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The allocation of responsibility for the maintenance of the single parent family Violet, Ian 1990

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THE ALLOCATION OF RESPONSIBILITY FOR THE MAINTENANCE OF THE SINGLE PARENT FAMILY  By  IAN  VIOLET  B.A., The U n i v e r s i t y  of Cambridge, 1984  A THESIS SUBMITTED IN PARTIAL  FULFILMENT  OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE (Law  We accept  STUDIES  School)  t h i s t h e s i s as conforming  to t h e r e q u i r e d  standard  THE UNIVERSITY OF BRITISH- COLUMBIA  ©  I a n V i o l e t , 1990  In  presenting  degree freely  at  the  available  copying  of  department publication  this  of  in  partial  fulfilment  University  of  British  Columbia,  for  this or  thesis  reference  thesis by  this  for  his thesis  and  study.  scholarly  or for  her  of  financial  Law  The University of British Columbia Vancouver, Canada  Date  DE-6  (2/88)  g™ AOQOST  I  I further  purposes  mo  gain  the  shall  requirements  agree  that  agree  may  representatives.  permission.  Department  of  be  It not  that  the  be  Library  an  advanced  shall  permission for  granted  is  for  by  understood allowed  the  make  extensive  head  that  without  it  of  copying my  my or  written  ii  ABSTRACT  The s o c i a l problem under  investigation  poverty  amongst h o u s e h o l d s c o m p r i s i n g m i n o r  whether  this  h o u s e h o l d has a r i s e n due  to  that  of  widespread  c h i d r e n and a l o n e  a birth  outside  separation,  divorce or  widowhood.  poverty  are  identified  with reference  to d e m o g r a p h i c d a t a  and  United  for  identified  the  Possible review Special  of  s c a l e and  parent,  a stable  features  of  union,  this  from Canada  Kingdom. policies  literature  attention  relationship  The  is  is  between  reform are  from  the  paid  to  Commonwealth and empirical  p u b l i c and  through a  the  United  investigations  private  support of  and  single  thorough States. the parent  families. Whilst insurance,  is  four  rights  insurance that  hypothetical  enforcement  expanded  only  conclusion her  the  rigorous  discretion, accepted,  none o f  the  is  to  single process  periodically  parent of  himself  to  the  legal  or  vary  process.  of  be to  orders,  support -  within the  the  favour  is  that  l a b o u r market  public  single of  this  rather  system of judicial  unconditionally  nothing of  a i m m u s t be  s o c i e t y and  a  value.  responsibility  a s s i s t i n g the in  proposed constraining  as o f f e r i n g  emphasised but  orders  herself,  marginalisation  be a c h i e v e d by r e f o r m s  public  rejected  s h o u l d be expended w i t h a v i e w and  court  non-custodial parent's  c h i l d r e n must c o n t i n u e  enforce  of  reforms  the to  for  his  or  resources  parent  to  children. reverse  The  the  independence  obtain, For  the  current can  t h a n by r e f o r m s  best of  iii  T A B L E OF CONTENTS PAGE ABSTRACT  ii  CHAPTER 1:  INTRODUCTION  1.  Defining  2.  Who a r e i ii  the  iv  S o c i a l P r o b l e m to  Single Parent  The h i s t o r i c a l The  to  Single  parenthood  female  experience  Single  parenthood  CHAPTER 2 :  2 6  context  single  debilitating  be A d d r e s s e d  Families  s i g n i f i c a n c e of  respect iii  1  6  marital  status  with  parenthood as a  10  predominantly 14  as an  economically  experience  SOURCES OF F I N A N C I A L  20 SUPPORT FOR SINGLE  PARENT F A M I L I E S  30  1.  A General Overview  2.  E a r n i n g s as a Source o f  3.  Matrimonial  Property  as a Source o f  Financial  Support  35  4.  Maintenance  Payments as a S o u r c e o f  Financial  Support  40  5.  S o c i a l A s s i s t a n c e as a Source o f  6.  The F i e l d  CHAPTER 3 :  of  30 Financial  Support  Financial  31  Support  Choice  S I N G L E PARENTHOOD AS AN INSURABLE RISK Insurance  47 50 57  1.  Private  Voluntary  61  2.  Private  Compulsory Insurance  3.  S o c i a l Insurance  64  4.  Conclusion  67  62  iv PAGE CHAPTER 4: ENFORCEMENT  69  1.  The Problem o f 'Discouraged' Maintenance  72  2.  Are Maintenance A r r e a r s the same as o t h e r Debts?  76  3.  Why i s D e f a u l t so Widespread?  80  4.  E v a l u a t i o n o f Enforcement  91  i ii 5.  P r o s p e c t i v e and r e t r o s p e c t i v e enforcement  93  J a i l as a means o f enforcement  97  R o l e s o f I n d i v i d u a l and S t a t e i n the Enforcement i ii  I n s t i t u t i o n o f proceedings:  iii  Process  t r a c i n g the d e f a u l t e r  100 102  I n s t i t u t i o n o f p r o c e e d i n g s : d e c i d i n g to take enforcement  6.  Processes  measures  106  Conduct o f proceedings  Enforcement:  A First Priority  111 f o r the S i n g l e P a r e n t Family? 118  CHAPTER 5: LIMITING THE IMPACT OF JUDICIAL DISCRETION  130  1.  132  P r e s e n t Methods o f Assessment i ii iii  The Oxford  Study o f R e g i s t r a r s  135  The Denver D i s t r i c t C o u r t Study  143  The Orange County, F l o r i d a Study  146  2.  Problems o f Adequacy o f Orders  149  3.  Reform o f the P r o c e s s o f C a l c u l a t i n g Support  154  i  Emphasising  c o s t s and e x p e n d i t u r e  155  ii  Emphasising  a sharing o f resources  160  iii  The d e s i r a b i l i t y o f a q u a n t i t a t i v e standard  162  4.  Who should use the G u i d e l i n e s ?  167  5.  C o n c l u d i n g Remarks  174  V  PAGE CHAPTER 6: THE MAINTENANCE  OF THE SINGLE PARENT FAMILY  AS A COMMUNITY RESPONSIBILITY  184  Parenthood  185  1.  Single  as a V i c i s s i t u d e o f L i f e  2.  The E f f e c t o f Changing Family P a t t e r n s  192  3.  Social Responsibility:  196  4.  C o n c l u d i n g Remarks  The P r e s e n t P o s i t i o n  203  CHAPTER 7: INDEPENDENCE FOR SINGLE PARENT FAMILIES  211  BIBLIOGRAPHY  217  1  CHAPTER  1  INTRODUCTION  In plight  of  refer live  this  t h e s i s , my c o n c e r n i s  many o f  to  them a s  with  their  become c l e a r ,  'single minor  some o f  parents'  these  the  other  parent  withheld  child  s u p p o r t payments  Others, from in  the  their  example, the  if  the  deriving  parent,  Hunter  father's  family  himself  single  whether  in  financial  terms,  standards  permitted  from  the  is  parent  preceding categories. support,  or  from  government.  by  more  the the  of  As  they will  more a l o n e ,  fruitful  arrangements  for  other  of  joint  absent  would  single  to of  not  isolated  in  of  children's  the  children's  fit  into  the  They are  rooted  either  For  support  the U n i t e d  and m a r g i n a l ,  parent's  systems  support  families.  parents  his  time spent w i t h parent.  even  emotional  support  parents'  B l a c k community  part  the  parent.  by k i n s h i p  to  visiting  parenting,  o r no e c o n o m i c and  the  than  relationships  altered  the  single  families'.  'single',  value  other  will  caused by  may c o n t r i b u t e  terms  parent  the  They are  I  exasperation  little  families  economic  the  the  no l o n g e r  the  households i n which  a continuation  and p e r h a p s  amongst  the  to  children alone.  co-operative,  may b e h e l p e d  comments o n  family  are  and h a v e n o n e o f  l i v i n g with  own f a m i l i e s  father  Many  not  whilst  other  extended  An a b s e n t  experience  T h e y may e x p e r i e n c e are  to  'single  parents  with  they  and  c h i l d r e n as  Some may s t i l l  though  suggest solutions  t h e men and women who r a i s e  others.  children.  to  States.  support,  confined  1  even  household. of  the  deriving  children  from  or to  own r e s o u r c e s and  in  two  no purely  the supplements  2  What I  am s u g g e s t i n g a t  suppose  that  families  in  there  parents  commitment extended  to  parent,  1.  of  and  the  the  availability To what  families for  of  in  defined  not  the  has l a s t e d , of  child  extent  the  care  c a n any o f be  termed  problems which Is  it  it  or divorced  problem f o r  in  particular  If  that  is  situation  and e f f o r t  in  the  of  other  sense,  home,  some  parent's  relationships within experience  that with  the  the  a  other  frustration.  the  single  parent  influenced  and o t h e r the  problems  the  the  came  in  the  by s i n g l e sense of  society  that a  financial  resources or  complaint  of  the  single  has  to  become  parent  who  h a s b e e n r e d u c e d , why that  demonstrates,  if  a particular  emphasised s u f f i c i e n t l y ,  parent  broadly  In  is  and  problems  participants  as p r o b l e m a t i c  about  l a b o u r market  faced  establish  economic s t a t u s the  the  clearly  factors  parenthood  responsibility of to  will  services.  difficulties  social  family  b y many  how s i n g l e  a c c e s s i b i l i t y of  As E e k e l a a r  parent  a broad  the  to  be A d d r e s s e d  sufficient  anybody but  dispute?  society  is  and  be wrong  in  Others w i l l  parent,  is  would  support  only of  and may b e  single  it  amongst s i n g l e  of  value  problems of  and m a r g i n a l i s e d ?  matrimonial value  of  resolving?  separated a  the  group w i t h i n s o c i e t y l a c k s  isolated  this  strength  isolation  family  accurately  society,  assist  the  to  sex  and how l o n g i t the  the  S o c i a l P r o b l e m to  from f a m i l y  including  experience  neighbourhood.  resulting  that  Speaking of  c h i l d r e n and the  is  contribution  discover  and  the  The e x t e n t vary  of  many r e l a t i o n s h i p s ,  the  Defining  financial  will  family  fracturing  a unity  outset  the Western w o r l d .  encompassing both single  is  the  is  particular dominant  society's perception  altered.  is  of  a  Denying a young person  3  educational  opportunity  same a g e b e c a u s e o f issues  for  value,  such issues  or  a belief  some p e o p l e .  Similarly,  chance  h e l d by  However,  barely  if  the  there  enter is  to  associate with others  the  if  parents  parental  the be  to  public  freedom  may r a i s e  authority  domain. to  of  the  difficult  is  a  dominant  3  leave  relationships  which  c h a v e b r o k e n down and f r e e d o m marriage, not  any  problems a r i s i n g  automatically  which u n d e r l i e s  matters  these  respectable  to  divorced  unmarried  or  individualist  argue  they  What makes  that  problematical  is  that  from d i v o r c e o r  opposed  to  challenge  the  b r o k e n down o r are  those  unpleasant  nearly  unit  is  that  created,  the  magnitude  the  law  are  these  the  of  cases  freedom sexual argue  of  to  it  would  are  be  separated,  price  losses  so c l e a r - c u t  the  of  an  should  relations 'the  that  not d i f f i c u l t i e s large  easily  be  there  family are  T h e y do n o t  stigma of  forces seriously  which  bastard  parent  is  individual  wrongdoing would  families,  so w i d e s p r e a d  should concern  has There  having a  as a s i n g l e  a code o f  parent  and  outside marriage.  consequences for single  so  a relationship  '[l]ife  However,  and  s i n g l e parent  values.  leave  that  and  enough'."'  that society at  freedoms  many  'inevitable that  outside  individualism  so i n t e r e s t i n g  not  individualist  problems o f are  If  s y s t e m ' ^ and  family  be r e i n t r o d u c e d '  the  are  family  r e s p o n s i b i l i t y with unpleasant indicate  of  from a b i r t h o u t s i d e w e d l o c k ,  c o n s e r v a t i v e s who  not  exercise  stressed s u f f i c i e n t l y ,  parents  in  engage i n  to  intercourse  fall.  individual's  baby needs  sexual  economic d i f f i c u l t i e s  its  dominance o f  to  the  s o c i a l values  arising  the  is  aspect of  Particularly  in  social concern.  the  single  might  this  for  engage from  freedoms  economy and  taken wherever  identified.  to  however  and o f  itself.  the  such  family  4  The limiting  ' c o u n t e r v a i l i n g humanitarian  values'  which I i d e n t i f y  as  the ascendancy of a b s t e n t i o n i s t v a l u e s are those concerned  the w e l f a r e o f c h i l d r e n .  S o c i e t y cannot  stand by and  take t h e i r course i f l a r g e numbers of disadvantaged from such a b s t i n e n c e .  C h i l d r e n may  l e a v e events  children w i l l  actions.^  over-stated.  be p e r c e i v e d as d e s e r v i n g because  motivated  S o c i e t y ' s a l t r u i s m i n t h i s regard must not  Some s o c i a l concern  by a p o c r y p h a l  to  be  f o r s i n g l e parent f a m i l i e s i s  t h e o r i e s o f the p o t e n t i a l m a l i g n i t y o f  members of the s i n g l e parent's household.  the  S o c i a l a c t i o n equates  s o c i a l p r o t e c t i o n . A p r o p e n s i t y f o r d e l i n q u e n t behaviour a l l e g e d but s t u d i e s d i s c l o s e  to result  they form a l a r g e group amongst the needy whose p l i g h t i s not due t h e i r own  with  t h a t 'the c l o s e n e s s of the  to  i s often  association  g between d e l i n q u e n c y and broken homes i s sometimes o v e r e s t i m a t e d ' . may  This  be because the j u v e n i l e j u s t i c e system more r e a d i l y commits to an  i n s t i t u t i o n a young o f f e n d e r from a broken home. of f i r s t  T.P.  o f f e n d e r s under e i g h t e e n years of age who  j u v e n i l e c o u r t s i n P h i l a d e l p h i a between 1949  and  Monahan's study  appeared  1954  before  supports  this  9 hypothesis. than  Even i f b e i n g r a i s e d  i n a s i n g l e parent f a m i l y i s no more  'a c o n t r i b u t o r y cause of delinquency'*^*  there i s a mythology  s u r r o u n d i n g the s i n g l e parent f a m i l y which a f f e c t s p u b l i c o p i n i o n . A second  a s p e c t o f the supposedly  humanitarian  concern f o r the  w e l f a r e of c h i l d r e n i n s i n g l e p a r e n t f a m i l i e s are the economic c h o i c e s w i t h which t h i s concern p r e s e n t s s o c i e t y a t l a r g e .  H a r r i s , McDonald  and  Weston argue t h a t the r e a l i t y of the s i t u a t i o n d i c t a t e s t h a t the major q u e s t i o n f o r the community i s how to pay i t * *  to f o o t the b i l l  r a t h e r than whether  but t h i s view i s i n advance o f many people's o p i n i o n s o f  economic c h o i c e s to be made.  the 12 Faced w i t h an e s c a l a t i n g w e l f a r e budget,  5  Ronald  Reagan sought  to p r o j e c t an image of humanitarian  concern f o r  c h i l d r e n w h i l s t unambiguously making h i s economic c h o i c e : 'The American people w i l l i n g l y extend h e l p to c h i l d r e n i n need, i n c l u d i n g those whose p a r e n t s are f a i l i n g to meet t h e i r r e s p o n s i b i l i t i e s . However, i t i s our o b l i g a t i o n to make every e f f o r t to p l a c e the f i n a n c i a l r e s p o n s i b i l i t y where i t r i g h t l y belongs on the parent who has been l e g a l l y ordered to support h i s c h i l d . ' 13 P r o t e c t i o n o f the p u b l i c revenues i s not a new  concern and  which w i l l be mentioned on a number o f o c c a s i o n s i n t h i s importance  here Is not so much i t s p e r s i s t e n c e from  R e l i e f A c t 1601 hypothesis  to the p r e s e n t day,  T h i s concern  are brought  Its  up  the  concern  i n such  i t s e l f a r i s e s out o f a c o n v i c t i o n t h a t  two  be e x p l a i n e d , somewhat c y n i c a l l y ,  by a f e a r o f j u v e n i l e crime and  r i s i n g public  B e t t e r f a r to m a n i f e s t concern by e n s u r i n g those who household  e f f e c t on  t h a t s i n g l e parent f a m i l i e s a r e o b j e c t s o f s o c i a l  parent f a m i l i e s are b e s t and may generated  thesis.  the E n g l i s h Poor  as i t s moderating  because of the p l i g h t o f the c h i l d r e n who families.  i t i s a theme  as  expenditure.  used  to l i v e as  c o n t i n u e to be an economic u n i t than to a c c e p t  one  full  responsibility. What I am  t r y i n g to d e s c r i b e i s a c l a s h between an  individualist  ethos, which r e i n f o r c e s s e l f - c e n t r e d d e s i r e s f o r p e r s o n a l happiness f u l f i l m e n t , and harshness groups.  c o u n t e r v a i l i n g h u m a n i t a r i a n v a l u e s which acknowledge the  of u n b r i d l e d i n d i v i d u a l i s m and  seek to p r o t e c t disadvantaged  W i t h i n each o f the d i f f e r e n t c o n t e x t s presented by  s i n g l e parent f a m i l i e s ,  the study o f  the s o c i a l problem i s to a l l o c a t e  r e s p o n s i b i l i t i e s , most i m p o r t a n t l y f o r f i n a n c i a l  support and  c a r e of  c h i l d r e n , i n a manner which o f f e n d s n e i t h e r the a s s e r t i o n o f the to e n t e r new  and  r e l a t i o n s h i p s nor a p r o f e s s e d humanitarianism  right  concerning  6  the w e l f a r e o f the i n d i g e n t .  A t the h e a r t o f t h i s i s s u e a r e the e x t e n t  to which r e s p o n s i b i l i t i e s , once assumed, can be renounced and the l i m i t s of  the S t a t e ' s o b l i g a t i o n  2.  to assume such  responsibilities.  Who a r e S i n g l e P a r e n t F a m i l i e s ? *  Tbe h i s t o r l e a l con tex t When u n d e r t a k i n g t h i s  the s i n g l e p a r e n t , former day,  i t i s tempting  task o f a l l o c a t i n g r e s p o n s i b i l i t i e s between f a m i l y members and the S t a t e a t the p r e s e n t  to assume t h a t new problems a r e b e i n g  A l t h o u g h demonstrably  encountered.  i n c o r r e c t , i t i s p o s s i b l e to p o i n t to sources  from  the 1950's onwards which d i s c u s s m a r i t a l breakdown i n p a r t i c u l a r as i f marriage  had, u n t i l q u i t e r e c e n t l y , been an u n v a r y i n g  familial 14  institution.  The Royal Commission on Marriage and D i v o r c e 1951-1955,  commonly known as the Morton Commission a f t e r i t s chairman, was q u i t e uninhibited  i n i t s use o f unsupported  i m p l i c a t i o n an u n d i f f e r e n t i a t e d  r e f e r e n c e to the p a s t , by  e r a o f s t a b i l i t y and s e c u r i t y :  'Weighing a l l the evidence b e f o r e u s , we a r e s a t i s f i e d t h a t marriages are now b r e a k i n g up w h i c h i n the p a s t would have h e l d t o g e t h e r . ' 15 'In the f i r s t p l a c e , marriages today a r e a t r i s k to a g r e a t e r e x t e n t than f o r m e r l y . The c o m p l e x i t y o f modern l i f e m u l t i p l i e s the p o t e n t i a l causes o f disagreement and the p o s s i b i l i t i e s o f f r i c t i o n between husband and w i f e . ' 16 'There i s a tendency to take the d u t i e s and r e s p o n s i b i l i t i e s o f marriage l e s s s e r i o u s l y f o r m e r l y . ' 17  than  18 As McGregor was l a t e r  to argue,  the Commission was p u t t i n g  forward o p i n i o n i n the guise o f f a c t and, indeed, i t c o u l d do l i t t l e more because i t had 'made no attempt  to s e c u r e the s o c i a l evidence by 19 which alone the m e r i t s o f [ p r o p o s a l s ] can be judged'. The s o c i a l  7  scientific rectified  failings by  the  of  the  Committee  M c G r e g o r was a member. approach  to  the  Morton  Commission were  on O n e - P a r e n t  This  report  significance of  Families  rejected  the  to 20  some  extent  of which Professor  Morton Commission's  i n c r e a s i n g numbers o f  petitions  for  21 divorce.  The F i n e r  One-Parent  FaMlies  conclusions  Report,  is  usually  from f i g u r e s  Firstly,  the  rates  whole  the  population  of  whereas  of  for  life,  the  referred  rates  divorce at  the R e p o r t  in  risk  of  of  to,  the  suggests  divorce  is  divorce  population at  in  a principal  theme  risk,  drawing  group together  that  e.g.  that  on  problematical.  successive years of  Committee  particular  the  year,  cohorts marrying 22 i n p a r t i c u l a r y e a r s , g i v e s r i s e to s u b t l e r m e a s u r e m e n t s . S e c o n d l y , to equate an i n c r e a s i n g r a t e o f d i v o r c e w i t h the imminent c o l l a p s e o f family  d i v i s i o n of  as  into  of William Latey's  book,  The  Tide  23 of  Divorce,  is  to  suggest  that marriages  d i d not  break  down  before  24 d i v o r c e became w i d e l y ascertainable Both  and  that  family  life  is  an  constant.  the M o r t o n  established  available  C o m m i s s i o n and W i l l i a m L a t e y  tradition  of  family  life  have a model o f  w i t h i n which c h i l d r e n  an  are  likely  from  their  to  25 prosper.  Their  conviction created  that  will  horror  the  at  r i s i n g divorce  children  be p a r e n t a l l y  in  the  single  deprived.  rates  emanates  parent  However,  families  thereby  do c h i l d r e n w h o s e  parents  I have d i v o r c e d o r problems o r Are  the  the  children For  separated  adjustments  processes of  experience  to  any d i f f e r e n t  t h o s e who h a v e l o s t  bereavement  and d i v o r c e  psychological  a parent  through  fundamentally  death?  different  for  involved?  example,  B r i t i s h detention  Charlotte centres  Banks looked  and  found  that,  into  the  although  backgrounds of  boys  homes b r o k e n by  in  death  8  were three  times as  frequent  as i n the p o p u l a t i o n a t l a r g e , homes broken 26  by s e p a r a t i o n were f i v e times as f r e q u e n t . c o h o r t of male Glasgow s c h o o l - l e a v e r s and the bereaved boys were no more l i k e l y i n t a c t homes, but  those who  had  Ferguson f o l l o w e d up made a s i m i l a r  to be c o n v i c t e d  a  observation:  than those  from  experienced  p a r e n t a l s e p a r a t i o n were 27 d i s p r o p o r t i o n a t e l y r e p r e s e n t e d i n the group of c o n v i c t s . Perhaps d i s c o r d i s more r e l e v a n t than l o s s , a t l e a s t w i t h r e s p e c t to p r o p e n s i t y 28 for delinquent  behaviour.  That the e f f e c t on c h i l d r e n of p a r e n t a l d e p r i v a t i o n could d i f f e r e n t according  to whether the parent  has d i e d o r has  be  left  the  household i s a p o i n t not s a t i s f a c t o r i l y addressed by P e t e r L a s l e t t i n 29 h i s d i s c u s s i o n o f p a r e n t a l d e p r i v a t i o n i n the p a s t . He c o r r e c t l y i d e n t i f i e s the tendency 'to look on our own g e n e r a t i o n as burdened by the problem [of p a r e n t a l d e p r i v a t i o n ] to an extent never p a r a l l e l e d  in  30 the p a s t ' .  We  past c e n t u r i e s . parents  conveniently neglect The  the e f f e c t s o f h i g h e r m o r t a l i t y i n  p r o p o r t i o n o f c h i l d r e n having  i n s e v e n t e e n t h and  l o s t one  e i g h t e e n t h c e n t u r y England may  or b o t h  well  be  e q u i v a l e n t to the p r o p o r t i o n of c h i l d r e n l i v i n g i n s i n g l e parent 31 f a m i l i e s nowadays. A t C l a y w o r t h i n N o t t i n g h a m s h i r e i n 1676, 32% unmarried people had  l o s t a t l e a s t one  parent;  the f i g u r e was  of  the same  32 i n 1688.  .  marriage. century  C l e a r l y , t h i s measure i s somewhat a f f e c t e d by age  Another example o f p a r e n t a l d e p r i v a t i o n i n the  i s d i s c l o s e d by  seventeenth  the p a r i s h r e g i s t e r o f S a i n t Mary's, Manchester,  which d i s c l o s e s t h a t o f women m a r r y i n g i n the y e a r s 33 52% and  at  59% were f a t h e r l e s s .  of p a r e n t a l d e p r i v a t i o n on  What we  cannot be  the c h i l d r e n i n v o l v e d .  c a v e a t on s u b s c r i b i n g u n q u e s t i o n i n g l y  1653  to 1660  sure o f i s the T h i s must be  to L a s l e t t ' s c o n c l u s i o n :  between  effect the  9  'We a r e h a r d l y j u s t i f i e d , i n h i s t o r i c a l terms, i n sympathising w i t h o u r s e l v e s f o r the p r e v a l e n c e o f broken marriages i n our time and i t s d e p l o r a b l e e f f e c t s on our c h i l d r e n . ' 34 W h i l s t i t i s sometimes f o r g o t t e n t h a t the s i n g l e parent  family i s a  l o n g s t a n d i n g s o c i a l phenomenon, i t c o u l d be t h a t the e f f e c t o f the d e p r i v a t i o n manifests  i t s e l f d i f f e r e n t l y over  Though g r e a t e r m o r t a l i t y was an important  time. factor,  thought that widowhood was n e c e s s a r i l y the p r i n c i p a l rise  to a s i n g l e parent  family i n past c e n t u r i e s .  Wrighton p o i n t o u t , there was no in  the p r e - i n d u s t r i a l w o r l d . '  35  i t should n o t be  event which gave  As L e v i n e and  'homogeneity o f a t t i t u d e and  experience  I t appears t h a t t h e r e were two p e r i o d s  of h i g h numbers o f b i r t h s o u t s i d e wedlock i n e a r l y modern England: 36 1591-1610 and the l a t e e i g h t e e n t h c e n t u r y .  B i r t h s outside marriage  were g e n e r a l l y unwelcome i n the p r o p e r t i e d c l a s s e s , i n p a r t i c u l a r because o f the t h r e a t to s u c c e s s i o n which they posed.  Perhaps because  of t h i s , a theory has developed  t h a t p a r t i c u l a r groups w i t h i n s o c i e t y 37 were p a r t i c u l a r l y prone to b i r t h s o u t s i d e m a r r i a g e . L e v i n e and 38 Wrightson's study o f T e r l i n g i n Essex, England to some e x t e n t bears this out.  Outside  m a r r i a g e became  the p e r i o d s o f h i g h i n c i d e n c e , b i r t h s  outside  'more e x c l u s i v e l y the p r o v i n c e o f the poor and the  39 obscure'.  They were i d e n t i f i a b l e as a nuisance:  'Again, over the whole p e r i o d , the parents o f i l l e g i t i m a t e c h i l d r e n and t h e i r c o n t a c t s were i n v o l v e d to a s t r i k i n g degree i n the myriad p e t t y ' d i s o r d e r s ' o f v i l l a g e l i f e . ' 40 L a s l e t t ' s study o f the w e l l - p r e s e r v e d  p a r i s h r e g i s t e r s a t Hawkshead  i n the E n g l i s h Lake D i s t r i c t d i s c l o s e d t h a t , over  the y e a r s , some  f a m i l i e s had a d i s p r o p o r t i o n a t e number o f b i r t h s o u t s i d e others l e s s  than expected.  41  marriage,  Many women b e a r i n g c h i l d r e n o u t s i d e  10  marriage  would  of  settlement,  their  year.  not  Laslett  stay  in  that  Hawkshead Is,  where  l o n g b u t would they  had w o r k e d  return  to  for  least  at  the  parish one  posits:  ' a f o o t l o o s e n e s s w h i c h was a l s o , p e r h a p s , marginal!ty. T h e y may h a v e b e e n r e l a t i v e l y static i n the l a t e r e i g h t e e n t h c e n t u r y , but i t i s d i f f i c u l t e v e r to r e g a r d them a s a s e t t l e d and a c c e p t e d p a r t o f the c o m u n i t y . 42 1  In  terms  of  the  of  unmarried  certainly marriage whether  and a c c e p t a n c e ,  mother  and h e r  be i n t e r e s t i n g in  to  episodes of  to  position within  whether  later  single  the m a r g i n s ,  the  c h i l d may b e l i t t l e  learn  previous centuries  their  Once pushed the  security  was  parenthood there  two  parent  lasted  a route  back  community  changed.  women b e a r i n g  formed  the  It  would  children  outside  households or  for  a  long  to  the  time.  mainstream  of  community? It  may be  wedlock, lies.  it  that,  is  hard  The r a t e  of  when  there  is  a large  to d i s c e r n where births  the  proportion  mainstream  outside marriage  is  of  of  births  the  arguably  outside  community  a measure o f  the  43 efficacy  of  marriage  an i n d i c a t i o n  of  change. single birth ii  of In  is  social the  parent  unlikely survival,  historical  family  is  equally  context,  varying  the  the  children present  as w e l l  rate  and d o e s n o t  difficult  of  separation,  as  births  raise  questions of  demographic p o s i t i o n of widowhood  social the  and  new.  status with respect  p e r i o d s , we f i n d  composed o f  in  be u n p r e c e d e n t e d  only  marital  raising  Any r i s e  being nothing  The s i g n i f i c a n c e o f larenthood At different  to  for  is well-established,  outside marriage  families  institution  non-conformity.  outside marriage questions  as a n  that  the  proportions  total of  to  single  body o f  widows  and  single  parent  widowers,  11  separated and d i v o r c e d p a r e n t s , and e x c e p t i o n a l l y , unmarried two  fathers.  To  mothers  and,  take Canada as an example, i n  t h i r d s of s i n g l e parents l i v i n g w i t h c h i l d r e n who  were widows o r w i d o w e r s . ^ had  unmarried  never married  had  never  1951  married  I n making t h i s c a l c u l a t i o n , a l l c h i l d r e n  of whatever age were i n c l u d e d .  J u s t s h o r t of  who  another  t h i r d o f the t o t a l o f s i n g l e p a r e n t s were separated w h i l s t j u s t 3.1%  and  45 1.5%  were r e s p e c t i v e l y d i v o r c e d or had never  the widows and widowers had categories. 26.3%  the never-married  the t h i r t y years may  six-fold  to 9.8%. 46  parenthood marriage  due  The p r o p o r t i o n  and  i f only lone  Indeed, the 1986  t h a t h a l f of a l l female l o n e parents entered  to s e p a r a t i o n o r d i v o r c e , a t h i r d due  the r e m a i n i n g 17%,  to  The c o n t r a s t  w e l l have been more s t r i k i n g  p a r e n t s w i t h minor c h i l d r e n had been counted. census d i s c l o s e s  1981,  increased nearly e i g h t - f o l d  o f widows and widowers had dropped by more than h a l f . over  By  been s u b s t a n t i a l l y d i s p l a c e d by the other  D i v o r c e d s i n g l e p a r e n t s had  of the t o t a l ;  been m a r r i e d .  Canadian  single  to a b i r t h o u t s i d e  by f a r the s m a l l e s t c a t e g o r y , due  to  widowhood. ^ What i s the p o t e n t i a l of the t o t a l  importance  o f t h i s change i n the  group of s i n g l e parents s i n c e World War  i s b e s t answered w i t h r e f e r e n c e to the average s i n g l e parenthood  II?  to the  l e n g t h of time spent as head o f a s i n g l e parent f a m i l y .  and major events  the three groups o f female unmarried  mothers i s 20.6  single parents.  by  i n their  t h a t as much as a decade s e p a r a t e s the average 48  average  Statistics  a sample o f 14,000 people asked  Canada to r e p o r t dates o f marriage suggest  This question  age o f those e n t e r i n g  by each of the three main r o u t e s and  the F a m i l y H i s t o r y Survey,  composition  from  Statistics lives,  age of each o f  The average  age o f  the  y e a r s , of the separated o r d i v o r c e d women  12  31.6  y e a r s and o f the widows 41.8 y e a r s .  to the time when s i n g l e parenthood Plainly,  began.  g i v i n g b i r t h o u t s i d e marriage,  widowhood a r e a l l events which tend woman's l i f e .  These ages a r e a l l r e f e r r i n g  s e p a r a t i o n , d i v o r c e and  to o c c u r a t d i f f e r e n t eras i n a  As widows become a l e s s s i g n i f i c a n t p o r t i o n o f the t o t a l  number o f s i n g l e p a r e n t s , i t i s r e a s o n a b l e  to conclude  t h a t the average  age o f s i n g l e parents g e n e r a l l y w i l l d e c l i n e and t h i s may have i m p l i c a t i o n s w i t h r e s p e c t to s o c i a l p o l i c y . p a r e n t w i l l have more d i f f i c u l t y  Perhaps the y o u t h f u l s i n g l e  i n a d a p t i n g to independent  l i v i n g as  the head o f a f a m i l y u n i t , s i m p l y due to i n e x p e r i e n c e and u n f a m i l i a r i t y w i t h l i f e ' s demands. experience friends.  The o l d e r s i n g l e parents may a t l e a s t have some  i n the l a b o u r market o r a s t r o n g e r network o f s u p p o r t i v e T h i s i d e a o f the average  age d e c l i n i n g as widowhood becomes a  l e s s s i g n i f i c a n t r o u t e to s i n g l e parenthood  s h o u l d n o t be  exaggerated.  When m o r t a l i t y was h i g h e r , there would be more younger bereaved parents.  single  Secondly, women h a v i n g t h e i r f i r s t c h i l d w i t h i n marriage  a t an  49 o l d e r age parenthood  will  tend  to push up the average  age o f e n t r y to s i n g l e  slightly.  However, i t appears  t h a t the age a t which s i n g l e parenthood i s  begun does have an i n f l u e n c e on the l e n g t h o f time i t i s l i k e l y to last. one  L a s l e t t noted  p a r e n t i n seventeenth  living  i n reconstituted  families.The S i n g l e parenthood and  t h a t over h a l f the c h i l d r e n who had l o s t a t l e a s t c e n t u r y Clayworth  two p a r e n t f a m i l i e s , n o t i n s i n g l e  p a t t e r n has p e r s i s t e d i s n o t always a l i f e  were  parent  i n t o the t w e n t i e t h c e n t u r y . sentence.  l e a v e o r a new p a r t n e r may be found.  episodic.  i n Nottinghamshire  C h i l d r e n may grow up  S i n g l e parenthood  i s often  13  For the unmarried s i n g l e parenthood  mothers, i t i s u n l i k e l y  will  that t h e i r periods o f  end s h o r t l y due to the c h i l d l e a v i n g home.  Adoption o r the t a k i n g i n t o care o f the c h i l d  are p o s s i b l i t i e s but  o t h e r w i s e the c h i l d w i l l n o t l e a v e the s i n g l e p a r e n t ' s household f o r many y e a r s , s i n g l e p a r e n t i n g having u s u a l l y begun a t the c h i l d ' s  birth.  N e v e r t h e l e s s , Maureen Moore found  t h a t i n Canada t h e i r episodes o f  s i n g l e parenthood were on average  the s h o r t e s t o f the t h r e e groups,  4.4 y e a r s . O f  those whose episodes o f s i n g l e parenthood  just  had ended by  the time o f the F a m i l y H i s t o r y Survey i n F e b r u a r y , 1984, 97% were e i t h e r 52 m a r r i e d o r l i v i n g w i t h a man o u t s i d e m a r r i a g e .  The new p a r t n e r would  n o t n e c e s s a r i l y be the c h i l d ' s f a t h e r , but i t i s worth reminding ourselves Britain,  t h a t by no means a l l unmarried  mothers a r e s i n g l e p a r e n t s . I n  f o r example, i n 1986, 21% o f c h i l d r e n were born to unmarried  c o u p l e s b u t , o f these c h i l d r e n , 66% were r e g i s t e r e d as the c h i l d r e n o f the mother and f a t h e r , i n d i c a t i n g t h a t a m a j o r i t y may w e l l be brought up 53 i n two p a r e n t  families.  By way o f c o n t r a s t w i t h the unmarried  mothers, the women who were  s e p a r a t e d o r d i v o r c e d e x p e r i e n c e d s i n g l e parenthood average  f o r p e r i o d s on  l a s t i n g 5.6 y e a r s a c c o r d i n g to the Canadian F a m i l y H i s t o r y 54  Survey and widows f o r the l o n g e s t average p e r i o d o f a l l , Predictably  7.5 y e a r s .  t h e r e f o r e , s m a l l e r p r o p o r t i o n s o f these women's episodes o f  s i n g l e parenthood  had terminated by the time the s u r v e y was taken: 57%  of those separated o r d i v o r c e d and 47% o f the widows compared w i t h 83% of  the unmarried  mothers.Also  p r e d i c t a b l y , o f those widows and  separated o r d i v o r c e d women whose time as s i n g l e p a r e n t s was over, 56 had formed new r e l a t i o n s h i p s than the unmarried mothers.  fewer  14  Possibly propensity that  the  single Just  because of  to  f o r m new u n i o n s ,  unmarried  parenthood  over  episode  may w e l l  some i t  is  Canadian Family H i s t o r y  unmarried  mothers  4% o f  greater  those  in  and o f  the  likely  to  is  the  the  the  two  of  widows.''  7  rate  groups.  of  passage  f o r m new u n i o n s  Their  importance  three  main  identified  and,  for  time o f  many a  other  to  economic s t a b i l i t y .  parenthood  secondly,  is  groups  that  transition  which that  of  they  remind  though  for  life.  ephemeral  be a  of  tendency  of  found  experienced a second the  indication  Survey  have a second e p i s o d e  the  S i n g l e parenthood as a p r e d o m i n a n t l y However  to  o r d i v o r c e d women o r  give a useful  a way o f  greater  separated  parenthood  single  a g e and  the  p a r e n t s w h i c h we h a v e  that  iii  of  figures  provide  the  emphasise d i s t i n g u i s h i n g f e a t u r e s  single us  than  compared w i t h m e r e l y  through s i n g l e  younger average  m o t h e r s w e r e more l i k e l y  a quarter  These  they  their  single  time o f  female  p a r e n t h o o d may be  hardship r e l a t i v e  to  experience in  the  some c a s e s ,  period  before  it  is  the  onset  58 of  single  parenthood.  the  economic p l i g h t  the  fact  that  recurring single  of  many o f  the m a j o r i t y  theme.  At  parenthood  In  To what e x t e n t  Canada,  this  of  single  point,  numbers o f  is  t h o s e who r a i s e parents  my a i m i s  c a n be r e g a r d e d  the  there  a relationship  minor  c h i l d r e n alone  a r e women w i l l  to  establish  as a p r e d o m i n a n t l y  s i n g l e parent  families  between  be  a  to what  female  and  extent  experience.  h e a d e d b y men r o s e  59 by 5 6 , 7 5 0 between  1976  decade.  the  By 1 9 8 6 ,  men h a d r e a c h e d solitary but,  the  raw  151,740.^°  eccentric.  despite  and 1 9 8 6 ,  In  figure  an i n c r e a s e o f for  The male  single  parent  s i n g l e parent  C a n a d a , he b e l o n g s  i n c r e a s e s i n numbers, male  to  a  nearly  60% o v e r  families is  headed  certainly  substantial  s i n g l e parents  the  not  social still  by a group  only  15  r e p r e s e n t 17% of the t o t a l number of s i n g l e p a r e n t s , much the same percentage  as i n 1 9 7 6 .  61  B r i t i s h Columbia i s c l o s e to the n a t i o n a l  p a t t e r n w i t h r e s p e c t to the r e l a t i v e p r o p o r t i o n s of male and s i n g l e p a r e n t s but, a t l e a s t between 1976  and  1981,  female  there was  a greater  r a t e of i n c r e a s e i n the numbers of s i n g l e parents i n the p r o v i n c e . 30.8%, the r a t e of i n c r e a s e i n B r i t i s h Columbia was  62  At  over 3% g r e a t e r  than  the n a t i o n a l r a t e o f i n c r e a s e ; w i t h r e s p e c t to male l o n e p a r e n t s , i t was 63 over 5% g r e a t e r .  The M i n i s t r y o f Supply and  m i g r a t i o n from e a s t to west may  S e r v i c e s suggests  that  e x p l a i n the h i g h e r f i g u r e s f o r B r i t i s h  Columbia.^ Clearly,  i f numbers o f male s i n g l e parents i n Canada a r e  a t such a r a t e but no female  i n r o a d s are b e i n g made on  increasing  the preponderance o f  s i n g l e parents as a p r o p o r t i o n of a l l l o n e p a r e n t s , i t i s l i k e l y  t h a t s i n g l e parent f a m i l i e s as a group are c o m p r i s i n g a g r a d u a l l y l a r g e r p r o p o r t i o n of a l l Canadian f a m i l i e s . c o r r e c t ; indeed  The  census shows t h i s  l o n e parent f a m i l i e s have been i n c r e a s i n g i n numbers a t  a f a s t e r r a t e than two p a r e n t f a m i l i e s s i n c e 1 9 6 6 . p o p u l a t i o n In l o n e parent f a m i l i e s had population,  to be  t h a t i s 9.4%  same d w e l l i n g r e l a t e d  reached  By 1981,  65  9.4%  the  total  o f the t o t a l f a m i l y  o f those l i v i n g i n groups of two o r more i n the  to each o t h e r by b l o o d , marriage  In Canada, t h e r e f o r e , we  or  adoption.  have a p i c t u r e of the t o t a l of  p a r e n t s i n c r e a s i n g a t a f a s t e r r a t e than t h a t f o r two parent  single families  but, w i t h i n t h i s s t e a d i l y l a r g e r group, a p e r s i s t e n t preponderance of female  single parents.  Censuses and  Surveys  In Great B r i t a i n ,  the O f f i c e o f P o p u l a t i o n  has r e c e n t l y suggested  p a r e n t f a m i l i e s passed  t h a t the number of  the m i l l i o n mark i n 1986  every f i f t e e n of these f a m i l i e s was  and  headed by a man.  single  t h a t o n l y one i n  fi7  This i s broadly  16  consistent with  the d e c l i n e i n the p r o p o r t i o n o f one parent f a m i l i e s  headed by the f a t h e r d i s c l o s e d by an a n a l y s i s o f the General Survey d a t a  f o r 1973-75 and 1981-83 r e s p e c t i v e l y .  6 8  Household  This i d e n t i f i e d a  d e c l i n e from 14% to 11%; the OPCS f i g u r e s suggest the p r o p o r t i o n may now be n e a r e r  7%.  Another r e c e n t government p u b l i c a t i o n does n o t attempt a  q u a n t i f i c a t i o n , remarking l a c o n i c a l l y i n s i n g l e parent  t h a t 'the p r o p o r t i o n  [of c h i l d r e n  f a m i l i e s ] l i v i n g with a lone father i s s t i l l  very  s m a l l ' d e s p i t e an i n c r e a s e i n the p r o p o r t i o n o f c h i l d r e n i n s i n g l e 69 parent  f a m i l i e s i n B r i t a i n : 8% o f c h i l d r e n i n 1972 to 13% i n 1985.  