhibit pathologies is the female ‘single mother parent /household’ variety.

The single mother household (SMH) is a binary sub-set - a two sided coin. One side is made up of the single never-wed mothers who according to a recent studio contributor to ‘Woman’s Hours’ (Sept 2006) have ‘made a near-profession of the benefits regime’ she is entitled to from the welfare state.

The second side to the SMH coin are single mother households resulting from divorce or separation (fathers represent only 5% of this second sub-set and so are statistically ignored).

Both of these sub-groups depend for their survival on being funded by the tax-payer - for the only economically viable unit where children are present is the married couple (see later chapters and graphs).Any other social arrangement is profoundly unsound, cannot stand alone and is not self-sustaining. All the usual and much publicised ‘alternative lifestyle’ are simply not economically viable.

Cohabitation can, as its defenders always maintain, be as permanent or semi-permanent as the average marriage. This is not in dispute. What is in dispute is that this does not apply to the majority of cases. Only the very best examples of cohabitation come close to the stability that poor to average marriage can provide for children.

Most cohabitation ‘episodes’, for that are what they are, last 18 months to 2 years (depending on median or average etc). This means that 80% or more of adult cohabitation leaves children without fathers for long periods of time and the father figures they might have are frequently substituted.

By definition, illegitimacy is a social consequence closely associated with SMHs and cohabitation [58]. Fig 15 below reveals how illegitimacy numbers have increased from 58,000 in 1870 (itself a historically high point) to 189,000 in 2006. The intervening years have seen illegitimacy fall consistently and the reader should be aware that signs of a rise were first seen in 1961 (not shown in this ONS series) to 48,500 from the 1951 level of 38,000.

Fig 15. Births in the United Kingdom
Live Births - Annual averages or calendar years											StStill-biBirths
Year	Total (*)	Male	Female	Legitimate	Illegitimate	Percent of Illegitimate population	Total per 1,000 Women aged 15 - 44	Total per 1,000 married aged 16 - 44	Legitimate per 1,000 Male - - - Female		Thous rate and per 1,000
1870-2	960	490	470	903	58	6.0	35. 0	151.5	296.3	1,040	- -
1880-2	1,043	532	511	988	55	5.3	33. 6	145.7	288.6	1,041	- -
1890-2	1,049	535	514	1,000	49	4.7	30.6	1290	268.0	1,041	- -
1900-2	1,095	558	537	1,049	47	4.3	28.6	115.1	240.7	1,037	- -
1910-2	1,037	528	508	989	47	4. 5	24. 6	99. 4	202.5	1,039	- -
1920-2	1,018	522	496	968	49	4. 8	23. 1	93. 0	- - .	1,052	- -
1930-2	750	383	367	713	36	4. 8	16. 3	66. 5	- -	1,046	- -
1946	955	492	464	893	62	6. 5	19. 4	84. 3	- -	1,060	- -
1947	1,025	528	498	971	54	5.3	20.7	91.5	- -	1,060	- -
1948	905	466	439	857	48	5. 3	18. 1	81. 4	- -	1,062	- -
1949	855	440	415	812	43	5. 1	17. 0	77. 5	- -	1,061	- -
1950	818	421	397	777	41	5. 0	16. 2	74. 6	- -	1, 062
1951	797	41	387	758	38	4. 8	15. 8	73. 0	- -	1,060
(**)	Total	Male	Female	Total Legit	Total Illegit	Legitimate		Illegitimate
						Males	Female	Males	Female
1994	664	341	323	449	215	230	218	110	104
1998	636	326	310	395	240	202	192	123	117
1999	621	319	302	380	242	195	185	124	117
2001	594	304	290	356	182	173	238	121	116
2004	639	328	311	370	269	189	180	138	131
2005	646
(*) Before 1939 figures relate to the number of births registered in the calendar year. For 1939 and subsequent years they relate to the number of births actually occurring in the rear. Source: Registrars General, vital Statistics Table 14.
(**) Source: ONS, Series FM1 no. 33 Summary Table 1.1 Live birth England and Wales live births inside and out side of marriage. http://www.statistics.gov.uk/downloads/theme_population/FM1_33/FM1_33.pdf

Two points have to be made regarding this situation. Firstly, it is agreed that having no father induces under-achievement and innumerable social and medical pathologies among children and mental instability in the mother. This has been documented since the 1960s. Secondly, periods where her new partner is not in work or where the mother has no man in her life results in the household income becoming so minimal as to pay no tax and in fact it becomes a net recipient of state benefits.

Cohabitation with transient fathers or father figures reduces the family unit to a ‘non-family’ unit, i.e. one parent with one or more child. Such units are not economically viable in a modern era where equal pay means that two incomes are required to achieve the ‘family wage’.[59]

Anything less than this arrangement equates to relative poverty and increased subsidies by the state.

As will be outlined later (Chp 22. Maori Families), state sponsored cohabiting comes with definable

“risk factors” in the form of aberrant behaviour among Maoris youth where suicide rates reach an astonishing 59 deaths per 100,000 - the highest in the world.

The Law Commission's proposals will therefore increase the drift in and out of relative poverty and increase the number of suicides, both male and female. Arguably, as many women and their children will become stuck there as those that are able to move out of poverty by marriage (see Fig 6).

This will impact on the achievement and performance of any children involved. It will result in an increased demand for social housing, rented accommodation and more demands on NHS resources.

The recent huge immigration from Eastern Europe has resulted in information that would not normally have been made readily available (see Appendix G). An article in the London Evening Standard (29^th Aug 2006), pin-pointed the income level at which families become cost neutral to the Exchequer. The figure was put at £27,000 pa. The article stated that:-

“Four out of five migrants take more from the British economy than they contribute, a report has warned today.
The analysis demolishes the Government's key claim that migrants pay more in taxes than they take back in public services.

Only one in five immigrants is earning the £27,000 a year required to make a positive contribution over the course of their lifetime. It means that, if they settle here, they will cost the taxpayer money”

There is no way an average single mother household (SMH) working at either 16 hours a week (to maximise her benefit payments) or working full time with child care costs to pay can earn £27,000 either gross or net of tax. This confirms that each and every SMH is failing to make a positive contribution to the British economy and is, instead, a positive drain for 16 or more years – a situation the law commission proposals will only exaggerate.

9. Impact of Cohabitation

Great reluctance has been exhibited by all governments in recent decades concerning how much its social engineering experimentation was costing.

By pure chance the East European immigration debate has given rise to the figure of £27,000 as being the threshold at which income tax paid is not offset by subsidies (see Chap 8 and Appendix G).

This figure applies to single Polish migrant workers without children or dependents. We can therefore use it as the most conservative benchmark at which the earned income of SMHs – who have dependent children that Polish migrant workers don’t – at least begin to move away from being completely subsidised for basic essentials, e.g. housing, schooling, medical and dental care etc., by the state in the form of the tax-payer.

Tracking illegitimacy and cohabitation reveals substantial cost increases beginning in the 1970s. The cause for this is two fold. Firstly, changes implemented by the DHSS saw the abandonment of benefits paid based ‘on contributions’ made by the individual to an irresponsible ‘liberal’ one (and logically more expensive) where benefits were based on perceived ‘needs’.

Secondly, 1976 saw the publication of, among other things, the Finer Report. This reinforced the fledgling benefit changes for mothers and particularly for single never-married mothers (lone parents) entitled to ‘benefits’ but who until that time had not qualified for very many others handouts.

During the period from 1961 to 1995 the number of live births outside marriage, i.e. illegitimate,

increased dramatically (see Fig. 16). The major surge of 100,000 was after 1981. Every year since then the number of dependent children in SMH has increased by over 100,000 per annum.

Illegitimate births have increased and have displaced legitimate births so, confusingly, there are overall less birth now than in previous times.

Fig 16. Number of Live Births Outside Marriage, 1961 -1995

1976

Source: ONS Population Trends No 91. Table 10.

