This is a guest post by Jo Edwards. Jo is a partner and Head of Family at Forsters solicitors and former Chair of Resolution. She tweets as @MissJoEdwards.
“Women are destroying marriage!” screamed a line that caught my eye on Twitter this week. As I clicked on the link with a mix of curiosity, indignation, scepticism and a sense of impending doom about what I was to read, I was met with the headline :
“An author’s VERY provocative broadside : controlling wives and vengeful divorcées are putting men like me off marriage for life”.
Immediate note to self – was this to be an article championing the short marriage but not marriage for life? Or warning men off marriage altogether?
It quickly became apparent that the answer was the latter. The author, Peter Lloyd (@suffragentleman) – writer of “Stand by your manhood”, a “bloke bible, road map for the modern man answering burning questions facing the brotherhood today” (including should men fund the first date, are men sexist if they enjoy pornography and does size matter?) –
- believes that traditional marriage doesn’t exist any more
- unlike his parents who recently celebrated their 50th anniversary, has vowed never to wed (sorry, ladies)
- has written a book (aforementioned) on why the modern man should avoid marriage.
Bold sentiments, which I couldn’t help but feel that Iain Duncan Smith – who I heard championing marriage at a recent Conservative conference fringe event whilst warning that unmarried men often grow into “dysfunctional” human beings and become “a problem for society” – would not get on board with.
So, if the subject of why the heck men would ever marry is in the dock, what is Mr Lloyd’s case for the prosecution?
The overarching theme of the article was that traditional marriage has been “replaced with a modern version so warped that it has ceased to become an institution worth entertaining. Well, not for men anyway”. In support of that, the author bemoaned divorce laws weighted towards women and said that men are better off emotionally and financially staying single.
The perception that divorce laws are weighted towards women is a lazy misconception to which I shall return. It is not correct that men are emotionally better off staying single; marriage does a better job for men of improving health outcomes, decreasing chronic illnesses and extending life spans, than for women. It is right that, on divorce, various studies have shown than men fare less well than women in emotional terms. One US study reported that 75% of divorced women had no regrets over the decision to part, as opposed to 61% of men. 75% of women say they’d rather be alone, successful and happy than be unhappy in a relationship, versus 58% of men. After divorce men gain more weight than women, sleep worse and are more prone to various diseases, whilst divorced fathers are more likely than divorced mothers to sink into depression, and 10 times more likely to experience depression than their married counterparts.
Warming to his theme, Mr Lloyd argues that modern marriages aren’t built to last as they once were, with divorce rates trebling in the last 50 years, with the result that “as soon as you legally commit to a woman now…you take the most reckless gamble on your future wealth, health and happiness”. Note the inbuilt gender assumptions in that statement, a theme to which I will return.
Whilst it may be right that in pure numerical terms there has been an increase in the number of divorces in the past 50 years, this masks some key contra-indications. First, divorce rates are in decline. From a recent peak of 165,000 divorces in 1993, that number fell to 153,000 in 2003 and has moved in a downwards direction ever since, with just shy of 107,000 divorces in 2016. Of course, the eagle-eyed will point out that this simply reflects the declining marriage rate. But whilst the percentage of marriages ending in divorce had gradually increased between the 1970s and the 1990s, there is some evidence that for those marrying since 2000, there has been a decrease in that statistic, with the cumulative percentage of marriages ending in divorce increasing more rapidly in the first 10 years of marriage than the 10 years after. Third, there has been a gradual increase in recent years in the mean duration of marriage, up to 12 years in 2016.
Next, a key plank in the author’s argument – “…matrimonial law, the family courts, indeed society as a whole, will conspire to ensure the biggest loser in the equation ends up being [men]”. He cites examples of three friends, all men, all of whom he says have been victims of the one-sided, anti-men nature of financial remedy law. In truth, reading about the wives in those cases, there is nothing objectively to suggest that they hit the financial jackpot, or were treated more generously than they should have been, given their individual circumstances.
But this simply isn’t borne out in practice, once the detail of cases is drilled down into. Sure, there are the Mr Millses and Mr Vinces who are bemoaning a state of affairs which allows ex-wives to come back for more maintenance or bring capital claims many years after divorce; but haven’t judges in those cases just sought objectively to provide a fair outcome for both parties? Men’s activists have long said the divorce system is rigged against them but there is no reason to believe that this is so. Whilst many, myself included, would welcome greater certainty on divorce, by policy makers taking on board the recommendations in the Law Commission’s 2014 report “Matrimonial Property, Needs and Agreements”, judges are already arguably doing so through case law. Through a line of cases starting with White v White, and moving through Miller v Miller; McFarlane v McFarlane, Charman v Charman, K v L and JL v SL (no 2) (appeal – non-matrimonial property), the courts have given some shape to the definition of matrimonial and non-matrimonial property and how each is to be treated on divorce. Following Radmacher v Granatino, those entering into pre-nuptial agreements are far more likely to have respected their wishes about how the finances on divorce are to be approached. And through the needs guidances for litigants in person and judges issued by the Family Justice Council last April and June respectively, it is to be hoped that there will be greater certainty among litigants about how needs will be approached, and uniformity of approach among judges.