Should we be s u r p r i s e d by the low p r o p o r t i o n o f male s i n g l e parents?  S e p a r a t i o n and d i v o r c e a r e the most u s u a l gateways to s i n g l e  parenthood, and i t i s unremarkable that p a r e n t i n g p a t t e r n s w i t h i n the two parent separation.  f a m i l y should  endure beyond  observable  the time o f  There remain s t r o n g e x p e c t a t i o n s w i t h i n N o r t h American and  West European s o c i e t y t h a t women w i l l assume the primary n u r t u r i n g r o l e w i t h r e s p e c t to t h e i r c h i l d r e n . observation  I would agree w i t h M a r t i n  Richards'  ' t h a t the g e n e r a l assumptions t h a t a r e h e l d about the s e x u a l  d i v i s i o n o f l a b o u r w i t h i n marriage a r e extended situation'. ^ 7  to the p o s t - d i v o r c e  Attempts by s o c i a l p o l i c y makers and law reformers to  f o s t e r a c l i m a t e i n which, a t l e a s t a f t e r s e p a r a t i o n , men and women a r e not handicapped by s t e r e o t y p i c a l images which may f e t t e r  t h e i r freedom  to contemplate and to choose the b e s t arrangements f o r t h e i r c h i l d r e n w i l l r u n some way ahead o f broad s o c i a l consensus.  T h i s i s n o t to sneer  a t such attempts, merely to acknowledge the t e n a c i t y o f the c h a l l e n g e d assumptions. Consider,  f o r example, d a t a from the B r i t i s h S o c i a l A t t i t u d e s  Survey i n 1986 c o n c e r n i n g  p e r s p e c t i v e s on the d e s i r a b i l i t y o f c e r t a i n  17  p a r e n t a l working arrangements.  I f there were c h i l d r e n under f i v e i n  the f a m i l y , 76% o f those q u e s t i o n e d  felt  t h a t the b e s t arrangements were  f o r the f a t h e r to work f u l l - t i m e and the mother to s t a y a t home. Respondents who were married w i t h o u t c h i l d r e n were the most l i k e l y to f a v o u r t h i s arrangement (80%) and respondents the l e a s t l i k e l y ( 6 1 % ) .  who had never married were  The l a t t e r group favoured  the mother working  p a r t - t i m e to a much g r e a t e r e x t e n t than the married respondents, with or without c h i l d r e n .  However, the married  respondents  mother working p a r t - t i m e when the c h i l d r e n had reached of those w i t h c h i l d r e n and 60% o f those w i t h o u t as the b e s t arrangement w i t h  accepted the  their  teens: 66%  c h i l d r e n suggested  this  teenagers.  The B r i t i s h S o c i a l A t t i t u d e s Survey investigated  whether  had two years  earlier  the a s p i r a t i o n s o f married and never married  respondents  72 w i t h r e s p e c t to c h i l d - r e a r i n g .  With r e s p e c t to the t e a c h i n g o f  d i s c i p l i n e , 80% o f both groups a s p i r e d to an equal s h a r i n g o f the task and,  a c c o r d i n g to the r e p o r t s o f the married respondents  t h i s l e v e l o f a s p i r a t i o n was r e a l i s e d .  with  children,  However, t u r n i n g to c o n s i d e r a  task such as c a r i n g f o r s i c k c h i l d r e n , b o t h groups were d i v i d e d  roughly  e q u a l l y i n t h e i r i d e a l a l l o c a t i o n s o f the task: about h a l f would see i t as mainly  the woman's r e s p o n s i b i l i t y .  respondents  w i t h c h i l d r e n shared  a l l o c a t e d mainly  In r e a l i t y ,  35% o f the married  the task but i n 63% o f cases i t was  to the woman.  I t i s r e a d i l y conceded  t h a t these s t a t i s t i c s o n l y g i v e an  i n d i c a t i o n o f s o c i a l a t t i t u d e s i n B r i t a i n i n 1986 and 1984 r e s p e c t i v e l y and  t h a t c a u t i o n should be e x e r c i s e d i n s e e k i n g to draw c o n c l u s i o n s w i t h  r e s p e c t to p r e v a l e n t a t t i t u d e s i n o t h e r c o u n t r i e s . North America,  F o r example, i n  e x p e c t a t i o n s c o n c e r n i n g the p l a c e o f mothers i n the  18  l a b o u r market could be more f a v o u r a b l e Nevertheless,  the surveys  to working mothers.  g i v e some backbone to the argument t h a t , i f  j o i n t p a r e n t i n g i s n o t t a k i n g p l a c e when the c h i l d r e n a r e p a r t o f a two parent  f a m i l y , i t i s h i g h l y u n l i k e l y to take p l a c e a f t e r  Attempts to promote j o i n t custody j u d i c i a l preference  stumble a g a i n s t t h i s h u r d l e .  f o r j o i n t custody  A  would emphasise the importance o f  the c h i l d ' s r e l a t i o n s h i p s w i t h both parents co-operation  separation.  and the p o s s i b i l i t y f o r  i n a p e r i o d u s u a l l y c h a r a c t e r i s e d by s t r i f e .  73  I t would  74 a l s o seek to promote gender n e u t r a l i t y particular  and i t i s i n t h i s r e s p e c t i n  that any such p r e f e r e n c e would be a t odds w i t h  child-care patterns.  existing  T h i s appears to be the case n o t o n l y i n B r i t a i n  but a l s o i n C a l i f o r n i a where, a t one time, there was i n o p e r a t i o n a s t a t u t o r y presumption i n f a v o u r o f j o i n t custody. "* 7  custody  I f , by j o i n t  we mean a s i t u a t i o n i n which, a f t e r s e p a r a t i o n , parents  r e s p o n s i b i l i t y f o r the c a r e o f t h e i r c h i l d r e n , the prevalence custody  of joint  i s n o t to be judged by a c u r s o r y review o f the j u d i c i a l  statistics.  J o i n t custody  have the c h i l d  may mean simply  Alternatively,  t h a t the parent who does n o t  l i v i n g w i t h him o r her r e t a i n s the r i g h t  i n the making o f major d e c i s i o n s c o n c e r n i n g  the c h i l d ' s  l e s s o n i s to look beyond  arrangements.  to p a r t i c i p a t e 76 upbringing.  the same l a b e l may be used to d e s c r i b e a s i t u a t i o n i n  which the c h i l d a l t e r n a t e s h i s o r h e r r e s i d e n c e The  share  periodically.  the l a b e l s to the substance o f the  Lenore Weitzman, i n h e r survey o f a sample o f cases i n  San F r a n s i s c o and Los Angeles between 1968 and 1977 combined s e a r c h i n g i n t e r v i e w s w i t h r e c e n t l y d i v o r c e d people, person w i t h  the r e s p o n s i b i l i t y  found  with  t h a t the  f o r the day to day care o f the c h i l d was  u s u a l l y the mother, whatever the l a b e l a p p l i e d to the arrangements by  19  the c o u r t s .  A s i m i l a r o b s e r v a t i o n was made by P r i e s t and Whybrow i n  t h e i r a n a l y s i s o f r e c o r d s from t e n E n g l i s h d i v o r c e c o u r t s , s e l e c t e d to p r o v i d e a range o f c o u r t s v a r y i n g i n the r e g u l a r i t y w i t h which j o i n t 78 custody was awarded.  The r a t e s a t which the c o u r t s gave s o l e custody  to the w i f e v a r i e d w i t h i n a range o f t h i r t y percentage  points.  However,  i f o t h e r o r d e r s g i v i n g day to day c a r e to the w i f e a r e added to the s o l e custody o r d e r s , i t was,found t h a t the c h i l d ' s r e s i d e n c e was w i t h the w i f e i n 88.6% o f cases on average and t h a t the range o f r e s u l t s from the 79 ten c o u r t s was a mere 7.6 percentage Is i t the informed  c h o i c e o f s e p a r a t i n g and d i v o r c i n g couples and  the c o u r t s a f t e r weighing o b t a i n i n g custody  points.  a l l the circumstances  o f the couple's  children?  c u t down the range o f p o s s i b i l i t i e s ? raising  Or do s o c i a l  expectations  Perhaps men f e e l embarrassed about  the p o s s i b i l i t y o f t h e i r s e e k i n g custody w i t h t h e i r  thinking i t e c c e n t r i c or effeminate. their  which l e a d to the w i f e  turn, are u n l i k e l y  to r a i s e  R i c h a r d s observes  the i s s u e w i t h  lawyers,  t h a t lawyers, i n  t h e i r male c l i e n t s :  ' I f the c l i e n t does b r i n g i t up the common a d v i c e seems to be t h a t i t i s n o t worthwhile to proceed u n l e s s t h e i r p a r t n e r s w i l l agree to the p r o p o s a l . ' 80 The  o t h e r s i d e o f the same c o i n a r e the women who may be concerned a t  a p p e a r i n g c a l l o u s i f they r e l e a s e t h e i r c h i l d r e n husband's custody w i t h o u t u n w i l l i n g behaviour  a struggle.  i s uncertain.  to t h e i r  former  The e x t e n t o f these p a t t e r n s o f  What i s more c e r t a i n i s t h a t the  p r e s s u r e s on s e p a r a t i n g p a r e n t s , i n so f a r as d e c i s i o n s on custody a r e concerned,  a r e n o t d e r i v e d s o l e l y from the r e l a t i o n s h i p s i n v o l v e d , but  can be t r a c e d to e x p e c t a t i o n s o f s o c i e t y a t l a r g e . observation of Eekelaar e t a l . ,  i n connection with  I agree w i t h the t h e i r study o f  625 d i v o r c e s i n v o l v i n g c h i l d r e n i n 1974 from ten B r i t i s h c o u r t s :  20  'That the w i f e i s seen as prima f a c i e the proper person to have c a r e of the c h i l d r e n t h e r e f o r e appears as a f a c t o r of community o p i n i o n which i s shared by the p a r t i e s themselves.' 81 The  s t r e n g t h of these o p i n i o n s h e l p s to e x p l a i n the g r e a t e r  t e n a c i t y o f wives i n custody matters  82 by E e k e l a a r e t a l .  observed  and  t h e i r r e l u c t a n c e to a l l o w t h e i r husband's custody o f the c h i l d r e n to 83 stand u n c h a l l e n g e d , a t l e a s t i n i t i a l l y . what extent the importance may  I t i s open to q u e s t i o n to  which a parent a t t a c h e s to o b t a i n i n g custody  l e a d him o r her to a c c e p t a l e s s f a v o u r a b l e f i n a n c i a l  r e t u r n f o r the o t h e r parent's assurance contested. t h i s way,  I f custody and potentially  w i l l be f u r t h e r iv  t h a t custody w i l l  f i n a n c i a l matters  the economic d i f f i c u l t i e s  o f c u s t o d i a l mothers  as an e c o n o m i c a l l y d e b i l i t a t i n g  f a m i l y incomes.  On  the c o n t r a r y , they tend  the p o o r e s t groups of s o c i e t y .  in  experience  to be c o n c e n t r a t e d w i t h i n  female-headed s i n g l e parent f a m i l i e s a r e o v e r - r e p r e s e n t e d 84  they made up 23.9%  increased  to 36.8%.  a c c o r d i n g to income.  of t h i s d e c i l e whereas i n 1980  and  Canada's f a m i l i e s shared  The  j u s t over a t w e n t i e t h of the t o t a l  grown f a s t e r than the number of two  the s u g g e s t i o n o f the M i n i s t r y o f Supply and  burgeoning,  predominantly  had  second  poorest  fifth  income  single  D u r i n g the 1970s, the number o f female-headed  p a r e n t f a m i l i e s has and  t h e i r share  j u s t over h a l f of these poor f a m i l i e s were female-headed  parent f a m i l i e s .  In  Over the same p e r i o d , r e p r e s e n t a t i o n i n the  d e c i l e remained c o n s t a n t a t about 14% of the d e c i l e . of  a c r o s s the range  T a k i n g Canada as an example, i t i s  the lowest d e c i l e of f a m i l i e s arranged  1970,  be  exacerbated.  S i n g l e parenthood  n o t i c e a b l e how  not  are negotiated together i n  S i n g l e p a r e n t f a m i l i e s are not evenly d i s t r i b u t e d of  settlement i n  parent  single families  Services i s that this  young group has d i s p l a c e d the e l d e r l y from  the  21  lowest  decile  dominate In that  the  into  the  second d e c i l e .  numbers o f  the  poorest  the U n i t e d Kingdom o v e r  the  number o f  tenth of  the  pensioners in  Older  period  the  families  Canada's  quintile  longer  families.  1971-1985,  lowest  no  it  is  remarkable  by income has  86 nearly  h a l v e d , d r o p p i n g f r o m 52%  representation  of  single  parent  p o p u l a t i o n r o s e f r o m 5% t o  8%.  Canadian f i g u r e s  set  out  exclusively with  the  income o f  by b l o o d ,  marriage  Nevertheless, the in  of  the of  The Canadian d a t a of  two  female-headed the  proportion of  increased  from  other  the  end o f  two  comparable the  In  47% o f  families,  the  of  c o m p a r e d w i t h 54% i n  the  parent  families  at  that  level  period  f r o m 30%  to  20%;  for  two  period  are  pattern of  s i n g l e parent 87  decrease  in  increase  with  During  incomes i n single  the  $35,000  families,  single  o v e r 5%.  At  single parent  families  were  families  families the  the  average  the  parent  just  income a t  and  1970's,  excess of  parent  female-headed  the  families  a slower  remained  the  figures income o f  the  rate.  below  male-headed  i n c o m e had d r o p p e d d u r i n g  1970-80,  related  groups w i t h an  The p r o p o r t i o n of  parent  the  concerned  two o r more  to b e m a d e .  s i n g l e parent  of  the  comparison with  c o m p a r i s o n s between  $10,000 annual  1970.  of  same h o u s e h o l d .  poorest  male-headed  for  fifth  the  families.  female-headed  barrier  the  the  some t e l l i n g  17% b u t  poorest  groups of  demonstrate in  same p e r i o d ,  Canadian f i g u r e s  F o r male-headed  female-headed  over  the  families  level,  Indeed,  is  this  i n c r e a s e was a mere 2% t o  spectrum,  through the  11%.  for  families  26%.  f r o m 7% t o  breaking 1980,  no d i r e c t  families,  parent  12% t o  proportion rose families  There  s i n g l e parent  parent  the  in  elderly  allows  parent  single  In  adoption r e s i d i n g in  representation  fortunes  27%.  families  the B r i t i s h f i g u r e s  representation the  or  above  to  that  single  same  w e r e 18% and female  22  s i n g l e p a r e n t s , expressed  as a percentage  of the average  income of a l l  88 Canada's f a m i l i e s , a c t u a l l y dropped from 56% What do  52%.  these f i g u r e s r e p r e s e n t when they are t r a n s l a t e d  spending power? account  to  I n e v i t a b l y we  find  into  t h a t items such as food and  f o r a l a r g e p r o p o r t i o n of the budgets of female-headed  parent f a m i l i e s .  Brigitta Arnoti identified  shelter single  f o o d , s h e l t e r and  clothing  as b a s i c e x p e n d i t u r e s and d e f i n e d a low income f a m i l y as one which 89 spends more than 58.5% o f i t s income on these t h r e e items. She found t h a t 68% of c h i l d r e n l i v i n g w i t h t h e i r mother o n l y were members of low 90 income f a m i l i e s so d e f i n e d . seventeen  Maureen Moore r e f e r s  Canadian c i t i e s i n 1984 which d i s c l o s e d  to a survey o f  t h a t , on  average,  female-headed l o n e parent f a m i l i e s were spending n e a r l y 50% o f  their  pre-tax income on b a s i c n e c e s s i t i e s w h i l s t comparable expenditures i n two  parent f a m i l i e s accounted  f o r , on average,  j u s t over a t h i r d o f the  91 pre-tax  budget.  To demonstrate the lower standard o f l i v i n g g e n e r a l l y experienced by female-headed s i n g l e parent f a m i l i e s , Moore compares  their  accommodation and  household f a c i l i t i e s w i t h those of two parent f a m i l i e s 92 w i t h minor c h i l d r e n . She found t h a t 72% o f the female s i n g l e parents were r e n t i n g compared w i t h 27% of the two parent f a m i l i e s and t h a t o n l y 30% l i v e d  i n detached  d w e l l i n g s i n c o n t r a s t to 66% o f the two  parent  93 families. had  W i t h r e s p e c t to f a c i l i t i e s , n e a r l y a l l Canadian f a m i l i e s  refrigerators,  telephones  and  t e l e v i s i o n s but female-headed  p a r e n t f a m i l i e s l a g s i g n i f i c a n t l y behind  the two  parent f a m i l i e s i n  c o n n e c t i o n w i t h the a c q u i s i t i o n of microwaves, f r e e z e r s , 94 washing machines and importance  clothes dryers.  single  dishwashers,  T h i s i s s u r e l y o f some  w i t h r e s p e c t to the f o r m u l a t i o n of p o l i c y f o r s i n g l e  parent  23  families.  Many s i n g l e parents f i n d  t h a t t h e i r domestic  commitments  i n h i b i t them i n r e a c h i n g t h e i r f u l l p o t e n t i a l i n the l a b o u r market but these commitments are made a l l the g r e a t e r by saving devices.  t h e i r l a c k of l a b o u r  I n some r e s p e c t s , the v e r y p o v e r t y o f so many s i n g l e  parents demands t h a t they spend more time about domestic  tasks  o t h e r p a r e n t s , thereby l e a v i n g them l e s s  for alleviating  time and  energy  than  t h e i r s i t u a t i o n i n the market p l a c e . The  p a t t e r n i s repeated  accommodation i s concerned, of  households  i n Great B r i t a i n . the l a s t census,  headed by married  I n so f a r as  i n 1981,  discloses  t h a t 63%  couples a r e owner o c c u p i e r s compared 95  w i t h 35% of one  parent f a m i l i e s .  t h e i r accommodation from parent f a m i l i e s . ^  the m u n i c i p a l i t y compared w i t h 54% of the  i n many one  C h i l d r e n may  then t h e i r contemporaries pointedly, of  c o u p l e s , 28% r e n t  couples d i d not own 97  parent f a m i l i e s l a c k t h i s m o b i l i t y .  appreciate that l i f e  and d e p r i v a t i o n .  the married  Only 25% o f the married  but 59% of the one to  Of  they may  find  why  denial  they a r e worse o f f  l i v i n g w i t h both parents and, t h e i r own  a car  I t i s not hard  parent f a m i l i e s must e n t a i l  not understand  one  perhaps more  d e p r i v a t i o n s c o n f u s i n g and  a source  resentment i f t h e i r n o n - c u s t o d i a l parent i s n o t i c e a b l y b e t t e r o f f  than t h e i r c u s t o d i a l One  parent.  demographic p a t t e r n which has c o n t r i b u t e d to the e c o n o m i c a l l y  d e b i l i t a t i n g e f f e c t o f s i n g l e parenthood the extended  family.  In Canada s i n c e World War  i n c r e a s i n g l y u s u a l f o r households  secondary,  i s the d e c r e a s i n g p r e v a l e n c e o f  to c o n t a i n o n l y two  a d d i t i o n a l f a m i l y u n i t s are l e s s and  generations; 98  l e s s normal.  p e r i o d between 1951  and  two  to be an a d j u n c t w i t h i n a l a r g e r household,  parent f a m i l i e s  1976,  I I i t has become  In the  l o n e parent f a m i l i e s were more l i k e l y  than  but even  24  the lone parent families are demonstrating their i n c l i n a t i o n to l i v e 99 separately.  What effect does this have?  housing costs for the single parent f a m i l y .  It w i l l probably increase Secondly, what is gained i n  privacy may be l o s t i n emotional and material support.  It  is  interesting to speculate whether this tendency to l i v e i n a separate u n i t might be reversed i n areas i n which housing i s p a r t i c u l a r l y expensive,  for example the South-East of England or the Lower Mainland  of B r i t i s h Columbia, thereby providing the single parent with additional sources of support. single parents  It i s on the most common sources of support for  that I w i l l next focus a t t e n t i o n .  25  Foo tno tes  1.  N.D. Hunter, ' C h i l d Support Law and P o l i c y : the Systematic I m p o s i t i o n o f Costs on Women' (1983) 6 Harvard Women's Law J o u r n a l 1 a t p 17.  2.  J.M. E e k e l a a r , 'Family Law and S o c i a l Problems' (1984) 34 U n i v e r s i t y o f Toronto Law J o u r n a l 236 a t p 240.  3.  Loc. c i t . .  4.  E e k e l a a r , s u p r a , f o o t n o t e 2 a t p 242. a g a i n t s o c i a l i n t e r v e n t i o n , however.  5.  Dr. A d r i a n Rogers o f the C o n s e r v a t i v e F a m i l y Campaign quoted on p 21 o f The Times f o r May 26th, 1989.  6.  E e k e l a a r , s u p r a , f o o t n o t e 2 a t p 242.  7.  T h i s i d e a o f c h i l d r e n as d e s e r v i n g poor and the e x p l a n a t i o n f o r t h i s c l a s s i f i c a t i o n Is put forward by W. T r a t t n e r i n 'From Poor Law to W e l f a r e S t a t e ' (1984).  8.  D.J. West, The Young Offender (Harmondsworth: Penguin p 69.  9.  T.P. Monahan, 'Family S t a t u s and the D e l i n q u e n t C h i l d ' (1957) 35 S o c i a l f o r c e s 250, d i s c u s s e d i n West, s u p r a , f o o t n o t e 8 a t p 71.  10.  West, s u p r a , f o o t n o t e 8 a t p 73.  11.  M. H a r r i s , P. McDonald and R. Weston, 'Payment o f C h i l d Maintenance i n A u s t r a l i a ' (1987) 1 I n t e r n a t i o n a l J o u r n a l o f Law and the F a m i l y 92 a t p 100.  12.  I n 1984,  13.  1983  14.  Cmnd 9678 (London: HMS0 1956).  15.  Supra,  f o o t n o t e 14 a t para 42.  16.  Supra,  f o o t n o t e 14 a t para 44.  17.  Supra,  f o o t n o t e 14 a t para 47.  18.  O.R. McGregor, D i v o r c e i n England e s p e c i a l l y Chapter 6.  19.  McGregor, s u p r a , f o o t n o t e 18 a t p x o f the p r e f a c e .  i t climbed  He i s n o t p u t t i n g the case  1967) a t  to a f i g u r e i n the r e g i o n o f $25 b i l l i o n .  United States P r e s i d e n t i a l Proclamation.  (London: Heinemann 1957)  26  20.  Report o f the Committee on One-Parent F a m i l i e s Cmnd 5629 (London: HMSO 1974).  (The F i n e r R e p o r t ) .  21.  Supra,  f o o t n o t e 20 a t para  3.35.  22»  Supra,  f o o t n o t e 20 a t para  3.43.  23.  W.  24.  F i n e r Report, s u p r a , f o o t n o t e 20 a t para  25.  Morton Commission, supra, f o o t n o t e 14 a t para 37. L a t e y , supra, f o o t n o t e 23 a t p 145 e t seq..  26.  C. Banks, 'Boys i n D e t e n t i o n C e n t r e s ' i n C. Banks and P.L. B r o a d h u r s t , eds, S t u d i e s i n Psychology (London: London U n i v e r s i t y P r e s s 1965), d i s c u s s e d i n West, s u p r a , f o o t n o t e 8 a t p 72.  27.  T. Ferguson, The Young D e l i n q u e n t i n h i s S o c i a l S e t t i n g ( O x f o r d : Oxford U n i v e r s i t y P r e s s 1952) a t p 22.  28.  See West, s u p r a , f o o t n o t e 8 a t p  29.  P. L a s l e t t , F a m i l y L i f e and I l l i c i t Love i n E a r l i e r G e n e r a t i o n s (Cambridge: Cambridge U n i v e r s i t y p r e s s 1977) a t c h a p t e r 4.  30.  Supra,  31.  L a s l e t t , s u p r a , f o o t n o t e 29 a t p  162.  32.  L a s l e t t , supra, f o o t n o t e 29 a t p  164.  33.  L a s l e t t , supra, f o o t n o t e 29 a t p  169.  L a t e y , The T i d e o f D i v o r c e (London: Longman 1970).  Supra,  f o o t n o t e 29 a t p  f o o t n o t e 29 a t p  3.35.  72.  161.  170.  35.  D. L e v i n e and K. Wrightson, 'The S o c i a l Context o f I l l e g i t i m a c y i n E a r l y Modern England' i n P. L a s l e t t , K. Oosterveen and R.M. Smith, eds, B a s t a r d y and i t s Comparative H i s t o r y (London: A r n o l d 1980) a t p 158.  36.  Loc. c i t . .  37.  See P. L a s l e t t , 'The B a s t a r d y Prone S u b - S o c i e t y ' i n L a s l e t t , Oosterveen and Smith, eds, supra, f o o t n o t e 35.  38.  Supra,  39.  L e v i n e and Wrightson,  supra, f o o t n o t e 35 a t p  165.  40.  L e v i n e and Wrightson,  s u p r a , f o o t n o t e 35 a t p  168.  41.  P. L a s l e t t , s u p r a , f o o t n o t e 37 a t p  f o o t n o t e 35.  238.  27  42.  Loc. c i t . .  43.  See the s u g g e s t i o n o f L a s l e t t , Oosterveen and Smith, f o o t n o t e 35 a t p 3.  44.  Canada's Lone-Parent F a m i l i e s (Ottawa: M i n i s t e r o f Supply and S e r v i c e s T9~84~57 S t a t i s t i c s Canada r e f e r e n c e 99-933. See 'Main Trends' d i s c u s s i o n .  45.  Loc. c i t . .  46.  Loc. c i t . .  47.  M. Moore, 'Female Lone Parenthood', Canadian S o c i a l Trends (Autumn 1988) S t a t i s t i c s Canada r e f e r e n c e ll-66~8E~at p 41. "  48.  Loc. c i t . .  49.  I n England and Wales, the age i n 1974 was 24.5 y e a r s whereas i n 1984 i t had r i s e n to 25.8 y e a r s . S o c i a l Trends 16 (London: HMSO 1986) a t p 42.  50.  Supra, f o o t n o t e 29 a t p 164.  51*  Supra, f o o t n o t e 47 a t p 41.  52*  Loc. c i t . .  53.  S o c i a l Trends 18 (London: HMSO 1988) a t p 46.  54.  Moore, supra, f o o t n o t e 47 a t p 42.  55.  Loc. c i t . .  56.  77% o f those separated o r d i v o r c e d women who were no l o n g e r s i n g l e parents had formed new u n i o n s . F o r widows, the f i g u r e i s 59%. See Moore, supra, f o o t n o t e 47 a t p 42.  57.  Loc.cit..  58.  See g e n e r a l l y The F i n e r Report, supra, f o o t n o t e 20, P a r t 3 passim.  59.  Moore, supra, f o o t n o t e 47 a t p 42.  60.  Loc. c i t . .  61.  Loc. c i t . .  62.  Canada's Lone-Parent F a m i l i e s , supra,  63.  Loc. c i t .  64.  Loc c i t . .  f o o t n o t e 44.  supra,  28  65.  .Canada's Lone-Parent  F a m i l i e s , supra, f o o t n o t e 44, T a b l e 1.  66.  Canada's Lone-Parent and 'Main Trends'.  F a m i l i e s , supra, f o o t n o t e 44, ' I n t r o d u c t i o n '  67.  Pjopulation Trends 55 (London: OPCS 1988).  68.  See S o c i a l Trends 16 (London: HMSO 1986) a t p 35.  69.  S o c i a l Trends 18, s u p r a , f o o t n o t e 53 a t p 38.  70.  M. R i c h a r d s , 'Post-Divorce Arrangements f o r C h i l d r e n : a P s y c h o l o g i c a l P e r s p e c t i v e ' (1982) J o u r n a l o f S o c i a l W e l f a r e Law 133 a t p 136.  71.  See S o c i a l Trends 18, supra, f o o t n o t e 53 a t p 39.  72.  See S o c i a l Trends 16, sugra, f o o t n o t e 68 a t p 36.  73.  L.J.Weitzman, The D i v o r c e R e v o l u t i o n (New York: Free P r e s s 1985) a t p 255.  74.  Loc. c i t . .  75.  Weitzman, s u p r a , f o o t n o t e 73, Chapter pp 261-2.  76.  Dipper v Ddpj>er [1980] 2 A l l ER 722, a d e c i s i o n o f the E n g l i s h Court o f Appeal, suggests t h a t a n o n - c u s t o d i a l p a r e n t r e t a i n s such a r i g h t to p a r t i c i p a t e i n any event.  7  Supra,  7  .  f o o t n o t e 73, Chapter  8 passim b u t e s p e c i a l l y a t  8, e s p e c i a l l y a t p 262.  78.  J.A. P r i e s t and J.C. Whybrow, 'Custody Law i n P r a c t i c e i n the D i v o r c e and Domestic C o u r t s ' , supplement to Law Commission Working Paper No.96, 'Review o f C h i l d Law: Custody' (London: HMSO 1986), see e s p e c i a l l y f i g F.4.  79.  Loc. c i t . .  80.  Supra.,  81.  J.M. E e k e l a a r and E . C l i v e w i t h K. C l a r k e and S. R a i k e s , Custody a f t e r D i v o r c e (Oxford: Centre f o r S o c i o - L e g a l S t u d i e s 1977) para 3.6.  82.  Loc. c i t . .  83.  Loc. c i t . .  84.  Changes i n Income i n Canada: 1970-1980 ( M i n i s t r y o f Supply and S e r v i c e s ; 1984) S t a t i s t i c s Canada r e f e r e n c e 99-141, T a b l e 4.  f o o t n o t e 70 a t p 136.  29  85.  Supra, f o o t n o t e 84, see d i s c u s s i o n o f T a b l e 4.  86.  S o c i a l Trends 18, s u p r a , f o o t n o t e 53 a t p 95.  87.  Sup_ra, f o o t n o t e 84, T a b l e  88.  Sup_ra, f o o t n o t e 84.  89.  B. A r n o t i , ' C h i l d r e n i n Low Income F a m i l i e s ' i n Canadian S o c i a l Trends, W i n t e r 1986.  90.  Loc. c i t .  91.  M. Moore, 'Women P a r e n t i n g A l o n e ' i n Canadian S o c i a l Trends, Winter 1987 p 31 a t p 35.  92.  Supra, f o o t n o t e 91 a t p 34.  93.  Loc. c i t . .  94.  Loc. c i t . .  95.  See the C e n t r a l S t a t i s t i c a l O f f i c e ' s Annual A b s t r a c t o f (1988 e d i t i o n ) , T a b l e 3.37.  96.  Loc.cit..  97.  Loc. c i t . .  98.  Canada's Lone-Parent F a m i l i e s , supra, f o o t n o t e 44.  99.  Loc. c i t . .  1.  Statistics  30  CHAPTER 2 SOURCES OF F I N A N C I A L  Having parent  families  examine  the  detail. are  gathered in  niche  Why d o  their  they  of  resource?  shall  support  and I  support  rather  1•  A General 1985,  Statistics found only  over  64% o f  families parent  financial  seek  to  place  and e c o n o m i c c o n t e x t ,  to  so few  parent  to  e m p h a s i s e one o r  features  of  the  demonstrate is of  that  to  What a r e  contemporary  to  more What  the  other  sources of  financial financial  f o c u s on o n e s o u r c e  to d i s c l o s e i d e o l o g i c a l the  in  resources?  seek  major  propose  families  financial present?  I  single  of  preferences.  data w i l l  be  examined.  Overview L a b o u r and H o u s e h o l d S u r v e y s A n a l y s i s D i v i s i o n  total  survey  of  female-headed  children. more  the  Various  important to  state  the  the  average  children.  7% o f 2  the  parent  It  families  of  government  parent the  total  single  family  total  was  two  parent  a s s i s t a n c e were  female-headed  two  of  obtained  c o m p a r e d w i t h 87% f o r  c o m p r i s e d 24% o f  compared w i t h o n l y with  forms to  consumer f i n a n c e s . ' ' "  single  income from e a r n i n g s  they were  family  data  at  to  features  on a v e r a g e ,  from  sufficient  FAMILIES  support  than another  times  than  transfers  access  examine  shall  the  with  three  family  have  Canada conducted a  that,  families  social  p o l i c i e s which  some m a j o r  In  a broad  sources of  I  presented  o c c u p i e d b y s o many s i n g l e  implications  First,  and  SUPPORT FOR SINGLE PARENT  with  parent children:  income o f  income o f  the  such  average  two  31  In to  Britain  the p i c t u r e i s even more s t a r k .  have been an attempt to i l l u s t r a t e  There does not appear  the p r o p o r t i o n s i n which the  v a r i o u s sources o f f i n a n c e c o n t r i b u t e to an average f a m i l y budget b u t there are other pertinent data.  C o n s i d e r i n g s i n g l e parents o f b o t h  sexes, v e r y few r e l y on maintenance payments as a p r i n c i p a l source o f  3 income: the f i g u r e has r e c e n t l y been v a r i o u s l y s t a t e d as 6%  o r one i n  4 fifteen.  I t i s estimated  t h a t about a q u a r t e r a r e s e l f - s u f f i c i e n t ,  r e l y i n g on e a r n i n g s o r o t h e r p r i v a t e sources i n c l u d i n g maintenance, and t h a t about three q u a r t e r s r e c e i v e s t a t e b e n e f i t s  'amounting to an annual  burden f o r the taxpayer o f £3.4 b i l l i o n ' . " ' It  i s t h i s s o - c a l l e d burden which i s l e a d i n g policy-makers to  c o n s i d e r whether s i n g l e p a r e n t s can be coaxed towards dependence on o t h e r sources o f income than t r a n s f e r s from government. behind such p o l i c i e s  6  The m o t i v a t i o n  i s not simply h u m a n i t a r i a n but, as E e k e l a a r has  p o i n t e d o u t , economic grounds f o r s t a t e i n t e r v e n t i o n i n p r i v a t e r e l a t i o n s have a l e n g t h y p e d i g r e e .  7  One d i r e c t i o n i n which the s i n g l e  parent might be guided i s that o f economic independence by p a r t i c i p a t i o n in 2•  the l a b o u r market. E a r n i n g s as a Source o f F i n a n c i a l Support What does the s i n g l e parent f i n d on l o o k i n g to the market f o r  economic support?  Many w i l l  find  i t unwelcoming.  This i s especially  t r u e f o r those separated o r d i v o r c e d mothers who have devoted themselves to  work w i t h i n the home.  situation. for  Widows can f i n d  themselves i n a s i m i l a r  T h e i r housework and c a r i n g f o r the c h i l d r e n i s b e n e f i c i a l  the household b u t the l a b o u r market a t t r i b u t e s l i t t l e  tasks.  v a l u e to such  As a consequence, the spouse who has provided l i t t l e  to the  32  household by way of d i r e c t cash i n j e c t i o n to the household economy i s l i k e l y to s u f f e r most when forced to enter the market-place on the g termination of support from within the former household.  By  concentrating i n i t i a l l y on those single parents who have been part of two parent f a m i l i e s , I do not mean to imply that the single parent who has given b i r t h to a child outside a supportive relationship is in an appreciably superior p o s i t i o n i n the labour market.  I t i s simply that  her position is l i k e l y to be d i f f e r e n t to that of the former group, whose p o s s i b i l i t i e s of success i n the labour market may well have been severely limited by the way i n which r e s p o n s i b i l i t i e s were shared during their married years. Ellman i d e n t i f i e s a pressure to adopt s p e c i a l i s t roles within 9 marriage.  I t i s often economically rational to s p e c i a l i s e .  If  spouses attempt a wholehearted sharing of the role of homemaker,  the this  may prejudice the amount of time and e f f o r t that they can put into their jobs.  This lower l e v e l of success in the labour market is quite  consistent with a greater s a t i s f a c t i o n with the r e l a t i o n s h i p , but may result i n a lower j o i n t income than could be attained i f the spouse with the p o t e n t i a l l y higher earning capacity was given a free r e i n to c u l t i v a t e that c a p a c i t y . ^  If economic r a t i o n a l i t y carries  the day,  the  homemaker spouse, usually the wife, risks severe prejudice to her own individual position within the labour market and has to trust that she w i l l recover her investment i n her husband's career in future  years.^  One can argue that i t should be the goal of the rules governing f i n a n c i a l p r o v i s i o n , a f t e r divorce to ensure that there i s no economic incentive to adopt anything other than the most economically r a t i o n a l behaviour within marriage.  12  However, for the present,  marital  33  decision-making career  o v e r s h a d o w e d by  enhancement  The labour that  is  than  to  labour  economic p r e j u d i c e  is  support,  to  especially later  in  higher  the  a r i s i n g out  u s u a l l y s u s t a i n e d by  t h e woman who l o o k s  the  the  in  labour  life,  is  attached  to  home. of  the w i f e  economic v a l u e  domestic organisation  but Duclos i s market  at  for  right  to  of  remind  us  her h o u s e h o l d ' s  a disadvantage for  reasons  13  other  than her  participation  t o women a c h i e v i n g which arise who w i l l  are  parents to  the  is  not  sympathetic  particular.  s u c h as  difficult  themselves  to  and  working l i v e s parenthood  Despite it  throughout  provide  a  range  their  labour  the of  its  market,  l a b o u r market  parents  basis.  their  the  hostility  appreciated  the W e s t e r n w o r l d  and  that  of  in  the  patterns  that  encourage  receptive  to  for  accommodate  parents  find undesirable  result.  l a b o u r market female  to  single  employment  some c o u n t r i e s h a v e a d o p t e d the  female  household through e a r n i n g s . ^ 1  In  A  t h o s e whose  insecure,  of  it  support  own e n d e a v o u r s .  g o i n g to  true potential  single  absences,  s e l f - c o n f i d e n c e may d i m i n i s h a s a  image o f  must be  her  not  and  forty  temporary  c a n be e x p e c t e d  is  for  through  As a c o n s e q u e n c e , many s i n g l e  their  work  employment,  after  by  of  employees  b e c o m e s more  economic rewards  have been u n i n t e r r u p t e d  this  to  barriers  many  as s h o r t - t e r m  full-time  commitments  greatest  their  remain  n e e d s o f women g e n e r a l l y  households adequately  w h i c h more a c t i v e l y for  the  s e e how s i n g l e  easily.  and  to  Unless  themselves working below  policies  on a  j o b - s h a r i n g and r e t r a i n i n g  system which r e s e r v e s  parents,  the  female workers  to d o m e s t i c d u t i e s  p o s s i b i l i t y of  positions  within  There  s t r u c t u r e s w h i c h demand c o n t i n u o u s f u l l - t i m e  in  schemes  potential  from a p e r c e p t i o n of  soon r e t u r n  Employment years  their  in domestic l i f e .  single  parent  Canada, labour  vary social  to force  34  participation  rates  increasing.^  Over  interruption  a m o n g s t women, 40% o f  of work;  of  the  female  than  married.*  conceding that  Whilst  factor  in  of  a n a l y s i s was  the  In  Great  encountered. employment  that  there  interrupt  Britain,  work-force  family  is  their  of  were or  female  employment.* pattern  had  of  married  mothers  an  married  been  employment,  an  important  the c o n c l u s i o n  an employer  to  assume  7  of  economic a c t i v i t y  The General Household Survey p r o v i d e s data  status  are  experienced  considerations are  no g r o u n d f o r  a different  has n o t  t h e women who had n e v e r  t h e women who e i t h e r  explaining discontinuity  t h a t women w i l l  those w i t h young c h i l d r e n ,  t h o s e who h a d ,  were l e s s numerous 6  even  and l o n e m o t h e r s  is  concerning  during  the  the  period  18 1982-84. married 51% o f  in  the  61% o f  married  rise  to  it  83% o f  is  parents the  the  When t h e  Whilst  to  similar  employed  and 74% o f  proportions  how s i g n i f i c a n t l y  employment.  be e m p l o y e d  youngest c h i l d  lone mothers  noticeable  part-time  were l e s s l i k e l y  l o n e mothers were n o t  mothers.  employment.  full-time, manage  single  mothers:  figures not  The  under  fewer  of  groups the  20  part-time.  with  five,  the m a r r i e d both  the  compared  the  mothers work  lone  mothers  l o n e mothers work 19 p a r t - t i m e c o m p a r e d w i t h 35% o f t h e m a r r i e d m o t h e r s . By t h e t i m e o f t h e L a b o u r F o r c e S u r v e y i n 1 9 8 6 , o n l y 19% o f  l o n e mothers were working  O n l y 22% o f  of  is  than  the  The p r o p o r t i o n w o r k i n g  the full-time  .21 had a l s o d r o p p e d s i n c e  the  General Household Survey,  f r o m 17%  to  22 15.4%. activity  Lone f a t h e r s , as  the  w e r e much more the 3.4%  lone  whilst  not  having  husbands i n married economically active  fathers,  53.4%  were p a r t - t i m e  were  same r a t e  of  couples w i t h dependent than  full-time  employees.  the  This  their  female  employees or  economic children,  counterparts. self-employed  c o m p a r e s w i t h a mere  17.5%  of  Of and lone  35  mothers who  were f u l l - t i m e employees or self-employed  and  19% who  were  23 p a r t - t i m e employees. 24 Why  should 63% of B r i t i s h lone mothers i n 1986  otherwise e c o n o m i c a l l y i n a c t i v e ?  We  have a l r e a d y noted  employment s t r u c t u r e s a r e unaccommodating and w i l l be s u b j e c t to the same d i f f i c u l t i e s l a b o u r market.  One  such d i f f i c u l t y  have no  how  how  female  job or  be  traditional  single  parents  as women g e n e r a l l y i n the  i s the p a u c i t y of day-care  provision  compared w i t h c o u n t r i e s such as Denmark where s o c i a l p o l i c i e s have been 25 geared  to c o a x i n g the female  Disincentives  produced  o r due  The Department of H e a l t h and  f i g u r e s which show how  to a decrease  employment.  to employment are not o n l y l o g i s t i c a l  d i s c r i m i n a t i o n , however. has  s i n g l e parent i n t o  to  Social Security  i n c r e a s e s i n gross e a r n i n g s can  i n net weekly spending power due  lead  to l o s s of s t a t e  26 benefits. worthwhile  B e f o r e low-income s i n g l e parent f a m i l i e s w i l l  find i t  to improve t h e i r e a r n i n g s , such a b s u r d i t i e s must be i r o n e d  out. A f t e r a review of o t h e r sources of f i n a n c i a l  support, c o n s i d e r a t i o n  w i l l be given to the p l a c e of employment p o l i c y w i t h i n p o s s i b l e s o l u t i o n s to the problems of s i n g l e parent f a m i l i e s . 3. M a t r i m o n i a l P r o p e r t y as a Source o f F i n a n c i a l Support When s i n g l e parenthood likely  a r i s e s due  to s e p a r a t i o n o r d i v o r c e , i t i s  t h a t the s i n g l e parent w i l l b e n e f i t to some e x t e n t from  d i v i s i o n of the couple's a s s e t s . the f o r m e r l y married  couple cannot  d i v i s i o n w i l l be made by i n accordance  Where the marriage agree how  the  i s dissolved  and  to d i v i d e the a s s e t s , the  the c o u r t on a p p l i c a t i o n by one of the p a r t i e s  w i t h a s t a t u t o r y scheme.  27  I f the parents are  unmarried,  36  the E n g l i s h c o u r t s have specified of  the  from  property  child,  this  power  to  or  to  to  Columbia,  the  power  the  order to  specified for  parents'  unmarried  to  c h i l d or  settle  statutory adjust  power  the  the  parent  other  property  to  parent  on  the  child's benefit,  proprietary  couples are  scheme g o v e r n i n g d i v i s i o n o f  either  for  29  property  30  28  benefit but  apart  c o u r t s h a v e no In  e x p r e s s l y excluded from  matrimonial  the  child,  the  interests.  