The graph at Fig 16 highlights the take-off point following Finer Report’s recommendations and the silent shift within the Benefit payment structure. Those increased costs to the Treasury, post-1976, are shown in Fig 17 (not adjusted for inflation), and appear to rise in sympathy with illegitimacy levels.

The most significant conclusions to be reached are the per capita costs, i.e. the cost of state subsidy per child, which increased as state intrusion increased and at a time when the trend in the overall number of new births was actually falling (Fig 15).

The graph below (Fig 17, Treasury Expenditure 1970 - 1997) represents money in millions of pounds (the sums are not discounted for inflation or falling purchasing power). We researched and published the data in 1998 using 1996 prices. A graph showing the cost after inflation can be found in Jill Kirby’s booklet “Price of Parenthood”, (page 2, pub’d by Centre for Policy Studies, 2005).

Nonetheless, when inflation is taken into account the trend line (re: the Jill Kirby booklet) though less acute than in Fig 17 is still strongly upward.

If live birth outside marriage and greater state subsidies can be seen to represent ‘evils’ on an arbitrary scale because they are socially divisive, socially expensive and economically not viable, we have to view as ‘good’ institutions such as marriage which do not suffer from such pathologies. However, the ‘good’ institution of marriage, as we can see from Fig. 8.above, appears to be in a relentless decline.

Fig 17. Treasury Expenditure 1970 - 1997 (£m)

(incorporating. FIS, Child Benefit & Family Credit). Source: ONS ‘Population Trends’

1976

Prior to 1976 family payments were made to both fathers and mothers via cash payments and tax credits. After the Finer Report (1976) payments were made to mothers only. FIS (Family Income Supplement) was withdrawn in 1976 with the advent of other benefit payments, i.e. Child Benefit, Lone Parent Benefit and “premiums” etc available to both unwed & married couples

The relevance of the above (expenditure, Fig 17, and illegitimacy, Fig 16) is to be found in Prof. Lawrence Stone’s marriage and divorce trilogy using records unearthed at Lambeth Palace.[60]

He found that in Elizabethan rural England (circa 1590) the ratio between children whose fathers were not married to their mother to those where their fathers were married when the child was born, was a staggeringly tiny 4%. To put this into perspective the ration in e mid-1990s was circa 30% and over the 40% level in 2005.

At a time when social engineering had not been invented, this points to natural factors creating a natural level or ‘norm’.

In Puritan England, when it could be argued that a form of social engineering, i.e. morality, was in force, the rate dropped even further (giving the lie to claims by the state that it is powerless to alter events or human behaviour).

Indeed, it was still under two-and-a-half percent (2.5%) fifty years later in the 1720s.

Stone tells us that “it then took off”. There was, he writes, a ‘remarkable rise’, and a, ‘striking increase’ between the 1760s and the 1780s. This might lead the reader to think that a catastrophe or significant change had occurred but Stone's ‘remarkable rise’ was merely an increase from 4.5% to 6% (technically, a 40% increase which he, as a scholar, must duly record). [61]

Commenting on the surge in cohabitation in more modern times, Prof. Norman Dennis believes it

would probably be more urgent and more important to usefully establish ‘what is happening to young men’ today than what level of cohabitation was common now or in past centuries.

The urgency and importance that he attaches to this question inevitably stems from the research he has undertaken over many years. His evidence also shows that the married man is the wealth creator in any society and its moral and welfare guardian - in its broadest meaning (a view shared by author and presidential advisor, George Gilder). We can see this impacting on, say, council housing estates where distinct levels of respect and crime levels are dictated not by poverty or income levels but by there being a preponderance or dearth of fathers’ resident with their families on those estates.

Given that statistics are now considerably more detailed and wide ranging than in previous centuries, the last thirty or forty years of the 20^th century has seen a man's sexual condition and opportunities transformed when compared with previous eras. Prof. Dennis argues that the choices available to a young man of casual sex, marriage, cohabitation, illegitimacy etc, have been greatly enhanced by the invention of highly effective forms of contraception, e.g. the Pill, and legalising abortion in 1967. [62]

Notwithstanding that the last two options are firmly a woman’s prerogative (and men have yet to achieve parity of Human Rights in that area) a young man no longer ‘has to’ marry a girl. Such an abundance of options means, conversely, that he is no longer ‘locked into’ the family nor into society in general. He is free to dip into or align with the ‘underclass’ whenever he wishes.

The Law Commission’s proposals serve only to cast young men further adrift from society and extend their liberty or license, depending on one’s view.

New research suggests that cohabitating is not a solution worth pursuing. New data now indicates that 75% of all family breakdowns affecting young children now involve unmarried parents. An estimated 88,000 children aged under 5 were affected by the separation of their unmarried parents in 2003. This dwarfs the (circa) 31,000 children under 5 whose married parents go through a divorce. [63]

CAFCASS and our present court system cannot cope with the present level of demand and it is,

therefore, likely that things will grind to a complete halt if they have to accommodate the additional demands from separating cohabitees and their children.

Inventions are, by definition unique events, and usually occur to one person, at a specific time and at a specific geographical location. Original creative ideas do not erupt en masse simultaneously on opposite sides of the globe.

But this is exactly what is happening with social policy legislation.[64] For what this means to the ordinary citizen we have only to look at the comparison made for us by the New Zealand government between their Matrimonial Property Act 1976 and their Relationships (Property) Bill proposals.[65]

Their idea of cohabitation or ‘Relationships of short duration’ is:-

For de facto relationships of less than 3 years’ duration, if the couple have a child or if one of the partners has made a substantial contribution to the relationship, the Court has discretion to divide the relationship property on the basis of contribution if not doing so would result in serious injustice.

Their idea of cohabitation property rights under the heading ‘When property rights take effect’ is:-

Couples have no rights under the de facto regime until they have lived in a de facto relationship for 3 years or more, except in very limited circumstances (see below).

New Zealand’s idea of ‘cohabitation’, ‘property’ and ‘choice’ again chimes with that of the Britain’s Law Commission, namely we will not be allowed to choose. ‘Contract Out’ is the only option given leaving, quote, “The partners’ able contract out of the de facto property regime” by affirmative action.

10. Soviet Experience

There are several dimensions to the concept of marriage that are often overlooked. Marriage is a subject most commentators take for granted as being relegated to a single-surfaced monolithic structure somewhere in the background.

But this would be to pass over its almost infinite benefits at every level. There is firstly the reason why it is found universally; why it is so beneficial to individuals; why is allows for group hegemony, why it permits nations and governments to be created; why it permits increases in the standard of living; and why it alone permits wealth creation and wealth accumulation (a topic never found in feminist essays).

However, there is a contrary range of views and these centre on the evil marriage represents and the obstacles marriage poses to the unfettered rights a state may give itself over the individual.

It is instructive to delve, albeit briefly, into who, why and what sort of regime seeks to compromise marriage as an institution particularly when feminism, whose roots are Marxist, daily accuses men of being the ever-present source of all female oppression.

When the Bolsheviks came to power in 1917 they regarded the family (steeped as they were in Marxist / Engel’s dogma) as another 'bourgeois' institution.

They set out to destroy it and the very first Soviet Code on ‘Marriage, the Family, and Guardianship’

was passed in 1918. It abolished marriage, adoption and illegitimacy all humans, including children, belonged to the State. This triggered other socialist experimentation by government and lively debates on marriage, the family and sexual relations, inside and outside the USSR. By the 1920s women's place in a socialist society took precedence over child care and rearing issues. [66]

The Leninist Soviet Code laid the foundations for the repressive Stalinist regime that was to follow.

The social historian Wendy Goldman shows the many ways in which ‘revolutionary’ laws were aimed at withering away marriage and how, ultimately, the state came into conflict with social reality and in turn how the state came into conflict with family power.

In a country whose population consisted overwhelmingly of barely literate peasants and whose economy had been devastated by war, revolution, and civil war. Perhaps they became disillusioned with the intellectualisation of their marriage customs for the flirtation was soon to end.