Of course, on this last strand, that cannot be a substitute for statutory reform which focuses the judiciary’s mind on financial independence between a couple within a defined timeframe of divorce (without necessarily, as Baroness Deech’s Bill advocates, straitjacketing judges into only being able to award maintenance for a maximum period of time and within defined formulae).
Lloyd also feels the same way about becoming a father – “it’s just too risky while women wield all the power, not only over when and if children are conceived, but also over whether the man is allowed to continue to play a role in a child’s life”.
Is it really Mr Lloyd’s point that men are so ignorant about how a baby is conceived and contraceptive protection he may take? On that I say no more.
And on the role that fathers play in a child’s life post-divorce – again there is no objective evidence to support what is said. If there is a case in which a mother is restricting the father’s role, his remedy is to make an application to court for a child arrangements order. A study by the Universities of Warwick and Reading published in 2015 countered the widespread perception that family courts discriminate against fathers because of a gender bias. It found that men and women have similar success rates when applying for orders to have their children live with them. Though it is right that the study also found that transfers of residence (as was) were “disproportionately” likely to be from mother to father, the reality is that this is because although gender roles have shifted and there are ever more dual income households, it still tends to be the norm for the mother to take on the majority of childcare/household tasks and for this to be reflected in the arrangements for children on divorce. In other words, those outcomes are more reflective of a representation of how society orders itself than an inbuilt bias in the court system. Strikingly, judges in the recent past seem far more receptive to shared care arrangements, even if not 50/50, and more and more fathers can realistically aspire to having children in their care 4 or 5 nights out of every fortnight plus half the school holidays. What the family court does need to grapple with is getting its house in order in the highly conflicted/parental alienation cases, where the slowness of the court process can make an enforced status quo become the norm and where enforcement of orders is still a cumbersome, complex process.
It seems to be felt that because women are somehow hitting the jackpot on divorce, they are lining up to issue divorce proceedings – “Meanwhile, the woman ending the marriage – and with 68% of proceedings instigated by the woman, she’s the one most likely to – gets to walk away with a potential life-long meal ticket”.
There are three limbs to the defence case here.
First, though it may be correct that statistically the woman is more likely to be the one issuing a divorce petition, all who work in this area know that that doesn’t necessarily mean that it was the woman’s decision to end the marriage. The reasons for marriage breakdown are much more multi-faceted and nuanced than the bare facts set out in the divorce petition and whose name is included as petitioner. Where, for example, a woman cites adultery as the reason for the breakdown of the marriage, is she to be criticised for choosing to call time on the marriage? (And of course the sexes could just as easily be reversed in that example). The person who committed adultery invariably says that that was a symptom, not the (sole) cause, of the marriage breakdown. Around 62% of petitions are fault-based; advocates of no fault divorce know that citing blame is an unfortunate consequence of the state of the law and that it is usually not a reflection of the reasons for the marriage ending to have one person set out a string of allegations. If, as many want, it were possible to have a “mutual consent” ground for divorce, Mr Lloyd’s theory would quickly be blown out of the water.
Second, the ONS divorce statistics for 2016 published this week show that the number of men instigating divorces has increased again, up to 39% of all splits. In turn this represents a continuation of a steady rise since the early 1990s, when the proportion was just 27%. Some commentators have put this down to a 40% rise in recent decades in women having affairs.
Third, the “potential life-long meal ticket” point. Again, although there has been no statutory reform, judges are innovating. Since JL v SL, there has been far greater emphasis on term orders for maintenance rather than orders without a fixed end point, the wife re-entering employment and sooner financial independence than may previously have been expected. Of course this reflects the Scottish experience and the reform that Baroness Deech seeks, though my view is still that any guidance should be just that, not straitjacketing, both as to term and quantum of spousal maintenance.
And of course, all of this assumes that it will be the wife making the claims. Increasingly, that is not the case. One law firm wrote in the press this year that the growing power of British women has resulted in a rise in the number of divorcing men claiming maintenance, with 5% of their cases involving husbands receiving financial support from higher earning wives. As ever more couples make the decision to reverse “traditional” roles and have the woman work whilst the man stays at home, we can expect this trend to continue.
And on he goes. The author bemoans the cost of getting spliced – the £2,000+ engagement ring, the £17,000 average cost of a wedding; the marginal role that the bridegroom plays in the whole wedding process; and the tendency for one’s sex life to dwindle after marriage. All seemingly suggesting that in this state of affairs, men are being held hostage by women intent on an expensive wedding and lucrative divorce, the men unable to find a voice, let alone express it, and ending up miserable, penniless and without any relationship with their children.
Of course, the reality is invariably the polar opposite. And as this piece has hopefully shown, the true picture in the family courts of England and Wales, and as revealed by the divorce stats, is very different from that suggested in Mr Lloyd’s article. Whether that makes such an interesting story in the media* is a different point.
* I asked the Daily Mail to commission a reply piece to Peter Lloyd’s article; they declined.
Feature pic : Jo Edwards, courtesy of Jo Edwards.