transfer  British  the  but  it  statutory may b e  that  31 the  greater  has  the  to  the  r e c o g n i t i o n of  potential proprietary  the  to m i t i g a t e rights  of  constructive the  trust  as a remedial  r i g o r o u s approach adopted  unmarried  c o h a b i t e e s , whereby  device  i n England they  are  32 treated To  as  if  they were  strangers  t h o s e who become s i n g l e  to  each  parents  other.  due  to  property w i l l  devolve  in  accordance with  the  rules.  In  some j u r i s d i c t i o n s ,  intestacy  c h i l d r e n may a p p l y  for  the  improved p r o v i s i o n out  33  E n g l a n d , t h e s t a t u t o r y scheme court for reasonable f i n a n c i a l  the  other  parent's  provisons of  the w i l l  t h e widow o r w i d o w e r of  the  estate.  death, or and  In  p e r m i t s t h e s u r v i v i n g s p o u s e to a p p l y t o p r o v i s o n , 'whether or not that p r o v i s i o n  34  i s required f o r his or her maintenance'. The d e c e a s e d ' s c h i l d , on the o t h e r h a n d , may o n l y a p p l y to c o u r t f o r r e a s o n a b l e f i n a n c i a l p r o v i s i o n for  the  purpose of  'his maintenance'.  Law C o m m i s s i o n ' s l e a d surviving  spouse,  of  36  by  what  receive  if  the  partner  of  the d e c e a s e d i s  for  or  her maintenance  his  marriage  35  taking note, the  claimant  The c o u r t s  in quantifying  38  and  to  39  37  if  he o r  the  claims of expected  The s u r v i v i n g  applying for  then o n l y  economic dependence on the d e c e a s e d .  the  c o u l d r e a s o n a b l y have  had e n d e d i n d i v o r c e . limited  have f o l l o w e d  a to  unmarried  provision reasonable she c a n  demonstrate  37  It of  is  the  questionable  former  structured 1971,  relationship.  sample o f  found  how v a l u a b l e  that  for  229  a source of  Eekelaar  people  and M a c l e a n , who  in Britain  many f a m i l i e s  support  are  the  assets  investigated  who had b e e n d i v o r c e d  the d i v i s i o n o f  matrimonial  a  since  assets  40 was of  irrelevant. single  the  Mossman and M a c l e a n ' s  parent  principles  relevant  to  in  their  be u n l i k e l y to _ 42 to s u p p o r t . it  is  have a c l a i m advancing will  of  she o r  her  property  that  theoretical little,  the  Maclean follow  and  assets at  to  if  it  the w i f e ' s up t h i s  right  to  they  of  of  is  the  at for  single  husband w i t h  the d u t y  in  this  will  children  parents  marriage,  the w e a l t h i e r lies  couples  h a v e had  expense o f  the w i f e  people, share  the  are  marriage  o f women t o m a t r i m o n i a l  maintain  these  years  percentage  conclusion:  that  the d i s s o l u t i o n o f  that,  w i l l have p r o v i d e d 43 For  savings i f  situation  property  They s u g g e s t fifteen  the  a similar  matrimonial 41  to  a small  suggests  husband's duty  family  of  only  especially  on m a r r i a g e .  recognition  five  entitlement  Eekelaar  them t o  families.  after  significant  to m a i n t e n a n c e . origin  thirties  leads  d i v i s i o n of  h a v e much p r o p e r t y  to  achieve  the  Ontario  the w e a l t h i e r  correct  the  in  governing  only  divorcing  If  families  consideration of  in  assets  entitlement classes, the  fact  the that  considerable  to m a i n t a i n  property.  is  a  Mossman and  notion:  'the p r i n c i p l e of a w i f e ' s entitlement to l i f e - l o n g f i n a n c i a l s u p p o r t seems to h a v e d e v e l o p e d a s a c o r o l l a r y to h e r l a c k o f e n t i t l e m e n t to p r o p e r t y , and to h e r i n a b i l i t y t o e a r n a l i v i n g . ' 44 If  the  wife  is  given  proprietary  deserve  p r o v i s i o n b y way o f  income,  synchronised in  this  rights,  income? way?  Are  does the  she any l o n g e r two  elements,  need  or  property  and  38  It i s argued here that no such equilibrium e x i s t s .  In those cases  where resources permit, a moderate property award for a single parent can be disadvantageous i n the long term.  In the f i r s t place, assets  which have been awarded to the single parent with a view to giving her some security against the problems associated with marital breakdown may be regarded by the welfare system as available to provide an income. For the single parent on welfare, assets provided on marital breakdown can be steadily depleted due to the c o l l i s i o n of the p r i n c i p l e s of family law and s o c i a l assistance.  The security given by the former 45  system can be undermined by the l a t t e r . Secondly, the award of income i s p o t e n t i a l l y more valuable.  To  regard the d i v i s i o n of matrimonial property as equally important is to plot the route to impoverishment.  Lenore Weitzman, i n her study of  divorced couples i n San Francisco and Los Angeles, found that ' i n just one year the average divorcing couple can earn more money than the t o t a l 46  value of their a s s e t s . ' The point i s that earning capacity Is often much more valuable than the tangible assets. Weitzman comes to the nub of the matter when she writes that '[t]oday we invest i n ourselves and 47 i n our a b i l i t y to earn future income'.  An award of property does  nothing to divide the future income of the major earner, usually the husband, i n whose career both spouses w i l l have invested i f he has been freed from domestic obligations to advance his career.  If awards of  matrimonial property are small i n comparison to earning capacity,  i t is  plain that the partner who has sustained an economic disadvantage by adopting a course of conduct which furthers the other's career has not received the expected return on that investment.  39  A  theory  of  maintenance  upon an analogy w i t h some i n v e s t m e n t s  decisions sort the  of  is  fruition  However,  to  as a s e l f - i n t e r e s t e d  marital  separated  investments  come t o  a risky business.  for  open to  of  the  immediate  expect  the  investor  s p o u s e to  is  The  in  that  investor  approach  actively  based  objection  and o t h e r s d o n o t .  sharing behaviour which,  long-term benefit  and d i v o r c e d s p o u s e s  is  marital  to d i s c o u r a g e  as E l l m a n a r g u e s ,  in  the  c a n be  h o u s e h o l d , e c o n o m i c a l l y and p e r h a p s  for in  48 other  ways.  benefit  of  abandoned her  However, a  in  This  investment  favour  the  former  in  is  of  the  of  long  matrimonial  property,  pay  rent  could  transferring mobility;  the  without  immobile m e t a l l i c My a r g u m e n t gilt  on the  family  fictional.  the  is  the  still  put  not  security  as  reaping  far-fetched  need o f  make a n  is  let  food but,  the  the  and  single  parent  and  insubstantial  us s a y , in  the  unless  is  obtained  the  other the  only a part  income w i t h w h i c h  to  sole  title  there  are  of  a  the  transfer  of  car:  of  assurance of  the  car,  to  T h e same a n a l y s i s  family the  A  no c h a r g e s o n  by h a v i n g enough income  outgoings.  run  to  c h i l d r e n ' s stomachs.  a simple matter  obtaining of  property  the  it  order personal  remains  an  s h o u l d be r e g a r d e d  as  shell. is  that  gingerbread  as an a p p r o p r i a t e parent  to  of  security  o r m o r t g a g e and a l l  be a p p l i e d  regarded  obtaining of,  security  The r e s i d e n t i a l  one p a r t n e r  term.  residential  title. the  standard  home d o e s n o t  that  notion of  is  property  b e c a u s e the  h o u s e may g i v e the  the  long-term  h o u s e h o l d , awards  contribution  even i f  awards o f of  an a s s u r e d , c o m f o r t a b l e  substitute  with l i t t l e  Even i f  this  property  for  that  income but were  the  income.  of  The image o f  substantial  initial  level  assets  position,  the  is  the  income, a  not  single  largely  a s s e t s would  be  40  d e p l e t e d due  to the o p e r a t i o n of s o c i a l a s s i s t a n c e r e g u l a t i o n s or  simple u n a f f o r d a b i l i t y .  The A u s t r a l i a n I n s t i t u t e o f F a m i l y  surveyed  a sample of people d i v o r c e d  and  and  1983  found  Studies  i n the s t a t e o f V i c t o r i a i n  t h a t 'income p o v e r t y  their  tended to correspond  1981  with  49 relative deprivation i n assets.' There are other reasons  why,  as a source of support  for single  parent f a m i l i e s , p r o p e r t y d i s t r i b u t i o n s are o f l i m i t e d v a l u e .  It is  possible  has  to argue p e r s u a s i v e l y that the d e f i n i t i o n of p r o p e r t y  t r a d i t i o n a l l y been f a r too r e s t r i c t i v e . " ^  So many e n t i t l e m e n t s  b e n e f i t s a s s o c i a t e d w i t h work are e x c l u d e d .  T h i s goes f o r degrees  o t h e r q u a l i f i c a t i o n s which enhance e a r n i n g c a p a c i t y and other p a r t n e r may  have i n v e s t e d , or to which she may  t a k i n g on more domestic work, depending on t h i s way,  by  failing fully  to r e c o g n i s e  and  i n which  and  the  have c o n t r i b u t e d by  the c h o i c e o f metaphor.  In  the value of the major  wage-earner's c a r e e r , the o t h e r p a r t n e r l o s e s i n the d i v i s i o n o f a s s e t s even i f , on  the f a c e of i t , the d i v i s i o n i s e q u a l .  Such formal e q u a l i t y  counts f o r nought i f the p r i n c i p a l a s s e t , e a r n i n g c a p a c i t y , i s put one  side. P r o p e r t y d i s t r i b u t i o n s a r e t h e r e f o r e o v e r - r a t e d as a source  support  f o r s i n g l e parent f a m i l i e s .  of  Property  i s a v a i l a b l e to o n l y  c e r t a i n groups o f s i n g l e parent f a m i l i e s and,  i n the case o f those  whom i t i s a v a i l a b l e , i t w i l l an assured  4.  to  source  r a r e l y d i s p l a c e the n e c e s s i t y to e s t a b l i s h  of income.  Maintenance Payments as a Source o f F i n a n c i a l We  have a l r e a d y observed  financial  support  to  Support  i n the general overview of sources  t h a t v e r y few  of  s i n g l e parent f a m i l i e s have maintenance  41  payments be  as  claimed  the  their by  principal  the  single  c h i l d r e n whether  wedlock,  periodical  parent  single  separation of  both B r i t a i n  source of  the  for  from  the  parenthood parents  and C a n a d a . ' ' *  payments  income. other  payments  parent  the  or d i v o r c e .  52  for  has a r i s e n due  The d i v o r c e d  herself.  Periodical  This  single  This  is  to is  parent  also  the  support  a birth the  can  outside  position  may a l s o  case for  of  in  seek  the  53 separated,  but  However, case of other  the  there  single  parent.  periodical hand,  have  'lived  2 years'  there  the  uninhibited  needs  sustenance.  not  to  improve origin  for  the  look  more  to  immediately  parent  of  the  household of  the  members o f  children,  the  the  same h o u s e h o l d .  child the  oft  sharing improve  single  heard  children benefits  the that  parent.  refrain  the  other  of  there  It  is  not  the  less  than  after  the  o b v i o u s why o r the  that  single  What of  standard  is  the  also  a household In  living,  difficult  a s much a s  In  different  living? of  how  parent  household.  if  so f a r they  to d i s c e r n  so many p a y i n g p a r e n t s  parent  for  payments  c a n n o t be  not  the  couple  c a r e g i v i n g parent  same s t a n d a r d child's  to  wife'."'^  not  particular  the  one y e a r  is  living within  a  than  if  of  it  to  the  seek an o r d e r  periodical  point,  people  cannot  a period  a s h u s b a n d and  entitlement  after  More  for  'not  in  been married  s u c h an o r d e r  the  that of of  absent  jurisdictions  B r i t i s h C o l u m b i a , on  to  a group of  payments  the  of  together  attributed  properly  make  made  tradition,  the  order  to  In  a s h u s b a n d and w i f e  question of  by  parent  own b e n e f i t .  is  the  and h a s n e v e r  single  jurisdiction  by l e g a l  notionally  standards  is  her  between  not  such a  application  the  contributions  who i s  Britain, for  parent.  differences  ceased l i v i n g  Viewing  are  single  parent  together  and  they  In  are  payments  other  date  married,  also the  t h a t money  child.  What  as  for  they  42  say  is  probably  rightly  point  t r u e and  inevitably  so.  As E e k e l a a r  and M a c l e a n s o  out:  ' [ T ] o s u p p o s e t h a t the i n c r e m e n t s [to m a i n t e n a n c e payments o r b e n e f i t e n t i t l e m e n t s , n o t i o n a l l y f o r d e p e n d e n t c h i l d r e n ] c a n i n a n y way s e n s i b l y c o r r e s p o n d to the n e e d s o f the i n d i v i d u a l c h i l d r e n , i n i s o l a t i o n , i s to i g n o r e e l e m e n t a r y p r i n c i p l e s o f f i n a n c i n g and m a r g i n a l c o s t i n g . ' 55 Against between  the  argument  periodical  payments  for  the  is  if  as  is  c o u l d be  for  a  the  the  single  to  the to  the  parent  the  rather  formal  for  periodical  of  the  is  former  the  continuing responsibility of  children,  at  the  same t i m e somewhat d i s g u i s i n g a n y  receiving  of  the  parents  probably a very made a t  all.  discarding 'household  the  single  parent  perceive  important  Therefore,  the  factor  maintenance'  the  h a v e unwelcome c o n n o t a t i o n s A second argument c h i l d maintenance  Holding a parent  for is  'care  of  in  s h o u l d be favour  allowance'.  the  parties  spouse.  parent  income between  economic r e a l i t y for  the  of  Also, a  for  the  continued  How p a y i n g and  i n determining whether  some c a u t i o n  or  the  paying parent.  transfer  present nomenclature  d e s c r i p t i o n may c a p t u r e  and  on the  that  the' c h i l d r e n p r o v i d e s  to  dependence  both  non-custodial  position the  for  can be  income as p o s s i b l e  welcome emphasis whilst  drawn  household, i t  Perhaps  than f o r  t h a t d e s c r i b i n g payments as  and  satisfactory  transfer  children.  pay i f  children,  c a n s e n s i b l y be  single parent's  proportion of  attributed  for  the  p s y c h o l o g i c a l l y more  b e more l i k e l y  payments a r e it  it  great  notionally  parent w i l l  payments  children in  canvassed whether parents  t h a t no d i s t i n c t i o n  them  is  payment w i l l  exercised a label  be  before s u c h as  A more a m o r p h o u s more a c c u r a t e l y b u t  may  involved.  p r e s e r v i n g the d i s t i n c t i o n between s p o u s a l  that  they  responsible for  s p r i n g from d i f f e r e n t  a c h i l d ' s maintenance  sources.  revolves  around  43  the  notion  that  particular There  child  situations  approach.  the  available,  because  is  his  prospect of  in  have  the  adoption.  second c a s e ,  the  public  basis  surely  it  of  that  they w i l l  Interest  anonymity  to  not  have  and  raped  p e r s o n has  provide  for  children of  itself,  the  whether  both parents.  to  but  majority?  unlikely  sperm b a n k s , for  the  child not  child  they  or  to If  to  by c a r r y i n g  they  be abortion  to  term;  freed  if  for  that donors are surely  not  only donate  support.  a  arise  If  should operate  it on  is  on in  the  donors.  person's responsibility  as h i s the  child.  responsible for  sperm bank d o n o r  child  for  that  a  disarmingly  have been aborted  be l i a b l e  or  this  be h e l d  case i s  begetters  immunity  treated  to  the  the  will  she b e g o t  into  a child  former  A c h i l d may a l s o be a p a r t i c u l a r that  A c h i l d may be  p o l i c y must d i c t a t e  T h e y may be v o l u n t a r y  basis  easily  is  accepted  it,  the  fit  maintaining  she does n o t want the  child.  such circumstances or  an argument  In  her  b e c a u s e he o r  t h e woman who  t h e woman w i l l  liable.  or  w h i c h do n o t  Is  conceived i n  faced with is  child  person's reponsibility  are  simple  the  or  hers.~^  children  T h i s does n o t ,  in  except  because  The f a m i l y that  family  should are  the  in  the  case  of  responsibility  but  does  supplement  58 adoption, it.  supersede  The r a t i o n a l e  responsibility necessary  and  That  and  of the  the  begetter's  child  s u p p o r t draws  payment  of  child  heavily  support  upon i d e a s o f  is widely  personal  accepted  as  just.  s p o u s a l support does not  have s u c h a s e c u r e  theoretical  59 foundation Eekelaar  is  ordering  the  may h a v e surely  correct  transfer  had u n d e r t a k e n  a  rendered  of  to  it  vulnerable  observe  that  income between  life-long  commitment  to  to  reforming  one h i s t o r i c a l  former  spouses,  each o t h e r ,  'Is  initiatives. basis  namely  for that  they  not widely  held  44  nowadays'. ^* 6  The appreciation that this p r i n c i p l e i s outmoded has  resulted i n a wide-ranging search for other means of explaining why former spouses should transfer income between each other.  This  investigation i s well-exemplified by the English Law Commission's discussion paper,  'The Financial Consequences of D i v o r c e ' . * 6  What model  should be adopted: one of short-term payments for so-called r e h a b i l i t a t i v e purposes; one based upon the r e l i e f of need; a simple mathematical formula; a model based upon an analogy with the business partnership? The question has nowhere been s a t i s f a c t o r i l y answered.  What is  clear i s that spousal maintenance, as d i s t i n c t from c h i l d support, presently on the wane.  is  Now that the breakdown theory of d i s s o l u t i o n of  marriage i s established and proof of a matrimonial offence has taken a 63 back seat, freedom.  spousal maintenance can rarely be charged as the price of In B r i t a i n , where, i n the absence of a matrimonial offence or  the respondent's consent to the divorce, there must be a separation of 64 f i v e years i n order to prove breakdown of marriage,  the bargaining  structure may not have changed as markedly as i t i s alleged to have done in California. "' 6  Lenore Weitzman has advanced the theory that the key to understanding the economic problems of women a f t e r divorce is the abandonment of the proof of f a u l t as the condition precedent matrimonial r e l i e f .  to  Her argument is that women have had to give up  their one lever in the divorce process which may have enabled them to 66 avoid impoverishment. finds:  This theory i s open to severe c r i t i c i s m .  Jacob  45  'no strong evidence that n o - f a u l t by i t s e l f pushed women into economic independence more rapidly or more often than f a u l t divorce h a d . ' 67 In other words, where i s the evidence that divorce based upon f a u l t ensured women a secure economic future?  A second angle of attack i s to  adopt a geographical approach and consider whether women in j u r i s d i c t i o n s where f a u l t can s t i l l be raised are better off than women 68 i n j u r i s d i c t i o n s where i t cannot.  Wishik's study of 227 divorce cases  f i n i s h i n g i n 1982 and 1983 i n two rural counties and two urban counties of Vermont, a so-called mixed j u r i s d i c t i o n state where divorce based upon f a u l t remained possible, found that women were just as badly off.^  I t i s probable that Weitzman's view of the d r a s t i c  consequences  of the introduction of n o - f a u l t provisions i s i n need of moderation. A more generally applicable explanation for the waning of spousal maintenance is the waxing of approaches to matrimonial finances as i f the spouses were on an equal economic footing. to Lamer J . ' s  dissenting judgement in the Supreme Court of Canada i n  Messier v P e l a g e . ^ circumstances  Consider the conclusion  He talks of the a b i l i t y to work, regardless of  i n the labour market at large, as determinative of the end  of the spouses' f i n a n c i a l r e s p o n s i b i l i t i e s to each other.  This i s , he  claims, a step ' i n favour of [their] f i n a l emancipation'. * 7  the Supreme Court of Canada has taken further measures  Since then,  to pare down the  scope of spousal maintenance by developing a test of need generated by 72 the marital r e l a t i o n s h i p . This necessity for an applicant for maintenance to demonstrate what has caused the need for which r e l i e f i s sought may reintroduce the question of f a u l t Into corollary r e l i e f 73 applications.  Furthermore, i f the test i s interpreted as s t r i c t l y as 74 Wilson J . has applied i t i n Richardson v Richardson, the clean break  46  doctrine has been advanced i n Canada with surprising r i g o u r .  Certainly,  the Canadian approach contrasts markedly with the circumspection with which the English courts have treated s 25A of the Matrimonial Causes Act 1973 which requires the court to consider whether the former spouses' f i n a n c i a l relationship can be severed, whether on decree n i s i or as soon thereafter as i s just and reasonable. interesting i s Bromley and Lowe's r e f e r e n c e clean break was not imposed after a short,  76  7  Particularly  to Soni v S o n i  c h i l d l e s s marriage  where a  7 7  because  the applicant spouse, though q u a l i f i e d and able to work, could not obtain work. Given that greater emphasis i s being placed on the need for parents to become economically independent of each other,  are there any other  reasons why so few single parent families have maintenance as a major source of income?  A number of the relevant factors w i l l be reviewed i n  greater depth i n the chapter on enforcement but they can be b r i e f l y summarised here.  One of the most important factors pushing single  parents away from dependence on maintenance payments, whether for themselves or the children, is the u n r e l i a b i l i t y of so many paying parents.  I f maintenance i s a major source of income for the single  parent family, there i s a great deal of scope for the paying parent  to  hold the receiving parent to ransom by withholding some or a l l of the payment.  Most single parents would wish to be free from this f i n a n c i a l  dependence. Other single parents would welcome a supplement to their meagre income but are unwilling to seek support from the other parent.  Some  are afraid of violent r e p r i s a l s from the other parent should they do so.  Others do not fear violence, but increased interference  i n their  47  lives.  Sue  Slipman, D i r e c t o r of the B r i t i s h N a t i o n a l C o u n c i l o f  One  P a r e n t F a m i l i e s , p o i n t s out: 'Every s i n g l e mother's f e a r i s t h a t she w i l l l o s e her c h i l d to the f a t h e r . I f the f a t h e r i s f o r c e d to pay maintenance, w i l l that encourage him to i n s i s t on h i s p a r e n t a l r i g h t s ? ' 78 Still  o t h e r s would be content  to r e c e i v e money from  the o t h e r  p a r e n t but do not seek a support o r d e r , o r do not t r y to e n f o r c e o r d e r , because i t makes no d i f f e r e n c e to t h e i r f i n a n c i a l payments r e c e i v e d from  the o t h e r parent b e i n g deducted  payments w i t h no d i s r e g a r d .  E e k e l a a r and Maclean found  r e c i p i e n t s i n t h e i r sample i n England  i n 1981,  their  position,  from w e l f a r e t h a t f o r 57% o f  r e c e i p t o f maintenance  79 made no d i f f e r e n c e a t a l l to net income. U n i t e d S t a t e s where the f i r s t  $50  This contrasts with  (US) of c h i l d  the  support can be r e t a i n e d  by the s i n g l e parent b e f o r e the recoupment p r o v i s i o n s of the A i d to 80 F a m i l i e s w i t h Dependent C h i l d r e n programme take In many cases, the d i s i n c e n t i v e s o r d e r f a r outweigh the b e n e f i t s .  effect.  to o b t a i n i n g and  e n f o r c i n g an  However, i n so f a r as they d i v i d e  e a r n i n g c a p a c i t y , o f t e n the p a r e n t s ' most v a l u a b l e a s s e t , such o r d e r s a r e v a l u a b l e i f paid r e g u l a r l y and by the w e l f a r e a u t h o r i t i e s .  promptly  and not simply clawed  T h e i r p o t e n t i a l p l a c e w i t h i n the budget o f  the s i n g l e parent f a m i l y w i l l be c o n s i d e r e d f u r t h e r a f t e r a b r i e f of 5.  the f o u r t h source of f i n a n c i a l  Government a s s i s t a n c e i s an important  i n 1985,  The  Support  source of income f o r s i n g l e  Canadian Survey o f Consumer F i n a n c e s found  t r a n s f e r s of income from government were more than three  as important  review  support.  S o c i a l A s s i s t a n c e as a Source o f F i n a n c i a l  parent f a m i l i e s .  back  as a source o f income f o r female-headed l o n e parent  that, times  48  families than for two parent f a m i l i e s .  At the onset of single  parenthood, a high degree of dependence on s o c i a l assistance expected.  i s to be  However the single parenthood has arisen, there w i l l i n many  cases be a period of adjustment to the new domestic circumstances the single parent finds her f e e t .  before  More disturbing are figures which  suggest a long-term dependence on s o c i a l assistance.  Parrack,  for  example, i n her investigation of the Ontario s o c i a l welfare system, found that a single mother receiving no support from the other parent 82 ' w i l l remain on s o c i a l assistance  for approximately 3.75  years'.  It can be argued that such long-term dependence should not be surprising.  I t i s not always easy for a single parent to find suitable  work which accommodates domestic r e s p o n s i b i l i t i e s .  Payments ordered to  be made by the other parent may not be received or may be inadequate to remove the single parent's household from reliance on s o c i a l assistance.  I t i s often the case that the r e - a l l o c a t i o n of one working  wage is i n s u f f i c i e n t to raise s i g n i f i c a n t l y the standard of l i v i n g of the single parent household.  Consequently, long term dependence may  become unavoidable. Despite the undesirable features of receipt of s o c i a l  assistance  over a lengthy period, the r e l i a b i i t y and security of the payments are an advantage which w i l l appeal to single parents who would otherwise have the worry of waiting for payments from the other parent.  If  the  single parent's household i s bound to be a low income household, many single parents would choose to receive their small income from the state and thereby free themselves from dependence on the other parent. doing so,  they submit to the routine of the bureaucracy.  In  They may also  find their private l i v e s subject to scrutiny as the authorities examine  49  whether there i s another  person from whom they a r e d e r i v i n g  W h i l s t p r i n c i p l e s o f p r i v a t e law may s t r e s s to become independent,  support.  the need f o r the i n d i v i d u a l  the s o c i a l a s s i s t a n c e scheme i s geared to  e s t a b l i s h i n g r e l a t i o n s h i p s o f dependence i n o r d e r to palm o f f i t s 83 liability of  to s u p p o r t .  The s i n g l e parent f i n d s h e r s e l f i n the middle  this c l a s h of p r i n c i p l e s . Long term dependence on s o c i a l a s s i s t a n c e may a l s o a r i s e due to the  d i f f i c u l t y o f supplementing s o c i a l a s s i s t a n c e payments. The c o n s t i t u t i o n o f , f o r example, the B r i t i s h income support scheme simply does n o t encourage o r reward  the s i n g l e parent who takes s m a l l s t e p s  84 towards independence. or  child  The r e c o v e r y o f a s m a l l amount o f maintenance  support r e s u l t s i n a d e d u c t i o n from s o c i a l a s s i s t a n c e payments  and no b e n e f i t i s o b t a i n e d by the s i n g l e p a r e n t . similarly,  Earnings are treated  except f o r the f i r s t £15, which i s d i s r e g a r d e d .  Capital  r e s o u r c e s can be d e p l e t e d as they a r e regarded as sources o f income r a t h e r than sources o f l o n g term s e c u r i t y . make a r a p i d little  Unless  the s i n g l e parent can  t r a n s i t i o n to r e a s o n a b l y p a i d f u l l - t i m e work, t h e r e i s  i n c e n t i v e to t r y to secure o t h e r sources o f f i n a n c i a l  support.  Other c o u n t r i e s have r e c o g n i s e d how c o u n t e r - p r o d u c t i v e t h i s approach can 85 be.  I t asks f o r t o t a l  independence o r t o t a l dependence.  p o s s i b i l i t y of a t r a n s i t i o n  The  to independence i s n o t accommodated.  Thus,  the s a f e t y n e t o f the s t a t e , no doubt welcome and a p p r o p r i a t e i n the initial  crisis  o f b i r t h , d i v o r c e o r death o f the spouse,  t r a p s the s i n g l e p a r e n t .  I n the l o n g term, c r i s i s  e n c l o s e s and  benefits are  i n c o m p a t i b l e w i t h the gradual process o f economic r e c o v e r y which many s i n g l e p a r e n t s a r e embarked upon.  50  6  «  The F i e l d In  of  Choice  formulating  families,  a  financial  resource.  source of  financial  for  the  state  crucial  support  is  policy  of  issue In  single this  recognises  difficulty  household.  recovery  of  On t h e  of  within  family  funds,  there  are  be  to  family  the is  so  by v i r t u e  rarely  never  that,  or as  in  the  for  other from  that  the  they  policy  determining support  the  the  their  policies to  women's  and  labour  role  extent  programmes market  is  to  or  If  about  message o f parent  families  in  of  extent  is  to  children, orders  are  also  members  placed with  economic  to  use  they  on absent  of  on  the  it  the  links  upon.  existing  public dependencies  to  remain  parents  Or w i l l  there w i l l  the  attaining  carries  called  to w h i c h  It  former  emphasis  not  from  collective  preserving  are  support  families.  this  each  responsibility  enhanced  to what e x t e n t  single  society. single  earnings.  which  made  to  who  policy  come a  they  dictate  t i m e when  terminate?  to w h i c h  h o u s e h o l d s by  is  parent,  spouses,  towards in  particular  reach majority?  former  The  a  and o f  support  and d e p e n d e n c e  view of  the  With respect  case of  of  great  funds  whether  child  importance  parent  if  parent  given  responsibility  other  public  see u n t i l  choice of  the  single  be  single  hand,  responsibility  our  of  of  to  a clear  single  choice of  of  the  support  emphasis  families.  responsibilty  preserved.  dependent  relative  parent  choice of the  financial  judgement  the w e l f a r e  resources  Besides  a  and d o w n p l a y s  importance the  the  carries  for  the  the  emphasising  responsibility  self-sufficiency  is  support,  advocated,  the  for  This w i l l parents  quite  families come  the  clearly  to  s h o u l d be  To c h o o s e to  accommodate  state  parent  put  return of that  they  also the  hinges  fore  in  expected in  on  to  place  single are  parents  not  51  expected to remain Isolated  in the home a l l week, dependent on the  absent parent and the state for f i n a n c i a l support.  Parrack goes so far  as to argue that, i f single parents are e n t i t l e d to s o c i a l assistance even i f they are not looking for work, the state must be trying to encourage women to see caring for children as their  first  86 responsibility.  I t i s c e r t a i n l y i n the interests of the state that  they should do so, bearing i n mind the potential value of unpaid home-making a c t i v i t i e s .  Equally, i n establishing p o l i c i e s which oblige  single parents to seek work, the state would be passing judgement on the needs of p a r t i c u l a r children and, whilst reducing the single parent's dependence on the absent parent and the state,  the single parent's  freedom of choice i s also reduced. Any combination of sources of f i n a n c i a l support w i l l have implications for a broader s o c i a l p o l i c y .  Should available private  sources always be tapped before the public purse i s opened? e x i s t i n g dependencies always to be preserved?  Are  Are women to be granted  something more than formal and procedural equality? These are questions to be borne i n mind i n considering four possible approaches  to the problem of poverty i n single parent f a m i l i e s .  52  Footnotes  I.  The d a t a a r e u n p u b l i s h e d b u t have been e x t r a c t e d by M. Moore i n 'Women P a r e n t i n g A l o n e ' i n Canadian S o c i a l Trends (Winter 1987) p 31 a t p 34.  2•  Loc. c i t .  3.  See H. K i r b y 'Paying f o r P a t e r n i t y ' i n The Times May 26th 1989 i n column 1.  4.  See comments a t t r i b u t e d to John Moore, former S o c i a l S e c u r i t y S e c r e t a r y , r e p o r t e d by David B r i n d l e 'lm one-parent f a m i l i e s ' i n The G u a r d i a n .  5.  K i r b y , s u p r a , f o o t n o t e 3 i n column 1.  6.  An example i s B r i t i s h Columbia's c h i l d e s t a b l i s h e d i n 1988.  7.  J.M. E e k e l a a r , 'Family Law and S o c i a l Problems' (1984) 34 U n i v e r s i t y o f Toronto Law J o u r n a l 236 a t p 242.  8.  See D.Duclos, 'Breaking the Dependency C i r c l e : the F a m i l y Law A c t R e c o n s i d e r e d ' (1987) 45 T h e J J n i v e r s i t y o f T o r o n t o _ F a c u l t y Law Review 1 a t pp 1-13.  9.  I.M. E l l m a n , 'The Theory o f Alimony' Law Review 1 a t p 47. Loc.  support c o l l e c t i o n agency  (1989) 77 C a l i f o r n i a  cit..  II.  E l l m a n , supra, f o o t n o t e 9 a t p 43.  12.  T h i s i s the g i s t o f Ellman's theory o f the proper b a s i s f o r the law o f alimony. See s u p r a , f o o t n o t e 9 a t pp 50-52.  13.  Supra,  14.  See, f o r example, West Germany and the S c a n d i n a v i a n c o u n t r i e s , d e s c r i b e d by C. Cockburn and H. H e c l o , 'Income Maintenance f o r One-Parent F a m i l i e s i n Other C o u n t r i e s ' , Appendix 3 to the Report o f the Committee on One-Parent F a m i l i e s Cmnd 5629 (London: HMSO 1974).  15.  Women's Work I n t e r r u p t i o n s , S t a t i s t i c s Canada (1986) P u b l i c a t i o n s e r i a l 99-962 a t p 31.  16.  Supra, S t a t i s t i c s Canada 99-962, f o o t n o t e 15 a t pp 31-32.  f o o t n o t e 8 a t p 12.  53  17•  Loc. c i t . .  18.  See S o c i a l Trends 16 (London: HMSO 1986) a t p 36.  19.  Loc. c i t . .  20.  See S o c i a l Trends 18 (London: HMSO 1988) a t p 39.  21.  Supra, f o o t n o t e 18 a t p 36.  22.  Supra, f o o t n o t e 20 a t p 39.  23.  Loc. c i t . .  24.  Loc. c i t . .  25.  R. Lawson, 'Western Europe' i n A. Samuels, ed, S o c i a l S e c u r i t y and F a m i l y Law ( G r e a t B r i t a i n : U n i t e d Kingdom N a t i o n a l Committee f o r Comparative Law 1979) p 275 a t p 281.  26.  See S o c i a l Trends 18, supra,  27.  See, f o r example, f o r England, the M a t r i m o n i a l Causes A c t 1973 and, f o r B r i t i s h Columbia, P a r t 3 o f the F a m i l y R e l a t i o n s A c t RSBC 1979 c 121.  28.  G u a r d i a n s h i p o f Minors A c t 1971 s 11B, i n s e r t e d by F a m i l y Law Reform A c t 1987 s 12.  2 9  *  30.  3 1  *  Pettitt v Pettitt  f o o t n o t e 20 a t p 95.  [1970] AC 777, House o f L o r d s .  See paragraph ( c ) o f the d e f i n i t i o n o f spouse i n s 1 o f the F a m i l y R e l a t i o n s A c t RSBC 1979 c 121. P e t t k u s v Becker 19 RFL (2d) 165, Supreme Court o f Canada.  32.  See Burns v Burns [1984] Ch 317.  33.  I n h e r i t a n c e ( P r o v i s i o n f o r F a m i l y and Dependants) A c t 1975 ( ' I n h e r i t a n c e A c t 1975').  34.  I n h e r i t a n c e A c t 1975, s 1 ( 2 ) ( a ) .  35.  I n h e r i t a n c e A c t 1975, s l ( 2 ) ( b ) .  36.  Law Commission, F i r s t Report on F a m i l y P r o p e r t y : A New Approach, No 52 (London: HMSO 1973) e s p e c i a l l y para 4 1 .  37.  Re Besterman [1984] Ch 458.  38.  I n h e r i t a n c e A c t 1975, s 1 ( 2 ) ( b ) .  39.  I n h e r i t a n c e A c t 1975, s 1 ( 1 ) ( e ) .  54  40.  J.M. E e k e l a a r and M. Maclean, Clarendon P r e s s 1986) p 85.  Maintenance a f t e r D i v o r c e (London:  41.  M.J. Mossman and M. Maclean, 'Family Law and S o c i a l W e l f a r e ' (1986) 5 Canadian J o u r n a l o f F a m i l y Law 79 a t p 82.  ^*  Supra,  43.  J.M. E e k e l a a r , 'Family Law and S o c i a l Problems' (1984) 34 U n i v e r s i t y o f Toronto Law J o u r n a l 236 a t p 241.  44.  Supra,  45.  T h i s s u b j e c t i s w e l l e x p l a i n e d by J . P a r r a c k , The I n t e r r e l a t i o n s h i p between S o c i a l A s s i s t a n c e and F a m i l y Law ( O n t a r i o : The S o c i a l A s s i s t a n c e Review Committee 1987), e s p e c a l l y a t p 60.  46.  L . J . Weitzman, 'The D i v o r c e Law R e v o l u t i o n and the I l l u s i o n o f E q u a l i t y ' i n M.D.A. Freeman, ed, Essays i n F a m i l y Law 1985 (London: Stevens 1986) 81 a t p 93.  47.  L . J . Weitzman, The D i v o r c e R e v o l u t i o n (New York: F r e e P r e s s 1985) a t p 61.  48.  Supra, f o o t n o t e 9 a t pp 41-51.  49.  R.E. Weston, 'Changes i n Household Income Circumstances' i n P. McDonald, ed, S e t t i n g Up (Sydney: P r e n t i c e H a l l 1986) a t p 121.  50.  See Weitzman, s u p r a , f o o t n o t e 47, c h a p t e r 5 passim.  51.  I n B r i t a i n , see M a t r i m o n i a l Causes A c t 1973 s 23, Domestic Proceedings and M a g i s t r a t e s ' Courts A c t 1978 s 2 and G u a r d i a n s h i p o f Minors A c t 1971 s 11B. I n Canada, see D i v o r c e A c t 1985 s 15. In B r i t i s h Columbia, see s 56 o f the F a m i l y R e l a t i o n s A c t RSBC 1979 c 121.  52.  I n B r i t a i n , s e e M a t r i m o n i a l Causes A c t 1973 s 23. D i v o r c e A c t 1985 s 15.  53.  I n B r i t a i n , see M a t r i m o n i a l Causes A c t 1973 s 27 and Domestic Proceedings and M a g i s t r a t e s ' Courts A c t 1978 s 2. I n B r i t i s h Columbia, f o r t h i s i s a p r o v i n c i a l matter, see s 57 o f the F a m i l y R e l a t i o n s A c t RSBC 1979 c 121.  54.  See para ( c ) o f the d e f i n i t i o n o f 'spouse' R e l a t i o n s A c t RSBC 1979 c 121.  55.  Supra,  56.  T h i s i d e a i s d i s c u s s e d by D.L. Chambers, 'The Coming C u r t a i l m e n t o f Compulsory C h i l d Support' (1982) 80 M i c h i g a n Law Review 1614 a t pp 1618-1623.  f o o t n o t e 40 a t p 84.  f o o t n o t e 41 a t p 92.  I n Canada, see  i n s 1 o f the F a m i l y  f o o t n o t e 40, a t p 28.  55  57.  Chambers, supra, f o o t n o t e 56 a t p 1621. See a l s o the d e f i n i t i o n o f ' c h i l d o f the f a m i l y ' i n s 52(1) o f the M a t r i m o n i a l Causes A c t 1973.  58.  A d o p t i o n A c t RSBC 1979 c 4, s 11. See, Adoption A c t 1976 s 39.  59.  See g e n e r a l l y E l l m a n , supra, f o o t n o t e 9.  60.  Supra,  61.  Law Commission, 'The F i n a n c i a l Consequences o f D i v o r c e ' Cmnd 8041 (London: HMSO 1980), e s p e c i a l l y P a r t I V .  62.  Law Commission, supra, f o o t n o t e 61, paras 59-86 ( P a r t I V ) .  63.  See D i v o r c e A c t 1985 s 8 and, A c t 1973 s 1.  64.  M a t r i m o n i a l Causes A c t 1973 s 1 ( 2 ) .  65.  E l l m a n , supra, f o o t n o t e 9 a t p 7; Weitzman, supra, f o o t n o t e 47 a t pp 26-28.  66.  Supra,  67.  H. Jacob, 'Another Look a t N o - F a u l t D i v o r c e and the P o s t - D i v o r c e F i n a n c e s o f Women' (1989) 23 Law and S o c i e t y Review 95 a t p 98.  68.  H. H i l l Kay, ' E q u a l i t y and D i f f e r e n c e : a P e r s p e c t i v e on N o - F a u l t D i v o r c e and i t s Aftermath' (1987) 56 Universit_y_ o f C i n e i n a t t i Law Review 1 a t pp 67-71.  69.  H.R. Wishik, 20 FLQ 79.  70.  (1984) 35 RFL (2d) 337.  7  1 *  7 2  *  f o r the E n g l i s h p o s i t i o n ,  f o o t n o t e 7 a t p. 241.  f o o t n o t e 47, Chapter  f o r England,  the M a t r i m o n i a l  Cuases  6 passim.  'Economics o f D i v o r c e : an E x p l o r a t o r y Study' (1986)  Loc. c i t . . P e l e c h v P e l e c h [1987] 4 WWR 481.  73.  P r o f . I . Grant has r a i s e d of B r i t i s h Columbia.  t h i s p o i n t i n c l a s s e s a t the U n i v e r s i t y  74.  7 RFL (3d) 304, SCC.  75.  P.M. Bromley and N.V. Lowe, F a m i l y Law ( 7 t h ed.) B u t t e r w o r t h s 1987) pp 684-688.  76.  Supra,  77.  [1984] FLR 294.  f o o t n o t e 75 a t p 687.  (London:  56  78  Quoted i n H. Kirby, 1989, p 21.  79.  Supra, footnote 40 at p 86.  80.  M. Takas, Child Support (Harper and Row 1985)  8 1  8 2  * •  'Paying for p a t e r n i t y ' ,  The Times, May 26th  p 13.  Supra, footnote 1, at the place there c i t e d . Sujara, footnote 45 at p 18.  83.  Parrack,  supra, footnote 45 at pp 45-46.  84.  See Report of the Committee on One-Parent Families, supra, footnote 14, para 5.51 for comments on this aspect of supplementary b e n e f i t . The same features remain i n the present scheme e n t i t l e d 'income support'.  