From that perspective, feminism is yesterday’s ideology.

Erudite discussions about ‘progressive’ policies and laws relating to marriage, divorce, alimony, illegitimacy, abortion, and de facto marital unions can only have left the instinctively conservative ordinary Russian populus totally unimpressed.

Wendy Goldman writes that for all their idealism, the law which included measures to “protect the weak and vulnerable” failed in the end to accept the fact that libertine laws (i.e. no marriage and only cohabitation with no-commitment) could not fail but favour men at the expense of women.

This view represents a very female position and a female view that has never thought or had to think too deeply about what men, real men, really want. While true in part, Goldman, as a woman, is oblivious to deeper masculine drivers that seek a settled, dependable lifestyle with one partner.

She sees only that effective safeguards for women were stymied by ideological commitments to build socialism in an underdeveloped country - she at no point reports on the unhappiness caused to men.

The economic collapse that followed the October Revolution, the mass starvations and the subsequent failure of ‘collectivisation’ should have ensured that change was inevitable. It was the adoption of ideology over common sense (style over content) that led in 1932 to 7 million deaths by starvation in the Ukraine alone. Why the Law Commission should choose style over content and want to adopt a failed ideology defeats explanation.

In a rare example of facing the facts, Stalin and the Communist Party's were, by 1936, forced into a complete reversal on these family issues. The social experiment had lasted barely 20 years before

they were forced to restore the traditional family unit as the primary social institution. [67] The Central Executive Committee reversed the law in 1926 and by 1936 marriage, albeit in a form approved by the state, was re-installed by Stalin.[68]

What appears to have initiated the volte face was the extra burden placed on the state and its resources by abandoned women and homeless children. In a marriage-less society the needs from these two sectors simply overwhelmed Russia’s rudimentary social services.

11. Social Dynamics

Our society has developed much more sophisticated and expensive Social Services than the now defunct Soviet empire – yet we fail to learn from their disasters.

Arguably it has been shown that Social Services can be overwhelmed not only by immigration from Eastern Europe but in the number of child homicides that annually occur, e.g. Victoria Climbie.

It therefore follows that the same Social Services can be overwhelmed by designing additional services such as mediation as envisaged in the FLA (Family Law Act 1996) or today, in 2006, by proposing mediation and court services for thousands of separating cohabitees (particularly when it is a unworkable idea and unavailable to divorcing couples at present).

The tensions that developed in the early soviets between what had been family responsibilities versus libertarian principles with the weight of state involvement behind them, can be expected to be replicated in Britain should the Law Commission succeed with their proposals. The Russian experience was one of large numbers of women daily clogging up the courts with their complaints about their former husbands / partner’s disinclination, or inability, to pay alimony.

We have seen what this can lead to in Britain. By copying the Russian regime of CSA payments Britain has found that the majority of former husbands who do not pay simply cannot pay.

But perhaps the Law Commission believes that in our era and in our country that its incremental step approach will be more successful than the Soviet approach of dramatic overnight change.

We are confident that the Law Commission is wrong in this belief, but we are prepared to wait and see how soon we will be proven correct.

The Divorce Reform Act 1969 altered nothing until it became law in 1971. Thereafter the numbers marrying declined ( Fig 8 ) while the number of divorces, aided by Legal Aid changes, expanded rapidly throughout that decade (Fig 4). Many believe that free Legal Aid was the real catalyst for change and not divorce legislation per se .The Hardwicke reforms of 1753 had neither free Legal Aid nor the glittering prize of asset confiscation. They also did not interfere in child custody matters.

Despite the daily fabric of our lives being made up of births, marriages, divorces, deaths, fertility rates, suicide, abortion and social security costs, rarely are these social dynamics considered as one inter-related homogenous group. Invariably they are regarded as discrete sub-sets and kept in separate boxes.

Financial incentives (and disincentives), alterations to the law or the Benefit payment regime can work changes in social patterns. An impact in one area can have ramifications in others. For instance, the birth rate increased in 1946 following demobilisation and linking payment of Child Benefit based on the 2^nd child’s birth (unlike Finer’s recommendations). The 1950s saw the numbers marrying

increase in all the English speaking world while the numbers divorcing fell close to pre-war levels.

Paul Ehrlich’s 1968 book ‘The Population Bomb’ caught the imagination of a generation. He predicted, and many agreed, that populations would outstrip world resources and the world would face famines sometime between 1970 and 1985. In the 1970s birth rates tumbled. By 2005, the unintended consequences had caught up with us. Pensions, we were told, could no longer be guaranteed after 2030 or 2060 because the ratio of young people to old was falling [69] (projections using the National Insurance Fund suggest this is government misinformation).

If we look in the abortions ‘box’ we find there are 190,000 abortions per annum. If we add these to the live births box of 646,000 per annum they make a combined total of 836,000 births per annum which would equal the numbers born in the 1950s, e.g. 1949 and 1950 (see also Fig 15).

The ‘completed family size’ (CFS) today is 1.9 children per family. It used to be 2.1 children per family in the 1990s and 2.4 in the 1970s.This figures is important because the ratio dictates whether a nation barely survives (2.1 is the ‘replacement level’), or healthy (2.4), or expanding (2.7)

It should be recalled that cohabitees, as a sub-set, have never had as many children as married couples. Single unwed mothers have even less (1.6). Therefore, if we place our trust in cohabitation sustaining our population, GNP, standard of living, pensions and prosperity we are deliberately making it more difficult for ourselves.

We can however draw some comfort from knowing that we are not yet, for actuarial purposes, a stagnant society. Stagnant societies are generally associated with a declining population and exhibit 1% - 4% more girls than boys being born. [70] A normal society would usually exhibit 2% - 4% more boys being born. Fig 15, above, shows Britain still has a surplus of boy babies being born.

12. A Look at Ireland

The true social catastrophe that was Russia in the 1920s and 30s was not revealed to the world for many years. Yet reading the Irish Constitution, approved in the same era (1937) almost suggests a first hand knowledge and that lessons had been learnt.

Ireland can be said to represent a diametrically alternative view to the Soviet experiment and to the creeping British experience. The Irish Constitution puts it confidence not in politicians, an elite or an oligarchy but in ‘the family’ and the people.

There was a time in our recent past when Southern Ireland was popularly portrayed as a bucolic land populated with not a few eccentric characters. A look at Ireland’s Constitution shows what guarantees the state has given to its subjects in 1937 and how, by contrast, we in Britain have been systematically robbed of ours in the intervening years.

Britain has no written constitution but we are always assured and told to believe, whenever the issue arises publicly, that we are better off without one and that the state is honour bound to more highly respect our rights regarding the family, education and private property precisely because they are not written down. However, the last 40 years has shown these solemn promises and expectations have been repeatedly dashed.

Where, in Britain, do we have the same guarantees about the Family, Education, and Private Property that the Irish enjoy ? Reflect to what depths we have plumbed in Britain when, by way of résumé, the Irish Constitution of 1937 gave - and still gives today – the following cardinal guarantees. [71]

The Family - Article 41

1. 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2. 1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3. 1° The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

Education - Article 42

1. The State acknowledges that the primary and natural educator of the child is the Family and guarantees to respect the inalienable right and duty of parents to provide, according to their means, for the religious and moral, intellectual, physical and social education of their children.

Private Property - Article 43

1. 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

More and more empirical research confirms the long held analysis that one of the most important factors helping boys stay out of poverty and out of criminal trouble is having a father there and a father interested in their education - the same is true of girls, they are less likely to become single or teenage mothers (see footnote 28 & 29, plus Appendix E & F).

This cannot be achieved if agency upon agency is dedicated to detaching fathers from their families.

Lone parenthood and serial monogamy, i.e. cohabitation, is no substitute and the Law Commission should consider what damage was wrought by introducing the lax divorce laws in 1969 and what the damage will be after 2006 of their proposals (See Deech and Hogget chapter below).

‘Being there’ can only happen, can only succeed, when the state butts out of family matters.

