There have been conflicting stories in the press this week about how and whether the government intends to change the law in order to ensure that both parents see more of their children after divorce. Some reports said that there would be introduced a legal presumption of equally shared parenting; others that it would not go this far but that there would be encouragement of equal access, or visitation rights.
In the Family Justice Review 2011 the proposal that England adopt the shared parenting law as applied in Australia was rejected, because reports from Australia indicate that judges found it difficult to apply and divorce cases there were dominated by decisions about how much time each parent would be entitled to see the child. The Review concluded that the courts here should continue to apply the principle of the paramountcy of the welfare of the child. It is often reported that 40% of children lose all contact with their fathers after divorce. Lobby groups for separated and divorced fathers blame this on the law; other studies indicate that even where fathers are granted legal access, they simply fail to show up when the children are expecting a visit. As the divorced fathers make a new relationship with another woman, who may have her own children, they distance themselves from their children of the earlier relationship. Wherever the blame lies, there is no doubt that children suffer from the loss of a father after divorce, and that over 100,000 children fall into this category every year. There are probably more because this takes no account of children affected by the breakup of parents who are not married but cohabiting or were always single.
This relates to my post Against my Will, where I repeated my objections to attempts to make the law of marriage apply to cohabitants who do not want to or cannot marry. I heard recently of the growth of a new practice by men, nicknamed the “Hugh Grant” syndrome. That is, they take care not to marry or live with the mother of their child, or girlfriend, because they fear that once married or cohabiting, their assets are vulnerable to the law and that a split will expose half of their property and income to transfer to the woman. (It could be the other way round where the woman is wealthier than the man.) They see maintenance law as unfair and so uncertain that its application by lawyers will in itself cost thousands of pounds. Maintenance law has become a field where women with well-off husbands seek someone to fund the litigation in return for a cut of the proceeds. This is a really bad result for the children involved. The solution is not to apply the existing unfair and uncertain marriage law to cohabitants, but to simplify the existing law and make it fair to men and women in a society where women can and do earn a living and where, sadly, relationship breakdown is all too common and unsurprising.