85.  See, by way of example, Roger Lawson's analysis of the Danish system at p 278 et seq. of A. Samuels, ed, Social Security and Family Law (Great B r i t a i n : UK National Committee for Comparative Law 1979) and Takas, supra, footnote 80 at p 13.  86.  Supra, footnote 44 at p 11.  57  CHAPTER 3 SINGLE PARENTHOOD AS AN INSURABLE RISK  The purpose of this chapter i s to consider whether insurance against the p o s s i b i l i t y of single parenthood holds out the prospect of adequate r e l i e f from the f i n a n c i a l disadvantages which single parenthood so often e n t a i l s .  The advantages, drawbacks and p r a c t i c a b i l i t y of  voluntary and compulsory schemes and of private insurance and ' s o c i a l Insurance'* w i l l be o u t l i n e d .  Before embarking on this exercise,  i t is  appropriate to make e x p l i c i t certain features which are considered elementary to any scheme of insurance and, where necessary,  to remark  upon how easily the events which lead to single parenthood can be located within this framework.  I t may be that there are features of  single parenthood which render i t an uninsurable r i s k . At the outset,  i t may be objected that the p o s s i b i l i t y of entering  into an agreement for f i n a n c i a l provision on the b i r t h of a child to a single woman or on the separation or divorce of a married couple with children i s undesirable because i t encourages events.  the occurrence of such  The empirical basis f o r such an opinion i s cloudy: would  insurance provison cause any of these events? to protect  Do people take less care  their health because they know that they are insured, either  privately or s o c i a l l y , against sickness?  Has the absence of insurance  provision i n any way discouraged couples from separating or reduced the numbers of children born outside marriage?  It is doubtful whether  rendering such contracts of insurance unlawful would lead to greater s o c i a l cohesion and change contemporary a t t i t u d e s ,  but i t i s unnecessary  58  to consider such large questions i n this context.  It is argued that the  kernel of the approach of those who would disapprove of insurance against single parenthood i s a disquiet about single parenthood as an insured event. One element of the contract of insurance i s that the insurer w i l l give some form of benefit to the insured person when a certain event occurs. and,  Usually,  the insured person has no control over these events  indeed, the insured person i s often required to take a l l reasonable  and practicable steps to prevent the occurrence of any such events.  An  example would be the householder who must be prudent to prevent his house burning down or the transporter of goods who must carry them i n conditions such that they are unlikely to be ruined. carelessnes  An insured whose  causes the insured event or who d e l i b e r a t e l y brings i t about  w i l l have the benefit which would othewise be receivable reduced, in the l a t t e r instance probably to n i l . I t would be a feature of insurance against single parenthood that the insured would, i n most cases, have a degree of control over the insured event which renders the whole scheme of insurance impracticable.  This would be so whether the insurance i s a private  arrangement or part of a national s o c i a l insurance p o l i c y .  To argue  that the p o l i c y would not be to insure against single parenthood but against the f i n a n c i a l disadvantages which may result therefrom w i l l be to no a v a i l because the insured's own actions remain a proximate cause. Is there any way of avoiding the problem of giving the insured a licence to commit suicide so that his family obtains the benefit of a term l i f e policy or to blow up his own factory to obtain the benefits of a buildings insurance p o l i c y ,  to draw two analogies?  59  Beveridge was c l e a r l y aware of this problem when he considered s o c i a l insurance for women on the termination of marriage otherwise than by widowhood.  The death of the spouse w i l l only extremely rarely be  caused by the survivor and therefore arise.  the same d i f f i c u l t i e s do not  Single parenthood due to the other spouse's death can be and i s  insured against,  both privately and s o c i a l l y .  Separation and divorce  presented p e c u l i a r l y d i f f i c u l t problems, especially i n the era when f i n a n c i a l r e l i e f i n matrimonial proceedings was predicated upon proof of the other's  fault.  Why should s o c i a l insurance approach the problem any  differently? Beveridge recognised that 'considerable p r a c t i c a l d i f f i c u l t i e s may 3 arise i n determining whether a claim to benefit . . . has a r i s e n ' .  The  system of s o c i a l insurance would become ridden with the same problems faced by the j u d i c i a r y i n a l l o c a t i n g r e s p o n s i b i l i t y for matrimonial breakdown. Beveridge e x p l i c i t l y accepted, however, that: 'a man cannot insure against events which occur only through his f a u l t or with his consent, and i f they occur through the f a u l t or with the consent of the wife she should not have a claim to b e n e f i t . ' 4 His problem was compounded by the fact that, i f the so-called g u i l t y wife were to be given a claim to an insurance benefit, i t would be obtained by virtue of the contributions of the supposedly innocent husband.  Nevertheless, Beveridge espoused the p r i n c i p l e of  comprehensiveness of s o c i a l insurance, stating that the plan: 'should not leave either to national assistance [ i . e . non-contributory welfare provision] or to voluntary insurance any r i s k so general or so uniform that s o c i a l insurance can be j u s t i f i e d . ' 5 Matrimonial breakdown f u l f i l s  the c r i t e r i a of generality and uniformity  but the nature of the event makes i t s accommodation within a scheme of  60  insurance to  call  extremely  for  problematical.  'further  compromise p o s i t i o n Even i f fault it  against  would  the  it  is  one  remain  examination' c o u l d be  the  case  insurance benefit  responsibility rather  than  for  the  both,  that  the  the  by c o n s e n t i n g of  responsibility  of  event  which nobody a t  all  insured  the  insured  insured  event  establishment child  consent,  and  events  removes  of  the  is  hope  that  facilitate  separation.  c a n nowadays  one p a r t n e r .  a  the  control  the  for  payment  of  Further,  This  does not  of  solved  be s e e n a s  responsibility,  over  finding  not wholly  responsible,  them  generally  the  insurer.  The s i n g l e parent  the  available of  the In  single  in  joint  notion  rather  of  than  solve  an  the  occurrence of  is  the  the  against  insurance obtain  contributions  who  are  not  in  forms  the in by  the  which  of  mutual  insured  about  case  of  person's these  insurance  can  price. agreement the must  the  does  insurance have  questions with respect  parents  in  the  bringing  the  possible  separation  differences:  risks  to  role  about  even c l e a r e r  an a f f o r d a b l e model  various  parent's  for  of  bringing  the  Conception,  order  occurs,  of  family  ambit at  Although practical  young p o t e n t i a l  discussion  responsibility  from  event  insured  irreconcilable  s o many p r o b l e m s . insured  the  marriage.  to  partial  of  the  single  The second f e a t u r e present  role  follows.  d i v o r c e due  in  b e made  the  born outside  choice  when  is  person's  overshadows  insurance which  the  Beveridge  event.  The q u e s t i o n of  of  the  marriage  indivisible  of  the  make a n e x p l i c i t  problem  to  as a c o l l e c t i v e  problems  i s what l e d  problem i n  couple could  breakdown for  the  n e c e s s a r y to  breakdown  sole  of  6  this  found.  no l o n g e r spouse or  Perhaps  to  not  benefits  b e e n made the  labour  to  ability  market  to  the of make  61  such c o n t r i b u t i o n s ruling  out  insurance  A corollary pay be  their able  those  unduly  to  custody of the  concept of  the  to of  issue of  anybody  problem of  If  The receipt  third of  spouse i s final  a benefit  by  existence  Attention insuring  against  observations  Private What i s  the  will  involved  to  of  the  model  be h i g h  now be  single  already  Voluntary  parent  the  should  specifically are  family  are  r e a s o n why of  is  parent  tend  children.  not  both  which  breakdown  to  Once  the  abandoned,  spouse b e i n g u t i l i s e d  to  is  the  trap during  parenthood,  is  agreement  nothing  s u c h an a r r a n g e m e n t ,  ensure  focussed on  insurance There  in dividing  there  poverty  parent  will  by  resolved.  feature  However,  for  Innocent  to  have  outside  an  adverse  ordered.  risk  s u c h an a p p r o a c h would  parenthood  some d i f f i c u l t y  single  matrimonial  of  at  benefits  regardless  person.  may be  premiums w o u l d  for  single  seems e v e r y  insured  of  Is  the  there  the  for  ground.  those most  insurance  the  nature  custody  single  in  on t h i s  reason  contributions,  responsibility  contributions  and  the  Indeed,  responsibility the  else's  children  joint  theoretical  how  s h o u l d be u t i l i s e d ,  parents'  sole  no  parenthood  parent.  the  is  enquire whether  children.  a supposedly g u i l t y  1.  is  that  contributions  emphasise  the  single  practical  non-custodial ensure  there  economically disadvantaged,  parents' has  the  take advantage  the  designed  of  against  contributions  to  of  may b e r a i s e d ,  the  benefits  practical  the  single  the  three  bearing  problem  minority  of  p o s s i b l e schemes in  mind  the  there  joint that  family the  the  the  though  when  parent  in  is  an  children. for  general  made.  Insurance  proposed under  this  heading  is  a scheme w h e r e b y  individuals  62  or  couples could  single  protect  parenthood,  if  themselves  they wished  against  t o do s o , b y  i n s u r a n c e w i t h an i n s u r a n c e  company.  s u c h a p r o p o s a l as  unworkable.  the  problem of  occurrence  of  entirely  the d e g r e e the  of  insured  financial taking  Chambers i s  control  event;  the  It  7  which  there  is the  are  out  quite  not  risks  insured  a policy  right  only  of of  to d i s m i s s  that  there  has o v e r  is  the  other  difficulties  in  take out  insurance,  there  addition. First,  as  there  is  no o b l i g a t i o n  to  is  g the  problem of  adverse  most a t  risk will  believe  their  probable  selection.  insure  marriges  that  the  Secondly,  themslves whereas  to  group of  those w i t h present the  or  T h o s e who p e r c e i v e  be s e c u r e w i l l insured  people w i l l  high  people  be r e l u c t a n t  impending m a r i t a l  Inevitably  single  themselves and  be  t h o s e who  t o do s o .  be h e a v i l y  to  It  biased  is  towards  difficulties.  premiums w o u l d  be b e y o n d  the  9 resources poor,  2  •  yet  thereby  not  policy  premiums a r e  raise  the  single  the  against  to not  parent  bias.  For  have a h i g h p r i o r i t y sizeable,  family's  the  living  the  on the  monthly  corresponding standards  already  benefits  appreciably.  Compulsory Insurance  p r o p o s a l c o n c e r n s the  of of  unlikely  the  Private  members  introducing a further  if  This  with  many,  such insurance i s  budget, will  of  a class  identified  establishment  as a t  risk  i n s u r a n c e w i t h an i n s u r a n c e obligation  the  risk  of  on a l l  owners  of  are  motor  is  obligatory  selection  is  avoided.  o b v i o u s l y means  a  scheme w h e r e b y  obliged  company.  that  to  to  take out  An a n a l o g y  vehicles  causing physical injury  insurance  of  third  the  to  c a n be  insure  parties.  problem of  all a drawn  themselves That  adverse  63  However, unworkable. p e o p l e who financial defined, likely  First, shall  the be.  to  is  the  risk is  young married  and  be v e r y  the  is  which,  the to  is  insure  correct  the  costs of  how  to  against  the  higher  point  out  that,  of  the  the  the  divorce  child-rearing will  risk  the  the if  class  class  premiums class  c l a s s most a t  risk,  be h i g h ,  amongst have  to  be  taken  is are  is  however  couples  of  of  the  The premiums w i l l rate  proposal  The narrower  and  arguably  the  to d e f i n e  themselves  dispersed  high.*^  sum, render  parenthood.  couples,  because  in  question of  on s i n g l e  Chambers  defined,  children  there  arise  be o b l i g e d  less  premiums w o u l d class  problems  disadvantage  to  limited  new  the  with into  _ 11 account. Plainly, include  more  obliged  to  have,  the  than  scheme i s  whether  or  to  not  whether  the  limit  the  contributions  c o u l d be d r a w n .  restricted  married  married?  to  How d o e s  or not  on the base  single  they  have  from which  parent this  obliged  be  include  child-bearing the  children  the  benefit  parenthood must  grow  age o r , they  of is  extended  the  have  indeed,  all  fathered  single  appreciated,  wider.  to  single  all  b i r t h of  together  so the  As t h e net  of  if  the  first  for  which  to as  the  s i n g l e women  they to  c l a s s of  c o u l d be a p p l i e d of  be were a those  of  men who may p o s s i b l y l o o k  diversity  the  child  insure if  be  they  To l i m i t  from a b i r t h  Should  o r whose premiums  mother?  period  to  couples  and,  majority?  arising  have  married  obligation  living  scheme?  will  children  the  the  family  a niche within  insure  and  Why s h o u l d  s i n g l e woman f i n d to  have  attained  those  it  Should a l l  conception or  c o u p l e s and  the  be c o m p r e h e n s i v e ,  couples.  children  take e f f e c t  severely  to  young m a r r i e d  contribute,  obligation would  if  routes  to  a compulsory insurance  after for  single scheme  64  This  is, in itself, a failing  for i t w i l l  s u r e l y lead  connected w i t h the c o l l e c t i o n o f c o n t r i b u t i o n s .  to problems  Chambers asks what  the  12 sanction  for f a i l u r e  to i n s u r e can be?  o s t e n s i b l y h a p p i l y married  couples are  I t i s to be to be  required  s u b s t a n t i a l disbursement on a p o l i c y which they may objection  i s supposedly l i n k e d  people's m a r i t a l f a i l u r e s .  to a r e s i s t a n c e  T h i s may  road out o f a fund to which the he or she may  3.  that  to make a  never use.  to p r o v i d i n g  be p e r c e i v e d  to p r o v i s i o n f o r other people's o l d age,  remembered  The  for other  in a different light  i l l n e s s o r m i s f o r t u n e on  i n d i v i d u a l has  contributed  the  but on which  never draw.  S o c i a l Insurance That contributors  may  not  see  consequences of s i n g l e parenthood from o l d age  themselves as a t r i s k from i n the same way  as  the  they are a t  risk  i s a l s o a problem w i t h a system o f compulsory i n s u r a n c e 13  organised  by  the S t a t e .  c o s t of e x i s t i n g n a t i o n a l fold  i s open to  i n s u r a n c e to b r i n g s i n g l e parents w i t h i n  greater  dignity attaching  to r e c e i p t of  than to r e c e i p t o f w e l f a r e payments should be  investigated.  Mossman and  Maclean put  c l a s s i f i c a t i o n o f payments by have an e n t i t l e m e n t regular  p o l i t i c a l a c c e p t a b i l i t y of increasing  contingent employment.  the  the S t a t e  to those i n need.  to a b e n e f i t which has  the c l a i m a n t  may  the 14  divergent  They  may  been purchased by means of Insurance fund.  have to r e l y on w e l f a r e payments  upon the c l a i m a n t ' s r e s o u r c e s and To Mossman and  insurance  further  forward a model of  c o n t r i b u t i o n s , u s u a l l y from wages, to an  Alternatively,  the  question.  However, the benefits  The  not u s u a l l y r e l a t e d  Maclean, these c a t e g o r i e s  are  to  judgemental,  65  reflecting meted  out The  notions to  the  of  laid-off  proposal  to  contributory  benefits  p r o v i s i o n by  the  family  a higher  desert,  it  as  and more  have n o t in  is  for  c a n be  i n c r e a s i n g n u m b e r s and Hitherto,  workman and  provide  State,  and a r i s i n g  the  seen,  part  the  the  s u g g e s t e d , schemes f o r the  context  status  changing a t t i t u d e s  been d e s i g n e d w i t h  parent  an e f f o r t  respectable  the d i f f e r e n t  to in  to  family of  the  model  the  light  single  parent's  b y means  this  accord  financial  single  treatments  pauper.*^  single  in  of  from  of  single  of  of  parent  their  parenthood.  p r o v i s i o n by particular  the  State  difficulties  mind.*^ However,  it  c a n be a r g u e d  forcefully  p r o v i s i o n based upon c o n t r i b u t i o n s equally  unsympathetic  numbers o f  single  to  the  parents,  made p r i o r  situation  of  are  experience  this  event  occurs,  made.*  the  force.  no c o n t r i b u t i o n s  Even i f  7  labour  the  other  to  In to  the  parent's  the  need  many s i n g l e  e s p e c i a l l y amongst  h a v e had c h i l d r e n o u t s i d e m a r r i a g e , in  t h a t a scheme o f  the  financial arising  parents.  group o f  insurace  the  fund w i l l  contributions  Large  women who  y o u n g and h a v e l i t t l e s c e n a r i o , when  is  or  no  insured  have  been  c o u l d be u t i l i s e d ,  the  18 'contributory contributions may be  paid  eligibility determine future  principle' to  in  for  the  insurance  a contributory  contributions,  the  of  there  is  labour a way  a risk  to  jeopardised.  it  benefits is  market In  relate  the That  parents' the  been c o n s i d e r e d r e l e v a n t 19  how r e a l i s t i c  the  is  benefit:  Even i f  search for  be m a i n t a i n e d ,  benefits  fund  f u t u r e has n o t  eligibility.  inaccessibility In  the  whereby  which that  were  this  for the  'the  is  past  paid  to  contributions  in  which  anticipation  approach i n  single  premiums  the  light  of of  the  parents?  principle insurance  of  contribution  principle  [will  can be]  66  ...  stretched  parents  will  so t h i n  as  to become somewhat  only qualify  for  artificial'.  a contributory  benefit  If  single  ostensibly designed 21  for  them  should  'by o f f e r i n g  very  cause a r e - e x a m i n a t i o n  principle.  The b e s t  state  make f i n a n c i a l  is  to  non-contributory recipients  of  be aware  voluntary the  two  of  contribution  the  approach i s  benefit  to  applicability bow t o  provision for  and  conditions',  to work  to  the  the  contributory  inevitable  single rid  of  parents,  such  this  and, to  benefits  if  the  create and  a  their  stigma.  Though s o c i a l to  liberal  that  insurance  its  is  failings  rejected  are  not  i n s u r a n c e . B e v e r i d g e draws  forms  of  as  impractical,  precisely  those of  an i m p o r t a n t  it  is  Important  private  distinction  between  insurance:  ' w h i l e a d j u s t m e n t o f p r e m i u m s to r i s k s i s o f t h e essence of voluntary i n s u r a n c e , s i n c e without t h i s i n d i v i d u a l s w o u l d n o t o f t h e i r own w i l l i n s u r e , t h i s adjustment i s not e s s e n t i a l i n insurance which i s made c o m p u l s o r y b y t h e p o w e r o f t h e S t a t e . 22 1  The  focus of  pay a lower  the  discussion  premium i f ,  i n d u s t r y w i t h a low  for  in  the  ensuing passage i s  example,  i n c i d e n c e of  the  individual  industrial  injury  on the  is or  claim  employed  to  in  an  seasonal  23 lay-off.  It  is  not  essential  for  the  State  to  vary  the  premiums  24 although, single  as a matter  parent  young people that  the  family than  the  to  contributions  intractable  a  there  have  would  how f a r  the  problem to  policy, State  it  may do s o .  could j u s t i f y  In  the  probably to  that,  futile  an insurance if  social  be s u b s i d y o f  contributory  be  due  fund  to  insurance  can be  is  majority,  inability  to  of  be  the  premiums  to  to  except pay.  c a n n o t be a f f o r d e d  contributions.  principle  context  charging higher  t h o s e whose c h i l d r e n had a t t a i n e d  e x e r c i s e would  That  of  of  is  so  established,  This  forces  the  stretched  before  it  issue ceases  67  to be i d e n t i f i a b l e .  If a model of state f i n a n c i a l provision as an  insurance benefit i s insisted upon, subsidy of contribution i s essential i n many cases and the non-contributory s o c i a l assistance ascendancy by the back door.  gains the  Even i f premiums are related to r i s k , as  they could be within a national insurance scheme, the moment the total of the contributions made by the population as a whole requires further subsidy i n order to meet the amount of the benefits payable, the door i s ajar for the establishment of benefits outside the insurance p r i n c i p l e .  4.  Conclusion The discussion i n this chapter demonstrates  that insuring against  the f i n a n c i a l disadvantages of single parenthood a r i s i n g otherwise than by death of the other spouse i s impractical as a s o c i a l p o l i c y .  Quite  apart from questions of capacity to pay premiums before the insured event and of defining the class of people at r i s k , there i s the overriding problem of the degree of control which the insured person possesses over the occurrence of the insured event.  This problem  applies to a l l three possible insurance schemes and leads to the conclusion that single parenthood i s not an insurable r i s k , as that term i s currently understood, and that s o c i a l policy-makers must look elsewhere for a solution to the f i n a n c i a l d i f f i c u l t i e s of single parent families.  68  Foo_t.no tes  1.  2  *  S i r William Beveridge, Social Insurance and A l l i e d Services, Cmnd 6404 (London: HMSO 1942) paras 20-26. Supra, footnote 1, para 347.  3.  Supra, footnote 1, note to para 347.  4.  Supra, footnote 1, para 347.  5.  Supra, footnote 1, para 308.  6.  Supra, footnote 1, note to para 347.  7.  D . L . Chambers, Making Fathers Pay (Chicago: University of Chicago 1979) p 262.  8.  L o c . cit»_»  9.  Chambers, supra, footnote 7 at p 263.  10.  Supra, footnote 7 at p 264.  11*  Loc. c i t . .  12*  Loc. c i t .  13.  Chambers, supra, footnote 7 a t p 266.  14.  M . J . Mossman and M. Maclean, 'Family Law and Social Welfare' (1986) 5 Canadian Journal of Family Law 79 at 97.  15.  Loc. c i t . .  16.  Loc. c i t . .  17.  Chambers, supra, footnote 7 at p 266.  18.  Beveridge, supra, footnote 1 at para 24.  19.  Chambers, supra, footnote 7 at p 266.  20.  Report of the Committee on One-Parent Families (The Finer Report) (London: HMSO 1974) para 5.90.  21.  Loc. c i t « .  22.  Supra, footnote 1, para 24.  23.  Supra, footnote 1, paras 25-26.  24*  Supra, footnote 1, para 24.  69  CHAPTER 4 ENFORCEMENT  The purpose of this chapter i s to examine the argument that, i f court orders were promptly and f u l l y enforced at a cost which the single parent family could a f f o r d , family would be resolved.  the f i n a n c i a l problems  of the single parent  This argument is applicable to a l l orders for  the transfer of income from the absent parent to the household of the single parent, whether the order i s expressed to be for the single parent or for the c h i l d r e n .  In the discussion which follows, c h i l d  support i s emphasised, partly because spousal maintenance orders are becoming less usual and also because so many enforcement i n i t i a t i v e s i n North America focus exclusively on the recovery of child support. Measures taken for the recovery of c h i l d support should generally apply equally to enforcement of orders for the single parent, were these to become more widespread. Professor Hahlo has called enforcement '[t]he central problem i n child s u p p o r t ' . *  Within the scope of this short essay, he touches upon  the d i f f i c u l t i e s facing a single parent seeking to enforce an order for c h i l d support and sets out his requirements for a rigorous and e f f i c i e n t 2 system of enforcement, the root of the problem.  but he does not seek to j u s t i f y his diagnosis of For those who emphasise the personal  r e s p o n s i b i l i t y of the b i o l o g i c a l parent,  the process of enforcement i s  an obvious focus for proposals for reform.  If Professor Hahlo is r i g h t  that 'everything possible should be done to make [the defaulting father] 3 face up to his o b l i g a t i o n s ' ,  i t follows that the d e f i c i e n c i e s i n the  process of enforcement must be removed.  70  Adopting this content  of which  provide  the  Once  the  is  debtor  is  particular  seizure  personal  property  debtor  repeated of  the  by  the  at  to  analysis.  that  If  this  might is  parent  simply  improved  family,  orders  of  the  the  the  that court  of  of  support  better  to  of  quite  rigorous  apart  of  t h o s e who  means o f  the  into  the  the  certainty  On t h e  for of  clarity  is  not  single  from any b e n e f i t fosters  to  hand,  always  standard  the  of  their is  it  may  enable  living.  enforcement parent the  a desirable  expenditure.  of  the  other  rigorous  of  because i t  improve  orders w i l l  living  public  as  community's  enforcement  families. court  make  element  enforcement and  if  to  f o c u s on r e f o r m  significantly  enforcement  and r e d u c e s  no u s e  creditor.  justification of  other  personal r e s p o n s i b i l i t y  a t t a i n an a p p r o p r i a t e  standard  For  any p a r t i c u l a r  obligations  of  appropriate  o b v i o u s l y be o f  some a m b i g u i t y  payment  be  limousine or  diagnosis of  standards  parent  choice  application.  a r e s p o n s e w h i c h e m p h a s i s e s the  is, accepted, that  will  support  the  debtor.  t h e r e must be a p r e p a r e d n e s s  but  area of  the  which w i l l  yacht,  basic  p r o c e s s must  tracing  general  The content  debate  single  somewhat o r ,  parent  bailiffs  Finally,  advocate  family  of  debtor's  the m o t i v a t i o n  full  some o f  not  funds recovered w i l l  that  argument  be  court  maintain to  of  standing of  single  the  the  s h o u l d be g i v e n a w i d e  money,  process i n j e c t s  the  be a p p r e c i a t e d the  to  Some w i l l  financial  of  p o s i t i o n of  An e x a m i n a t i o n enforcement  the  lead  the  the  reform,  The enforcement  creditor  enforcement.  open to  need  clearly  commitment  thought  the  concern in  with which  the  sale  proposals for  w i t h some means o f  case but  h a s no a s s e t s .  process i s  asserted  of  in  clear.  the  obtaining  and  efforts  principal  found,  classes  example,  the  tolerably  support creditor  p o s s i b l e means o f for  approach r e s u l t s  family  single respect  for  71  The  suggestion is  improving  procedures  perspectives, welfare  of  concerns greater  of  is  the  detail  different  for  some o f  single  that  is  possible  enforcing  single  families.  parent  at  single  and  handbook family,  to  using  not  the  is  an i l l u s t r a t i o n  the  enforcement  legal  an academic  the  the  of  to  s y s t e m to  treatise;  in Boston,  the  hence  State  will  process which  recover  child  of  financial between  be  the  examined  of  can a r i s e .  support. of  no  It  the  in  the It  Massachusetts  advantage  she c i t e s  of  from a range  of  following  who w a n t  favour  those  the  parents  orders  in  The p o s s i b l e c o n f l i c t s  t a k e n f r o m a book w r i t t e n by a l a w y e r  aimed  argue  no c o n n e c t i o n w i t h  but  expectations  to  support  w h i c h may h a v e  parent  below,  it  and  is  a  single  empirical  parent  support  4 for  her  claims  example, that  sometimes  the  give than  support.  If  the  being  Families for  Office  of  a higher  payments  order  though i t  to  ignored,  under  based  upon  the  Office  of  Child  mother  in  securing of  the  to  recovering  cost of  increases  has an o r d e r  she r e c e i v e s  for  living  will  improve  may be d u e .  the  the  increase  welfare  because  payments  the  that  to  the  Aid  to  the  suggestion is  might  made w h i l s t  due  An  the  to  prospects increase  that  assist  prejudice order  child  but,  under  be r e l u c t a n t  this  for  support  may be  may  on w e l f a r e  order  time p a s s e s .  The  S u p p o r t Enforcement would  expenditure in  She  the U . S . A .  payments  it  as  in  child  welfare  C h i l d r e n programme, order  own e x p e r i e n c e .  Support Enforcement  priority  parent  w i t h Dependent  recoupment  Child  seeking appropriate  a single  recovery  may be w i t h i n h e r  the the  the  was n o t  being  paid. This  illustrates  motivation be  that  the  for  the  particular  importance  of  reforms  the  q u e s t i o n of whether  of  or not  c o n s i d e r i n g the enforcement  the  reform  has  principal  process. improved  It the  could  72  economic s t a n d i n g of the s i n g l e p a r e n t f a m i l y i s regarded r e f o r m e r as i n c i d e n t a l  the  to i s s u e s c o n c e r n i n g p u b l i c e x p e n d i t u r e  m a i n t a i n i n g the c r e d i b i l i t y  1.  by  and  of the c o u r t s .  The Problem o f 'Discouraged'  Maintenance^  H a r r i s , McDonald and Weston review  some of the d a t a  concerning  maintenance payments c o l l e c t e d by the A u s t r a l i a n I n s t i t u t e o f F a m i l y S t u d i e s d u r i n g i t s Survey Breakdown i n 1984. divorced and is  of the Economic Consequences o f  T h i s i n v o l v e d i n t e r v i e w i n g a sample o f  i n V i c t o r i a i n 1981  23 months.  One  Marriage  and  1983  people  a f t e r s e p a r a t i o n s of between  12  f a c t o r which H a r r i s , McDonald and Weston emphasise  t h a t ' i n 60 per cent o f cases where a c u s t o d i a l parent i s n o t  r e c e i v i n g maintenance, there i s no breach of a c u r r e n t c o u r t o r d e r involved'.  7  I f any o f these cases  l i v e below what i s consideed  i n v o l v e s i n g l e parent f a m i l i e s  who  the a p p r o p r i a t e minimum s t a n d a r d , i t i s  i  clear  t h a t prompt and  achieve  enforcement o f support o r d e r s w i l l  from i t .  for a l l  Enforcement can a s s i s t i n a c h i e v i n g t h i s aim i n so f a r  the group of s i n g l e p a r e n t f a m i l i e s w i t h c o u r t o r d e r s w i l l  benefit  An e x c l u s i v e emphasis upon enforcement would, a t l e a s t i n  V i c t o r i a , a l l o w l a r g e numbers of those designed  not  the aim o f e n s u r i n g a c e r t a i n minimum standard of l i v i n g  such f a m i l i e s . as  full  to s l i p through  the n e t .  f o r whose b e n e f i t  the reform i s  T h e r e f o r e , b e f o r e too much emphasis  i s p l a c e d upon r e f o r m i n g the enforcement process i n V i c t o r i a , q u e s t i o n o f how addressed.  the  b e s t to put a maintenance arrangement i n p l a c e must be  T h i s presumes t h a t the primacy  of the o b l i g a t i o n s of  b i o l o g i c a l p a r e n t s w i l l c o n t i n u e to be s t r e s s e d .  the  73  This theme i s pursued by Sorenson and MacDonald in their analysis of women i n the U . S . A . who received Aid to Families with Dependent Children i n March 1977 and who had at least one child whose father was absent.  8  The authors recognise  9  that they are basing their conclusions  upon patterns observed within a special sample of the total group of single parents e l i g i b l e for c h i l d support and that some caution must be exercised  in generalising f u r t h e r .  Figures from the 1979 Current  Population Survey do enable some comparisons to be drawn.*^ Of a l l women heading single parent f a m i l i e s , 59% have what the authors describe as 'a l e g a l l y binding child-support agreement'.**  This  term comprehends court orders and enforceable agreements between the parents.  By way of contrast, only 37% of those receiving welfare had an  order or agreement.  Both within the total group e l i g i b l e for a child  support award and within the group of mothers on welfare, i t was clear that black women are less l i k e l y than white women to have secured an award.  S i m i l a r l y , divorced women in both groups are more l i k e l y to have  an award than those who are separated:  in the total sample, 80% of  divorcees had an award compared with 45% of the separated women.  This  effect of marital status on the likelihood of securing a child support award was less clear within the group of mothers receiving welfare payments.  This may indicate that the State's interest  in ensuring there  i s some mechanism for recovery from the absent parent i s the same, whether or not the marriage i s d i s s o l v e d .  In both groups, i t was clear  that women who had never been married to the c h i l d ' s father were less l i k e l y to have a child support order or agreement than those who were separated or divorced.  74  Besides race and marital status, Sorenson and MacDonald consider the relationship between the income of female-headed single parent 12 families and securing and c o l l e c t i n g a child support award.  Figures  from the 1979 Current Population Survey disclose that 38% of those mothers who received no support payments in 1978 had an income below the poverty l e v e l compared with 14% of those who received some support payments.  Of those receiving no payments, 42% of those with no c h i l d  support award were below the poverty l i n e whilst only 25% of those with an uncollected award were below the poverty l i n e . This pattern is repeated with figures from 1975.  Of mothers  receiving support payments, 12% were below the poverty l i n e . more of these women would have been below the poverty l i n e i f , to the actual p o s i t i o n , no support payments were made?  How many contrary  The answer i s  that numbers below the poverty l i n e would only have risen to 19%. Admittedly,  the authors have calculated their own minimum standard  but their investigation does suggest that 'the better off economically the custodial parent i s , the more l i k e l y she i s to have an award and 13 collect i t ' .  If the methods and data of this study are accepted,  it  casts doubt on the idea that prompt and f u l l enforcement of support awards can remove large numbers of single parent families from poverty. It i s worrying that not a l l e l i g i b l e women are awarded child support and that there are such marked differences i n the likelihood of obtaining an award between various groups of mothers.  Sorenson and  MacDonald found that likelihood of receiving the c h i l d support awarded 14 did not vary amongst the groups of mothers to as large an extent. Their conclusion i s that inequities are greatest at the stage of making  75  the  award  extent,  and  that  depend on i t s  child-support What  the  for  success  of  capacity  awards  are  the U . S . A . of  'the  to  all  to  of  t h o s e who w o u l d If  s o l v e the  eligible  implications  support orders?  child-support reform w i l l , problem of  large  securing  children.'*"'  these o b s e r v a t i o n s  focus  reform of  to a  their  the  from V i c t o r i a  attention  enforcement  on the  and  enforcement  process is  undertaken  f primarily  w i t h a view  standard  of  directed  instead, or  whereby This  living,  a single  argument  process  is  interests  to  ensure  serve i n  reimburse  itself.  is  not  have o b t a i n e d is  decisions  it  the  a mistake  to  intervene  is  the  the  the  is  or  that  enforcement  single  the  h a s no means  State  in  the  and  fails  action  without  upon  in  State  the  orders  can  single parents  support  who  is  so  insignificant  all  at  the  the  question of  first  p l a c e has  stage  State,  or  to  appreciate  one o f  the been  for  This over-simplifies fully  of  State's  the  appropriate  order.  the  the  support  as p o s s i b l e have  process at  only  s u p p o r t and parent  the  by w h i c h  a n award  the of  the  parents  child  parent.  reforming  clearly  elaborating  securing of view  the p r o c e s s  from an a b s e n t  proportion of  in  The p u r p o s e o f  collecting child which  If  minimum  s h o u l d be  s p o u s e by i n d e p e n d e n t  maintenance  affecting  aim o f  due c o u r s e a s a v e h i c l e  my p o s i t i o n t h a t  stage.  the  a  intervention  support  expenditure.  former  families  the b e g i n n i n g o f  obtain  of  intervention of  public  that  t h a t as many s i n g l e  c a s t d o u b t upon the  process  to  awards  enforcement  to  seeks  to  custodial parent,  which w i l l  variables  addition,  from a spouse or the  it  in  minimise  to  that  c o u l d be a r g u e d  parent  reference  It  it  assuring s i n g l e parent  c o u l d a l s o be made i f  to  recovering  to  them,  the  the have  76  a l r e a d y made b e f o r e the problem o f enforcement a r i s e s .  As Maclean and  E e k e l a a r have commented, [ t ] h e American l i t e r a t u r e and p o l i c y 1  f o r m u l a t i o n has tended  to view c h i l d  support as mainly a debt  collection  16 problem'.  I t i s necessary  to be aware t h a t there i s a c h o i c e to be  made w i t h r e s p e c t to the s t a g e s a t which i n t e r v e n t i o n i n the process can be made and t h a t too g r e a t an emphasis on the enforcement o f o r d e r s may lead  to i n e q u i t i e s between s i m i l a r l y placed s i n g l e parent f a m i l i e s .  If  the primary o b l i g a t i o n to support i s t h a t o f the b i o l o g i c a l p a r e n t , i n order u n i v e r s a l l y  to a s s e r t t h i s d o c t r i n e , i t w i l l  c r e a t e y e t more c r e d i t o r and d e b t o r 2•  be n e c e s s a r y to  relationships.  A r e Maintenance A r r e a r s the same as o t h e r Debts? The  e x t e n t to which the r e l a t i o n s h i p between the c u s t o d i a l and the  n o n - c u s t o d i a l p a r e n t s can be c h a r a c t e r i s e d as a r e l a t i o n s h i p between c r e d i t o r and debtor has important  i m p l i c a t i o n s w i t h r e f e r e n c e to the  enforcement o f the f i n a n c i a l o b l i g a t i o n which, f o r the purposes discussion,  i t i s assumed i s e s t a b l i s h e d between them.  o f the absent  s i m p l y a matter  to pay money?  any d i f f e r e n t  I s enforcement  parent's o b l i g a t i o n to t r a n s f e r income to the s i n g l e  parent's household obligation  of this  o f s e c u r i n g compliance  w i t h an  I s t h i s o b l i g a t i o n o f the n o n - c u s t o d i a l parent  from h i s duty  to pay the supermarket f o r g r o c e r i e s ?  If i t  i s d i f f e r e n t , i t i s an i n d i c a t i o n t h a t , i n s e e k i n g ways o f e n f o r c i n g support o r d e r s which a r e most b e n e f i c i a l  to s i n g l e p a r e n t f a m i l i e s , the  e n q u i r y can range f u r t h e r than remedies t y p i c a l l y open to the commercial creditor.  I t c o u l d be t h a t too g r e a t an adherence to such remedies i n  the p a s t was one o b s t a c l e to the smooth t r a n s f e r o f income w h i c h support o r d e r s sought  to s e c u r e .  77  Is  there  any  responsibility the  evidence  for  one's  r e a s o n a b l e needs o f  precedence over wage-earner's the  the  income?  be r e l u c t a n t  more  consequences can r e s u l t  in  course,  this  notion of  at that  living  might  s p o u s e and  even  enter  the  that  the  be e a s i e r  is  for  substantial  take  the  single for  public  and  his  jailing  parties  that  the d u t i e s to  family  of  the  forthcoming.  parent  the  denying his  greater  not  excuse  consideration  However,  is  Do  7  the  third  argued w i t h r e f e r e n c e  payment  for  justify  Otherwise,  information.  tradesman  to  obligations.  generality,  defaulter  spouse  d o m e s t i c r e s p o n s i b i l i t i e s do n o t  if  severe hardship  former  debt'?*  o t h e r s w i t h a c l a i m on  c o u l d be  creditor  of  of  contracts  personal  level  'financial  children,  may c o n d u c e t o  consequence It  the  that  a pre-eminent  important  for  idea  represents  contractual to  the  children  Clearly,  without d i s c l o s u r e of support are  support  requirements  dishonouring of  might  to  Default  and,  of  commercial  trader,  but  own c h i l d r e n a  certain  standard  censure  than  family's  the  equally  s t a n d a r d s may  defaulters  if  the  only  the  obvious  decline. argument  18 against  so d o i n g w e r e  default  h a s had c o n s e q u e n c e s f o r  cannot  tighten  ineligible defaulter  of  his  that  for for  absence of  his  credit  welfare his  income. by  This line  prohibitions  it  is  a  form o f  or,  of  cannot  State,  he o r  argument  on j a i l i n g  for  to  the  rely  debt.  the  single  The  tradesman, parent  any l o n g e r  on  she  in  is to  subject  to  is the  s e e k new m a r k e t s .  