Equally the neglect and unsocialised behaviour of feral children - increasingly acknowledged in every town centre and perennially in conflict with police forces - can only be exacerbated by the need for women to go out to work.

Note how the Irish Constitution at Article 41 (2.1), puts sufficient emphasis on the role of women as mothers to give them the support needed, e.g. “. . . the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.”

When it has been fashionable among Britain’s Guardianisti to float the idea of paying women to stay at home (while totally ignoring Benefits already paid for that role), Article 41 (2.2) of the Irish Constitution is already making it happen, albeit in a 1930s approach; “The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

Isn’t that exactly what the single mother, child benefit and associated allowances are seeking to achieve ? Isn’t that also exactly what every father - married or not - wants for his child’s mother ?

Earlier, in a separate chapter, the matter of private property and the rights flowing from property were discussed. The Irish Constitution is confident enough and feels sure enough that it is prepared to commit to never confiscating private property.

When at Article 43 (1.2) it states “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property,” the Irish Civil War which ended in 1923 was still a raw memory. Intrinsically the war was between the traditional Republican cause of the “men of no property” versus those who owned property who did not want revolution but a return to mainstream politics, the rule of law and the ratifying of state treaties. [72]

Unlike the Irish Constitution, the Law Commission is unable to recognise ‘the Family’ as the natural, primary and fundamental unit group of Society – and the salary-payers of the office they hold.

13. Increased Social Instability

The late Baroness Young surrounded herself with some of the most perceptive researchers and talented lawyers in the country. Summarising their analysis she was well known for her formidable arguments in the House of Lords, particularly with regard the Family Law Act 1996.

In a debate 5 years ago she made several cardinal points that can be found in Hansard and are worth consideration by the Law Commission today (Column 1128, 17th Jan 2001, at 3.13 pm).

She believed that we should expect the law to help and support marriage, but it does not. All present day legislation seeks to disparage marriage and narrow the distinction between it and cohabiting.

She believed the fall in birth rates would have serious consequences for the nation’s future and would result in the need to increase the number of immigrants (in 2006 we can see how true this proved to be). A fall in birth rates collaterally brings a skills shortage in some areas. In the future there will not be enough young people to fill important vacancies (in 2006 we can also see this to be true).

Future pension provisions have made us aware just what difficulties a low birth rate can present and how as a society we cannot afford to allow it to continue unchanged.

Cohabiting cannot and should not be considered, as some would prefer, to be ‘marriage but without

the vows’, i.e. marriage by another name. Among young people, the ONS has consistently found, that over 70% have declared that they wanted to be married at some time in their lives. And while 70% young people interviewed in the 1990s had positive views about cohabiting, the facts show that only a third of co-habiting relationships last a reasonable time. In short, cohabiting couples are more likely to break up. [73]

Cohabitation brings with it other socially curious ill-effects, such as couples who cohabit before marriage are 50% more likely to divorce than those who do not.

The increase in cohabitation can be said to have been accompanied by a fall in the number of marriages and births but a higher divorce rate. All three adversely affect the proper development of children.[74] The pathologies cohabitation induces down have been itemised earlier.

Fashionable though it may be among, say, the Fabian cognoscenti to discuss cohabiting, most people still marry and 60% of marriages last a lifetime. This is something totally overlooked in the universal discourse (see Fig 6 and 7 above).

Also overlooked is the quantum change that has taken place in how society functions. For instance, in

1961 there were 32,000 divorces but by 1971, the first year of operation of the 1969 Divorce Reform Act, the number had risen to 110,000 (a 300% increase). Between 1988 and 1998 the average annual numbers divorcing was 45% greater at approx. 166,000 - though ONS derived numbers vary slightly according to which source is used (Fig 18, Fig 4 and Annex C).

The cost to the Treasury has already been mentioned in this text but in 1994 it was estimated that the cost of family breakdown was £5 billion in benefits and other expenditure.[75] Baroness Young spoke of a later report that had “put the cost at £16 billion, and it is not difficult to see how that figure was arrived at.”[76]

Fig 18. Divorces Made Absolute, 1937 to 2004 England & Wales (selected years)
	1938	1958	1968	1978	1988	1998	2002	2003	2004
Petition filed	9,970	25,584	54,036	162,450	182,804 *	165,870	177,223	173,240	167,193
Decrees nisi	7,621	23,456	47,959	151,533	154,788	144,231	170,966	167,992	166,042
Decrees absolute	60,692 *	22,195	45,036	142,726	152,139	141,543	147,465	154,284	153,689
[* This can only be a printing error by Jud Stat. Should be162.804 and 6,692 respectively ?] Source: Judicial Statistics Annual Report 2004, Table 5.5. http://www.official-documents.gov.uk/document/cm65/6565/6565.pdf

Most teachers will tell you that classroom discipline is more difficult today. It is not unusual to hear of four and five year-olds arriving at school “completely out of control.” One reason for that is the absence of supportive parents - which is code for having no father in that family. Another growing in recognition is the types of food ‘single mothers’ feed their children, pre-packaged, ready-to-eat prepared meals, all packed with ‘E. Numbers’ making their children “hyper”.

Those that guide divorce policy do not look in adjacent boxes. They inhabit a cosy departmental orbit and their remit precludes them from doing the simplest of sensible things. Thus the breakdown of discipline in schools is not their departmental concern. The civil servants in their ministry are only concerned with making divorce faster and cheaper.

If the birth rate collapses - tough; if pensions can’t be paid - that's not their worry; if immigration has increased and is out of control – so what ? If GPs surgeries are flooded with new patients – it’s not their problem. If exams standards fall because 10 languages are spoken in class – that’s a problem for anther department; and if more houses have to built on green field sites – that’s not their department’s concern either.

They have discharged their departmental responsibilities; as asked they have made divorce faster and cheaper.

14. Gresham’s Law

Cohabiting used to be called a ‘trial marriage’ long before it was dubbed an ‘alternative lifestyle’ by

the politically influential Guardian columnists and the Islington glitterati. In wishing to popularise cohabitations by offering monetary incentives, i.e. compensation packages, is the Law Commission not in danger of resurrecting the past evils of customs such as Fleet marriages and the plague of ‘irregular’ or clandestine marriages that only the Act of 1753 erased ?

The Law Commission could be construed as proposing something that is contrary to public policy. By aiding and abetting the defeat of the doctrine of public policy in its support of ‘chaperty’ – once described as ‘vile and odious’ - it jeopardises heads of policy by promises of compensation packages.

Gresham's Law applies specifically when there are two forms of commodity, usually money, in circulation which are forced by the application of legal tender to be respected as having the same face value in the marketplace. [77] It can also be argued that bad money would drive good money to a premium rather than driving it out of circulation. If Gresham's Law applies to marital status this poses a dilemma for the Law Commission. On the one hand they may successfully promote cohabitation but on the other hand provoke a backlash.

For example, in higher education are the degrees so freely available in such large numbers from former polytechnics as valuable as Ivy League degrees or do they debase all degrees ?

The question for the Law Commission is whether Gresham's Law of debasement applies to marriage via cohabitation ?

Historically it has not been unusual for a ‘set’ or clique to damage social customs. The Fabians and Bloomsbury Set, for instance, dabbled with ‘free love’, wife and husband swapping, but much of it ended in tears and great unhappiness (See the life and times of Bertrand Russell). [78]

The primary reason why we are discussing amending how we deal with cohabitation and its aftermath is apparently as a result of so many people today (both young and old) declining to marry but choosing to cohabit instead. But is that true - and if it is true, then why ?

Figures from ONS sources put the number of cohabiting households at no more than 11% of the total number of households (Fig 7). The figure for unwed mothers is 22% and in the millions, but how many of these have a steady cohabiting relationship ? Officially, the answer is ‘very few’. This is because revealing their cohabiting status to benefit officials would reduce the level of benefits they are entitled as single mothers. If the 11% figure is true, we are falling into the bad habit of legislating for minorities and never taking care of the majority - who pay the nation’s bills (Fig 17).

