The Law Society Debate: Hitched Up or Stitched Up

in ‘White Papers’, Reports, Articles

The institution of marriage has been undermined not by insufficient fiscal and legal discrimination in its favour.  There could hardly have been greater financial disincentives to divorce during its dramatic rise both post-war and in the 70’s and 80’s.

Marriage has been undermined by:

  • Its use or abuse by those with a strong interest in preserving a social status quo
  • Relative affluence and information which has taken marriage beyond a social and economic necessity into an emotional and psychological experience with high expectations
  • Through its experience, which has not had to be the stuff of Jerry Springer to stimulate future caution.  No family is today untouched by a poor family experience.  Even readership of the Daily Mail provides no immunity.

The notion that legal discrimination has either caused all of this unhappiness ranging from harm to moderate discontent or can now be used to solve the problem is absurd.  The law is vital but, as every member of the profession knows, it has its limits.  Despite huge increases in traffic, deaths from drink-driving are now 1/3 the toll of 30 years ago.  How much of that decrease has come from the law and how much from changing attitudes?  Certainly I know that if I went into a pub 30 years ago and refused a drink because I was driving I would have been lynched for being a wimp.  Today if I accepted a drink and announced I was driving, I would be lynched for being irresponsible.  Attitudes have changed fundamentally.  And attitudes drive behaviour.

Ah, the statistics.  If the standards of proof used in family statistics were applied in courts, everyone would be found guilty – or not-guilty depending on your point of view.  The statistics prove that marriage is best, so legislate for marriage.  Alas, wrong.   Based on non-causal correlations, I could ‘prove’ that high rates of births outside marriage result in the least lone parent rates.  Sweden has 54% of the former and 3% of the latter – the highest and lowest.

The statistics actually prove that on average the people who are married have better outcomes for their children.  So these people are the distinguishing input, not the marriage label.  Manchester United wins more often and they wear red shirts.  So, if your team wears red shirts it will win more often.  Well, actually, it’s about the qualities of the players, or the relationship skills and emotional awareness of the partners – it may be that those with less are less likely to have the confidence to marry.

Can a state, does a state legislate on the basis of statistical averages?  Many cohabitating couples actually produce better outcomes than married couples.  But should they be discriminated against because they cohabit?  If on average a certain ethnic group produces more young criminals than other ethnic groups should we legislate to penalise the whole group for their ethnicity – less rights, more tax, for example. The Human Rights framework is quite clear – discrimination is wrong in both cases.

The desire to discriminate may be summarised as tell and tinker – even if we were right its impact on the whole family problem would be minimal.   Serious conflict within marriage would continue, as would physical separation of families, unhappiness, divorce, discontent and all the knock-on negative consequences of hit and miss relating and hit and miss parenting. But why do some want to tell others how to live?  What are the emotional drivers of moral judgements?

Let’s not tell and tinker, often at high cost, but provide the sort of comprehensive and sustained persuasion, education and support described in my report – Relative Values – as a national relationship and parenting service.  In this vein, a good divorce process and remedy sentencing are legal changes we need, not discriminating against cohabitees.  If one really wants to support marriage – as I do – don’t moralise and penalise, which anyway does not work, provide useful support and services to everyone without discrimination.

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