has l e d  debt  for  unlike  where  decline  The c h i l d the  jailing  a c h i l d who,  practices  payments,  intervention  parents.  any  that  In the  the w i d e s p r e a d  the U . S . A .  are  the  not  whims opinion  intended  19 to  comprehend c a s e s  debt  is  retain  a  special  severe  involving arrears  form o f  penalties  default,  to d e a l  it  with  of  support.  is  said  it.  to  Because support be  justifiable  to  78  Although arrears it  f r o m money owed  that,  apart  priority  of  for  support  certain  goods r e c e i v e d ,  from r h e t o r i c a l  than  have  commercial  usage,  debts.  it  features  would  be n a i v e  support arrears  Wachtel  which  are  and B u r t c h ' s  to  distinguish suggest  given a study  higher  in  Vancouver  20 in  1980  guided  found by  debts.  the  court  support  attitude honour  of  their  with  society  in  upset, In  if  obliging  the  the  general the  this  if  who  to  the  Office  areas  of  consumer c r e d i t self-help  22  to  not it  is  Amendments  closer  lead  a s a way o f  support  connection,  of  to  the  $1,000  to  to  in  The  given and  stem  than  consequences of  It  greater is  pressure,  quite  apart  The  importance  to  defaulters this  to  the  ranking  Child  consequences o f indebtedness payers  the  note to  by  default.  report  obstacle  from  this  of  that the  authors  Presumably,  interesting  recommends r e p o r t i n g  the  commercial  agencies.  to  obligations  until  flow  bring  the  personal  that,  to n o t e  approach  important  greater  the  by  step with  domestic  severe  the U . S . A .  credit  of  obligations.  interesting  becoming a  than h i t h e r t o .  applying  as more  was  other  courts'  was o u t  on h i s  obligations  be a b l e  the  C h i l d S u p p o r t E n f o r c e m e n t to 21  support  guide,  that  be l e s s  are  over  p r o c e e d i n g s and  saw i t  on c o m m e r c i a l  indebtedness  priority  obligation  he d e f a u l t e d  perceived  than  court  towards  consumer o b l i g a t i o n s .  payer  courts w i l l  default  provision.  defaulters  take  conclude  that business obligations  amounting  her  by w a t c h i n g  he d e f a u l t e d  arrears to  payments  The a u t h o r s  b u s i n e s s and for  attitude  as a p r e - e m i n e n t  Support Enforcement support  data  good r e a s o n ,  hypothesise  judiciary's support  files.  some o f  implications  is  that  payments  implications were,  view  the  They obtained  reviewing to  that  by  in  this  will  obtaining  of  that Takas,  in  credit  relatively  agencies new  79  The  essential  enforce  a  arrears  is  series  legal  difference  for  damages and  judgement  of  that  the  latter  payments.  m e c h a n i s m to  payments.  may b e q u i t e  not  It  the  parent  family.  debtor  to  maintenance  creditors  traditional  retrospective  the  to  of  single  parent  d e b t s does not  conclusion  from t h i s  order  for  the  the  utilise  two o r to  a  quite  faced with  traditional  three  for  erratic  creditors'  p a y m e n t s many w e e k s  b e made  in  the  future  have  not  impartiality  balance  to  to of  ideal  for  the  assist  the  maintenance  the  State  towards  be s t r u c k b e t w e e n  and l e a v i n g o t h e r  single  both  assisting  creditors  to  their  remedies.  improve  process  who i s  prospective action  recover  aim i s  judgement  usual  to  the  enforcement  damages may b e  support  e n f o r c e m e n t w h i c h o n l y r e c o v e r d e b t s and do  r a i s e s questions of  security  enforcement  to  to  recovering  retrospective  ensure compliance are  and o f  seeking  o n l y an o r d e r  s i n g l e parent  recover  litigant  judgement,  As p a y m e n t s  Admittedly,  and c r e d i t o r  If  to  the  s i n g l e parent  of  impractical  systems o f  prospectively  creditor  the  money was n e e d e d .  become d e b t s ,  nothing  case of  s u c h as d i s t r a i n t  the  the  c o l l e c t a l u m p sum award to  after  the  h a s no f i n a l  The model o f  inappropriate  remedies  between  the  standard of  families,  to  the  serve  review  periodical  of  it  will  living  financial  become c l e a r  same p a r a m e t e r s  as  the  s i n g l e parent  the  maintenance  payments,  and  personal,  the  that  limiting  enforcement  family  well.  obligation  Is  inalienable  of  The that  and  the  subject  23 to  s u p e r v i s i o n by  the  court,  is different  damages.  It  the  s h o u l d b e g i n and w h e t h e r  more  order  i s worth considering at  suitable.  from a f i n a l  what s t a g e  other  the  means o f  judgement  process  of  for  enforcing  enforcement would  be  80  3.  Why  i s D e f a u l t so _Wlde_s_pr_ead_?_  There are very few d i s s e n t i n g v o i c e s from the p r o p o s i t i o n t h a t d e f a u l t amongst men  ordered  to make support payments i s a  widespread  phenomenon which makes the l i v e s of s i n g l e parents no e a s i e r .  Maclean  and E e k e l a a r , i n t h e i r study o f the f i n a n c i a l consequences o f d i v o r c e i n England  i n 1980,  do not emphasise the problem of e n f o r c i n g o r d e r s as a 24  d i f f i c u l t y f o r t h e i r sample o f s i n g l e p a r e n t s . suggest  t h a t m a r i t a l problems and  the former husband who  However, they do  problems a t work can c o i n c i d e and  l o s e s h i s job as a r e s u l t p r e s e n t s  that  obvious  d i f f i c u l t i e s w i t h r e s p e c t to enforcement. This  takes up a theme o f the F i n e r Committee's Report  to the  U.K.  25 Parliament.  T h i s Committee reached  the c o n c l u s i o n t h a t 'the  real  problem of maintenance i s not the u n w i l l i n g n e s s but the i n a b i l i t y of  men  26 to pay'.  I n r e a c h i n g t h i s c o n c l u s i o n , which i s an i n t e g r a l p a r t o f  i t s argument t h a t the p r i v a t e law system of maintenance o b l i g a t i o n s i s inadequate  living,  to a s s u r e s i n g l e parent f a m i l i e s an a p p r o p r i a t e standard 27  the Committee reviews a number of e a r l e r s t u d i e s .  of  The  Supplementary B e n e f i t s Commission which a t t h a t time  administered  w e l f a r e payments conducted  should have been  maintained  privately.  complied w i t h a t l e a s t with less  a review o f c l a i m a n t s who  Of c o u r t o r d e r s e x i s t i n g i n June 1970, three q u a r t e r s o f the time but 40% were  45% were complied  than one  t e n t h of the t i m e . Of t h i s l a t t e r group o f o r d e r s , 28 91% were not complied w i t h a t a l l . The Commission was unable to t r a c e 24% of those p a y i n g l e s s than a t e n t h of the time and r e c o g n i s e d t h a t a  29  f u r t h e r 29% c o u l d not be expected Two  e a r l i e r s t u d i e s had  to pay i n f u l l .  a l s o emphasised  the l i m i t e d means of  a g a i n s t whom the c o u r t s had made maintenance o r d e r s .  men  The Department o f  81  S o c i o l o g y a t Bedford  C o l l e g e , London conducted a survey o f a l l 30  maintenance o r d e r s earnings was  of men  found  than £16  e x i s t i n g on J a n u a r y 1 s t , 1966.  i n m a n u f a c t u r i n g i n d u s t r y i n 1965  t h a t 70% o f men per week.  l i m i t e d and  earnings.  average  were £18  per week.  to p r o v i d e maintenance earned  I t i s acknowledged  v e r i f y e a r n i n g s was misrepresent  ordered  The  less  t h a t the c o u r t ' s a b i l i t y  to  t h a t t h e r e i s a s t r o n g i n c e n t i v e to  31  Research conducted f o r the Graham H a l l 32 Committee on S t a t u t o r y Maintenance L i m i t s i n 1966 a l s o emphasises 'those who become defendants to proceedings f o r maintenance i n  magistrates'  It  c o u r t s have e a r n i n g s  that  o r s a l a r i e s w e l l below the n a t i o n a l  33 average'. I t i s important  to a p p r e c i a t e  t h a t , when the s t u d i e s upon w h i c h  the  34 F i n e r Committee  r e l i e d were conducted, d i s s o l u t i o n o f m a r r i a g e i n the  d i v o r c e c o u r t was  not a process  population. separated  The  used than they  are today.  taken t h e i r m a t r i m o n i a l  the middle c l a s s e s , who  disputes  even so may  to the d i v o r c e c o u r t s .  m a g i s t r a t e s ' domestic j u r i s d i c t i o n  courts not have  That  i s h e a v i l y used by poorer  of  There i s  t h a t the c r i m i n a l ambience o f the m a g i s t r a t e s '  to t h e i r avoidance by  British  c o u r t s ' powers to r e g u l a t e the a f f a i r s  spouses were more w i d e l y  the p o s s i b i l i t y led  magistrates'  r e a d i l y a v a i l a b l e to most o f the  the people i s  35 beyond d i s p u t e . which p u r p o r t s concerning  What i s suggested to serve  i s that studies of a  the needs of poorer  the c h a r a c t e r i s t i c s o f men  people may  ordered  jurisdiction  produce  results  to pay maintenance which  are no l o n g e r r e l e v a n t to an age when the d i v o r c e c o u r t i s a c c e s s i b l e to those  s l i g h t l y w e a l t h i e r people who  magistrates' matrimonial  c o u r t s and  wished  to a v o i d  the stigma o f  c o u l d not a t t h a t time a f f o r d  jurisdiction.  the  the upper t i e r  of  82  This i s , admittedly, acknowledged  that, of  a h y p o t h e s i s and  the  three r e s e a r c h  the Graham H a l l Committee's was magistrates'  courts.  i t i s immediately  p r o j e c t s mentioned above, o n l y  e x c l u s i v e l y concerned wih  the orders  However, i t i s tempting to seek i n t h i s way  r e c o n c i l e the F i n e r Committee's c o n c l u s i o n  of  to  t h a t d e f a u l t occurs because  36 the payer has  i n s u f f i c i e n t resources  w i t h the s t a r k l y c o n t r a s t i n g  conclusions  of  explanation  beyond d i f f e r e n c e s i n time and  suggestion  the N o r t h American l i t e r a t u r e .  Perhaps there  place.  In the F i n e r Committee's r e p o r t t h a t an  c h a r i t a b l e view o f  the payer's r e s o u r c e s  s t u d i e s i n N o r t h America may  was  be c o n s i d e r e d  i s no  T h e r e i s no exceptionally  adopted.  However,  the  more s o p h i s t i c a t e d because o f  t h e i r i n v e s t i g a t i o n o f some o f the p s y c h o l o g i c a l reasons f o r f a i l u r e  to  pay. One  such study i s t h a t conducted by  the Canadian I n s t i t u t e f o r  37 Research. why  One  o f the o b j e c t i v e s was  a maintenance o r d e r may  conducted i n C a l g a r y subject  and  be d i s o b e y e d .  to be m o d i f i e d  due  p a r t i c i p a t e i n the survey but eventual These men  sample o f 262  men  was  I t i s i n t e r e s t i n g that  the  to the l a r g e numbers o f men the r e s e a r c h e r s  r e p r e s e n t a t i v e o f good and  Next they were asked  was were  sampling who  bad  refused that  light.  their  payers.  I t should  explain  their  be borne i n mind  t h a t a problem w i t h t h i s s o r t o f s u r v e y i s the s u b j e c t ' s d e s i r e to seen i n a good  to  with c e r t a i n  to s p e c i f y and  p r i n c i p a l reason f o r payment or non-payment.  who  were c o n f i d e n t  were asked whether they agreed or d i s a g r e e d  reasons f o r payment.  reasons  A door to door survey  Edmonton to o b t a i n a sample o f men  to maintenance o r d e r s .  method had  to i l l u m i n a t e p o s s i b l e  be  83  The major reason for paying for 60% of the respondents was their continued sense of r e s p o n s i b i l i t y for their own c h i l d r e n .  38  A majority  of payers said they were at least p a r t i a l l y motivated to pay by a desire to preserve some goodwill.  39  By way of contrast,  only about a f i f t h of  the men reported being motivated to pay due to threats of court 40 proceedings, wage garnishments or imprisonment. In so far as reasons for default are concerned, the most common reason volunterered was that the former wife did not need the money. This was followed by the claim that the payments could not be afforded: 46% of the respondents gave this as at l e a s t a p a r t i a l explanation for 41 f a i l u r e to pay.  This was further investigated by comparing disposable  Incomes with s o c i a l assistance  rates.  The s o c i a l assistance which the  respondent and any members of his new household would q u a l i f y for i f they had no other source of income was ascertained. deducted from net monthly income.  This figure was  Maintenance obligations were 42  expressed as a percentage of this f i g u r e .  I t was found that, for  39.8% of respondents, the maintenance obligations represented less than 10% of disposable income and that for 82.1% the o b l i g a t i o n amounted to 43 less than 30% of disposable income. researchers were unable accurately  I t should be appreciated that the to record the indebtedness of the  respondents to people other than their former wives and children and that this would have given a more accurate picture of how much of the net income was disposable.  Nevertheless, the figures demonstrate that  the a f f o r d a b i l i t y of the maintenance obligations depends on the p r i o r i t y 44 which they are given with respect to other f i n a n c i a l o b l i g a t i o n s . To continue with this theme, the researchers made a simple comparison between the respondents' net monthly incomes and four payment  84  s t a t u s e s which they c o n s t r u c t e d : A l t h o u g h the l i k e l i h o o d income,  45  excellent, f a i r ,  poor and non-paying.  t h a t a man i s a good payer i n c r e a s e s w i t h h i s  i t i s f a s c i n a t i n g to s e e t h a t the non-payers' average n e t  monthly Income i s $1,593 w h i l s t that o f the e x c e l l e n t payers i s o n l y  u $1,676.  The c o n c l u s i o n i s t h a t low income i s a s s o c i a t e d w i t h a f a i r  or poor r e c o r d o f payment b u t t h a t i t i s n o t so c l e a r l y a s s o c i a t e d  with  complete non-payment. These f i n d i n g s i n A l b e r t a c a s t grave doubts upon the g e n e r a l a p p l i c a b i l i t y o f the F i n e r Committee's d i a g n o s i s o f the u s u a l reason  for  47 failure  to pay.  The Canadian I n s t i t u t e f o r R e s e a r c h a l s o q u e s t i o n e d  random sample o f two hundred women e l i g i b l e  to r e c e i v e maintenance  payments f o r themselves o r t h e i r c h i l d r e n i n C a l g a r y and Edmonton. survey d i s c l o s e d t h a t about a t h i r d o f the women r e c e i v e d amount each month.  A f u r t h e r 15% might be w i t h o u t  month b u t the a r r e a r s would be paid l a t e r .  a  This  the f u l l  i n any p a r t i c u l a r  Even more i r r e g u l a r  payments  were r e c e i v e d by 27% o f the C a l g a r y respondents and 19% o f the Edmonton respondents.  Calgary  Complete non-payment was i n d i c a t e d by a q u a r t e r o f the 48  respondents and a t h i r d o f those  from Edmonton.  t h e r e f o r e one o f the problems f a c i n g s i n g l e parent and  Default i s  f a m i l i e s i n Edmonton  C a l g a r y b u t the e x p l a n a t i o n f o r i t i s a p p a r e n t l y more complex  than  the a v a i l a b i l i t y o f r e s o u r c e s . Weitzman's r e s e a r c h i n C a l i f o r n i a confirms maintenance o r d e r s  t h a t non-compliance w i t h  can be as p r e v a l e n t amongst men w i t h h i g h wages as i t  49 i s amongst men w i t h low wages. Institute  f o r Family  they q u e s t i o n e d ,  Studies  17% claimed  5 0  The r e s e a r c h o f the A u s t r a l i a n found  t h a t , amongst the d i v o r c e d men who  to be unable to a f f o r d  the maintenance  payments due to o t h e r commitments, unemployment o r i l l n e s s . * 5  The women  85  who w e r e q u e s t i o n e d m e n t i o n e d It  s h o u l d b e made c l e a r  of  t h e men who had c l a i m e d What  other  maintenance degree of unit  that  variables  assists in  the  but w i t h  some s c e p t i c i s m .  they were n o t n e c e s s a r i l y the  to be u n a b l e might  obligations?  responsibility  affordability  It  explain  to a f f o r d the  patterns  may b e p r o f i t a b l e  felt  by  the  explanation.  In  payer  the  to  b o t h men and women g a v e a c o n t i n u i n g s e n s e o f  wives  payments. of  compliance with  e x p l o r e whether  towards  the A l b e r t a  former  52  the  former  study,  the  family  a majority  r e s p o n s i b i l i t y as  of  the  53 principal  reason for  researchers former  found  spouses,  payment  that  the  the  and r e c e i p t  bitterness  feeling of  respectively.  which s t i l l  some men t h a t  them a d i s s e r v i c e and d i s s a t i s f a c t i o n w i t h respect  to  continue  their  to  feel  maintenance  c h i l d r e n made i t responsible for  obligations  The Canadian I n s t i t u t e indicate  that  The l e g a l  the  system has,  the  former  suggests that  in  husband i s his  the  improbable  a high p r i o r i t y  former  the  eyes,  in  existed legal  family  to  s y s t e m had done  unit  with  and a c c o r d  their  new  to  family  his  their  budget.  pay m a i n t e n a n c e  to a d j u s t  transformed  the  some men w o u l d  setting  unable  between  new a r r a n g e m e n t s  that  failure  The  new  may role.  relationships  into  54 a relationship It  is  between d e b t o r  interesting  Calgary  and E d m o n t o n ,  remarry  or  be  that  marital  there  form a n o t h e r  who do n o t . variation  that,  5 5  It  and in  is  creditor.  the  surveys of  a suggestion that  relationship  w o u l d be  imprudent  i n both surveys i s  not  tend to  Institute  of  A similar  Family Studies'  to  be b e t t e r  statistically  pattern research.  is  former  be c a t e g o r i c a l  t h o s e who f o r m a new r e l a t i o n s h i p breakdown.  b o t h men and women  h u s b a n d s who payers  but  more e a s i l y  observable  in  than  because  significant,  adjust  in  the  to  those  the it  may  the  Australian  M e n who had r e p a r t n e r e d  paid  86  better, there if  even i f  they  had s t e p - c h i l d r e n i n  be l e s s b i t t e r n e s s  a new r e l a t i o n s h i p  towards  is  better  involvement  emphasise still the  former to  spouse's the  exercise  of  preserve  the  to  to  in  for  in  their  in  their  between  families  parent  former  whilst  system  the  their  for  view  the  attempt  is  but  as  family'.  involvement  children exist  to  non-payers  'former  It  or,  that  themselves  a c o n c e r n to  s e e k i n g to  with  families  the  and c h i l d .  to  admitted  access  gauge an a b s e n t  C a l g a r y and E d m o n t o n d i s c l o s e d  s i g n i f i c a n c e between of  satisfaction with  payment.Chambers  i n G e n e s e e C o u n t y , M i c h i g a n , where  that  legal  is  that  a  parent's  unit.  and r e g u l a r i t y  410  Might  One h y p o t h e s i s i s  payers regard  i n most c a s e s ,  researcher  men i n  sample o f  unit.  an o b v i o u s measure o f  the  The s u r v e y o f  arguing  family  t h e more r e g u l a r  visiting  family  arrangements  the  not n e c e s s a r i l y consistent  involved  for  the  statistical  s p o u s e and  h o u s e h o l d as c o n t a i n i n g  relationship  variable  involvement  results  be  play  children is  motives  is  former  access d i s c l o s e s ,  l e s s worthy useful  the  the d i s t i n c t i o n ,  having a r o l e  Access  of  in  payers continue  former  new h o u s e h o l d .  formed?  F o r m i n g a new r e l a t i o n s h i p continued  the  their  men who w e r e s u b j e c t  he  arrangements  relationship  access  explains  investigated  to m a i n t e n a n c e  s a t i s f a c t i o n with access  no  a  his  random  obligations, is  similar  by  not n e c e s s a r i l y a  58 measure o f access,  involvement  whether  indicates  in  the  the n o n - c u s t o d i a l p a r e n t  involvement  in  the  a c c e s s would  be a u s e f u l  difficulties  i n measurement,  many d i f f e r e n t  family.  family.  indicator it  is  of  It  It  is  is  satisfied  is  unlikely  patterns  being concerned  of  suggested that  responses with respect  to  or that  not,  about that  concern about  payments.  Apart  concern can lead  payments o f  maintenance.  from to It  87  may r e s u l t  in  regular  payment  non-custodial  parents  can experience  from  their  default  c h i l d r e n may l e a d  in  payment o f  Despite significant Chambers' the  the  relationship  model o f  years  the  resentment  between  his  access  course of  the  powerlessness which  of  of  the  their  separation  c u s t o d i a l parent  the  to  demonstrate  and p a y m e n t  of  and  between  the  explaining patterns  likely  parents  to  a  support,  The A u s t r a l i a n I n s t i t u t e  payments a r e  especially if  efforts  relationship  a s a means o f  credible.  discovered that  pass,  the  as a r e s u l t  inconclusiveness of  support remains  Studies  to  equally  support.  n o n - c u s t o d i a l parent  child  but  child  of of  payment  the  of  Family  become i r r e g u l a r  s e p a r a t e d when  and  as  child  the  was  59 young.  It  might  household  as  the  marriage  be  that  child  itself.  is  the  length of  more  time spent  significant  than  The Canadian I n s t i t u t e ' s  the  f o u n d no s i m p l e r e l a t i o n s h i p  payment  marrige.  years,  it  was  equally  complied w i t h or result himself better  obtained found  that after  that  likely  After  that  a marriage  of  be  duration  between  of  less  than  fifteen  lasted  marriages,  but  more  of  no p a t t e r n  in  likelihood  all.  fully T h e same Chambers  ten years was  of  five  be  years.  than  the  cases  than  complied w i t h at  more  men whose m a r r i a g e s  t h a n men f r o m s h o r t e r  same  s u p p o r t o b l i g a t i o n s would  they would not marriages  the  random sample o f  Edmonton F a m i l y C o u r t and l e n g t h o f  in  paid  observable  61 with respect  to  Chambers'  these  observation  disengagement of household  as  non-custodial  shorter  the  that  In  many c a s e s  n o n - c u s t o d i a l parent  time p a s s e s , parent:  is  marriages.  resulting  and  there  is  a  t h e members o f  i n a change i n  status  for  his the  former  88  'The f o r c e s t h a t p u l l a d i v o r c e d f a t h e r i n t o a d i f f e r e n t o r b i t from t h a t of h i s f i r s t f a m i l y a r e comparable i n a way to those that have come to exclude grandparents from an i n n e r core o f most f a m i l i e s . The f a t h e r and the grandparents are s p e c i a l people, but they are i n the end j u s t v i s i t o r s . ' 62 I t i s p o s s i b l e to i d e n t i f y groups w i t h i n Chambers' sample f o r whom the l o s s of s t a t u s o c c u r s r e l a t i v e l y q u i c k l y . workers and  The  unemployed, the  part-time  the young b l u e - c o l l a r workers a r e a l l more mobile than  the  63 middle-aged c l e r i c a l workers.  I t i s m o b i l i t y a f t e r d i v o r c e which  'conduces to the disengagement of n o n - c u s t o d i a l household. distance  There a r e , no doubt, o t h e r  between them helps  parent and  former  f a c t o r s i n v o l v e d but  to d i m i n i s h  the immediacy of  the  physical  past  c o n n e c t i o n s , t h a t sense o f r e s p o n s i b i l i t y which appears so important continued payment.  to  Perhaps i t i s a t t h i s j u n c t u r e , when the s t a t u s o f f a t h e r or husband has  been l o s t and  effectiveness of  t h a t o f v i s i t o r or d e b t o r assumed that  the enforcement p r o c e s s i s most s e v e r e l y  the  tested.  Chambers i n v e s t i g a t e s a number of f a c t o r s which, i t i s h y p o t h e s i s e d , will and for  lead  to a l e s s e n i n g o f  a consequent r e d u c t i o n example, had  found  the f e e l i n g o f r e s p o n s i b i l i t y i n the i n payments.  E c k h a r d t ' s study i n W i s c o n s i n ,  t h a t the r e c i p i e n t ' s r e m a r r i a g e was  a d e c l i n e i n payment i n a s i g n i f i c a n t number of c a s e s . 65 Chambers' sample, no reason f o r r e d u c i n g Aid  such d e c l i n e was  payer  observed.  64  followed  by  Amongst  Another p o s s i b l e  payments i s t h a t the s i n g l e p a r e n t begins to r e c e i v e  to F a m i l i e s w i t h Dependent C h i l d r e n .  payer knows h i s payments go  d e c l i n e i n payments was  In  these c i r c u m s t a n c e s ,  to reimburse the S t a t e . 66  observed.  The  suggestion  the s e v e r i t y of the enforcement process was  Nevertheless,  the no  i s t h a t knowledge of  a s u f f i c i e n t motivation  for  89  most men  to pay.  Indeed, a comparison between Genesee County and  Washtenaw, where the enforcement p r o c e s s was discloses  that  far less  punitive,  'both the p o o r e r - and b e t t e r - p a y i n g subgroups  within  Genesee t y p i c a l l y paid around 16 to 24 percentage p o i n t s more than t h e i r 67 c o u n t e r p a r t s i n Washtenaw'.  The  t h r e a t i n h e r e n t i n an enforcement  process t h a t makes l i b e r a l use o f j a i l money from those who who  a r e r e l a t i v e l y s e l f - m o t i v a t e d and more from those  might o t h e r w i s e be c o n s i d e r e d Reasons  that i n a b i l i t y  o b l i g a t i o n s are p r i o r i t i s e d  to pay may  j u s t i f y d e f a u l t i n some a r i s e because  maintenance  lower than o t h e r o b l i g a t i o n s .  remains s u f f i c i e n t money to pay the maintenance,  Even i f t h e r e  the payments  may  be made f o r p s y c h o l o g i c a l reasons a r i s i n g perhaps from the reduced  r o l e i n the l i f e is  c l e a r l y be v e r y  A l t h o u g h l a c k of money may  cases, i t i s c l e a r  not  impecunious.  f o r payment and d e f a u l t may  individualistic.  still  i s capable o f o b t a i n i n g more  o f the former household which the n o n - c u s t o d i a l p a r e n t  c a l l e d upon to p l a y .  I f the r e l a t i o n s h i p  i s reduced to that of  c r e d i t o r and d e b t o r , i f p a r e n t a l involvement and sense o f r e s p o n s i b i l i t y i s diminished  to t h a t l e v e l , d e f a u l t may  be p r e d i c t e d w i t h some  confidence. Chambers' r e s e a r c h  68  i m p l i c i t l y poses a q u e s t i o n . 69  p e r p e t r a t e d by such p a r e n t s i s widespread v a r i e t y o f ways.  The  default  and can be approached  in a  One method i s to d e v i s e a p r o c e s s o f enforcement which  is  e s s e n t i a l l y p u n a t i v e and u n r e m i t t i n g l y p e r s i s t e n t , making l i b e r a l  of  imprisonment and i s s u i n g c r e d i b l e  employed.  threats of sanctions  use  to be  T h i s h o l d s o u t some p r o s p e c t o f s u c c e s s i n terms o f s e c u r i n g  t r a n s f e r s of income to the s i n g l e p a r e n t f a m i l y but i t s e f f e c t s on the r e l a t i o n s h i p between the absent p a r e n t and h i s former household, particularly  the c h i l d r e n , i s l e s s e a s i l y  quantified.  90  An a l t e r n a t i v e to  ensure  that  the  the  former  the  separation.  albeit  would  be  household,  that  attaching  due s i g n i f i c a n c e  the  exercise  back  to  an i n t a c t  parent to  a  sense of  relationship  hark  which  to  promote  payment  does not  responsibility  the  between  t i m e when to  the  in  attempt because i t  the  parents  family  parents'  household.  experiences  the  is  puts o f f  Is  was  taking  steps from  retained a  despite  continuing,  that  such  intact  without  momentous d e c i s i o n no  R e p r o d u c i n g the an i n t a c t  by  become d e t a c h e d  The danger w i t h p r o p o s a l s which p o s i t  different,  maintain  seek  n o n - c u s t o d i a l parent  proposals  to  to  degree  household i s  t h e d a y when  of  a  longer  involvement  foolish  the  loss  must  be  faced. What may be p o s s i b l e w h i l s t  respecting  the  the n o n - c u s t o d i a l p a r e n t  to  be b e t t e r  prepared  be a s s i s t e d  to  it.  is  in  joint  in  adjusting  p a r e n t i n g where  suggested  is  that,  seems u n l i k e l y , for  that a l l  need n o t  visits  to  and  his  surprising  absent  Where to  is  come f r o m ?  court welfare  to  generally  strength  positively  encouragement  see  this  still to  A new,  not  required  parents as  themselves  officer  to  his  argue  new r o l e for  a  be a p p r o p r i a t e  What  the  inevitably  to  and  to do s o .  phase  is  It  should not  p o s i t i o n as  easy  the  parents a parent  In  his  to be  that of debtor  given  to  is  devise  it  for  and  non-custodial  different  is  diminution  c o - o p e r a t i o n between  T h e y may b e  rather  little  differently. adjust  from p e r s o n a l who c o u l d  to  reassure  their  provider.  incentive  Apart  see  for  divorce  and a c h i e v a b l e .  c h i l d r e n m u s t be f a c e d  the  t h a n more  desired  c a s e s where  be l o s t .  underestimate if  those  is  a s s i s t a n c e might  schedule  relationship  in  this  This  parents'  t o w h a t may b e a n unwelcome  contacts,  a p o s s i b l e source i s  see d i v o r c i n g c o u p l e s  for  purposes  role a of  91  c o n c i l i a t i o n , both towards each other's needs and towards respective future r o l e s .  their  Such meetings may a s s i s t i n resolutions of  other disputes but, for present purposes, may help the couple to respect each other's  future needs, both f i n a n c i a l and emotional.  The suspicion  i s that the weight of matrimonial work before the courts may render this suggestion of a pre-divorce conference impractical or i d e a l i s t i c . i s i r o n i c because,  This  i f thoughtfully implemented, such a programme might  serve to diminish the workload by resolving issues which would otherwise be l i t i g a t e d l a t e r ,  for example the enforcement of maintenance a r r e a r s .  By opening up channels of communication which might otherwise remain plugged,  the temptation for the non-custodial parent to withhold  maintenance may be d i m i n i s h e d .  4.  70  Evaluation of Enforcement Processes Whether default occurs due to impecuniosity, i r r e s p o n s i b i l i t y or  bitterness  towards the former spouse, there must be a procedure  available to the single parent and the State whereby the obligation to maintain can be enforced.  This i s to acknowledge e x p l i c i t l y the  ambivalence of purpose of the enforcement process.  The State has an  i n t e r e s t i n l i m i t i n g i t s expenditure on single parent families by recovering money from those whom the private law designates responsible.  The single parent's  as  interest may be somewhat wider.  If  the order i s greater than the potential s o c i a l assistance payment from the State, there i s a f i n a n c i a l interest in recovering the amount of the order from the absent parent.  Even where the order i s below the l e v e l  of s o c i a l assistance payment, i f public funds are despised by the single parent or i f she has especially strong feelings that the absent parent  92  should support the household, she may view the enforcement process as a way of v i n d i c a t i n g her convictions. In evaluating the suggested methods of enforcement, the participants i n the process should be considered.  these needs of  There are the  f i n a n c i a l needs of the State and the single parent, which do not always coincide, but there are also psychological needs which are e s s e n t i a l l y functions of the degree to which the custodial parent i s prepared to foster continued involvement by the absent parent i n the household and the degree to which the absent parent desires such continued involvement and consequent r e s p o n s i b i l i t y .  I t has already been suggested that i t  may be possible to promote payment by emphasising the continued r e s p o n s i b i l i t y of parenthood rather than the status of debtor which the non-custodial parent may acquire.  An enforcement process too c l o s e l y  linked with the enforcement of judgement debts derived from commercial creditor and debtor relationships r i s k s e n t i r e l y ignoring the need to foster a continuing r e l a t i o n s h i p between payer and r e c i p i e n t .  This  continuing r e l a t i o n s h i p of respect for each other's roles after divorce may be c r u c i a l to the long-term welfare of the single parent family and i t would be wrong to think that default indicates i n a l l cases the i m p o s s i b i l i t y of salvaging such respect. promote future payment, as well as recover  Enforcement procedures must arrears.  In order to further the welfare of single parent f a m i l i e s , i t i s clear that enforcement procedures must disprove the oft-quoted statement that ' f o r a l l p r a c t i c a l purposes, a court order [for maintenance] often worth no more than the paper i t i s written o n ' . * 7  is  Some possible  features of enforcement procedures w i l l now be considered.  93  i  Prospective and retrospective  enforcement  One possible feature would be to introduce an element of prospective enforcement, of coercion before any debt becomes due.  The  aim of such a reform would be to provide a greater measure of security for  the single parent family by seeking to ensure a more regular pattern  of payments and thereby obviating the need for periodic applications for welfare payments when the weekly support payment i s withheld. requiring no action from the payer,  By  the choice of whether or not to pay  could be eliminated from the process.  Automatic deduction of support  from the payer's wages by his employer would be one method of implementing this proposal to remove the temptation to use the wages for other purposes. 72 Chambers points out  that this s h i f t i n the method used to c o l l e c t  support can be compared to the decision in the U . S . A . during World War II to c o l l e c t taxes by means of deduction from wages rather than waiting for people to pay what they owed at the end of the  taxation  73 period.  He puts forward  the model of the mandatory deduction from  wages which begins as soon as the order i s made and travels with the payer from job to job.  The l a t t e r suggestion i s not unprecedented for  orders under the Attachment of Earnings Act 1971 i n the U . K . are not discharged when the debtor leaves his job but are suspended and can be revived when he takes further employment.  Such measures are an attempt  to deal with the problem of the man who changes employment i n order to avoid a wage assignment.  P l a i n l y , whether the man considers that  leaving his job i s worthwhile w i l l depend on the ease with which he can find comparable work and the strength of his resolve to avoid payment. Chambers found ^ that most of the 23% of wage assignments which f a i l e d 7  94  to  produce r e g u l a r  with reference this  happens,  payments  to  payments the  the  man r e s i g n i n g o r  p r o c e d u r e may h a v e  c a n r e a s o n a b l y be e x p e c t e d  The F i n a l Report Orders  in  Canada  effective  in  protection  the  the  his  of  that,  the  absent  attachment  payments,  the  parent.  of  to  tempted  to d i s m i s s  T h e r e c o m m e n d a t i o n was  protect  reinstatement  be  the  defaulter  o r damages  if  be  required  employee the  due  rather  provinces  f r o m d i s m i s s a l and  dismissal occurs  to  additional  the  that  Maintenance  e a r n i n g s was  defaulter  f r o m e m p l o y e r s who w e r e c o n c e r n e d a b o u t and m i g h t  If  a p e r i o d when no  on Enforcement o f  if  explained  employer d i s m i s s i n g him.  precipitated  Committee  recognised  deductions.  legislate of  7 5  of  securing regular  administration make  i n Genesee C o u n t y , M i c h i g a n were  provide  to  than  should  remedies  service of  an  76 attachment  order  along  road  this  on the  by v i r t u e  Family Relations places  the  existence the  Act  7  7  onus on the of  employer.  the  of  the  s 125  gone  of  the  C h i l d and F a m i l y  which provides  for  the  employer  attachment  employee w h i l e  New B r u n s w i c k h a s  to  order  order  is  in  he d i s m i s s e s o r  effect  Services  suggested remedies  show t h a t h e was n o t if  furthest  or within  six  and  motivated  otherwise  and  by  the  penalises  months o f  its  expiry. Chambers' soon as  the  safeguards. inevitably  model  order  is  However,  scheme w h i c h made w o u l d the  not  number o f  make a t t a c h m e n t  which employers would  implements  of  regard  obviate orders  earnings a s no more  a  deductions the  necessity  against  far  from wages for  employees  such would  commoner o c c u r r e n c e and  inconvenient  than  tax  deductions. There besides  the  are,  however,  responses of  other  factors  employers.  as  which should cause concern  Chambers'  research in  Michigan  one  95  shows t h a t wage assignments  produce  steady payments a c r o s s a l l groups o f  78 non-custodial parents.  Success seems assured because  r e q u i r e s a change o f job and  avoidance  payment i s r e l a t i v e l y p a i n l e s s f o r the  absent parent because the money never becomes spendable. s e c u r i n g money f o r the S t a t e and d e d u c t i o n from wages throughout  I n so f a r as  the s i n g l e parent f a m i l y i s concerned, the l i f e  o f the o r d e r , whether o r not  a r r e a r s had accrued, may be the b e s t s o l u t i o n . I t can be argued, however, t h a t such a system does l i t t l e to p r e s e r v e a sense o f responsibility  i n the absent p a r e n t .  A d m i t t e d l y , Chambers i s c o r r e c t  t h a t the payments a r e p r o v i d e d by the parent and not from an amorphous 79 fund,  thereby p r e s e r v i n g the d i r e c t l i n k between parent and 80  However, as he p o i n t s out i n an e a r l i e r passage, n a t u r e of the d e d u c t i o n may would pay v o l u n t a r i l y .  j u s t i f i a b l y lead  the i n v o l u n t a r y  to resentment  among men  E q u a l l y , there i s the i n t e r v e n t i o n o f  p a r t i e s between payer and  recipient.  n o n - c u s t o d i a l p a r e n t ' s employer, who employee's p e r s o n a l l i f e ,  and  These may  child.  who  third  be one o r both of  the  w i l l have a c q u i r e d d e t a i l s o f h i s  the S t a t e , which may  incidentally  a c q u i r e more p e r s o n a l d a t a .  The  wage d e d u c t i o n s would r e s u l t  i n the s t o r a g e o f much p e r s o n a l i n f o r m a t i o n  by employers and,  possibly,  implementation  also  the S t a t e , which might a c t as  i n t e r m e d i a r y between employer and There  days o f heavy i n d u s t r i a l i s a t i o n .  an  recipient.  i s another w i d e l y h e l d c i v i l  i n t e g r i t y of the pay packet was  liberty  to c o n s i d e r .  The  the s u b j e c t o f campaigns i n the e a r l y I n 1870  the Wages Attachment A b o l i t i o n A c t . provided  o f a scheme o f mandatory  the B r i t i s h P a r l i a m e n t  passed  S e c t i o n 1 o f t h i s s u c c i n c t measure  t h a t 'no o r d e r f o r the attachment  o f the wages o f any s e r v a n t ,  l a b o u r e r , o r workman s h a l l be made by the judge o f any Court o f Record  96  or  Inferior  Court'.  In  the  introduction  'much i n c o n v e n i e n c e has a r i s e n by judgements  recovered  in  some . . .  the  to  the  Act  attachment  Courts'.  it  is  noted  o f wages  As t h e  Finer  to  that  satisfy  Committee  81 remarks,  the  maintenance broader  introduction  by d e d u c t i o n  a s s a u l t on the  When t h e implement  of  to  recover  f r o m wages was r e s i s t e d  integrity  Home S e c r e t a r y ,  the  procedures  recovery of  of  Mr.  arrears  as  arrears the  of  beginning of  a  wages.  R.A.  Butler,  from wages,  introduced  the  measure  he b a s e d h i m s e l f  upon  to  the  82 benefits  to  be  gained  sensitivity  of  the  It  remains  Even i f  the  retrospective  maintenance  However,  he  the  is,  the  employed d e f a u l t e r s .  t r a d e u n i o n s was c l e a r l y  the U . K .  can be p u t  enforcement  commercial debt  it  to  jail  to  attach  attachment  earnings is  if  solely  The  appreciated. the  for  payer  the  is  purpose  not of  arrears.  