Couples who have decided, quite independently of the state, to cohabit do not need to be infantilised and patronised by the state which, it would appear, wants to concern itself with the welfare of cohabitees only when they separate. Why should, and how can, monetary compensation equate to one of the parties sensing they have ‘lost’ valuable years with nothing to show at the end ?

Many ordinary people will be surprised to learn that when distinguished persons are appointed to various committees or commissions they need not have appropriate knowledge or experience. A case in point is the Finer Report. Lord Justice Robin Dunn describes Morris Finer (then newly appointed to the Family Division) as a highly intelligent man with a social conscience and a ‘well intended man’.[79] Dunn writes that the report was ‘remarkable’ and a ‘well-researched document, which went far beyond the narrow limits of his terms of reference’. What does a family court judge comprehend outside divorce and custody awards ? Was Finer familiar with human frailties and understand the social dynamics and repercussions his proposals would bring ? [80]

He could have foreseen, had he looked overseas, how negative the impact of his proposals would prove in the long run and which, after his death, predictably nurtured others.

The upshot can be compared with the US “welfare dependency” problems outlined by George Gilder, in 1973, (and Senator Moynihan) with regard to ‘Aid to Families with Dependant Families’ (AFDC). [81] The intelligentsia in both countries had made detailed and sophisticated analysis of the situation. Their solution, ‘targeted’ State benefits at the most “in need” should have reduced poverty but instead increased it by driving out the male partner and thus lowering family incomes and promoting the double tragedy of 1. social disintegration and 2. accentuated class divisions.

15. History of Marriage

Whenever anyone discusses marriage they assume everyone knows what is meant. They think marriage is some impervious block of granite or a defiant cliff face unchanged by wind or waves since time immemorial.[82]

But that perception is not entirely true. It has never been immutably set in stone. It has undergone gentle evolution over the centuries. Marriage has not always been the definitive article we embrace today.

In modern times marriage and divorce in the 20^th century can be viewed as three distinct but merging eras: the pre-1945 era, the 1945 -1969 period and the post-1969 reforms.

The pre-1945 era stretches back to the 16th century (1532). The 18th century saw Marriage Act 1753 (Lord Hardwicke) and unintentionally the first secular Divorce Act. [83]

By definition divorce and cohabitation are book-ends to marriage and so a summary of the more salient aspects of modern marriage, divorce and custody history would not go amiss at this juncture.

The history of marriage is also the history of divorce.

For centuries cohabitation, births outside marriage, lone parent families, and what today is called re-partnering or re-blended families, have co-existed with the stereotypical image of marriage. However, our present day obsession in seeking to normalise cohabitation, births outside marriage etc, etc, simply because they have occurred in the past, is to seriously distort the factors at work.

The institution and attendant procedures we call marriage has not been an everlasting feature of British history. In fact, the late-medieval period presented many problems for marriages across most of Catholic Europe.

Such was the pernicious social problem of something called ‘clandestine marriages’ that the Church was forced to convene the Council of Trent held between 1545 and 1563. [84]

At the 24^th session the Council of Trent decreed that the validity of marriages were dependent upon its being performed before a priest and two witnesses. A pre-condition that is valid to this day. The importance of what is detailed below pivots on the session failing to agree that an ‘innocent party’ could marry again while the other party to the marriage was still alive.

Prior to the Council of Trent’s decree heterosexual relationships between men and women, or espousals, fell into two broad categories. One related to a future date and the second to the present situation.

i. sponsalia per verba de futuro (at a future date)

ii. sponsalia per verba de praesenti

The first, ‘sponsalia per verba de futuro’, was a solemn engagement in which the contracting parties promised each other to become man and wife at some future date (a status that could be compared with an ‘engagement’). This change of status was either witnessed or publicised by the couple.

The second ‘sponsalia per verba de praesenti’, involved a ceremony, in which words using the present tense were spoken. The two parties became man and wife at the moment of making their promises’ [85]

However, sometimes it was enough that sexual intercourse had taken place for the immediate community to view the union as having created ‘husband and wife’ status (thus moving the status from ‘de futuro’ to ‘de praesenti’). Sometimes it was simply the statement in front of witnesses that the women took the man and the man took the woman as spouse (once a common procedure in Scotland). [86]

What has made a person publicly a ‘married person’ has therefore varied slightly but significantly from time to time.

Cohabitation, on the other hand, is the replacement of any public announcement of mutual fidelity and public obligations. It is neither futuro nor praesenti.

Any obligations and relationships of trust are promises privately undertaken between the two parties and need not be to the exclusion of all other parties and can be privately abandoned at any time.

It follows that the state has no business interfering in private arrangements and for the Law Commission to now argue that it does, contradicts its former utterances with regard ‘Breach of Promise’ actions (cf. not in the public interest, undermines marriage, gold diggers charter, etc, all quoted by parliamentarians and the Law Commission (see below and Appendix I).

Inevitably, the uncertainty inherent in future promises led to misinterpretations by one party of what the other party might have meant by casual remarks taken literally by the other party, or good intention honestly made rendered impossible by a change of circumstance. However, there were two situations where the law made the presumption of de facto marriage or intended wedlock – sexual intercourse and ‘Breach of Promise’. [87]

It was not uncommon in the 19^th and 20^th centuries when a planned marriage (an implicit contract) was called off for the female to launch a suit seeking monetary compensation (breach of promise). This was deemed so base an action and so contrary to ‘public policy’ that the Law Commission abolished it in1969.

Addendum: “ … Bringing back breach of promise is also a green light to every gold-digger out there. All she has to do is get a man to ask for her hand, accept, and then deliberately behave so appallingly badly that he's forced to dump her. Then she sues him for every penny. A few women might perhaps make a killing this way, but it would sure as heck screw things up for the rest of us.

Many would-be brides who have spent years tenderly and painstakingly coaxing a jittery bloke down the aisle will inwardly howl at this news, since many jittery blokes could now be forgiven for wondering, what's the point of getting too serious with any woman?

Whether they go through a fully fledged divorce or a mere broken engagement, the penalty is the same – they'll still be forced to cough up serious amounts of dosh.

- “Bringing back breach of promise won't help togetherness”, by Fiona McCade, The Scotsman, 29 July 2008

Where the parties had engaged in carnal knowledge with one another while only promised to one another in the future (sponsalia per verba de futuro), the act of sexual intercourse transformed the parties and the relationship into one of spouses. Their union was ‘unwitnessed’ but there was another form of unwitnessed union called an “irregular marriage. ‘Irregular marriages’ was a status also achieved by phony ceremonies. It was this latter condition that for centuries was to cause havoc with English law and the courts (see Chap 18).

Marriage and Inheritance

Matrimonial courts were, from the 17^th to the 19^th century, kept busy not by divorce per se but by parties seeking to prove, i.e. verify, whether a valid marriage had taken place or not. (Appendix I & J). Irregular marriages could leave widows and orphans penniless even though the proper procedures had been followed. (Appendix J and K, re: Lord Howell’s ruling).

Disinheritance was accomplished by an interloper claiming she was the ‘common-law’ of the deceased by an earlier ‘marriage’ citing the sponsalia per verba de praesenti or futuro basis or indeed the originating from Scotland which ignored normal matrimonial conventions.

Therefore, to seek to compensate female cohabitees after separation threatens to turn back the clock and re-embrace a regime that is known to be a ‘busted flush’. If this is the path the Law Commission wishes to follow then it would not be unreasonable to expect the crime of Criminal Conversations to re-surface and for cuckolded husbands to be paid financial compensation by their wife’s adulterer ?

(Appendix J 1).

Marriage Act 1753

The form of marriage we now take for granted and which is common throughout the country did not materialise until Lord Hardwicke's Marriage Act of 1753. In that year an act of parliament was passed that gave a standard form to ecclesiastical marriages with pre-conditions which made irregular marriage easier to define. In England & Wales what might casually be called ‘common-law’ marriages or wives have never had any legal status - never.

The Marriage Act 1753 strictly bound inheritance and legitimacy with officially registered marriage. A great deal of litigation disappeared almost overnight as widowed spouses could inherit unchallenged and unencumbered.

The 19th century brought the first divorce Act in 1857 (Matrimonial Causes Act 1857), bigamy and rape laws, the Married Women’s Property Acts [88] and a wholesale judicial and court reform. [89]

The new structure created by Lord Hardwicke's Marriage Act (1753) required the publishing of banns, a marriage licence, a residence test, a formal marriage ceremony to be held in public, conducted in a Church, in the presence of a priest, and only at specific times of the day. [90]

The purpose of the Act was to prevent clandestine marriages, “Fleet” marriages and other fraudulent or ‘irregular’ marriages’. [91] It was limited to marriages in England and Wales and did not apply to Quakers and Jews (it also excluded Scotland and Ireland). Being limited geographically it inadvertently gave rise to what is today referred to ‘common-law’ marriages and wives is former Empire and commonwealth nations e.g. Canada, USA.

In the post-1857 era divorces could only be heard in London. The divorcing husband would have to bear the legal costs of not only his own legal team but also his wife's defence team and would have to pay all witnesses costs and their lodgings. Divorce or separation was not something undertaken lightly. Divorce was not for the poor (and it was not intended to be so).

Even today, in the post-1969 era, divorce is so structured that the husband usually has to pay his own legal costs and his wives through the court awarding of the house to her and any children.

The Jane Griffiths view of history

Before Lord Hardwicke's Marriage Act, people's relationships could be recognised in several different ways. In a baffling and cringe-inducing statement Ms. Jane Griffiths, MP is in the parliamentary record (Hansard) as honestly believing that that one of the most widely known marriage practices was ‘jumping the broomstick’. (Hansard Column 322, Oct 24^th 2001). [92]

In this marriage ceremony a couple would allegedly jump over a broom that was leant against their front door, thereby gaining certain legal rights and responsibilities.

Undeterred by this rush of blood, she continued by asserting that divorce in those days was also much easier because the relationship was undone by jumping back over the broom in the presence of witnesses.

“Before Lord Hardwicke's Marriage Act 1753, people's relationships could be recognised in several different ways, which attracted some legal and social consequences. One of the most widely known practices was jumping the broomstick. A couple jumped over a broom that was leant against their front door, thereby gaining certain legal rights and responsibilities. Divorce was certainly easier in those days because the relationship was undone by jumping back over the broom in the presence of witnesses. There is no indication of the means used to resolve arguments over the distribution of assets held in common, although probably there were no assets. “

- Jane Griffiths MP (Lab. Reading, East), House Commons Debate, 24 Oct 2001, vol 373 cc 320-7

She then remarks in materialistic mode that there appears to be no hint as to the methods used to distribute assets but concedes that probably there were none. (Appendix J 2).

We are not enlightened as to the status if only one party jumps back. Jane Griffiths does not elaborate on whether couples had to jump back together, jump singly backwards to the side they originally started from, or turn around and face the way they first jumped from.

Jumping the broomstick in Britain (if it ever existed) is now probably confined to pagan wedding ceremonies that have latterly been de-criminalised and thus the authenticity and pedigree of the ‘resurrected’ ceremonies cannot be verified. [93] (Appendix K).

Ecclesiastical court records do not contain assertions of any party jumping forward or back as evidence of a marriage.

References to jumping the broom stem from Afro-American folklore which appear to have a Ghanaian ancestry where the phrase denotes a wedding ceremony. Perhaps it then entered into Negro slave customs.

Over and again one finds that in the rush to validate an assertion or authenticate Theory X or Theory Y radical feminist grasp at straws only to see their improper citations become their undoing. The contributions of Jane Griffiths MP fall into that category. She fails to explain why couples would want to jump back over the broom given that a). the average life expectancy of a man in the 17^th and 18^th century was short, b). the age at which he might contemplate marriage and c). the seriousness with which the second was undertaken.

Ms. Griffiths appears to assume everyone had a standard of living comparable to that found in the books of Jane Austen’s ‘Pride and Prejudice’, (pub. 1813). Anyone with a grasp of history would realise that outside the wealthiest 5% of society, the amount of assets in any matrimonial home was minimal. What would they be arguing over ? Probably no more than a washing dolly, a few pewter plates two chairs and one table ?

For an alternative answer Ms. Jane Griffiths, MP should look at ‘wife sales’. Though frowned upon by ‘polite society’ they are recorded in local sources. Here the dissatisfied husband took his wife to market and she was sold no differently than cattle or personal property (‘Roads to Divorce’, Stone L).

Contained within the themes of this paper is the unavoidable truth that ‘The story of fatherlessness is the story of all the various forms of lone parenting’. By implication cohabiting is the sandwich filling between two bread slices, one is the singleton (including cohabiting and SMH) and the other marriage and parenthood.

For many years the focus of public policy has been directed toward SMHs and the children of SMHs. The inference being that children of SMH have by some mechanism faired less well in their life chances than children of two parent families. Research studies have lead to a better understanding of those mechanisms and to how cohabitation is more closely related to SMH than married couples in terms of child ‘outcomes’.

We are disappointed that the Law Commission should, in spite of this, focus only on the monetary

rewards for the mother when no amount of money can make up for the crippled life chances for children’s that such a dismissive and thoughtless policy encourages. It is surely sufficient that ‘family’ courts are active players in the ‘orphaning’ of 50% of the 120,000 children they deal with annually without adding even more children to the pyre ?

For as long as custody remains an immutable right for the female in any heterosexual union, and a de facto signal to plunder, marriage will continue to decline and divorce will appear to increase as a proportion (ipso facto, if marriage were made attractive the divorce rate would apparently fall).

What the Law Commission is proposing has the whiff of the mediaeval about it. From the earliest written records (ecclesiastical sources) we find it not uncommon for a divorcing man to agree to settle around 30% of his wealth on a former wife. An ex-wife’s protection went further and upon his death an amount called a ‘dowager’ could be set aside from his estate regardless of his widow's needs.

In the 20^th century we have unstitched that binding and are reaping the consequences. We have to re-learn that the health of marriage hinges on divorce and that healthy divorce numbers hinge on a healthy marriage environment. The penalties for out-of-wedlock birth have been eradicate, no longer is illegitimacy a bar to inheritance, and by parental choice children can even be ‘legitimised’ by a subsequent marriage.

But downstream of divorce, inheritance can no longer be guaranteed. Following the use courts make of the Land Charges Act 1972 et al we are returned to the topsy-turvy world of inheritance under irregular marriages. Today, the power of the parent is terminated by the state who alone decides who inherits what.

• No one knows the value houses or the extent of stocks and shares sold or transferred to women in the last 30 years by Family Courts to pay for a wife’s Legal Aid bill.


• We do no know the value of the charges held in favour of the Law Society.


• Rarely do we consider the distress caused by the compulsory sale of the former matrimonial home when the children reach their majority.

Whereas a man might once have expected to lose one third of his wealth upon divorce he now loses between 50% and 90%. This renders a second marriage - the purpose of the 1969 Act – impossible. [94]

The prime movers for divorce and separation petitions are women (80%) who because of the way the funding is structured rarely have to pay cash. As a result, divorce and separations are now undertaken less seriously.

Prior to 1857, a divorce would be granted only when both families agreed terms and where the court was satisfied the financial provisions were just and agreeable to both parties. In fact mutual agreement was fundamental to the systems success and both parties used this factor as leverage to gain better settlements. Divorce has always been designed to exclude field hands and the urban poor for obvious reasons (wardens found them to be a burden on ‘the parish’).

Throughout the 16th to 18th centuries Consistory Courts granted relatively inexpensive “separations from bed and board” to couples who could not get along (roughly comparable to today’s Separation order). Rarely was the right to re-marry granted and rarely was either spouse evicted from the home, which in some, or many, cases must have added to long-term family stability and in other been a source of friction.