The dilemma  before  issue  impossible in  in arrears. clearing  b y c e a s i n g to  renders  processes  the  the  The u n w i e l d y typically  them u n s u i t a b l e  from an e r r a t i c  reaches  simply.  payer  implementation  payer. would of  for  nature  developed  of to d e a l  recovering small  amounts  A procedure which obtains benefit  the  single  such a procedure  parent  infringes  with  the  of  money  family.  the  payer's  privacy. The c o r r e c t to k e e p  his  wages.  If  has  respect this  private  affairs  substantial  suffered  argument  approach i s  to  stage,  the  to  arrears  hardship or  that  to  h i s wages  himself  of  the w a g e - e a r n e r  and  to  be  h a v e a c c r u e d and  been r e l i e v e d  any c l a i m w h i c h integrity  a s k when  by t h e  the w a g e - e a r n e r  the wage-packet  s h o u l d be o p e n to  free the  spend  his  there  parent is  otherwise  s h o u l d be  attachment,  his  single  State, might  to  loses  a  not  just  family  strong  have  forfeited. for  right  with At  arrears  97  but if  for the  payments payer  within  that  indicate  is  or,  the  Voluntary ii  In  if  as  before  biological  parents  especially There  jail  does  is  This  sort  However, whether  it it  anxious  towards  family is  is  the  the  should  that  has done n o t h i n g  should  to  have  to  continue it  discharged  because d e d u c t i o n  payer  can c o n v i n c e  payments w i l l  automatic  of  take  earnings  deductions  at  from  the  be  forthcoming  should  to  the  rejected place  from  to  the  as  date  of  as  the  of  b e s t method  responsible  cease.  the  their  Finer  involvement  household.  This  lily-livered  examine  is the  to  those  jailing  that,  in  that  children,  to  jail. that  and means  of  relationship. whom t h e  heinous  process  pay w h i c h d e t e r m i n e s  order,  Committee in  for  an e s p e c i a l l y  proposed  the  own  punitive  r e s p e c t w i t h i n a changed  securing  ensuring  alternatives  C h a m b e r s and of  for  of it  i n mind  responsibilities to  so f a r  s h o u l d be b o r n e  feelings  former  a s a method  in  propose acceptable  appears  failure  earnings  It  primarily  positive  necessary the  If  attachment  promote  argument  to d i s c h a r g e  of  remain  does not  of  and  warned  enforcement  of  engender  responsibility  default  can a p p l y  court,  a c o n s e n s u s between  not  enforcement  the  had o c c u r r e d .  attachment  is  pay.  wages,  attachment  advocating  he  payer  available  t h a t he h a s b e e n  The attachment  C h a m b e r s ' m o d e l was  any d e f a u l t  provided  s h o u l d be  preferable,  evaluation  payments,  procedure  s h o u l d be a v a i l a b l e  to  of  a means o f  t h a t mandatory  the  necessary,  is  arrears,  change.  that  attachment  the  support  to  possibility  payment  Jail  in  This  consequences of  s u c h a n e a s y way  recipient without  the  provided  This  is  b ecome d u e *  two m o n t h s  a willingness  time.  wages  they  time o f  indefinitely, any  as  to  failure  omission.  discover  t h a t a man i s  jailed.  98  Chambers' r e s e a r c h i n Genesee County, Michigan s a n c t i o n o f imprisonment i s a p p l i e d r a t h e r l i k e d e c i m a t i o n was  a p p l i e d to a Roman L e g i o n .  He  suggests  t h a t the  the punishment o f  found  t h a t 60% of h i s  sample were 26 weeks i n a r r e a r s a t some p o i n t i n t h e i r payment h i s t o r i e s 83 but l e s s  than a t h i r d o f these men  such a s e l e c t i o n be based?  Those who  i t s e r v e s as a d e t e r r e n t and to  the i n d i v i d u a l who  were j a i l e d .  On what c r i t e r i a  f a v o u r imprisonment may  can  argue t h a t  an encouragement to o t h e r p a y e r s , not  is jailed.  I f t h i s purpose i s to be  just  fulfilled,  t h e r e i s no need f o r 'an o v e r r e p r e s e n t a t i o n i n the j a i l e d p o p u l a t i o n o f 84 b l u e - c o l l a r males' such as Chambers found i n M i c h i g a n o r the numbers of  ' s o c i a l inadequates' who  the F i n e r Committee concluded were  85 confined.  The  s t e p s a l o n g the road  d e f a u l t e r are taken e a s i l y by with authority. perhaps due  of  Others  to j a i l  those who  are u n s k i l l e d  a r e removed from  a t communicating  the p r o c e s s a t v a r i o u s s t a g e s ,  to t h e i r g r e a t e r a p t i t u d e f o r c o - o p e r a t i n g w i t h the F r i e n d 86  the Court who  e n f o r c e s the o r d e r .  I t i s perhaps not s u r p r i s i n g i n  the l i g h t o f t h i s d i f f e r e n t i a l use of j a i l of  f o r the maintenance  t h a t Chambers found  r e c i d i v i s m amongst j a i l e d d e f a u l t e r s , i n much the same way  c r i m i n a l s can d e v e l o p an apparent dependence on i n s t i t u t i o n a l J a i l may  a l s o have a d e l e t e r i o u s e f f e c t upon the  between absent parent and r a t i o n a l e f o r f u l l and  child,  c h i l d who  to a c l o s e r r e l a t i o n s h i p .  to be worth  who  may  Rather,  I t may  Jail is precipitate a  parent upon r e l e a s e o r f e e l i n g s o f g u i l t i n a 88  i s aware of what i s happening.  i n d i f f e r e n t , may  life.  the v e r y r e l a t i o n s h i p which the whole  prompt enforcement p r o c l a i m s  d e p a r t u r e by the absent  as p e t t y 87  relationship  p r e s e r v i n g , a l b e i t i n t r u t h o n l y f o r f i n a n c i a l purposes. u n l i k e l y to l e a d  examples  A l l p a y e r s , good, bad  u n c o n s c i o u s l y b e g i n to see t h e i r c h i l d r e n as the  cause them to be  jailed.  and agents  99  In the l i g h t o f the n e g a t i v e maintenance d e f a u l t e r s , i t was  a s p e c t s of  the use  to be expected  of j a i l  for  t h a t the F i n e r Committee 89  would recommend t h a t j a i l  no  longer  be a v a i l a b l e .  considered  explicable with reference  conclusion  t h a t 'sending maintenance d e f a u l t e r s 90  economic and The  social f u t i l i t y '  to the payer's r e s o u r c e s ,  commends  problem i s t h a t d e f a u l t may  t h a t Chambers' r e s e a r c h money gained by of j a i l i n g ,  If default i s the  to p r i s o n i s an essay i n  itself.  not be so e a s i l y e x p l i c a b l e  i n M i c h i g a n l e a d s him  to the c o n c l u s i o n  and that  the j a i l i n g p o l i c y 'almost c e r t a i n l y ' exceeds the  i n c l u d i n g the l o s s to the S t a t e o f the j a i l e d  cost  person's  91 income tax. received,  For e x t r a c t i n g c h i l d  the p u n i t i v e system works w e l l .  Despite  the n e g a t i v e  Chambers' r e s e a r c h motivation  to the a b o l i t i o n i s t .  the m a t e r i a l w e l l - b e i n g  have o r d e r s  payment of the o r d e r , The  and  whose net  If  question  f i n a n c i a l well-being. the c o u r t s  of  from  the  income would be  increased  expanded  In d e c i d i n g questions  purport  by  cease to  then becomes whether the n o t i o n of the be  State,  those s i n g l e p a r e n t  i t seems perverse to demand t h a t j a i l  the s i n g l e parent f a m i l y should  access,  this basic conclusion  f o r the enforcement system i s to c o l l e c t money f o r the  f a m i l i e s who  an o p t i o n .  impact o f j a i l ,  i s inconvenient  or i f i t i s to i n c r e a s e  of  support from the payer's wages  be  welfare  to comprehend more than  concerning  custody  to apply a broader n o t i o n o f w e l f a r e  and and  may  seek to a s s e s s the p s y c h o l o g i c a l consequences f o r the c h i l d r e n o f various d e c i s i o n s .  I f t h i s expansion o f  family i s permissible, The jail  the i d e a of w e l f a r e  the a b o l i t i o n i s t i s on f i r m e r  of  the  ground.  c o r r e c t approach i s t h a t to acknowledge the a c c e p t a b i l i t y o f  as a remedy i s to be  too zealous  i n the p u r s u i t o f  financial  100  improvement for the single parent family, given that other methods of enforcement remain unchanged.  I t i s to shut the door on any ambition to  foster a mutual respect in the parents, for the sanction i n the hand of the custodial parent or the State i s simply too great.  The  psychological effects of the policy on the children for whom the j a i l e d parent has f a i l e d to provide may be severe. curtailed  J a i l i n g s should be  for their p o t e n t i a l l y b r u t a l i s i n g effects upon the j a i l e d  people and the punitive, negative aspect of matrimonial breakdown which they emphasise.  It i s not that there is nothing better to be t r i e d .  For the unemployed, lack of resources may render enforcement a f u t i l e exercise i n the f i r s t place.  For the employee, deduction from wages  a f t e r a period of default holds out the prospect of high returns.  The  self-employed person i s harder to deal with and recourse may have to be made to the t r a d i t i o n a l enforcement processes such as d i s t r a i n t .  Even  with these greater d i f f i c u l t i e s , i t would be wrong to preserve imprisonment i f the assessment of i t s negative impact i s c o r r e c t . If i t i s decided that j a i l should not be used, i t is to threaten to use i t .  inappropriate  C l e a r l y , no credible threat can be made i f there  i s no means of carrying i t out.  Though the threat of j a i l may have  extracted some money from r e c a l c i t r a n t payers i n the past,  the  conclusion of this discussion i s that there are better ways of inducing payment.  5«  RolesL-PJE^Individual and State i n the Enforcement Process L  What i s the basis upon which the State can intervene a s s i s t the single parent i n enforcing a support order? of a variety of procedures,  in order  to  The a v a i l a b i l i t y  any of which may be chosen by a l i t i g a n t i n  101  order  to compel the o t h e r p a r t y to obey a c o u r t o r d e r , i s not a s i g n o f  p a r t i a l i t y on d i g n i t y and  the p a r t o f the S t a t e but i s a r e c o g n i t i o n t h a t the  e f f i c a c y of the c o u r t s depends upon the o r d e r s of the c o u r t  b e i n g obeyed.  The  need to a s s e r t the r u l e o f law may  be  sufficient  j u s t i f i c a t i o n f o r widespread s t a t e i n t e r v e n t i o n i n the enforcement process.  On  the o t h e r hand, when the ways i n which the S t a t e i n t e r v e n e s  are c o n s i d e r e d , i t may  be  felt  t h a t too much b u r e a u c r a t i c power has  been  92 harnessed  on  the s i d e o f the s i n g l e p a r e n t .  Access  to p e r s o n a l  i n f o r m a t i o n f o r the purposes o f t r a c i n g d e f a u l t e r s , a g g r e s s i v e enforcement procedures persistently  which s t a r t a u t o m a t i c a l l y , a w i l l i n g n e s s  to pursue d e f a u l t e r s : the s t r u g g l e may  appear unequal.  answer to t h i s i s t h a t there has been an i m p a r t i a l d e t e r m i n a t i o n o f q u e s t i o n and  t h a t any  compel obedience  right  to p r i v a c y gives way  before  the need to  a c c e p t i n g t h a t the S t a t e can adopt any  o f i n t r u s i v e mechanism i n o r d e r to f u r t h e r the w e l f a r e o f s i n g l e f a m i l i e s , i t i s worth r e c a l l i n g has been motivated  t h a t the improvement of  spent aboout $25 b i l l i o n f o r t h i s purpose. e x p e n d i t u r e which l e d Ronald  form  parent  collection  p r i m a r i l y by i n c r e a s i n g p u b l i c e x p e n d i t u r e  on w e l f a r e to support s i n g l e parent f a m i l i e s . 93  In 1984,  I t was  U.S.  taxpayers  burgeoning  Reagan to say i n h i s 1983  public  Presidential  Proclamation:  The  the  to c o u r t o r d e r s .  Before whole-heartedly  agencies  The  'The American people w i l l i n g l y extend h e l p to c h i l d r e n i n need, i n c l u d i n g those whose parents a r e f a i l i n g to meet t h e i r r e s p o n s i b i l i t i e s . However, i t i s our o b l i g a t i o n to make every e f f o r t to p l a c e the f i n a n c i a l r e s p o n s i b i l i t y where i t r i g h t l y belongs on the parent who has been l e g a l l y ordered to support h i s c h i l d . ' r e s u l t o f t h i s concern was the 1984 C h i l d Support Enforcement  102  Amendments to T i t l e IV-D of the Social Security A c t .  The Office of  Child Support Enforcement, a federal agency, has expanded i t s remit from low income families to a l l families needing assistance i n c o l l e c t i o n .  94  The Office also has expanded powers to obtain security for payment and to secure the withholding from wages and tax refunds of support 95 payments.  For Jacob,  this sort of l e g i s l a t i o n i s symptomatic of the  development of public policy i n the U . S . A . law.^  in the f i e l d of family  Congress i s only at the margins of policy making.  With  particular reference to c h i l d support, Jacob comments: 'each piece of congressional action has been a response to a p a r t i c u l a r c r i s i s or complaint and has been passed with l i t t l e or no thought about how i t f i t s into the pattern of family law in the United S t a t e s . ' 97 To this point, a certain amount of scepticism has been preserved with respect to the virtue of an enhanced role for the State in c o l l e c t i n g instalments of support payments.  Perhaps such a scheme i s an  ephemeral manifestation of c r i s i s management, or a guise under which the State can accumulate more data about the subject, or a means of favouring one party i n a matrimonial dispute at the expense of the non-custodial parent.  Whilst i t is correct to point out the p o s s i b i l i t y  that a greater role for the State could be prone to a number of negative influences, i t i s necessary  to balance the r i s k of these coming to  dominate the system againt the d i f f i c u l t i e s which a single parent faces i n enforcing an order with no administrative assistance.  I t i s at  this  point that the objections to an enhanced role for the State begin to appear too scrupulous to be sustained. i  I n s t i t u t i o n of proceedings:  tracing the defaulter  At the outset, there i s the problem of the parent whose whereabouts  103  are unknown.  The  q u e s t i o n of  the extent  p u b l i c departments can be used  to which i n f o r m a t i o n held  to t r a c e a m i s s i n g parent  been r e s o l v e d i n favour of d i s c l o s u r e i n the U n i t e d Parent  L o c a t o r S e r v i c e , which can be used by any  support whether or not  and  States.  The  r e c i p i e n t of  has  Federal  child  the S o c i a l S e c u r i t y A d m i n i s t r a t i o n ' s  b e n e f i t r e c o r d s and  the N a t i o n a l P e r s o n a l  Centre f o r f e d e r a l employees, amongst o t h e r s o u r c e s . Locator  that  they r e c e i v e w e l f a r e , uses the I n t e r n a l Revenue  S e r v i c e ' s income tax r e c o r d s , annual earnings  i s one  by  The  Record  State  Parent  S e r v i c e can use v o t e r r e g i s t r a t i o n s , r e c o r d s o f r e c e i p t of  workers' compensation and  p u b l i c a s s i s t a n c e , p r i s o n r e c o r d s and  data  on  98 v e h i c l e r e g i s t r a t i o n and that can be parent.  drivers' licences.  tapped, the more l i k e l i h o o d  Plainly,  the more  sources  there i s of l o c a t i n g the  missing  There i s , t h e r e f o r e , much to be s a i d f o r the view t h a t  h a l f - h e a r t e d l o c a t i o n s e r v i c e s g i v e the worst o f both w o r l d s . data acquired  f o r one  purpose i s u t i l i s e d  the consent of the s u b j e c t of  f o r another purpose  the d a t a and  i n c r e a s e i n the l o c a t i o n o f m i s s i n g parents  there may  be no  Personal without  significant  or the c o l l e c t i o n o f  payments. The  Canadian F a m i l y  Orders and  Agreements Enforcement A s s i s t a n c e  99 A c t 1986  supplements p r e v i o u s p r o v i n c i a l measures f o r the r e l e a s e o f  i n f o r m a t i o n by p r o v i d i n g access  to i n f o r m a t i o n banks c o n t r o l l e d by  Department o f N a t i o n a l H e a l t h and W e l f a r e and and  Immigration C o m m i s s i o n . * ^  Before  by  the Canada Employment  access w i l l  be allowed,  must be agreement between the f e d e r a l M i n i s t e r o f J u s t i c e and provinces**^* c o n c e r n i n g designating  p r o v i n c i a l safeguards  the p r o v i n c i a l sources  exhausted b e f o r e  the  there the  to p r o t e c t i n f o r m a t i o n  and  of i n f o r m a t i o n which must be 102 the f e d e r a l i n f o r m a t i o n can be used. The address o f  104  the  defaulter  and  confidentially officer  t h e name and a d d r e s s o f  to  a court,  investigating  a provincial  a child  p r e s c r i b i n g a procedure  for  his  e m p l o y e r may b e  enforcement  abduction.  103  applications  to  In  released  service or  this  a  m a n n e r and  c o u r t w i t h a view  peace by  to  the  104 court  requesting release  sought  to  limit  presumably, banks.  to  Steel  the  of  information,  p o s s i b i l i t y of  preserve certainly  the  confidence in gives  the  the  federal  information the  has  b e i n g misused and,  secrecy of  impression that  Parliament  federal  the  information  legislation  is  too  coy: ' S i n c e a c c e s s to f e d e r a l i n f o r m a t i o n b a n k s was c o n s i d e r e d d e s i r a b l e b e c a u s e o f the ease o f tracing i n d i v i d u a l s by u s i n g t h e i r s o c i a l i n s u r a n c e n u m b e r s , o n e w o n d e r s a t t h e number o f h o o p s s e t u p b y t h i s l e g i s l a t i o n t h r o u g h w h i c h o n e m u s t jump b e f o r e o b t a i n i n g the i n f o r m a t i o n . ' 105 However, obliging  the  Steel  government,  about  a particular  order  is  to  information.  does not  the d e f a u l t e r ' s  whatever  person for  prejudice This  at  is  the  a quite  privacy  is  are  considered.  will  be  The F i n e r  hampering  the work  of  separate  argument This  of  the  from  seems  too  argument  maintenance  supplying  the  the  suggestion  that  s c r u p u l o u s when  for  the  single  accepted  the  argument  department  that  information  enforcing a  the d e p a r t m e n t  non-payments  Committee  the  to d i s c l o s e  purpose of  infringed.  p o s s i b l e consequences o f  of  the  level,  efficiency  the  costs  convincingly dispose of  parent  s u p p l y i n g the  that  family the  information  significant:  ' O n c e c i t i z e n s know t h a t i n f o r m a t i o n a b o u t t h e m s e l v e s o r t h e i r a f f a i r s w i l l be p a s s e d o n b y t h e B o a r d o f I n l a n d R e v e n u e t o p e r s o n s and f o r p u r p o s e s d i f f e r e n t f r o m t h o s e f o r w h i c h i t was s u p p l i e d i n t h e f i r s t i n s t a n c e , t e m p t a t i o n s t o d i s h o n e s t y and deception w i l l multiply.' 106 It  is  important  to  appreciate  that  the  Finer  Committee's  a p p r o a c h was  105  informed  by  the  idea  c a n n o t be a f f o r d e d , better  that,  often  Therefore,  taxes  it  and n a t i o n a l  is  keeping  track  potentially be a b l e  differently.  to  In  insurance  the n o n - c u s t o d i a l p a r e n t  these  be  there  is  a potential  might  It  of  difficulty  lies  improved  government  assessing  administered not  My a s s e s s m e n t i s any p o l i c y  family.  It  is  accomplished, e v a s i o n by  the  information.  that  the  to  be  the  first  nothing  by  the  to  allow  right  to  the  it  unlikely own  are  probably  order  honest  of  locator  service  Office  one.  of  is  service  part  of  that  The  to w h i c h c o l l e c t i o n o f a  that  thought  to  degree  the  which  only disincentive be an a d d i t i o n a l  of  recognise  is  to  Her  the  frankness with if  a  the  would  the  She i s  many men,  of  it  of  the  scales  supplier  the  Unless  State  the  is  contacts,  departments  be  the  marginally  of  investigator!  C o m m i t t e e was  institution  payments  using  a larger  plan,  Child Support Enforcement,  great.  that a  enforce  the  is  the d e t r i m e n t  but  parent.  and p e r s o n a l  government  would not  by  improvements w i l l  of  to  information in  single  problem regarding  be p a s s e d on to 7  energy  The F i n e r  supplied  disclosure  s u c h as  a private  thwarted?  information.*^  would be  services of  circumstances,  to  it  the  time,  order  the  post-divorce mobility  problem f o r  of  to  believe  of  terms  is  plainly  t h e movements  the  the  contributions.  the  court  information  lead  to  difficult  in  only  Due  afford  resources, limited.  of  because  simply not worth p r e j u d i c i n g  T h e C a n a d i a n and A m e r i c a n g o v e r n m e n t s are weighted  occurs  d i s c l o s u r e p r o v i s i o n s would  collections.  c o l l e c t i o n of  as d e f a u l t  the  locator transfer  stage  further  paying parent  service  and,  of  crucial  resources  unless  c a n be d o n e . is  is  it  is  the  the  success  single  parent  successfully  Without  much s i m p l e r .  to  to  The  such a parent  service, with  the  106  responsibility  for  looking after  afford  for  the  to  look  struggle.  c h i l d r e n from day  non-custodial parent.  P u b l i c r e s o u r c e s must be a v a i l a b l e  enforcement ii  the  The A u s t r a l i a n I n s t i t u t e that  amount o f  is  an  at  this  cannot  unequal first  stage  of  the  process.  I n s t i t u t i o n o f p r o c e e d i n g s ; d e c i d i n g to  found  It  to d a y  16% o f  of  Family Studies'  r e s p o n d e n t s who w e r e n o t  maintenance  referred  take  to  the  enforcement measures research in  paying or  Victoria  r e c e i v i n g the  ineffectiveness  of  full  court  108 proceedings  as  enforcement  p r o c e e d i n g s compared w i t h  discouraging  part  to  of  the  explanation.  r e c i p i e n t s who a r e  F o r example,  the  the  expense result  uncertainty  of  the  considering trying  to  enforce  of is  the  order. Steel to  bring  points out  enforcement  and a w a r e n e s s  quite  of  that l e a v i n g  in  available 109  choices which,  Furthermore,  terms  of  money,  the  former  between  attempts  invite when  former  spouses,  violence or,  the  at  least,  spouse.  Viewing matters  many s i n g l e p a r e n t s ultimately  likely  to  in  the  legal  If  to  sophistication  there  case,  may n o t  engage  parent  in  remains  it to  to  the  is  children  hardly  be more  may b e  have  a  protracted hostility  orders  may  evident  is  surprising  trouble  the  than  that it  is  worth.  r e p l a c i n g enforcement  initiatives  single  a c r i m o n y w h i c h c a n become  c o n s i d e r enforcement be  of  the  enforce maintenance  round,  The Committee on E n f o r c e m e n t o f favoured  to  further  to  s i n g l e parent  simplest co-operation with respect  attempted.  up  i n any p a r t i c u l a r  t i m e and e n e r g y ,  dispute with a recalcitrant the  entirely  p r o c e e d i n g s assumes a l e v e l  unjustified.  resources,  it  with provincial  Maintenance  Orders  mechanisms based upon  programmes  i n Canada  individual  i n which enforcement  is  initiated  107  by p r o v i n c i a l the  onus  to  agency w i l l asserting  government  the  lead  collections,  on  efficient  in  in Manitoba***  other  right pays  to  benefit  Kingdom.  receive  the  parent  biological  to  a  thereby parent  that  removing  government  more  and  effectively  reducing  In  payments  sums d u e u n d e r entitlement,  popular with single  along  to  the  and  there  order  Under  to  parents  are  enforcement  examples  reduce w e l f a r e of  procedure,  Department  order,  takes  automatic  the l i n e s  this the  the  processes  and b y C h a m b e r s i n M i c h i g a n * * ^  jurisdictions,  more m o d e s t a m b i t i o n .  the U n i t e d  the  comprehensiveness of  schemes h a v e b e e n d e v e l o p e d in  of  single  is  welfare.  by S t e e l  replicated of  t o more  responsibility  Though the described  The r a t i o n a l e  0  b e g i n proceedings from  the  expenditure  officials.''"*  the the  of  enforcement  receiving welfare  older  expenditure,  diversion recipient  than of  not  schemes  procedure assigns  Social Security,  b e i n g n o more  over  of  is  the  payments  the  the  which  recipient's  order. for  This  it  is  assures  113 them a  regular  entirely  altruistically  the d e p a r t m e n t individual. is  income.  will  If  p l a c e d on the  proposition than  the  that  this  worked w e l l  motivated,  enforce is  the  a central  a pilot  payments It  has n o t similar  extended  must a l s o  department be  more e f f e c t i v e l y  agency w i l l  project  b u t was n o t  order  parent.  recipient  government  there  so, welfare  biological  individual  Nova S c o t i a ,  A s s u m i n g the  is  are  the  reduced as  the  been u n i v e r s a l l y to  the  to n o t e  o r d e r s more  not  rationale  than  interesting  enforce  the  is  that  burden that  the  effectively  accepted.  British diversion  beyond Cape B r e t o n b e c a u s e i t  In  procedure was  felt  114 that  the  recipients  were  The s e l f - s t a r t i n g , ambitious  in  its  the  best  enforcers.  computerised  scope.**  5  programme  Payments under  all  i n Manitoba orders  is  enrolled  far in  more the  108  programme a r e m o n i t o r e d made u n d e r recipient  provincial opts  legislation, pursuant  to  out  the  of  the  onus i s  enrolled  part  the  recipient,  r e c o v e r y and procedure,  on the are  if  the  f o c u s e d on the  the  on  this  desired  has  by  the  in  the  enforce  of  the  otherwise  be  to  the  scheme i s  if  clients,  automatic  enforcement  is  to  emphasise  the  the  a l s o r e s p o n s i b l e to  divorce  the  court the  it  the  themselves. initiate  beneficiary  of  the  that  enforcement  when e n f o r c e m e n t Is  the  is  required  is  not  the M a n i t o b a model  case?  If  an  If  it  to  that of  the  the  is  choose not  identification is  whom e n f o r c e m e n t  follows  to  s u c h a model  a recipient  for  It  c o n v e n i e n c e and  would  a g e n c y must  orders.  i m p l e m e n t i n g a scheme o f expenditure  b i o l o g i c a l parent,  the  in  to  recipients  for  step  for  State  r e d u c e government  responsibility of  first  implemented.  parents  the  the m o t i v e  the  payments  proceedings  these q u e s t i o n s r e q u i r e  assist single  its  the  be p e r m i s s i b l e f o r  the  All  proceedings  for  a particular  of  agency i s  the  the  obligation.  part  the  even  proper  too d a u n t i n g a p r o s p e c t ,  the w i s h e s o f  However,  it  of  Clearly,  purpose f o r which solely  the  federal  agency o f  of  c o l l e c t i n g payments o f  requirements  an o r d e r ?  established  follow  in  p l a c e , when w i l l  to  taking  i n more e x t r e m e c a s e s , of  in.  the  institution  is  the  unless  defaults.  o b l i g a t i o n s when  beneficiary  efficiency  overshadow  it  enrolled  Orders  w i t h o u t any a c t i o n on  g i v e n no s p e c i f i c i n d i c a t i o n  occasion and,  potential  put  enforce  to  to  to o p t  through  conduct of  s h o u l d be c o n s i d e r e d w h e t h e r  obligation  recipient  payer  the d i s i n c e n t i v e s  to  With respect  made  i n Winnipeg.  automatically  procedures follow,  as o p p o s e d to  proceedings  computer o p e r a t o r s  scheme.  orders  and e n f o r c e m e n t  We h a v e s o f a r  the  l e g i s l a t i o n are  offices of  by  treasury  of  the  it  and  to  follows  government.  that To  109  implement  unquestioningly  the w i s h e s  enforcement  measures  contrary  a p o s s i b l e purpose of  to  The f i n a l enforcement computer,  taken  problem i n  process i s  children of permitted  the  to  forego  agreeing not  be r i d  the  to  best  s e r v e d by c o n t i n u i n g  present  agree  hard  to  to  conceive of  parent.  say.  system akin In ignored  children?  the  the  and  r e c o v e r y may be a n I m p o r t a n t cost-effective of  system.  responsibility  if  for  the  that  is  detection  best  jointly  is  to  enforcement  views  parent  the  better  view  that  are  may  agree  that  t h a t no  It  is  the  not  too  far  step-parents  enforcement  scheme  benefit  administrators were  support  natural,  children's  is  of  a  detectable.  procedures,  it  cannot  proceedings  the d e p e n d e n t its it  is  be  the  be for  comprehensive,  system as is  be  parent  interests  might  commencement o f a  a  the  'most  spouse's  lack  important  116 characteristic',  be  non-custodial  the  for  by  b o t h p a r e n t s who  with  the  questions  prompt  for  custodial  household.  burden f o r  this  Manitoba  would  self-starting  such households i n which  Steel  want  maintenance  the  involved  component o f  Whilst  with  such agreements  self-starting  automatic  a  s h o u l d be r e c o g n i s e d and  really  even  of  c h i l d r e n whose  adults  by  State  the n o n - c u s t o d i a l  relationship  though whether  evaluating that  the  The a d m i n i s t r a t i v e  taxation  for  responsibility  not  those  T h i s may s u i t  not  the  to  Should their  return  a chain of  These are to  s i n g l e out  family.  but  susceptible  q u e s t i o n o f what  received  take on p r i m a r y  who do n o t  scheme.  less  individual  b e made o r  be l e s s e n e d to  the  household arrangements  custodial would  the  is  in  each other  Similarly,  payments w i l l fetched  of  is  payments  to v i s i t  the  easily  parent  glad  parent.  that  It  single  parents  connection with opting out  one  on w e l f a r e .  single  b u t who r e c e i v e money f r o m  which could quite  recipients  of  the  monitoring  of  110  orders  and  the  demonstrate  e f f i c i e n c y with which d e f a u l t  the  mechanism i s  value  activated  Recognising its  expenditure  parent,  there  recovery burdens his  in  that  is  the  by  no o b j e c t i o n  taxpayer,  the the  should not  those c a s e s where This  of  proceedings in  between  State  State  the  in In  cases cases  procedure  to  onus on the  and  the  up  these  accepted  situation  proceedings.  the  the  not  to  or not  What the  by is  the  beginning  the  is  that  it  is  The  there  interest  quite  wrong  complexity or worry  to  informal  procedure which encourages i t s  personal v i s i t  to  that  that  the  advocating that,  payments,  the  enforcement  the  cases  process should not  other start  the  single  use.  the  for put  the the  acrimonious custodial improve  their  contemplated  parent This  A letter,  s h o u l d have s h o u l d be  telephone  those  involving  automatically,  it  is  an  call  suffice.  than  the  explicit.  that  is desired.  agency should a l l in  of  of  no n e e d  costly,  that  matter  n e c e s s a r i l y to  in  parent  replaced  advocated  is  for  proceedings  have s i m p l y been  not  involve herself  financial  single  the  s h o u l d b e made  is  natural  pursue him  d e c i s i o n or  payments, This  suggested i s  agency  the  c i r c u m s t a n c e s s h o u l d be a  payments  minimising  pass  to  head o f  payments  indicate  In  is  this so c r u c i a l .  in  of  s h o u l d be d i s s u a d e d f r o m s e e k i n g money w h i c h w i l l  financial  or  not  interest  e x p l a i n s why i t  involving welfare  is  in  to  is  automatically  parent  that  Whether  obligation  d e c i s i o n whether  interest  to  with  State  non-custodial parent.  s i n g l e parent It  State  natural  involving welfare not  the  begin automatically.  proceedings. parents  to  interest  enforcement  the  primary  the maintenance  lack  or  has a l e g i t i m a t e  be l e f t  who h a s no f i n a n c i a l  by w e l f a r e .  individual  State  If  dealt  computerised procedure.  the  the  proceedings. to  the  and e m p h a s i s i n g t h e  contribution  family  of  is  welfare accepted  to  Ill  that  some c u s t o d i a l  which are the  not  in  household.  difficult enforce  parents  may o m i t  accordance w i t h Nevertheless,  to d e t e c t  private  and  obligations  the  it  that  to  best  is  the  enforcement  interests  argued  State  unless  request  that  the  reasons  children  such reasons are  should not  its  of  for  take  own f i n a n c i a l  it  in  very  upon i t s e l f  interests  are  to  at  s take. iii  Conduct o f Steel's  review  conclusion  that  enforcement  of  own s h o u l d e r s It  is  in  the  complaint more the  numbers the  'when  ...  open  to  Manitoba,  the  of  shifts  recipient  them a n d ,  Neither  task  of  her  to  the  actively  in  the  enforcement  agencies  any debt  collection from  emotional  of  the  the  its 7  p r o c e e d i n g s once a  presumably  do  onto  significantly'.**  They are  collecting  Canada t h a t  for  increases  that State  leads  more  onus  enforcement  recommendation  in  the  economies d e r i v e d  cases. the  like  systems  itself  compliance  individual.  the  Orders  and  involves  conduct of  taken of  similar  Maintenance  state  rate  the  prosecution of In  the  the  than  can be  of  Canadian enforcement  maintenance  made b y  capable  advantage  of  efficient  is  options  proceedings  are  potentially  fully  informed  of  department,  processing conflicts  large  intrude  upon  money.  Committee  administrative  on E n f o r c e m e n t  powers  be  increased  of and  118 time spent There  are  defaulter example,  on j u d i c i a l options before  the  circumstances for  open the  proceedings to  the  court  defaulter  c a n be  by an o f f i c e r  a negotiated  to  settlement  curtailed  administrator  has b e e n before  he b r i n g s  show c a u s e why h e d i d  not  examined  to  with respect  of  the  court.  of  the  dispute.  This  implemented. the  pay. his  For financial  can s e r v e as  the  basis  112  In to  evaluating  administrative  f o c u s e x c l u s i v e l y on the  regular  and a u t o m a t i c  efficiently settlement  the  court  prospect of  relationship  Scandinavian  countries  for  of  between  have  proceedings.  compulsory procedures i f  and  former  the  to  the  how  the  dispute  The  value  of  maintenance  credible  non-custodial parent  the  household.  to  wrong  voluntary  resolution  with respect  b u t t r e s s e d by  the  be  No m a t t e r  pursued, a  systems which demonstrate  which are  would  c o l l e c t i n g money b y  a cheaper  payer  reaching settlements  responsibilities,  systems, i t  such proceedings are  and a b e t t e r  mechanisms  p o s s i b i l i t y of  initiation  and p r o m p t l y holds out  enforcement  prospect  fails  of  to a d d r e s s  his  119 responsibilities. In the  Sweden,  enforcement  child welfare of  obligations,  spent  on s u c h m a t t e r s .  close  adviser,  dispute.  the  intitially  if  a more  There  is  p o s s i b l e and  punitive  to  response.  information  authorities  are  responsible.  about 121  granted  no c o m p r o m i s e f r o m  clearly  the  reject This is  to  in  powers,  limiting  'great  deal  fixing  and  of  is  not  clear  to from  say  that  the w i d e  that  Is  in  to d e a l  the  an  action  access the  with  court  an a p p r o a c h w h i c h s t r e s e s  although settlement  position  the  effort  from u s i n g  the n o n - c u s t o d i a l p a r e n t w h i c h  that,  of  for  enforcing  a determination refrain  time  officer  seek a s e t t l e m e n t a  including  judicial  has a p a r t i c u l a r  paternity,  is  It  to  out,  p e r s o n a l manner,  be a n y l e s s p u r p o s e f u l .  personal  it  determining 120  maintenance'.  proceedings  is  whose r o l e  integrated  effective  The s i n g l e parent  of  goes i n t o  problem i n  will  part  are  A s C o c k b u r n and H e c l o p o i n t  Scandinavia  private  officers with  taken  to Swedish  desired,  the n o n - c u s t o d i a l p a r e n t  there is  a  113  It  has a l r e a d y  complaint is  that  designed  the  to  been argued custodial  enable  her  non-custodial  parent's  determination  of  if  it  the  implements  Administrative fairly  that  parent  to  the  payer  has an a l l y  vindicate  her  rights  issues  has b e e n made,  a scheme t o  schemes a r e  preclude  open to  the  the  criticism  Possibilities  for  The s i m p l i c i t y w i t h w h i c h c o u r t  may b e r i g i d l y  particular  dispute.  from a wide  a n image o f  power.  be a r g u e d parents  that  that  systems.  it  abuse  of  exercise courts  It is  to  ensure  the  authority  is  about  If  an  impartial  abuse o f  the  the  into  that  it  fairly  are  orders.  not  treated  Personal  leading  bodies  to  of  a  or  failure  properly  deal  the  to  with to  to  propounded particular  the  facts  computerised  of  system  and c o n s t a n t l y m o n i t o r e d laudable  purposes.  implementation  executive The  to  is  given  seek  already to  individual  treated.  for  the  the  discretion is  the  compromised  It  is can  e c o n o m i c power b y n o n - c u s t o d i a l  persists.  powers  not court  payers  being paid  efficiency  image o f  There  is  the  p r o c e e d i n g s may b e  how  no r e g a r d  entered  victimisation  aware o f  need  to,  area  the d i s c r e t i o n .  the  ideas  t h e momentum f o r  administrative  are  emphasise  from o t h e r  seductive,  c o u l d be e x e r c i s e d  Nevertheless,  of  to  Guidelines quite  The v e r y  the  produced  purposes of  with  adhered  with orders  the  options.  supply administrators  cases the  less punitive  which  and  abuse abound.  disclosed.  to  a bureaucracy  State  if  may b e u n n e c e s s s a r i l y t r a n s f e r r e d  and p r o s e c u t e d may p r o v e  legitimate  avoidance of  information  use o t h e r  in  continuing responsibility.  and r e a s o n a b l y .  instituted  has no  judicial  powers  remedy  review  some e v i d e n c e  finds  such  using its  traditional  enforcement who  of  himself  the  for  of  the  that  the  authorities  for  and  of  opponent  of  114  It  is  clear  that  the  implementation  of  the  S u p p o r t and C u s t o d y  122 Orders Enforcement Act which of  the  the  courts  Director  had of  in Ontario  to  correct.  Support  and c u s t o d y o r d e r s  ...  in  was n o t w i t h o u t the  Act,  and C u s t o d y E n f o r c e m e n t  'to  the  By s 2 ( 2 )  manner,  if  of  teething  any,  that  it  problems  is  the  enforce  appears  duty  support  practical'.  123 Costello  v Somers  investigated custody of pay c h i l d for  the  the  ambit  her  provisionally  one c a s e i n w h i c h of  child of  support.  a baby o f  amount  is  the  into  the  pursuant  order  to  provisional  confirmed  about  a year  required  documentation  provisional for  because of  order,  to  had  ordered  the  curious  argument  leeway  return  Director  because  to  by  and 19 o f  the  Ontario  Ontario.  the  bear  system o f  former  w i f e was o r d e r e d  seized  car  the  the  to  satisfy of  the  Divorce Act to but  was  have  and  the 124  1985.  t h e r e was a  wife's it  to of  car.  No  search  transpired  lien.  the  the  The  infancy but  that  court A  s h o u l d be a l l o w e d its  delay  send  needless seizure.  in  care  the  failure  a prior  the D i r e c t o r  enforcement  to  to  Queen's Bench  by k n o w l e d g e  former  job  and r e d u c i n g  authority's  i n Manitoba  costs  that  courts  Undeterred  her  Court of  the  has  h u s b a n d had  when s h e l e f t  the M a n i t o b a n  was a d v a n c e d  the  the  Supreme C o u r t  former  a p p l i c a t i o n was made  the D i r e c t o r  to  The  by r e m i t t i n g a r r e a r s  i n c u m b r a n c e s had b e e n u n d e r t a k e n  the D i r e c t o r  Ontario  The Manitoba  s s 18(2)  to O n t a r i o ,  order  and  arrears  second m a r r i a g e .  When s h e r e t u r n e d  of  discretion.  marriage  She f e l l  varied  payable  this  the  more  this  was  rejected: ' t h e r e i s n o t h i n g novel about making a proper i n v e s t i g a t i o n The D i r e c t o r settled net  unless  wages.  also  the  This  adopted  defaulter  rigid  a p o l i c y whereby  agreed  policy,  s e i z i n g c h a t t e l s nor p r i o r to s e i z u r e . ' 125  which  to  no d i s p u t e w o u l d  an a t t a c h m e n t  gave  the  lawyer  of  one h a l f  representing  be of  his the  115  D i r e c t o r no room to n e g o t i a t e and disapproved Glover  126  thereby save  o f by two P r o v i n c i a l C o u r t judges  and D i r e c t o r of Support v M c l n t y r e  Vogelsang  time and  expense,  was  i n D i r e c t o r o f Support  127  .  