We have to assume in the absence of contrary evidence, that the majority of these separations were by common consent (later termed collusion) and were mutually beneficial for no evidence exists to show a great increase over the decades.

By far the busiest Consistory Court of the period was London which supplied between 25% to 50% of cases to the Court of Arches in the period 1700 and 1810 ( see ‘Roads to Divorce’, and Geoffrey Clarke, Index of Cases in the Records of the Court of Arches at Lambeth Palace 1610 -1913, British Record Society. 1972). In 1700 barely 200 cases were dealt with by the Court of Arches.

Records show that for the years 1700 - 1857 there were only 338 divorces by act of Parliamentary Petition, with 322 Acts granted (England at that time had a population of approx 6.4 million).

After 1857 divorce became 'fault' driven and we were set on a course that sadly, many of us know too well. In an interesting aside, Prof. Stone points out that "fault" is a tort of trespass, not a breach of contract (cf see ‘breach of promise’ above).

From 1861 - 1911 the number of successful divorces rose from 141 to 801. Although a great increase – 5 fold – it must be contrasted against the population explosion measured in millions.

It should also be put in context with the number of ‘maintenance and separation’ orders for the ‘lower orders’ which, by 1899, were being processed in Magistrates’ courts at the rate of 14,000 pa (see 1912 Royal Commission)

When families were commonly comprised of 3 or 4 children this, it could be argued, represented around 55,000 children who experienced fatherlessness for one reason or another. [95]

Post 1945

Stepping into the 20^th century it was not until 1937 and the crisis surrounding Edward VII and Mrs. Simpson that new divorce measures were embarked upon. The MP and writer A.P. Taylor introduced a Private Members Bill to extend the grounds for divorce to include, insanity, epilepsy, mental defect, mental illness of a certain degree, venereal disease and desertion. The 1937 changes were followed by a small surge, or temporary blip, in the numbers divorcing but the numbers soon fell back to close to their previous level (see Annex D, Tables 2, 3 & 4).

The increase in divorce during and immediately after the war is largely due to a little known policy within the Armed Services of arranging divorces as quickly as possible and by-passing the civil courts. Fig 19, below, shows the sudden spike in divorces starting 1in 1946 and ending in 1950.

It was considered to be ‘bad for moral’ if matrimonial strife was allowed to linger. After the war, the numbers of marriages increased but so too did divorce. ‘Special measures’ were introduced for civilian divorce courts to handle the numbers caused by the disruptive effects on wives and husbands of 6 years apart (aka ‘Quickies’). By 1951 the emergency ‘special measures’ had been revoked and divorce declined for the next 10 years, only to begin increasing gently after 1961 (Fig 19).

In the pre-1945 and the pre-1969 era the divorce laws were essentially unchanged Both the defending party and Court had wide powers to thwart any attempt by the plaintiff to obtain a divorce against the wishes of the other party (the 1969 Act swept away these “hardship” or financial factors). A divorce could only be granted if it could be shown to the courts satisfaction that the ex-wife would not become a ‘burden on the state’ (a criterion found in Consistory Courts). This meant that sufficient financial provision was made after agreement was reached between wife and husband.

When Legal Aid was made more widely available to the less well off in 1948, i.e. women and the working classes, divorce cases were no longer confined to moneyed people. The proportion of divorce petitions supported by Legal Aid very soon shot up from 20% to over 50%. It is this linkage – between rates of divorce and legal aid - that in the subsequent post war decades was used to heavily influence the number of divorces.

Fig 19 Divorce Rates per 1,000 Population 1889 – 2000 (England & Wales)

By the mid 1950s the whole divorce procedure had become artificial and unreal. Each case took ten to fifteen minutes and the judge was expected to sit quietly, ask no questions, turn a blind eye to yet another man caught in the bedroom of a Brighton hotel with a ‘another women’ and grant a decree (see Morton Report, 1956).

Usually one or both spouses had another partner in the background (re: Robin Dunn). Financial terms which had to be agreed were therefore generally less onerous than they were in the post-1969 era.

Custody was not a key factor in the settlement. Custody had not then become the gateway to lucrative ‘passport’ state benefits. Children were not perceived as ammunition and therefore disruption to children was more limited and less stressful than the post-1969 environment proved to be.

The widespread perception that divorce somehow rose inexorably or uncontrollably following World War II, is wholly wrong. This misconception can be found even among those who claim to specialise in the subject.

Professor Carol Smart, Director of the Centre for Research on Family, Kinship & Childhood, Leeds University, is someone who writes widely on related matters. In her paper “Divorce in England 1950 - 2000: A Moral Tale ?" she writes the “….Rates of divorce have increased considerably between 1950 and 2000, although this trend had started rising before 1950.” [96] This glosses over the truth and gives a misleading impression (see graphs Annex D, Tables 2 - 4).

To justify her contention Smart refers to the “peak of 40,000” divorces in the late 1940s as being ‘considerably higher’ than the pre-war figures which were 5,097 between 1931 and 1940.

Figures produced by the ONS put the peak not at 40,000 but at 60,000 (in 1947).

The only obvious way to arrive at a figure close to 5,097 is to “average” the yearly totals for the 10 years from 1931 to 1940 but this serves only to blur the picture. A legal reform in 1937 meant that the very low pre-war levels jumped to 9,000 in 1938.

Following the 1937 divorce reforms there followed in very short order, the declaration of war, mobilisation, rationing, prosecuting a world war, and then the end of the war. She is therefore comparing very different and dissimilar scenarios:

1). divorce was ‘difficult’ in the 1930s and it was peacetime

2). during wartime conditions military divorce procedures were made fast and easy but still divorce numbers were low

3). in the immediate post-war period legislation and legal aid changes made civilian divorce procedures easier which encouraged divorce numbers to rise. [97]

In the pre-1945 and post-1945 era custody cases were dealt with in a relatively perfunctorily manner usually by judges who had not heard the main divorce suit. This continued into the early 1960s. It was not an uncommon practice at the divorce hearings for the children to be temporarily made Wards of Court if it involved an adulterous wife. If the divorced wife was living with another man it was considered that the children would 'be in moral danger, at least until she remarried.

An income level to provide a good standard of living for the child usually favoured father custody but it was not uncommon, because of work commitments, for him to arrange for his ex-wife to have daily ‘care and control’.

‘Moral relativism’ had truly arrived in the decade prior to 1969 when a high court judge, Lord Justice Robin Dunn, could write that Judges ‘were supposed to uphold the concept of “the sanctity of marriage”, a phrase frequently used but one he never wholly understood in his entire career’.

Undoubtedly, the divorce system prior to 1969 had glaring disadvantages but, in the opinion of one former High Court judge ‘it rarely created the same degree of outrage and hostility that its successor engendered’.[98] Before we adopt the Law Commission’s proposals we must be sure we are not doubly the amount of ‘outrage and hostility’ by extending beggar-thy-neighbour regime to cohabiting couples.

What was lost in the rush to rationalise and remove the deceit and deception from divorce proceedings (termed collusion) was the realisation that the much condemned ‘hypocrisy’ served to oil the rusty cogs of society and too much honesty meant no more oil and a seizing of the wheels.

It is estimated that over 90% of divorces in the pre-1969 era were actually consensual and, therefore, undefended. Despite the safeguard and obvious merit mentioned earlier of allowing the other spouse (defendant) to halt the petition - under the hardship rule - they often choose not to - which is very significant. The moderating influence of the system, where adjustments are made for the inequalities of the parties, can be seen in the years immediately following 1950 when the trend took on a downward complexion.

Lord Justice Ormrod, who can be said to have shaped post-1969 divorce laws, had obsolescent 19th century views regarding divorce and men as carers of children He and the then Master of the Rolls, Lord Justice Denning (who had married a divorced woman) increasingly nullified legislation by their liberal interpretations of the law (sometimes by the fig leaf of discretion, sometimes by flatly ‘re-interpreting’ the law).