I n the l a t t e r  v  case,  P r o v . J . commented:  'Any r i g i d adherence to the 50 per cent exemption ... w i t h o u t any chance f o r movement o r freedom to n e g o t i a t e i n accordance w i t h e x i s t i n g c i r c u m s t a n c e s , I t h i n k , i s u n f a i r to d e b t o r s g e n e r a l l y and, c o l l a t e r a l l y , to c o u n s e l a p p e a r i n g f o r the d i r e c t o r . ' 128 F l e u r y DCJ.  i s not so ready  to c r i t i c i s e  the D i r e c t o r ' s 129  inflexibility judge had  i n D i r e c t o r of Support v C o u l i n g .  transferred  d e f a u l t e r ' s earnings  A provincial court  the D i r e c t o r ' s a p p l i c a t i o n to a t t a c h the to the c o u r t most convenient  to the d e f a u l t e r ,  a p p a r e n t l y out o f e x a s p e r a t i o n a t the D i r e c t o r ' s u n w i l l i n g n e s s to negotiate.  F l e u r y DCJ. d i s a p p r o v e d  D i r e c t o r ' s stance and  of j u d i c i a l c r i t i c i s m of  the  continued:  ' L i t i g a n t s have every r i g h t to p r e s s t h e i r c l a i m s to the f u l l e x t e n t a u t h o r i s e d by law. T h i s i s even more so i n the case o f an o f f i c i a l appointed by the government to eliminate longstanding i n j u s t i c e s . ' 130 As P r o f e s s o r McLeod p o i n t s out i n h i s a n n o t a t i o n , t h i s i s a move towards r e c o g n i t i o n of the D i r e c t o r as a s p e c i a l l i t i g a n t w i t h an enormous 131 caseload. policies,  I f i t i s adjudged unreasonable the promptness and  f o r the D i r e c t o r to adopt  e f f i c i e n c y of the agency i s undermined.  the o t h e r hand, i f the j u d i c i a r y adopts an a b s e n t i o n i s t s t a n c e , may  be a f a i l u r e  to balance  f a i r n e s s o f treatment  p u r s u i t of the s t a t u t o r y purposes  f o r the s u b j e c t o f the enforcement  there  against  procedure.  On  116  Chambers a l s o  expresses concern about  how d e c i s i o n s a r e made  within  132 the  agency charged w i t h e n f o r c i n g maintenance  d e c i d e d who  is  to  m e a s u r e s when  punitive  to  characteristics?  be b r o u g h t  reason,  a g e n c y ' s work  valid is  open to  which  to  the  full  How i s  and who  is  to  many c a n d i d a t e s w i t h risk  of  enforcement  be  the  it  subjected  same  measures  g r o u p s who m a y ,  for  being some  others? it  is  important  scrutiny  it  those  and  to  that  the  judicial  is  the  can lead  to  problem.  order  to  a lack  It  in  clearly  charged w i t h b r i n g i n g  involved  atmosphere  enforcement  review  o c c u r when a b o d y h a s a  dimensions of  that a competitive  court  particular  inevitably  The eagerness o f  with respect reason  than  public  a i m and a p r o j e c t  fruition.  the  against  the  are  c o n c e r n s and  curb excesses which  defined  is  b e more v u l n e r a b l e  These are  to  there  How g r e a t  used d i s p r o p o r t i o n a t e l y  before  orders.  is  of  for  insight  this  amongst c o l l e c t i o n a g e n c i e s  in  133 different  regions  equipped w i t h above,  there  undesirable  the is  shoud n o t integrated  the d a n g e r  ethos  be  that  fostered.  powers  that  the  the  of  problem o f  non-custodial parents  the  as a f i n a n c e  It of  the  is with State  to  be w e l c o m e d . parent expense  to  bear  the  default  deal  conduct of  alone.  and d e l a y  all  the  that  enforcement  Complications of militated  against  proceedings.  A v o i d a n c e by w e a r i n g  down  possibility.  It  State  is  right  be  not  discussed  imbued w i t h  the  s i m p l y due  to d e a l  to  the  with default  in  company. i n mind  The burden o f  agency i s  arises  and b e g i n  these dangers with  the  Swedish model  agency w i l l  stubbornness of same manner  If  that  the  the  establishment  enforcement was  too  great  procedure,  of  agencies  proceedings for  renewed  the  is  single  acrimony,  a successful  c o n c l u s i o n to  the w o u l d - b e  e n f o r c e r was  s h o u l d seek  to  to  correct  an  the a  117  u n s a t i s f a c t o r y p o s i t i o n by implementing c e n t r a l i s e d , procedures  which r e l i e v e the c u s t o d i a l p a r e n t o f the s t r a i n of  commitment to the p r o s e c u t i o n of the p r o c e e d i n g s . crucial  methodical  to r e c o g n i s e  personal  I t i s , however,  the p o t e n t i a l f o r a r b i t r a r y measures a g a i n s t  i n d i v i d u a l which such schemes i n v o l v e and  to a v o i d f o s t e r i n g too  an a t t i t u d e amongst those a d m i n i s t e r i n g i t .  T h i s i s not  the zealous  to argue f o r  i n e f f i c i e n c y but f o r a p p r e c i a t i o n o f the need f o r f a i r n e s s towards non-custodial The  the  parent.  establishment  o f such agencies  i s also d e s i r a b l e i n connection  w i t h c o l l e c t i n g payments from o t h e r j u r i s d i c t i o n s , whether i n t e r n a t i o n a l l y o r w i t h i n a f e d e r a l system. bodies w i t h computerised c o - o p e r a t i o n envisaged  The  i n f o r m a t i o n banks should  existence of facilitate  by enactments such as P a r t 4.1  specialist the  o f the  British  134 Columbian F a m i l y R e l a t i o n s A c t .  Similarly,  the o p e r a t i o n o f  U n i f o r m R e c i p r o c a l Enforcement o f Support Act i n the U n i t e d be  improved by  the e x i s t e n c e o f b e t t e r o r g a n i s e d  States  c e n t r a l agencies  which the S t a t e r e q u e s t i n g enforcement can submit i n f o r m a t i o n . complains  that presently, although  to s i n g l e parents  seeking  i n numerous d i f f e r e n t  e s t a b l i s h i n g a bureaucracy i t would a s s i s t S t a t e s and may  to  Takas  the  to implement amendments recommended by  Conference o f Commissioners on U n i f o r m S t a t e Laws i n 1958  resulted  may  the A c t i s o f p o t e n t i a l l y g r e a t v a l u e  to e n f o r c e a c r o s s S t a t e boundaries,  f a i l u r e of States uniformly  the  systems a c r o s s  the c o u n t r y .  would not d i r e c t l y a f f e c t  the p r o c e s s i n g o f r e q u e s t s  this  and 135  1968  the has  Whilst incongruence,  f o r enforcement from o t h e r  even p r o v i d e momentum f o r f u r t h e r change.  118  6*  Enforcement: A F i r s t At  that of  this  it  p r o m p t and f u l l  time,  the  stage,  Is  material  enforcement  discussed to  believe  above, that  standard  standard  or  a standard  ensuring  that  the  the  of  intervention  families  without of  the  will  any r e l i a n c e order  is  be a b l e  to  for  is  in  it  a  can a f f o r d  is  that  This  it  absent  be  a  an  minimum  parent,  to  unlikely  by motive  reduce  that  standard of  b e c a u s e no o r d e r  the  single  c o u l d be b e c a u s e t h e  purpose or  solve  the  would  process is  very  terms  will  A l t h o u g h one  an a p p r o p r i a t e  funds.  in  basis of  certain  full.  proved  a cost,  can a t t a i n  the  enforcement  attain  the  this  Family?  has been  On t h e  family  that of  families,  on p u b l i c  inadequate  parent  the  to  it  conclusion is  honoured  in  amount s p e n t on s i n g l e p a r e n t parent  problems.  whether  comparable are  ask whether  single parent  proper  living,  court orders  State's  the  single  Single Parent  support orders at  financial the  the  to  of  which  family's  appropriate  for  pertinent  money and e n e r g y ,  s i n g l e parent  mistake  Priority; for  living amount  has  been  obtained. If orders that  it  is  accepted  proceed so f a r  intervention  at  that only a proportion of as  the  to  obtain  stage of  an o r d e r ,  it  e n f o r c i n g the  c a n n o t be order w i l l  of  This  imply  f o c u s s h o u l d be o n e n f o r c i n g t h e  support the  rather  rationale  order  to  intervention pressure  than on e n f o r c i n g for  ensure  opportunity  to  to  the  intervening  t h a t more o f obtain  takes  the  vindicate  at  the  t h o s e who  form of  order,  an e a r l i e r  a court order.  rights  court  single  are  stage of eligible  The extent  a s s i s t a n c e to  will  parent  for  effect  obligation would  process  t a k e up  to w h i c h  a  families.  this the  for  maintained  redistribution that  all  eligible  beneficial would  income f o r  those  those r e q u e s t i n g  d e p e n d u p o n how c o n c e r n e d  supply in  the  this  earlier it  the  to  or  119  authorities  are  non-custodial  not  prejudice  single  it  parent  on them. and  programmes  to  it  was  be a k i n  context  of  there  is  disputes which  is  the  requests  it.  individual should  to  clear  of  clear  payment intact.  that of  the  the  the  to  is  and  the  it  ideal  the  people  that  r e s o u r c e s to  power  to  use  the  interest,  jail,  place  in  with those  taken,  its for  for  is  for  the  of  the  removed  regular  to  not  payments b u t attaching a  forfeited  his  more  payment What  in  recipient  cases  of  deleterious  and  is when  in  support  effects  on  the  whom he s h o u l d be p r o v i d i n g , the  persistent  is well  should not  defaulter  suited  not  to  not to  who  merely the  be u s e d u n t i l  sufficiently  right is  the  conciliate  if,  from  awareness  agency,  agency.  courts  public  such  a t t a c h wages o n a c o n t i n u o u s b a s i s ,  r e s p o n s i b l e payment  promoted.  those  T h e more  attempt  the  of  entirely  is within  patterns  does  programme w e r e  involved.  there  only  worthwhile  would d e c r e a s e  collection agencies,  the  periodical  payer  an  families  situation  it  p r o s p e c t i v e enforcement  s u p p o r t and h a s  intervention  financial  d i s c r e t i o n s vested  its  This  Otherwise,  the  that  and p o s s i b l y o n  of  parent  programme w o u l d be  promoting future  by a power  nature  single  was u n d e s i r a b l e  The s a n c t i o n o f  arrears.  recurrent  of  enforcement would  suggested to d e b t  b e removed and  i n work,  obligation  of  h a s no f i n a n c i a l  jailed  is  the  Possible features  but w i t h  State  the  with court orders  an agency w i t h  arise  number o f  improve  support debt  a v o i d i n g abuse of  envisaged  is  total  domestic circumstances of  likelihood of  the  somewhat  families  considered  the  primacy of  a c o m p r e h e n s i v e programme o f  a conclusion that  would  expenditure  of  that  a proportion of  because  the  e m p h a s i s e the  parent.  Admitting affect  to  high priority  receive his  respected  wages  and n e e d l e s s  it to  120  I t should be c l e a r t h a t the p o s i t i o n advocated i s t h a t of  o r d e r s , no matter how  enforcement  s w i f t and p e r s i s t e n t , i s no panacea f o r the  problems faced by s i n g l e p a r e n t f a m i l i e s . t h a t there should be improvements a r r e a r s , i n c l u d i n g an enhanced  N e v e r t h e l e s s , i t i s argued  to the procedure f o r r e c o v e r i n g  r o l e f o r the S t a t e which has a l e g i t i m a t e  i n t e r e s t i n p r i v a t i s i n g support o b l i g a t i o n s .  I t i s not accepted t h a t  enforcement i s a b u r e a u c r a t i c e x e r c i s e from which the s i n g l e p a r e n t f a m i l y can d e r i v e no s i g n i f i c a n t b e n e f i t . of  Improved  enforcement i s p a r t  the s o l u t i o n but i t i s not enough i n i t s e l f . What a r e the consequences o f such an approach to the enforcement o f  support o b l i g a t i o n s ?  T h a t new  domestic r e s p o n s i b i l i t i e s  should e n t i r e l y  s u p p l a n t those d e r i v e d from former r e l a t i o n s h i p s i s not accepted but, i n p u r s u i n g a p o l i c y which i n v o l v e s  the promotion o f r e s p o n s i b i l i t y o f  members o f the former household amongst n o n - c u s t o d i a l p a r e n t s , the r i s k of  u n i n t e n t i o n a l l y i m p o v e r i s h i n g the payer's second household must be  recognised.  Bissett-Johnson refers  to the p r o s p e c t s f o r a second  household whose r e s o u r c e s a r e d e p l e t e d by support payments but which i s not  r e c e i v i n g payments due from the absent p a r e n t o f c h i l d r e n l i v i n g i n 136  it.  The e q u i l i b r i u m p o s i t e d by a system which a s s e r t s the primary  o b l i g a t i o n of the n a t u r a l p a r e n t i s q u i c k l y upset by such 137 non-compliance.  The q u e s t i o n which Chambers poses  i s when w i l l  the  s u c c e s s i v e r e - o r g a n i s a t i o n o f f a m i l i e s reach such a p i t c h t h a t i t i s no l o n g e r a p p r o p r i a t e , indeed merely a n o s t a l g i c anachronism, f o r the S t a t e to  seek to a s s e r t the r e s p o n s i b i l i t y o f the b i o l o g i c a l p a r e n t .  This  p o i n t p r o b a b l y w i l l not be reached i f c l o s e r l i n k s between c h i l d r e n and absent p a r e n t s a r e f o r g e d . I t i s n e a r e r a t hand i f Chambers' o t h e r 138 'plausible future' o f s t e a d y disengagement between absent p a r e n t s and  121  children parent  is  the  family  one  that  does not  comes t o  merely  pass.  cast off  In  such a w o r l d ,  its  the  image as p a r t  of  single  the  'little  139 cluster  of  deviants  from  the m a r i t a l  not deprived or d i s a b l e d . independent  single  Ironically,  i m a g e may d i m i n i s h  the a b s e n t p a r e n t parent  or  the  society at  family  to  norm'  but  the  assumption of  sense of  large,  becomes u s u a l , a  normal,  strong,  r e s p o n s i b i l i t y , whether  in  w h i c h has p a r t l y  enabled  the  become e n f r a n c h i s e d , and h e r a l d  another  downward  spiral. The b a s i c danger enforcement households  of  system i s in  that  poverty.  investigation  of  the  proposed endorsement o f  it  may r e s u l t  Harris,  an a p p r o p r i a t e  improved  in a re-arrangement  M c D o n a l d and W e s t o n , formula  an  for  of  in  their  calculating  child  140 support,  g r a p h i c a l l y demonstrate  who d o e s n o t  receive  support from a former  a disproportionately procedure.  best considered in  c a l c u l a t i o n of  entitlements.  impoverish  payer,  balance  between  Another is  that  their  the  it  is  parties  If  the  result  an i n d i c a t i o n  p o s s i b l e consequence of  h o u s e h o l d s where  enforcement  process.  children  the  in  an i n i t i a l l y  former  of  that  the  be a f f e c t e d  apparently  context  of  the  order  is  in  fair  the  e n f o r c i n g an o r d e r  an improved  they w i l l  awry  enforcement  is for  to the  disappear rather be  easily  procedure  than s t a y  a c c e s s i b l e to  T h i s a b a n d o n m e n t may b e more d e t r i m e n t a l h o u s e h o l d than  aggressive attitude  a g e n c y may be c o u n t e r - p r o d u c t i v e . p u n i t i v e manner  would  partner  has been u p s e t .  some n o n - c u s t o d i a l p a r e n t s w i l l  former  partner  a d v e r s e manner by a n o t h e r w i s e  The problem i s  the  how men w i t h a new d e p e n d e n t  the  failure  towards d e f a u l t A p o l i c y of  of d e a l i n g w i t h d e f a u l t  to by  pay. the  which s t i l l  the to  This  is  collecting  s e e k i n g the  least  holds out  near  the  the why  122  prospect and a v o i d  of  effectiveness  alienation  of  may e n a b l e  the  additional  non-custodial  money  parent.  to  be  collected  123  Footnotes  I.  H.R. Hahlo, ' C h i l d Support: a G l o b a l View' i n J . C a s e t t y , ed, The P a r e n t a l C h i l d - S u p p o r t O b l i g a t i o n ( L e x i n g t o n : L e x i n g t o n Books 1983) p 195 a t p 203.  2  *  Sujjra, f o o t n o t e 1 a t pp 203-204.  3  *  Supra, f o o t n o t e 1 a t p Support  205.  4.  M. Takas, C h i l d  (Harper and Row  1985)  p  15.  5.  See M. H a r r i s , P. McDonald and R. Weston, 'Payment o f C h i l d Maintenance i n A u s t r a l i a ' (1987) 1 I n t e r n a t i o n a l J o u r n a l o f Law and the F a m i l y p 92 a t p 110.  6.  Supra, f o o t n o t e 5 P a r t I I passim.  7*  Supra, f o o t n o t e 5 a t p  8.  A. Sorenson and M. MacDonald, 'An A n a l y s i s o f C h i l d - S u p p o r t T r a n s f e r s ' i n J . C a s e t t y , ed, supra, f o o t n o t e 1 a t p 35.  9.  Sorenson and MacDonald, supra, f o o t n o t e 8 a t p 37.  10.  Sorenson and MacDonald, supra, f o o t n o t e 8 a t p  II.  Loc. c i t . .  12.  Supra, f o o t n o t e 8 a t p  13.  Loc. c i t . .  1^*  Supra, f o o t n o t e 8 a t p  15.  Sorenson and MacDonald, s u p r a , f o o t n o t e 8 a t pp 55-56.  16.  M. Maclean and J.M. E e k e l a a r , 'The F i n a n c i a l Consequences o f D i v o r c e : the Wrong Debate' i n M. Brenton and C. Ungerson, eds, The Year Book o f S o c i a l P o l i c y i n B r i t a i n 1985-6 (London: Routledge and Kegan P a u l 1986) p 42 a t p 53.  17.  H a r r i s , McDonald and Weston, s u p r a , f o o t n o t e 5 a t p  18.  D.L. Chambers, Making F a t h e r s Pay 1979) p 245.  19.  Chambers, supra, f o o t n o t e 18 a t p 245 comments t h a t p r a c t i c e i n State courts regarding c o n s t i t u t i o n a l p r o h i b i t i o n s against j a i l i n g f o r debt i s almost u n i f o r m .  110.  41.  45.  42.  97.  (Chicago: U n i v e r s i t y o f  Chicago  124  20.  A. Wachtel and N. B u r t c h , Excuses Lower Mainland 1981).  (Vancouver: U n i t e d Way o f the  21.  Takas, supra, f o o t n o t e 4 a t p 8.  22.  Supra, f o o t n o t e 4 a t p 148.  23.  See I n r e Robinson (1884) 27 Ch D 160 and Sugden v Sugden [1957] P 120. Supra, f o o t n o t e 16 a t p 53.  25.  Report o f the Committee on One-Parent HMSO 1974) (The F i n e r R e p o r t ) .  26.  Supra, f o o t n o t e 25, para 4.90.  27.  Supra, f o o t n o t e 25, paras 4.72-4.90.  28.  Supra, f o o t n o t e 25, para 4.87.  29.  Supra, f o o t n o t e 25, para 4.88.  30.  See O.R. McGregor, L . Blom-Cooper and C. Gibson, Separated (London: Duckworth 1970).  31.  McGregor, Blom-Cooper and Gibson, s u p r a , f o o t n o t e 30 a t p 70.  32.  Report o f the Committee on S t a t u t o r y Maintenance (London: HMSO 1968).  3 3  •  F a m i l i e s , Cmnd 5629  (London:  Spouses  L i m i t s , Cmnd 3587  Supra, f o o t n o t e 32, para 103. Supra, f o o t n o t e 25.  35.  See The F i n e r R e p o r t , s u p r a , f o o t n o t e 25, s e c t i o n 4.6 and McGregor, Blom-Cooper and Gibson, supra, f o o t n o t e 31.  36.  Supra, f o o t n o t e 25, para 4.90.  37.  The Canadian I n s t i t u t e f o r R e s e a r c h , M a t r i m o n i a l Support F a i l u r e s (Edmonton: The I n s t i t u t e o f Law Research and Reform 1981).  38.  Supra, f o o t n o t e 37 a t p 21.  39.  Ibid..  40.  Ibid..  41.  Ibid..  42.  Supra, f o o t n o t e 37, Survey o f Men, para 4.0.  125  43.  Ibid..  44.  Sjapra, f o o t n o t e 37 a t p 22.  45.  Supra, f o o t n o t e 37, Survey o f Men, para  13.14.  46.  Supra, f o o t n o t e 37, Survey o f Men, para  13.15.  47.  Supra, f o o t n o t e 25, para  48.  Supra, f o o t n o t e 37 a t p 16.  49.  L . J . Weitzman, The D i v o r c e R e v o l u t i o n (New York: Free P r e s s  4.90.  1985)  a t p 296. 50.  See p 72 above.  51.  M. H a r r i s o n and T. Tucker, 'Maintenance, Custody and A c c e s s ' i n P. McDonald, ed, S e t t l i n g ; Ug (Sydney: P r e n t i c e H a l l 1986) a t p 266.  52.  Supra, f o o t n o t e 51 a t p 267.  53.  The Canadian I n s t i t u t e f o r Research,  54.  Supra, f o o t n o t e 37 a t p 22.  55.  Supra, f o o t n o t e 37, Survey o f Men, para 13.16 and Survey o f Women, para 13.2.  56.  H a r r i s o n and Tucker,  57.  The Canadian I n s t i t u t e f o r Research, Men, para 13.3.  5 8  *  supra, f o o t n o t e 37 a t p 21.  supra, f o o t n o t e 51 a t p 266. supra, f o o t n o t e 37, Survey o f  Supra, f o o t n o t e 18 a t p 128.  59.  H a r r i s o n and Tucker,  60.  Supra, f o o t n o t e 37, F a m i l y Court Records Study, para  61»  Supra, f o o t n o t e 18 a t p 111.  62.  Supra, f o o t n o t e 18 a t p 277.  63.  Chambers, supra, f o o t n o t e 18 a t p 126.  64.  K. E c k h a r d t , ' S o c i a l Change, L e g a l C o n t r o l s and C h i l d Support' ( u n p u b l i s h e d : 1965) b u t see Chambers, supra, f o o t n o t e 18 a t p 130.  6  5  .  66.  supra, f o o t n o t e 51 a t p 265.  Supra, f o o t n o t e 18 a t p 132. Chambers, su_p_ra, f o o t n o t e 18 a t p 135.  3.2.1.  126  67.  Chambers, supra, f o o t n o t e 18 a t p  68.  Supra, f o o t n o t e  69.  Of a l l the s t u d i e s reviewed, o n l y Maclean and E e k e l a a r , supra, f o o t n o t e 16, so much as suggest that t h i s i s not the case.  70.  Chambers, supra, f o o t n o t e 18 a t p  71.  Law Reform Commission o f Canada, The (Ottawa: The Commission 1974) p 51.  7  Supra, f o o t n o t e 18 a t p  2  .  73.  118.  18.  245. FamilyjQpujr t» Working Paper 1  258.  jjuj_ra, f o o t n o t e 18 a t pp 258-9. Supra, f o o t n o t e 18 a t p  152.  75.  T h i s Report was produced by the F e d e r a l - P r o v i n c i a l Committee on Enforcement o f Maintenance and Custody Orders i n Canada i n 1983.  76.  F i n a l Report o f the_ Committee on Enforcement o f Maintenance Orders i n Canada (1983), see supra, f o o t n o t e 75 a t p 12.  77.  1980  78.  Supra, f o o t n o t e 18 a t p  154.  7  Supra, f o o t n o t e 18 a t p  267.  80.  Supra, f o o t n o t e 18 a t p  260.  81*  Supra, f o o t n o t e 25, para 4.142.  82.  House o f Commons (U.K.) O f f i c i a l Report, column 1542,  83.  Chambers, supra, f o o t n o t e 18 a t p  84.  Supra, f o o t n o t e 18 a t p  85*  Supra, f o o t n o t e 25,  86.  Chambers, supra, f o o t n o t e 18 a t p  8  Supra, f o o t n o t e 18 a t p  9  7  .  .  88. 8 9  •  90. 9 1  *  (N.B.), c. C-2.1.  12th December  248.  249.  para 4.169. 249.  244.  Chambers, supra, f o o t n o t e 18 a t p  20.  Supra, f o o t n o t e 25, para 4.163. The  F i n e r Report,  s u p r a , f o o t n o t e 25 a t para 4.169.  Supra, f o o t n o t e 18 a t pp 101-2.  1957,  127  92.  T h i s i s J.M. E e k e l a a r ' s argument i n c o n n e c t i o n w i t h the F i n e r Committee's p r o p o s a l to a s s e s s maintenance a d m i n i s t r a t i v e l y . J.M. E e k e l a a r , ' P u b l i c Law and P r i v a t e R i g h t s : the F i n e r P r o p o s a l s ' (1976) P u b l i c Law 64 a t p 72.  93.  Weitzman, supra,  94.  See Takas, supra, f o o t n o t e 4 a t p x i i .  95.  See Takas, supra, f o o t n o t e 4 a t p 7 and Weitzman, f o o t n o t e 49 a t p 307.  96.  H. Jacob, 'The Changing Landscape of F a m i l y P o l i c y and (1987/8) 21 Law and S o c i e t y Review 743.  97.  Jacob, supra, f o o t n o t e 96 a t p  98.  Takas, supra, f o o t n o t e 4 a t p  99.  Bill  100.  F a m i l y Orders and  101.  FOAEA s  102.  FOAEA s 4.  103.  FOAEA s  104.  FOAEA ss  105.  F.M. (2d)  106.  Supra, f o o t n o t e 25,  107.  Loc.  108.  H a r r i s o n and Tucker, supra, f o o t n o t e 51 a t p  109.  Supra, f o o t n o t e 105  110.  Supra, f o o t n o t e 76 a t p 7.  111.  Supjra, f o o t n o t e 105  112.  Supra, f o o t n o t e  113.  1986  c  .  supra,  Law'  747. 55.  5. Agreements Enforcement A c t 1986  ('FOAEA') s  e  15.  3.  13. 7-12.  S t e e l , 'Maintenance Enforcement i n Canada' (1986) 182 a t p 210.  50  RFL  para 4.156.  cit•  at p  266.  198.  a t pp 210-5.  18.  I n 1970, 74% o f maintenance o r d e r s i n the UK were d i v e r t e d . J l - X i - A - J * P ° f » supra, f o o t n o t e 25, T a b l e 4.12.  T  114.  C-48,  f o o t n o t e 49 a t p 263  See  r  n  r  e  r  A. B i s s e t t - J o h n s o n , 'The Maintenance J u n g l e ' supra, f o o t n o t e 1 a t p 210.  i n Cassetty,  ed,  See  128  115.  See S t e e l , supra,  f o o t n o t e 105 a t pp 210-5.  116.  Supra, f o o t n o t e 105 a t p 214.  117.  Supjra, f o o t n o t e 105 a t p 200.  118.  Supra, f o o t n o t e 76 a t p 9.  119.  See C. Cockburn and H. H e c l o , 'Income Maintenance f o r One-Parent F a m i l i e s i n Other C o u n t r i e s ' , Appendix 3 to The F i n e r Report, supra, f o o t n o t e 25, paras 131-144.  120.  Supra, f o o t n o t e 119, para 137.  121.  Loc. c i t . .  122.  S.O. 1985, c 6.  123.  (1988) 11 RFL (3d) 220.  124.  S.C. 1986, c 4.  125.  D o y l e LJSC i n C o s t e l l o v Somers, s u p r a ,  126.  (1988) 11 RFL (3d) 58.  127.  (1988) 11 RFL (3d) 89.  128.  Supra, f o o t n o t e 127 a t p 91.  129.  (1989) 17 RFL (3d) 53.  130.  Supra, f o o t n o t e 129 a t p 57.  131.  J.G. McLeod, a n n o t a t i o n o f D i r e c t o r o f Support v C o u l i n g , f o o t n o t e 129 a t p 53.  132.  Supra, f o o t n o t e 18 a t pp 247-9.  133.  c f ' C h i l d Support Report', p u b l i s h e d by the O f f i c e o f C h i l d Support Enforcement i n the U.S.A., which p e r i o d i c a l l y gives league t a b l e s o f r e c o v e r y by d i f f e r e n t s t a t e s . One danger i s t h a t o r d e r s from o t h e r s t a t e s w i l l r e c e i v e a low p r i o r i t i s a t i o n because the p a r t i c u l a r o f f i c e w i l l r e c e i v e no c r e d i t f o r the enforcement o f the ' f o r e i g n ' o r d e r .  134.  R.S.B.C. 1979, c 121.  135.  Supra, f o o t n o t e 4 a t p 21.  136.  Supra, f o o t n o t e 114 a t p 220.  f o o t n o t e 123 a t p 220.  supra,  129  137.  D.L. Chambers, 'The Coming C u r t a i l m e n t o f Compulsory C h i l d Support' (1982) 80 M i c h i g a n Law Review 1,614.  138.  Supra, f o o t n o t e 137 a t p 1,626.  139.  The F i n e r Report,  140.  Supra, f o o t n o t e 5 a t p 119 e t s e q . .  supra, f o o t n o t e 25, para  2.4.  130  CHAPTER 5 L I M I T I N G THE IMPACT OF J U D I C I A L  In  the  previous chapter,  of  s i n g l e parent  a  system designed  orders. for  families to  o n e and  that  the  welfare  of  the  State is  not  single  financial  interest  other.  in  parent's  p a y m e n t and  the  the  were  that for  family.  the  Due  State, the  the  the  $50  of  child  by p u t t i n g  place  maintenance  secured  in  but  the  have not  securing compliance furthering  availability parent  Whether  are is  set  it  off  the of  may h a v e n o is  same b e c a u s e t h e  support,  in  an o r d e r  single  there  problems  nothing  to  order.  the U . S . A . ,  financial  s u c h a mechanism does  n e c e s s a r i l y connected w i t h  income remains  in  the  payment o f  Interest  s o c i a l a s s i s t a n c e payment  first  that  solved merely  eligible  enforcing  Sometimes, as  may k e e p  forward  parent  a s s i s t a n c e from  single  be  has a m a t e r i a l  financial  the  would n o t  potentially  w i t h orders which  was a r g u e d  e n s u r e p r o m p t and f u l l  The r e a s o n s p u t  t h o s e who a r e  it  DISCRETION  paid  not,  maintenance  against  a disregard: a  regardless of  or  the  each recipient  recoupment  provisions.* To d e v e l o p orders of  can never  securing a  order fulfil  the  itself  provide a  transfer may b e  and s i m i l a r l y  differently  argument  of  resources are  situated  with respect  it  c a n be s a i d  solution until  inadequate  p r o p o s i t i o n which w i l l replacement  of  further,  to  for  the  earlier  the  amount  be i n v e s t i g a t e d  the d i s c r e t i o n a r y  steps  reformed.  In  purpose which  i n d i v i d u a l s may b e they in  system of  the  process  particular, it  to  chapter  judicial  enforcement  in  is  treated  a r e due  this  that  supposed  quite  receive. is  the  The  that  adjudication  is  to  of  131  essential  if  the  alleged  inconsistency of overcome.  obtain  such measures  enforcement Would  orders  the  calculating  eradication of  child  support  are  identified  would  only  be  and w h e t h e r  the  the  courts  rigid  Another should  in  in  extent  effect  of  are  ensure  to  be  the  how h i g h  a the  generous  guidelines  issue is  in  been  whether  jurisdiction acute  where  of  the  need  to  strike  settlement  and  support  award.  as a n a d j u n c t part  for  of  it,  separate  to  the  for  of  this  for  to of  and  capital  ratify  Such  are  spousal or  income  capital  chapter. There  of  problems  matters  of  settlement child  negotiated than would  support, settlements  have  been  the  applied. the  of  standards  property  character.  transfer  financial be more  fixed  straightforward  spousal support w i t h a system  guidelines  court's  candidate  the  and u n r e l e n t i n g  d i s c r e t i o n be a  to w h i c h a generous  Problems  an i n t e g r a l  and  no m a t t e r  how e f f i c i e n t  section four  support.  wrongly,  orders  individuals  parents,  connection with  spousal  because  of  system w i l l  a system of  perhaps  be a p p r o a c h e d d i f f e r e n t l y  may w e l l  single  s h o u l d be empowered  embody a l e s s  c a s e had  present  judicial  administrative  s u c h as  moderate  of  and  resources  which  of  co-ordinating  adjudication  should  the  amount  situated  and no m a t t e r  discretionary  principle  the  process.  Problems  not  in  similarly  economic d i s a d v a n t a g e  proportion  task?  treatment of  Without  continued  inadequacy  replacement in  the  areas  co-ordination and  spousal support  Child  judicial  of  child  between  guidelines  a balance  of  for  than  and  areas  calculating  of  concerned.  This  between  a spouse's  capital  between  spousal  regarded,  the is  spouses  a more  support.  the  support  is  and a s a c o n s e q u e n c e i t treatment  support  other  s u p p o r t may be  settlement  discretion  is  probably rather  promising  than  132  Child spousal share  support  support.  their  is It  financial  a life-long  less  remains  c h i l d r e n have ceased of  also  duty  hemmed i n b y d o c t r i n a l  generally  resources with to  of  accepted  their  be i n a p a r t i c u l a r s u p p o r t between  that  parents  children, parent's  spouses i s  controversy should  e v e n when custody.  no l o n g e r  than  the The  so  idea  widely  held. Nevertheless,  once p o l i c y - m a k e r s  justification  for  the d i f f i c u l t  period  opportunities  foregone,  could not this  after  apply  Examples drawn  there  is  Therefore,  equally  to  borne  remaining child I  will  assessment  In  that  blurring only  married)  support  one s p o u s e o v e r  compensate f o r  economic guidelines  spousal support  and  child  those drawn  the d i s t i n c t i o n parents  or divorced are  c a n be c l a i m e d  presently  of  all  single  the  interesting  alleged  support.  to  draw  importance w h i c h has been a t t r i b u t e d financial  context.  Bartrip  to  at the  consequences of analyses  this  to  somewhat,  must a l s o  it  separated  parents  except the  use  be  (while  spousal support  w h a t i s known o f  attention  tend  f o c u s on  for  inadequacy of  in  from B r i t a i n  are  employed by a d j u d i c a t o r s  P r e s e n t Methods o f A s s e s s m e n t  the  who  eligible  by a l l  1.  historical  to  tide  i s s u e s examined  single  consider f i r s t  compared w i t h  to  be  the  responsible for  is  it  dominant  many o f  are  It  upon a  f r o m N o r t h A m e r i c a , and more m o d e r n e x a m p l e s ,  support.  i n mind  fixed  no r e a s o n why q u a n t i t a t i v e  s u p p o r t a s a model whereas  spousal  whether  separation or  be e s t a b l i s h e d .  chapter  child  spousal support,  have  widows.  methods  and w h e t h e r  whereas  their  of methods  orders.  the  outset  to  the  relative  d i s s o l u t i o n of  marriage  dissolution  the  in  question with reference  to  133  the  devolution of  Matrimonial  powers  Causes  to  from  their  the  judges  registrars  of  the  Court  in nineteenth  for  Divorce  and  century England.  2  3 He r e c o g n i s e s t h a t but  the  order  relative  pressure of  work  explains  the  need  i n w h i c h j u r i s d i c t i o n s were d e v o l v e d  importance,  for  the  judges would  tend  to  for  delegation  indicates retain  powers  c o n s i d e r e d more i m p o r t a n t f o r as l o n g a s p o s s i b l e . I n 1 8 6 5 , t h e r e g i s t r a r s w e r e i n s t r u c t e d to i n v e s t i g a t e matters  i n v o l v i n g maintenance  and m a r r i a g e  settlements  their  pleadings  and  to  in  report  4 their  findings  reached  to  the  such a l e v e l  judge. that  the  distinct  from maintenance,  as  shall  [they]  think  were i n t r o d u c e d the  that  in  of  of  registry.  step with  the  Similar  5  means  the  of  petitioning in  such order  powers w i t h r e s p e c t of  these  to  to  It  with  in  maintenance  was n o t  a  the  role  of  by  until  Procedure  provincial  onwards, d e c e n t r a l i s a t i o n  i n c r e a s i n g importance of  as  issue  c h a n g e s was l i m i t e d  London.  c o u l d be d e a l t  had  alimony,  s o - c a l l e d Poor Persons'  From t h a t d a t e  7  'direct  procedure i n  under  level  w e r e empowered  p r o c e e d i n g s to  divorce  limited  the  registrars  The impact  6  even a p e t i t i o n  litigants  district  fit'.  1924.  centralisation  1926 for  in  By 1875,  court  proceeded  registrar,  g in  and o u t The  of  of  London.  interest  of  Bartrip's  the E n g l i s h r e g i s t r a r  question  of  the  for  historical  present  d i s s o l u t i o n of  the  a n a l y s i s of  purposes l i e s  in  the  jurisdiction  the  fact  m a r r i a g e was r e t a i n e d  by  that  the  the  9 judges.  Even with  petitions  in  the  judge,  1977,  the  petitioner's  of  the d e c r e e n i s i  although i t  investigation,  advent  s u c h as  the is  s p e c i a l procedure for still  is  the  registrar  it  is,  into  entitlement  to  a decree.*  pronounced i n open c o u r t  who h a s c o n d u c t e d  the 0  undefended by  the  facts  alleged  and c e r t i f i e d  The  judge's  other  function  the is  134  to i n q u i r e i n t o children.**  the arrangments which the p a r t i e s have made f o r the  On t h i s b a s i s i t can be argued,  convincingly,  though n o t v e r y  that the d i s s o l u t i o n of marriage  c h i l d r e n a r e the h i g h e s t p r i o r i t i e s  and the w e l f a r e o f the  i n the m a t r i m o n i a l  proceeding,  whereas f i n a n c i a l matters occupy an a n c i l l a r y p o s i t i o n o r , to use the 12 terminology o f the Canadian D i v o r c e A c t 1985, divorce proceeding. acquired  B a r t r i p makes i t c l e a r  such an important m a t r i m o n i a l  that  a r e a c o r o l l a r y o f the the r e g i s t r a r has n o t  j u r i s d i c t i o n by any f a r - s i g h t e d  d e s i g n but r a t h e r as a r e s u l t o f the power o f the P r e s i d e n t o f the c o u r t to make r u l e s f o r the purpose  o f a r r a n g i n g the b u s i n e s s o f the c o u r t and 13  the d i c t a t e s o f p r e s s u r e o f work. D u r i n g the course o f t h i s d e l e g a t i o n o f f u n c t i o n s to the registrars,  there a r e o c c a s i o n a l i n s t a n c e s o f qualms about the  competence o f r e g i s t r a r s  responsibilities. Procedure  to d e a l adequately w i t h t h e i r 14  Bartrip refers  additional  to the Denning Committee on  i n M a t r i m o n i a l Causes which, i n i t s F i n a l Report, *"*  recommended  that r e g i s t r a r s should n o t d e c i d e a n c i l l a r y r e l i e f  matters,  y e t t h r e e months e a r l i e r , i n November 1946, i n i t s Second I n t e r i m Report, suggests  i t had g i v e n the r e g i s t r a r s a vote o f c o n f i d e n c e . * ^  Bartrip  the change o f h e a r t arose from an a p p r e c i a t i o n o f the g r a v i t y  o f the work undertaken  by the r e g i s t r a r s . *  the j u r i s d i c t i o n was n o t taken away from  7  Whatever the t r u t h o f t h i s ,  them and i t i s t h e i r d e c i s i o n s  which d i s p o s e o f the v a s t m a j o r i t y o f c o n t e s t e d f i n a n c i a l r e l i e f i n England  matters  today.  T h e r e f o r e , i f the p r o p o s i t i o n i s t h a t the f i n a n c i a l d i f f i c u l t i e s o f s i n g l e p a r e n t f a m i l i e s a r e a t t r i b u t a b l e to e r r a t i c and i l l - i n f o r m e d d e c i s i o n s a t the a d j u d i c a t i o n s t a g e , i t i s important  to examine the  135  procedure  of  recognises  those  this  adjudicating  in  his  essay  at  first  instance.  'The E x e r c i s e of  E.W.  Cooey  Judicial Discretion  in  the  18 Award are  of  Alimony'  almost  but  remarks  inaccessible  for  that  study,  'the  and  records of  this  the  trial  necessitates  the  courts  present  19 approach' year,  which  the  is  opposite  to  consider appellate  end o f  the  judicial  decisions during  spectrum.  the  S i n c e 1939,  previous  when  Duke  20 University Cooey's gain  in  essay  access  particular  forms  to  records at  to  took  Study of place  142  registrars  and  standardised  research, express and  to  but  their  a strictly  they that,  in  its  h a s become p o s s i b l e trial  It  is  level  along  the  deficiencies 21  1973  the  review  the  and was  These  interviews  they were d e s i g n e d  to  enable  about  than  were  others  all  aspects of  of  opinions  it  of  doing  to  methods  such  of  studies  adjudication.  tabulated, simply  is the  by  with  the  areas  of  the  the  some i n d i c a t i o n s  particular  about  how  market  freely  to  jurisdiction  respondents have  which  ruled  out.  registrars'  design of were  the  work survey  more  v a r y i n g numbers  of  point.  the  arrived  at?  best  c o u l d and o f  he  the  the  formal  s u r v e y s and  q u e s t i o n i n g would  the  were n o t  matrimonial  raised  because of  w i t h 81 o f  registrars  was a c o n s e q u e n c e o f  What c o n c l u s i o n s w e r e d r a w n matter  the  their  knew w h i c h b r o a d  r e s p o n d e n t s who had d e a l t  relief  three  b a s e d on i n t e r v i e w s  most l a r g e - s c a l e  discuss,  the  process of  of  researchers  much a m a t t e r  to  which  researchers  consider  lines  when r e s u l t s  significant  in  to  for  of  Registrars  investigation  to  and  proposed  circumscribed schedule of  wished  financial  symposium on a l i m o n y  i n E n g l a n d and W a l e s .  views  permit  Although  it  the  identifying  The Oxford This  a part,  decision-makers.  w i t h a view  i  t h e USA p u b l i s h e d  decision in  F o r one r e g i s t r a r ' w h a t one  a it  particular was  feels  very rather  136  than a c o m p u t e r i s e d d e c i s i o n ' . considering 1973  'is  22  factors  For another,  the  list  of  in  s 25 o f  rather  like  swinging a golf  more  metaphorically,  the M a t r i m o n i a l  club -  there  are  Causes  Act  so many  23 considerations admissions  of  wide-ranging be r e v i e w e d case  to  consider simultaneously'.  the list  and  limitations  of  of  considerations.  relevant  prioritised  and a n i n t e g r a t e d  readily  conceded  complex  by  exercise  the  the  practicable financial  that  view this  statutory  discretion and,  24 broken down'. the g u i d e l i n e s ,  the  of  the whole  is  a  duty, so a s  i n which  It i s i t was  adjudicator  in  light  taxing as  it  of  the  factors  situation  was a t  the  place  the  to  their  conduct,  frank  faced with  facts  exercise  they would  when  The  'to  having regard  position  the  These are  of  are  the  arrived  a  each  to  particular  at.  It  is  and o n e made  more  time of  survey,  parties,  so f a r  just  have been  if  this  as  is  t o do s o ,  the  in  marriage  h a r d l y s u r p r i s i n g t h a t , r a t h e r than f o u n d t h a t the r e g i s t r a r s s o u g h t to  to  the  had  not  dissecting take an 25  overall  view  In  the  place?  Is  exercise  a practice  their  the  context  situations of  arithmetic  of  husband's  of  too  had a r i s e n o f  joint  or  if  incomes.  derived  from h i s w i f e ,  adopted  by  the  regard life.  jurisdiction?  fixing  alimony  If  the  more in  transferred  also  at  had  In the  the  to  secular  and,  assist in  rate  of  one  r e s o u r c e s , at  c o u l d be a w a r d e d .  any the  ecclesiastical  h u s b a n d ' s p r o p e r t y was 26  the  faced.  has a r i t h m e t i c  incongruously mechanical  the w i f e  judiciary  j u r i s d i c t i o n was  they were  such a broad d i s c r e t i o n ,  a discretionary  income,  w i t h which  third  of  third  the  of  substantially  This  c o u r t s when  one  courts,  guideline  was  matrimonial  t h o u g h B r o m l e y and Lowe a r e c o r r e c t 27 i t s h i s t o r y as ' c h e q u e r e d ' , i t receives periodic leases of 28 I n h i s judgement i n W a c h t e l v W a c h t e l , L o r d D e n n i n g MR. was  to  137  prepared one  third  this to  to  start  his  calculation  c o n s i d e r a t i o n of  the  for  i n c o m e and c a p i t a l .  