By creating ‘beneficial interest’ and re-interpreting the new land registration law they ensured that property titles could be transferred on the pretence of providing a home for the former wife and any children of the union.

The ‘campesino’ of today is an excellent example of the Law Commission’s policy in action. The ‘campesino’ is made landless by the hacienda owner and then dependent on. He is obliged to work for a low salary or no pay at all, and what he does earn (or produce) may at the end of the year have to be turned over to the owner at a lower than market price.

Society condemns the third world for allowing such social practices yet it is condoned everyday in Britain’s family courts.

16. Breach of Promise

It is clear from the Law Commission’s early work that it valued the institution of marriage and wished

to sort out anomalies that had carried over from the 18^th and 19^th century. In this vein it recommended the abolition of the age old remedy of ‘Breach of Promise’ (Appendix I and Appendix K).

An action for Breach of Promise was an action using Tort and not as one might expect ‘contract’. It has to be recalled that the reasoning behind this tort was based on the presumption that a female’s ultimate ambition was to marry and bring up children (and presumably her affections had been trampled upon) and that her future prospects of marriage would be damaged.

Though this notion is publicly scoffed at today it essentially still remains every woman’s ambition. [99] In every epoch prior to our own, it was assumed that if a woman surrendered her virginity it was further assumed that she would not have done so except on the express promise of marriage.

If the man subsequently reneged on his promise, i.e. refused to marry her, then her chances of finding another suitable man willing to marry her were considered reduced.

In practical terms the actual loss of virginity was not required or its proof demanded. It was enough that on her testimony alone monetary compensation was paid by the man to her. In the mid 20^th century when £1,000 pa was considered a good industrial wage, settlements for breach promise could exceed this. What made this more bizarre was its blatantly sexist premise – an embrace to which the Law Commission is unwittingly returning via its 2006 cohabitation compensation proposals. [100]

Men could not sue for breach of promise unless an actual dowry of money or property had changed hands. It was accepted by the standards of the day that ‘it's a woman's prerogative to change her mind’ - sometimes several times in one day. This view of women was so unremarkable and normal that it has became the basis of many laws and was reflected in all types of courts hearings. This lopsided bias in favour of women continues to this day but is called ‘equality’.

During the first half of the 20^th century social mores in the English speaking world (where common law predominated) led to an intrinsic reluctance by the state to intervene in cases of personal relationships except where the welfare of children or actual violence was involved. The post-1969 years have seen a volte face inside the Law Commission. From a position of supporting marriage they have become the lead agitators in its dismemberment. (See Appendix I, re: ‘Chapter 2a’).

Lord Coleraine speaking in the Family Law Bill debate (Hansard, 20 Nov 1995: Column 196), said;

“There is an intellectual argument abroad which has been running fast since the 1960s. It is attractive to those who were first seduced by and then damaged by the ideas that were then fashionable. They deny the usefulness and necessity of civil marriage. They portray marriage as unfairly and unreasonably discriminating against those who choose only informal ties or perhaps no ties at all with the persons with whom they have chosen to live or with whom they may have parented children.”

“…… an average couple contemplating marriage ……. expects the marriage to be lasting, and is accustomed to look to the state to provide some support for it. …… With such support there can, from the outset, be better confidence in the marriage and each other between the marriage partners. Without it, civil marriage will be, and will be perceived to be, no more than the temporary licensing of cohabitation on an ongoing basis. Such a cheap utility version of marriage can hardly command more than minimal respect. There will be less and less inclination to bother to enter into such a watered down minimal union.”

The architect of that ‘cheap utility’ and slashing of state support for marriage referred to by Lord Coleraine was no lesser person than the Law Commissioner charged with the responsibility for family affairs - one Brenda Hoggett, known today by her other name Lady Justice Hale.

Surely an instance of the fox being put in charge of the hen house.

17. Common Law Wife

The phrase ‘common law wife’ routinely appears in books and newspaper articles, but lawyers insist that the status of’ common law wife’ does not exist in English law.

The reason for the confusion is probably because much of our news and current affairs is influenced by or stems from America and our lives are affected not least by imported US films and legislation.

The Marriage Act of 1753 introduced by Lord Hardwicke was an English piece of legislation and so completely by-passed the rebellious colonialists in North America (and Canada and all other colonies, see Appendix J and Appendix K). After their successful war of independence, in 1776, the core of their law remained English common law (a similar situation exists in Israel where the common law co-exists from the former Palestine mandate).

Some American authors state that prior to that date, 1776, there was no single common law for marriage in England, overlooking as they must, the 1753 Act [101] and the Council of Trent.

The English method of entering into an informal marriage, known as "sponsalia per verba de paesenti", (see above) was adopted in New York, circa 1776. The legal definition of a common-law marriage in New York is/was an agreement, in words of the present tense, made by parties competent to marry, to take one another as husband and wife. As such, common-law marriages were generally unlicensed.

Cohabitation, by repute, ‘holding out’, etc were generally regarded as partial evidence which were more or less cogent enough to show that such an agreement, in fact, was made, but they were not a substitute for or the equivalent to, an actual written agreement. (Appendix J and Appendix K).

The legal status of Common-law marriages (and of common-law wives ?) was abolished in New York on April 29^th 1933, as the result of an amendment to Section 11 of the Domestic Relations Law. Any common-law marriage contracted prior to that date (1933) and at a time when such marriages were valid in New York, were regarded as equally valid as ceremonial marriages. [102] Is this the evolution the Law Commission has in the back of its mind ?

The federal nature of the USA results in different states, such as, for instance, South Carolina, Iowa, or Ohio, having similar but variations of the laws found in New York.

Retuning to the present and Britain, we are not convinced that the Law Commission has fully recognised the gravity of awards made in the past when instances of ‘irregular marriage’ or multi-cohabiting have resulted in court action. The courtroom dramas have been fought out by women seeking exemplary damages on the whole of the estate of the deceased.

Before dealing with the practical difficulties of inheritance rights that the Commission proposals for cohabitation might induce, we ought to look at problems faced in the past by a similar laisser-faire approach.

As recently as 1954 one case Shaw v Shaw (2 Q.B. 429) brought together the strands of public policy, irregular marriage, bigamy, cohabitiat0on and inheritance. A female plaintiff successfully claimed for breach of promise against the estate of her bigamous husband and was given more than half the estate (see also “dowager” share). The 2^nd surviving wife was entitled to less than half her expectations.

Human nature is set to be allowed to behave in the above manner but on a much grander scale. In turn the legal actions brought by one woman will leave one or more other women very disappointed and very poor.

18. Irregular Marriages

Lord Gorell pointed out in the House of Lords (14th July, 1909), that separations were being obtained instead of divorces and that this was having a bad effect on the moral standards of the working classes. The implication was that though not technically divorced these ‘separatees’ were then re-establishing their married status and thus committing bigamy or were ‘living-in-sin’.

Politicians were shocked at the possible collapse of morals among the lower orders and so a Royal Commission was set up in 1912.

The Royal Commission arising from Lord Gorrel's concerns gives us an insight into how society really ticked away from the chattering classes and free of the influences of literary and post-colonial historical reassessments.

In a post-Victorian and a post-Dickensian era [103] the 1912. Royal Commission provides markers of change for how many couples were not able to obtain a divorce, i.e. could not afford it, and reveals the scale of cohabiting and living bigamously. Such was the degree of stigma that we should not think of it as endemic. From L. Stone’s and N. Dennis’ separate research work we can surmise a comparatively low level.

As a social document the 1912 Royal Commission provides a bridge to earlier Commissions, namely the Royal Commission of 1832 and the one of 1852. All 3 investigated adjacent social issues.

The Royal Commission of 1832 was set up to reform the Poor Laws that were deemed no longer relevant to 19^th century society. The Commissioners found that employers could keep wages artificially low, knowing that they would be subsidised by the Poor Law. As a result family living standards, a precursor to marriage rates, were adversely affected.