dealing with  by a d u b i o u s argument  be  greater  than  the  that  the  custodial  relevant  former  parent's  factors  by u s i n g He  justified  h u s b a n d ' s e x p e n s e s were b u t went on to  the  bound  emphasise  that:  'It is only a starting point. It w i l l serve in c a s e s w h e r e t h e m a r r i a g e h a s l a s t e d f o r many y e a r s and t h e w i f e h a s b e e n i n t h e home b r i n g i n g u p t h e children. I t may n o t b e a p p l i c a b l e when t h e m a r r i a g e has l a s t e d o n l y a s h o r t time o r where there a r e no c h i l d r e n and s h e c a n go o u t t o w o r k . ' 29 There  followed  a period during which  the  limitations  of  the  simple  30 arithmetical  a p p r o a c h were e x p o s e d .  husband  applied  for  his  former w i f e  one  third  parties  relied  third  reduce  to  on the  approach.  and B a k e r P . one  to  The  on t h e i r  a nominal  basis  former state  were agreed  that  discretion.  Instead,  the  incomes v i r t u a l l y  required  to u s e  a broad  some o f  his  that  Cann v C a n n , amount  old in  very  in determining  v i e w was  taken  equalised,  savings  to  of  the  former £7 per  result  some s a v i n g s b u t  age p e n s i o n s f o r a case of  the  an o r d e r  t h a t w o u l d be  h u s b a n d had  a p p r o a c h was u n h e l p f u l  parties'  In  of  the  income.  limited how t o the  cover his  of  the  both Hollings  resources exercise  parties'  former  week  the  the  needs  husband  J .  and  being  expenses. 31  For marks the  cases  the  award  nadir of  had a r r i v e d  at  the  shortness  of  valuing that  the  of the  the w e a l t h y  of  the  one  a l u m p sum o f  deducting  exercise  at  this former  the the  figure wife's  marriage. discretion,  capital  assets  speculative nature  end o f  third  the  spectrum,  approach.  £23,900  to  the  by d i v i d i n g capital  T h i s was former  the  principally  of  this  joint  that  wife.  particular  valuation  is  The  capital  this  because of case  always  v  Potter  an a p p e a l  and d i s c o u n t i n g t o  Ormrod L J . h e l d  in  Potter  the  trial  by  allow was  against judge  three, for  the  a  proper  not  difficulty  in  t h o u g h he s u g g e s t s to  be b o r n e  in  138  mind.  32  Dunn L J . took a s i m i l a r l i n e , s t a t i n g t h a t the Court o f Appeal  'has s a i d over and over a g a i n that i n cases i n v o l v i n g the r e d i s t r i b u t i o n 33 of  capital,  the o n e - t h i r d approach  i s not a p p r o p r i a t e ' .  However, i n  34 Bullock v Bullock was  prepared  approach  i n 1985,  a d i f f e r e n t l y c o n s t i t u t e d C o u r t o f Appeal  to endorse a t r i a l  judge who  had  adopted  the o n e - t h i r d  though i n t h i s case the v a l u a t i o n s were more 35 c e r t a i n and, as Douglas p o i n t s out i n her a n n o t a t i o n , the same r e s u l t may w e l l have been achieved without r e f e r e n c e to the o n e - t h i r d 36 guideline. In 1986, Anthony L i n c o l n J . i n Dew v Dew was prepared to use  to c a p i t a l ,  the o n e - t h i r d approach  'as a s t a r t i n g - p o i n t from which one could 37  take a b e a r i n g i n one's journey through the p r o v i s i o n s o f s 25' M a t r i m o n i a l Causes A c t i n d e t e r m i n i n g an a p p r o p r i a t e lump sum case o f a wealthy  of the  i n the  couple.  To r e t u r n from  the a p p e l l a t e c o u r t s to the j u r i s d i c t i o n o f the  r e g i s t r a r s , i s an a r i t h m e t i c a l approach used as a s t a r t i n g - p o i n t and g u i d e l i n e or i s i t r e a l l y a u s e f u l means of c i r c u m v e n t i n g the e x e r c i s e p r e s c r i b e d by s 25 o f the M a t r i m o n i a l Causes Act?  a  onerous  Is i t a  s h o r t - c u t remote from the requirements o f the A c t ?  I t i s i n t e r e s t i n g to  note t h a t one o f the r e g i s t r a r s , whose approach was  always  c h i l d maintenance f i r s t  to d e a l w i t h  i n any f i n a n c i a l r e l i e f a p p l i c a t i o n , f e l t  that  'the o n e - t h i r d r u l e i s something d e v i s e d by judges a l i t t l e b i t remote 38 from the r e a l i t i e s of l i f e ' . Although aware o f i t s l i m i t a t i o n s i n 39 c o n n e c t i o n w i t h very low and very h i g h income c a s e s , i t was found that o n l y ten out o f 77 r e g i s t r a r s do not u s u a l l y r e f e r to the o n e - t h i r d 40 approach o r never use i t .  Whether or not i t a s s i s t s as a s t a r t i n g  p o i n t , what evidence i s there that i t serves as a f i n i s h i n g p o i n t , as a check on the f i n a l o r d e r ?  That o n e - t h i r d p e r s i s t s as the r e l e v a n t  139  f r a c t i o n i s a demonstration  of the t e n a c i t y of l e g a l  than o f the a p p r o p r i a t e n e s s of one  tradition rather  t h i r d over o t h e r f r a c t i o n s .  The  f l i m s i n e s s of i t s economic b a s i s i s c l e a r from Lord Denning's judgement 41 i n Wachtel,  i n which he speaks of the former husband's need f o r a  housekeeper as  the r a t i o n a l e f o r h i s needing  j o i n t income.  I t i s t h i s q u a i n t n e s s which has  of  the o n e - t h i r d approach w e l l i n t o  about i t s a p p r o p r i a t e n e s s to  the l i o n ' s share of  g i v e n momentum to the  use  the 1980's d e s p i t e r e c u r r i n g doubts  i n v a r i o u s c a t e g o r i e s o f case.  The  conclusion  be drawn i s that i f the g u i d e l i n e i s w i d e l y used, a l b e i t w i t h v a r y i n g  degrees of c o n v i c t i o n , there should be a more s e r i o u s modern of  the  i t s theoretical  rationalised  justification.  In Sjansqm v Sansqm,  42  examination  Simon P.  had  i t by p o i n t i n g out t h a t :  ' i n a t y p i c a l case the c o u r t was concerned w i t h three groups of needs - those of the w i f e , those o f the husband and those of the c h i l d r e n f o r whose support the husband was l i a b l e . ' 43 T h i s q u o t a t i o n e x e m p l i f i e s the l a c k of s o p h i s t i c a t i o n of guideline. will  No  reason  r e q u i r e equal The  i s given f o r t h i n k i n g the three groups o f needs  resources.  r e s e a r c h e r s a l s o examined  the r e g i s t r a r s ' responses  p a r t i c u l a r problems i n c o n n e c t i o n w i t h  the v a s t m a j o r i t y of cases,  limited  to  the e v a l u a t i o n of c r i t e r i a  a l t h o u g h d i f f e r e n c e s i n a t t i t u d e were i d e n t i f i a b l e , in  this  they conclude  and, that,  the r e g i s t r a r s ' room to manoeuvre i s so  g i v e n the a v a i l a b l e r e s o u r c e s  t h a t these d i f f e r e n c e s w i l l  rarely  44 become e x p l i c i t . was  One  a r e a i n which d i v e r g e n t o p i n i o n s were  that of the weight to be given to the e l i g i b i l i t y  a s s i s t a n c e payments of the r e c i p i e n t of the o r d e r . 45  apparent  for social  Despite a d i r e c t i o n  from the Court of Appeal  i n Barnes v Barnes  to be  o n l y when the proposed order would depress  taken i n t o account  that s o c i a l assistance i s the  140  payer's  r e s o u r c e s below  the  limit  of  eligibility  for  social  46 assistance, it  twenty s e v e n o f  relevant  that  assistance.^ were  astute  private  e n o u g h to  maintenance a little  enable  the  whereby  the  lower  s e c u r i t y of  in  order  to  regular  the  receiving them  otherwise  single parent.  payment.  Others  public  were w i l l i n g  have done  take advantage to  social  to do s o .  how i n v o l v e d  payments a r e d i v e r t e d  to  would c o n s i d e r  of  the  in  the  State,  Some and to  order  that  to  procedure w h i c h makes a  T h e y r e c o g n i s e d the  felt  make  value  planning orders  of  with  s o c i a l a s s i s t a n c e was a n i m p o s i t i o n o n t h e  State  principle.^  Another  s p e c i a l problem i s  which a wage-earner Appeal's  o r d e r was  These r e g i s t r a r s  they might  the  to m a k i n g u s e o f  and w r o n g  the  registrars  considerations required  than of  payment  four  recognise e x p l i c i t l y  maintenace  benefit  sixty of  had b e c o m e .  recipient  the  a view  beneficiary  Practical  7  orders  full  the  the  view  is  how to  has a v a i l a b l e  that  for  gross f i g u r e s  calculate  the  amount o f  support payments.  s h o u l d be u s e d i n  income  The C o u r t  of  any  49 calculations.  One r e g i s t r a r  concerned  himself  out  registrars  of  66  consider  it  question of at  a net  former  in  either  rhetorical,  latitude  with respect which are  to  for  it  gross income,  to  is  'quite  his  unrealistic'  hand'."^  there  is  plain  for  the  For  and  the  additional  order  to  members o f  arrive the  as an e s s e n t i a l d e d u c t i o n ? that  registrars  arriving  exercise of  at  their  40  income o r  the  from g r o s s income i n  method o f the  as  e x c l u s i v e l y with net  be r e g a r d e d  the  integral  in  income a v a i l a b l e  What w i l l  is  work  t o make  representing  question  income,  who  conjunction with  household.  this  ' w i t h what a man h a s g o t  what d e d u c t i o n s  figure  regarded  have  The  significant  basic facts, discretion.  such as  141  A  third  criteria  is  propounded  particular that of  the  test  problem f o r  conduct. of  registrars  were  still  in  taking  evaluating  v W a c h t e l _ , L o r d D e n n i n g MR.  and o b v i o u s n e s s f o r  Nevertheless,  5  registrars  Wachtel  grossness  c o n d u c t was r e l e v a n t . * the  In  the  the  determining  researchers  found  had  whether  t h a t 32%  conduct into  account i n  less  approach i s d o c t r i n a l l y  incorrect,  the  of  serious  52 cases.  Though t h i s  said  it  that  especially is  was d i f f i c u l t  if  generally  it  is  in  to d i s m i s s c o n d u c t e n t i r e l y  the  forefront  considered relevant  in  of  the  the  parties'  registrars  from  the  mind,  c o n s i d e r a t i o n s and  community where  the  registrar  adjudicates A number o f study.  There  who a r e  the  ancillary orders  c o n c l u s i o n s c a n be d r a w n  are  trial  relief  significant adjudicators  made a f t e r  approval.  It  not The  local  A p p e a l ' s a p p r o a c h to  guidelines, are  the  for  this  final  comment i s  to  of  will  the  pursuant  registrar  as  important  registrar  as  it  is  that  to  i n any  to  e n d o r s e one o f  the  registrars,  influence  is  interpretation  of  this  contested  it  the  of  between  also orders  submitted  research discloses  s l a v i s h l y adhered  practice  These v a r i a t i o n s  which are  findings  vast majority  c a n be h y p o t h e s i s e d t h a t  i d i o s y n c r a s i e s of of  the  in  contested hearings but  settlements  Court  in  applications.  negotiated  the  variations  from the  to  not  to  for  to  be aware  know a b o u t  the  only  of  the  particular  Court of  Appeal's  views  event. the  researchers'  54 conclusions.  This  approaches  rarely  there  is  receipt  only  is  no r e a s o n why of  that, lead  even i f  to  guidance on m a t t e r s  be s e t  out  in  differences  significant differences  s o c i a l a s s i s t a n c e and  income s h o u l d not  the  s u c h as  t h e method o f the  statute.  the  in  the  in  the  registrars' outcome,  relevance  calculating Differences  of  available of  o p i n i o n on  142  these  two  It  ironic  is  Report,  matters that  co-existence periodicals assistance financial in  of  f i f t e e n years  or  so c l e a r l y  identified  the  consequences of  public  private  still  relief.  and  5  to  It  6  duties  to  publishing articles financial  because of  smaller  loaf,  the  the  maintain,  resource of  approaches  to  the  Finer  the  English  even minor  parties  legal  social  applicant  problem of  the  the  the  that  the  s m a l l means o f  more m e t i c u l o u s  of  peripheral.  d i s c u s s i n g whether  c a n a l s o be a r g u e d  varying  significant the  technical  publication  a relevant  outcome due  not  the  are is  fundamental, after  which  5 5  a l o n e were  for  differences  assessment involved.  d i v i s i o n needs  to  are 'The  be.'  5  7  58 Further the  q u e s t i o n whether  given  the  fourteen than  half  precluded  of  the  in  on a v e r a g e .  date  advantage thirteen felt  that  to  59  In  the  them t o  have saw i t  solicitors  is  that  the  forty  of  parties  the  court  but  the  extent  present  as a d i s a d v a n t a g e .  could reach  the  cases,  on  point  only  lasted of  more time 60  hearing. may i n  any  i n c o m e was  documentary  oral  it  evidence, an  exaination,  One o f  quicker  the  to w h i c h d i s c o v e r y  considered  for 62  to  ready  that  lack  the  file  such as  registrars  lead  r o u g h and  hearings  papers before  factors  al  remarkable  G i v e n the d i s a d v a n t a g e s o f whilst  than  et  Even acknowledging  majority  affidavits  verifying  it  thought  the  6  to  courts.  the  Baker  b e more  case,  and u n r e l i a b l e , *  that,  registrars  to  from r e a d i n g  that  upon v a r i e d .  surprising  registrars'  from case  documents w i t h a view  is  Barrington  seven r e g i s t r a r s  registrar  of  reseach of  the  spent  sixty  an hour  be o u t  insisted it  out  time  was a c k n o w l e d g e d  event of  in  the  the d i v i s i o n can ever  procedures  variations  It  aspects of  the  latter  and w a s t e  group  less  63 time. quest  It for  could be, the  best  therefore,  available  that  evidence  some r e g i s t r a r s in  the  interests  will of  abandon a the  efficient  143  f u n c t i o n i n g of divergence evidence It study,  of  in  the  this  interesting  practice  to  different always  of  is  approval the  dealt  from  possibility  to  for  of  to  the  longer  of  a  d o c u m e n t a r y and  a large  number o f from  registrars  the  the  not  and  after  oral  this  recent  the n o r t h - w e s t  with  of  is  England  Contested matters an hour  and  the  parties  is  are  that  presence of  However,  process  of  impression  it  is  adjudication  adopting procedural  felt are  the  for There  representation  the w r i t e r ' s  cases.  almost  unrepresented.  involving legal  the  experience  also occasionally required  one o f  expeditiously  in  survey.  are  that matters  16 y e a r s  the w r i t e r ' s  than h a l f  Hearings  problems a r i s i n g  attributed  value  disclose  h a s become more s t a n d a r d i s e d and  registrars  a settlement-if  w i t h more  the  results  l e a r n whether,  Certainly,  results  required.  of  irrelevant that  the  to  registrars  procedure of  investigated  parties  is  the  to  the  context.  p r o c e d u r e more r i g o r o u s . respect  Alternatively,  opinion with respect  w o u l d be the  courts.  are  is  unlikely to  be  short-cuts.  64 ii  The Denver D i s t r i c t This  s t u d y was u n d e r t a k e n  sample o f  287  Colorado.  In  and  Court_Study  child all  the m a t t e r s  assign  judges.  cases,  the  The v a r i a b l e  a large  or  her  the  extent  fellow  range of  the  orders  the  Support A c t .  the  because a l l  district  before  as a g e n e r a l  of  and i n v o l v e d a r e v i e w the  District  p a r e n t s were r e s i d e n t  were b r o u g h t b e f o r e  such matters,  to  1978  support matters  R e c i p r o c a l Enforcement of to  in  lawyers'  court It  rule,  to  abilities  were r e p r e s e n t e d  T h e h y p o t h e s i s was  a  in  the  practice  two d o m e s t i c  different  petitioners  attorney.  to  the  Court  in different  pursuant  was  of  random Denver,  counties  Uniform  of  the  court  relations was by  controlled the  author  that v a r i a t i o n s  c o u l d be e x p l a i n e d w i t h r e f e r e n c e  to  one o r  in more  144  of  the  following  the  judge,  the  the  season of  six  variables:  non-custodial the  c o n c l u s i o n was  year  that  and  income o f  parent's  the  orders  the  attorney,  non-custodial  were n o t  the  non-custodial  the  district  parent's  parent,  attorney, 65  expenses.  made c o n s i s t e n t l y  but  Her  t h a t none  of  66 the  six  factors  important  is  each o t h e r . ^ as  the  or  bad  the  obscure,  if  If  7  points  policy  the  to  ordered It  of  suggested than the  7  hearings  However, are  that a wider  that  the  range  of  respondent  seem q u i t e  because o n l y the  court  the  more react  to  arbitrary one o f  to  but,  the  make a good  income,  one c h i l d i s due  parent  need  w h i c h would of  consistent  judges' the  41%.^  child's  to  needs  parents  a up  being  income. relations  greater  established  be as  the  path  It  parties  decision-making emerges. * 7  judges  independent  This  in  is  in  of  their  certain  contested  i s when are  were  specialists.  confidence  decisions after  predictable. by  that  adherence  to w e a l t h i e r  c o n c e r n to  judges'  negotiated  was o b s e r v e d  f r o m 5% t o  o n l y meet  their  remain  in decisions?  n o n e o f whom w e r e  the  and  the  domestic  judges'  from  to  their  judges,  it  varied  lead  specialist  specialist  adjudications  observed d i f f e r e n c e s  this  other  settlements  in  parent's  for  to d e p a r t  relatively  approving  the  a s p o s s i b l e and  the  it  unfair  variations  specialist  attorneys  the  be  be.  proportion  the  appropriately  cases. ^  for  that  and  personally before 68  income p a i d  is  may i n d i c a t e  also  c a s e may  suggest  What m i g h t  only does  non-custodial  pay a s m a l l e r  This  variation.  attorneys  is  basic standard,  predictable  ability  it  scale of  to  district  the  non-custodial  less  the  s o , not  is  the  the  the  the  a certain  orders  out,  reasons  does n o t  that  is  respondent,  percentage  The d a t a  the  judge,  this  w h a t was  With respect  to  the  i m p r e s s i o n as  Even  the  how  author  parties,  could explain  their  considered not  indicative  145  of  erratic  adjudication  settlements It found  with which  is  in  interesting  the  bargaining  but the  is  an u n w i l l i n g n e s s  parties  to n o t e  negotiated  power  of  themselves  that  the  settlements,  somewhat  are  greatest  and  unequal,  to  as  this it  is  will  interfere  with  happy. range  of  variation  particularly b e when  was  s o when  the  respondent  72 h a s no l e g a l probably  representation.  influence  concerning reticence situated  the  whether  individuals study  introduction  of  be f i x e d .  In  propounded  for  the  effect.  recommended  predicted  negotiations,  it  is  erratic  be  treated d i f f e r e n t l y  some i n t e r e s t  scales with reference  1973,  some f i v e  reference  study.  for  to  a l s o has  Yee  On a v e r a g e ,  differential  course of  the  this  i n c o n s i s t e n c y amongst s e t t l e m e n t s  about  This  time of  the  Although  two  between  years  that  in  to w h i c h  before  these  observation  that  to  causes  support  the  the  amount  study,  similarly  of  the support  guidelines  j u d g e who had d i e d  guidelines  some  matters.  t h o s e who a d v o c a t e  p u r p o s e s o n l y by a found  will  should lead  adjudication  for  result  had had  were  by  the  little  n o n - c u s t o d i a l p a r e n t s w e r e p a y i n g 57% o f t h e 73 children. T h e g u i d e l i n e s recommended a orders  for  one c h i l d  and o r d e r s  for  can  two  amount  children  of  74 87% w h e r e a s of  in  practice  guidance does not  give  guidelines  generate  have  accountability  been  enabled  that  the  the  judges  differential  standardise  a higher  t h o s e u s i n g them i f  the  the  status between two  was 28%.  practice. than merely  The mere  Perhaps  t h o s e l a y i n g down  the  to d i s r e g a r d  the  j u d g e who d e v i s e d  them w i t h o u t  is  necessary  recommendatory  groups are d i f f e r e n t .  absence of  it  In  existence  and  to  guidelines  and  Denver,  may  the  it  guidelines  embarrassment.  to  146  ill  ThejOrange The  purpose of  financial support  County,  or  concluded  that  aiming  to  statute  in  involve  governing  been a c h i e v e d . * ' amongst  e a c h j u d g e was  the  judicial  c o n s i s t e n t as  to  1974,  532  children.  the  to  child  i n d i v i d u a l i s m was d i s c e r n i b l e when  his  it  any  c a s e s were  analysed  and  support,  child  Stone  judicial  discretion that  this  they  observed  though i t  appeared  own a p p r o a c h .  came t o  to in  procedure but  body as a w h o l e , to  adhered  discretion  White  exercise of  objective  With respect  7  judges  exercising their  F r o m 1971  which did not  the  to d i s c o v e r i f  e s t a b l i s h some f o r m o f  inconsistency that  s t u d y was  and a l i m o n y m a t t e r s . eighty  had n o t  this  Study  economic p r i n c i p l e s  including  was  Florida  alimony  Not  7 7  even  this  determinations:  ' [ J J u d g e s w e r e n o t t h e m s e l v e s c l e a r a s to w h a t v a r i a b l e s s h o u l d be u s e d to c o n s t i t u t e an a l i m o n y m o d e l . ' 78 To draw instance  together  adjudicators,  may be e v i d e n t of  the  in  observations  the  dominant  theme  t h e way p a r t i c u l a r  s o c i a l a s s i s t a n c e and m a t r i m o n i a l  procedure adopted comparison of What  is  for  a l s o demonstrated statutes  consideration and, time of  the  in  the  research of  that  that  set  this out  case of  is  lack  three of  misconduct, are  apparently is  these  and h e a r i n g  similarly  studies  of  first  consistency.  recurring problems,  discovering facts  treatment of  notwithstanding  from  s u c h as  dealt the  situated  receipt  with,  case or  This  in in  the a  individuals.  inconsistency persists a range  of  actions  the M a t r i m o n i a l  B a r r i n g t o n Baker  et  al,  79  for  the  court's  C a u s e s A c t 1973 an o b j e c t i v e  for  at  the  the  80 court also  to  aim  for  in  survive  the  introduction  further  is  done  to  exercising  render  its of  discretion.  recommendatory  such guidelines  T h e i n c o n s i s t e n c y may guidelines  acceptable  to  the  if  nothing judiciary.  147  More  fundamentally,  inconsistency whilst the  is  all  a matter  believing  three  of  come to  serious concern.  that d i f f e r e n c e s  outcome m a t e r i a l l y ,  studies  in  the  B a r r i n g t o n Baker et  approach w i l l  nevertheless  conclusion that  propose that  u s u a l l y not 'areas  exist  al,  affect where  81 g u i d e l i n e s might  b e more c l e a r l y  advocates  time  used  in  taking  'to  o r more s u c c e s s f u l l y l a i d  establish fair,  e s t a b l i s h i n g support orders,  fathers  would be  treated  consistent standards  so t h a t  equally'.  down'.  White  all  c h i l d r e n and  and S t o n e  claim  Yee  to  be  all  that  an  83 econometric Yet in  this  model would be v a l u a b l e  how v a l u a b l e branch of  well-being  of  are  the  law?  in  itself  disposal  of  matrimonial  Litigiousness  Those the  that  it  only  leads  cases  c a n be r e d u c e d  Not  greater  strain  the  settling  the  continuing, to  single  the  if  parent  Allied  to  to of  the  surprising  point  they  efficiency are  more in  conflict. is  easily the  to  courts.  a l s o have  anxiety  Therefore,  important  the  upon sooner  The p a r t i e s money,  in  encouraged.  be a d j u d i c a t e d  save time,  disputes  future  from e f f i c i e n c y  will  final  is  the  argument  that,  if  and a c c e p t e d s t a n d a r d s ,  have been p o o r l y  o r d e r may b e  the  to  the  adjudication  and  to an  the  any f a c t o r the w e l f a r e  which of  family.  this  believe  to  outcomes a r e  involved.  exacerbated  accordance with well-known likely  greater  benefits  those  of  they  of  One a r g u m e n t why c o n s i s t e n c y i s  eventual  matter  settlement  to  are  because settlements  State  s a t i s f a c t i o n of  in  of  conduces  terms  families?  c a s e s w h i c h c a n n o t be s e t t l e d  interest  the  is  inequity.  and p r e d i c t a b i l i t y  How c r u c i a l  single-parent  valuable  predicted.  certainty  in minimising  rendered  outcome,  treated  d e c i s i o n s a r e made the  parties  and c o m p l i a n c e w i t h  more p r o b a b l e a s a r e s u l t .  t h e more l i k e l y  it  are  is  to  The  be a c c e p t e d  in  less the less as  148  proper.  L i k e w i s e , fewer l i t i g a n t s w i l l be  hope t h a t they w i l l o b t a i n  a windfall  Wexler q u e s t i o n s whether we  tempted  to p r e s s on  In  the  i n the l o t t e r y .  take 'the  i n j u s t i c e of d e f e a t e d  84 expectations  too s e r i o u s l y ' ?  Even i f the above s u g g e s t i o n s about  l i t i g a n t s ' responses to a r e l a t i v e l y c e r t a i n outcome are c o r r e c t , operation  of rules leading  unequivocally  welcomed?  It is implicit  benefits of consistency o r d e r i f they f e e l has  to r i g i d l y c o n s i s t e n t  adjudication  to  i n the above o u t l i n e of  been a r r i v e d a t by a r e c o g n i s e d procedure.  a s s o c i a t i o n of r u l e s w i t h j u s t i c e and  the  be the  t h a t people w i l l more r e a d i l y comply w i t h  i t i s i n accordance w i t h e s t a b l i s h e d  especially susceptible believes that:  is  an  standards  and  Wexler argues that  this  the  tendency to view d i s c r e t i o n as 85 to a r b i t r a r i n e s s are both m i s t a k e n . He  ' r u l e s can work e f f e c t i v e l y i n the s i t u a t i o n s where the d i f f e r e n c e s between people can be i g n o r e d , where the f a c t u a l s i t u a t i o n s to be r e g u l a t e d are f a i r l y w e l l known i n advance, and where the p o l i c i e s behind the r u l e s are r e l a t i v e l y c l e a r and n o n - c o n t r a d i c t o r y . ' 86 On  this analysis, disputes  over support o b l i g a t i o n s do not  themselves to r e s o l u t i o n w i t h r e f e r e n c e might l e a d  to a f a i l u r e to d i s t i n g u i s h p r o p e r l y  group together cases which do i n using  to r u l e s .  r u l e s which are  not  too r i g i d  to c a t e g o r i s e  t h a t r u l e s w i l l not  be  pushed.  that  to virtue  matters adequately?  of approach i s worth  striving  there i s a c o r r e c t answer towards which  the  As A s q u i t h L J . remarked i n the E n g l i s h Court o f  Appeal i n B e l l e n d e n ( f o r m e r l y be  Where i s the  so  achieve i t . L i m i t i n g j u d i c i a l d i s c r e t i o n i n  these cases i s to imply t h a t judge can  seek to do  between cases and  belong t o g e t h e r .  Wexler's argument i s that c o n s i s t e n c y f o r but  To  lend  Satterthwaite) v Satterthwaite,  'widely d i f f e r e n t d e c i s i o n s '  87  could  be reached on  i t could  the same  149  evidence without either being wrong.  However, what is to be said  against the dogged pragmatist who concedes that there may be a range of notionally correct answers but i n s i s t s , contrary to Wexler, that the 88 'defeated expectations'  of l i t i g a n t s are to be taken seriously because  of the need to foster a constructive continuing relationship between them?  I t can be argued further that the requirement in matrimonial  l i t i g a t i o n to promote s a t i s f a c t i o n with the outcome can j u s t i f y a selection from amongst the range of correct answers of the answer which best f i t s the p o l i c i e s of the State towards matrimonial breakdown.  The  virtues of consistency as a goal i n i t s e l f are such that the policy choices should be made by the l e g i s l a t u r e , range of possible outcomes.  thereby cutting down the  I t w i l l be examined subsequently how this  might be done with a view to furthering the welfare of the single parent family. To summarise, the conclusion to be drawn i s that i t is correct to be concerned abut the inconsistent exercise of d i s c r e t i o n and that consistency i s l i k e l y to promote the welfare of single parent f a m i l i e s , regardless of the particular standards employed, to a greater extent than inconsistency. 2•  Problems of Adequacy of Orders Thus f a r ,  the benefits of consistent adjudication have been  discussed i n the abstract.  If i t i s proposed to devise a model for  support awards with a view to i t s comprehensive a p p l i c a t i o n , i t i s c l e a r l y of c r u c i a l importance to have an idea of what is adequate provision for a single parent f a m i l y .  For some, l i m i t i n g j u d i c i a l  d i s c r e t i o n i n this f i e l d i s an opportunity to ensure adequate  standards  150  of support  f o r , i n the p a s t , so i t may  consistently If  too  be argued, awards have been  low.  t h i s p r o p o s i t i o n can be shown to be  i n v e s t i g a t i o n , i t c l e a r l y provides  t r u e by e m p i r i c a l  the r a t i o n a l e f o r the l e g i s l a t u r e  to  c i r c u m s c r i b e the ambit of j u d i c i a l d i s c r e t i o n w i t h a view, i n the words o f Ronald Reagan's 1983  P r e s i d e n t i a l Proclamation,  to p l a c i n g 'the  f i n a n c i a l r e s p o n s i b i l i t y where i t r i g h t l y belongs - on has  been l e g a l l y ordered  to support h i s c h i l d ' .  The  the parent  o b t a i n i n g o f more  funds from the n o n - c u s t o d i a l parent  i s the c h i e f aim o f the  Support Enforcement Amendments 1984  which p r o v i d e , amongst o t h e r  matters,  f o r the e s t a b l i s h m e n t  who  Child  i n each S t a t e by October 1987  of  q u a n t i t a t i v e standards w i t h r e f e r e n c e to which the amount o f  child  89 support  can be c a l c u l a t e d .  As was  noted  i n the p r e v i o u s chapter about enforcement o f o r d e r s ,  an approach to the f i n a n c i a l probems o f s i n g l e parent seeks to impose g r e a t e r burdens on the b e l i e f  the n o n - c u s t o d i a l parent  t h a t there i s money a v a i l a b l e .  B r i t a i n doubted recognised  f a m i l i e s which  The  proceeds i n  F i n e r Committee i n 90  the a b i l i t y of n o n - c u s t o d i a l parents  to pay more  'that most one-parent f a m i l i e s could not s u b s i s t on  and  the  proceeds o f the maintenance o r d e r s , o r on any amount to which i t would 91 be p o s s i b l e to i n c r e a s e them'. of  H a r r i s , McDonald and Weston's  review  the A u s t r a l i a n I n s t i t u t e o f F a m i l y S t u d i e s ' r e s e a r c h i n V i c t o r i a i n  1984  suggests,  on  the o t h e r hand, t h a t there i s scope f o r 'a  sharp  i n c r e a s e i n l e v e l s of maintenance w h i l e l e a v i n g most n o n - c u s t o d i a l b e t t e r o f f than  they had  been d u r i n g the f i n a l year o f  men  their  92 marriage .  The  c a p a c i t y o f the n o n - c u s t o d i a l parent  to make g r e a t e r  p r o v i s i o n f o r the former household i s an i s s u e which has d i f f e r e n t a n a l y s e s a c c o r d i n g to time and  location.  received  151  What is  that  more  is  p e r h a p s more  greater  adequate  acceptable  which  levels  also  custodial welfare  p r o v i s i o n by  levels  can be a r g u e d  important  of  of  that  the  income  this  is  in  officers  the  custodial  of welfare  settling  in  the  for the  have an i m p o r t a n t  role  parent  of  by  orders,  claim. in  but  to b e s o i f  enforcement support  present  may l e a d  expenditure  especially likely  has r e s p o n s i b i l i t y parent  appreciate  non-custodial parent  for  recoupment  to  In  context  not  to  the  to  more State.  It  a state  agency,  assists  the  Sweden,  the  child  establishing paternity  and  93 fixing leads  a figure to  a very  with respect whole  for  in  their 92% o f  fathers  to  In  the U . S . A . , Takas  of  some O f f i c e s  settlement  on  to  of  be p a i d b y  fathers  c h i l d r e n born out  a s s i s t a n c e were s u b j e c t  part  support  high proportion  to  1968,  child  of  the  having orders  of wedlock.  In  This  against  them  Sweden as  whose c h i l d r e n w e r e r e c e i v i n g 94  an  a  public  order.  claims  to  have  identified  C h i l d Support Enforcement  the m o t h e r ' s  father.  behalf  which  is  just  a  to  tendency on negotiate  less  than  the  a  her  welfare  95 entitlement.  This  eligibiltiy low  for  settlement  income  the  to  interviewed  below  the to  agencies  level  the  earnings.  of  of welfare  retaining  such as M e d i c a i d . the  These points some o f  payments.  expenditure,  is  family's an  parent's  artificially source  could equally well  al  In  which  the  However,  single  the  by B a r r i n g t o n B a k e r e t 96  recoup i t s  registrars to  both  one o f  the  made  i n England  reduce orders  cases,  be  the  chief  of  and  slightly  government  is  aims o f  the  lack  money  involved.  So f a r , and  benefits  advantage  preparedness of  Wales  able  the  i s d i s a d v a n t a g e o u s when  changes  concerning  the  has  two  policies  p o s s i b l e causes of of  state  agencies  inadequate  provision,  charged w i t h e n f o r c i n g  of  obligations,  152  have been i d e n t i f i e d which are not connected judicial discretion. initial  A third  in  again not connected  f i x i n g of the amount of support,  keep pace w i t h i n f l a t i o n and older.  cause,  The  reasons why  they grow  to devalue are complex  s i n g l e parents do not  and,  enforce  c o s t s of r e g u l a r v a r i a t i o n proceedings  the l i f e - t i m e o f an o r d e r i n terms o f l e g a l f e e s , time and in  the  i s the f a i l u r e o f o r d e r s to  o r d e r s are permitted  The  with  the r i s i n g c o s t s o f c h i l d r e n as  some a s p e c t s , a k i n to the reasons why  t h e i r support o r d e r s .  w i t h the e x e r c i s e of  over  energy  may,  the minds of many s i n g l e p a r e n t s , outweigh the l i k e l y b e n e f i t s .  England,  f o r example, proceedings  the M a t r i m o n i a l Causes A c t 1973 which would be order.  to v a r y an o r d e r pursuant  In  to s 31 o f  i n v o l v e a review o f a l l the  matters  taken i n t o account were the a p p l i c a t i o n f o r a  first  T h i s i s q u i t e proper, but i t emphasises t h a t v a r i a t i o n  proceedings  a r e not n e c e s s a r i l y an e a s i e r or more manageable u n d e r t a k i n g  than the o r i g i n a l f i n a n c i a l r e l i e f  proceedings.  I f the onus i s placed  on the s i n g l e parent to u p - r a t e the o r d e r every three years o r so, i t should come as no s u r p r i s e  that o r d e r s which, when i s s u e d , may  q u i t e s u b s t a n t i a l make a minimal teenager  twelve years o r so  Williams i l l u s t r a t e s  have been  c o o n t r i b u t i o n to the w e l f a r e o f a  later.  the problem w i t h r e s p e c t to Delaware which, i n 97  his  e s t i m a t i o n , has  'an u n u s u a l l y a c c e s s i b l e c o u r t system'.  In  1985,  58% as many v a r i a t i o n a p p l i c a t i o n s were r e c e i v e d as a p p l i c a t i o n s f o r  new  o r d e r s , whereas v a r i a t i o n s should outnumber f r e s h a p p l i c a t i o n s i f 98 e x i s t i n g o r d e r s are b e i n g r e g u l a r l y reviewed. A further indication of the s c a l e of the problem can be gleaned from W i l l i a m s ' d e s c r i p t i o n o f 99 the m o d i f i c a t i o n programme f o r w e l f a r e cases i n New  Jersey.  c o n t i n u i n g a p p r o p r i a t e n e s s of o r d e r s more than two years o l d was  The tested  153  with reference  to  the  New J e r s e y g u i d e l i n e .  p r o c e d u r e led- to m o d i f i c a t i o n order  by an a v e r a g e  potential  for  present,  This  the  brief  always  be a t t r i b u t e d  the  draws for  fixing  knowledge the  child of  in  the  of  s u p p o r t w h i c h have  living  c h i l d r e n was n o t  102  in  To t h e  best in  order  even  if  faced for.  support cannot is  not  to  say  Chambers  Michigan  of  his  orders  is  Nevertheless,  maintained,  This  the  At  is  courts  custom r a t h e r  resulting the  in  criticism.  of  the  the  stomach  deficiencies  a r i s e n out  amount o f  earnings.  little  inadequacy  practices  c o u r t s was  parent's  amount o f  paying parent  adjudication.  0  the  the  support awards.  s h e may h a v e  on c h i l d r e n . * *  the M i c h i g a n  the  that alleged  development  t h e U S A , when  the  indeed  scrutiny without  non-cus.todial of  or  process of  survive  expenditure  approach of  elsewhere  the  increased  adequacy o f  p o s s i b l e causes of  illustrate  to  adjudicators to  the  parent  administrative  These examples demonstrate  0 0  t a s k w h i c h he o r  n e c e s s a r y to  attention  improving  survey of  is  hearings which  times.*  single  arduous  orders  that  2.23  constantly  however,  w i t h an o f t e n  of  This  than  knowledge, higher  than  compared w i t h  the  the  prior  standard  the  order  was  of  103 paid. T h o s e who c r i t i c i s e d e p l o y as taken i n the  their  parent  argument  ordered  the  the  out-of-pocket  expenses of  the  household i n  the due  remarks  principal  amounts  ignorance of  total  include  the  on  custodial  'the  costs  haphazard  of  support of  nature  foregone For  children  that d e c i s i o n s  are  raising a child  and  connection with  responsibilities.  apparent  the  suggestion  income-earning opportunities to  for  by  the  the  child,  of  which  custodial  example, Espenshade  by w h i c h c h i l d  support  is  104 meted has  out'  and p r a i s e s D e l a w a r e  conceptualised  its  strategy  as an example  with respect  to  of  a  child  jurisdiction support  and  which  154  established technical  figures  subject  knowledge.  of  their  across  parents  people are  minimum n e e d s .  and n o t  One o f  households  for  the  a matter  purposes of  t h e USA i s and f u t u r e  of  in  about  her  support  the n o - f a u l t  being o r d e r e d . * ^  some o f  instance  in  this  the  which might  appear  chapter,  than d e s c r i p t i v e o f being  3.  Process  In  this  proposals range o f limited or  her  the  determining  to  rather  significance perceived.  factors. and  It  It  rearing  in  raising  low l e v e l  of  to  offer  out  a diagnosis at  how  first  matters  p r a c t i c e s might is  to o f f e r  be  now a p p r o p r i a t e an a n a l y s i s o f  to  be  how  improved.  of  C a l c u l a t i n g Support  towards  be g i v e n  The a d j u d i c a t o r ' s relevant  than a l l o w i n g him o r  her  to  factors  a c c o r d i n g to  would be wrong  to  regard  to  particular  the  the  the  of  support entitlements  weighting  to  costs  has been p o i n t e d  present  possible solutions. example,  the  of  'most  economic  d i v o r c e regime  poor a d j u d i c a t i v e  guide a d j u d i c a t o r s  for  the d i v e r g e n t  indicating  section, consideration will  to  by,  it  other  the  these methods a r e  Reform of  for  levels  c h i l d r e n because  has been attempted  indicate  explicable with reference more  it  appropriate, to  likely  7  problems o f  a n d , where  for  the  8,547  economic l i a b i l i t i e s  regards Espenshade's figures  So f a r of  the  a n a l y s i s of  c h i l d r e n as c o n s e r v a t i v e but u s e f u l  about  on t h e i r  a  worldly  Espenshade's study of  educate parents  men and women u n d e r  California,  common s e n s e o r  expenditure  g r o s s l y misinformed  c h i l d r e n ' W e i t z m a n , fortunes  to  of  Household economics i s  the  of  solutions within  field  of  v a r y i n g degrees  facts  impetus  to  of  the  c h o i c e c a n be  considerations for  attribute how t h e  a number  the  extract  case  him of are  much o f  155  the  element  o r i g i n but  of  d i s c r e t i o n from  there  Amendments 1984 guidelines  and  the  no d o u b t the  that  p r o c e s s as the  e x c l u s i v e l y American  o b l i g a t ' i o n upon S t a t e s  cost of  focus f i r s t  of  all  in  C h i l d Support Enforcement to  establish  have c o n c e n t r a t e d A m e r i c a n minds on the  discussion will to  is  the  problem.  on p r o p o s a l s to  r a i s i n g c h i l d r e n and how  this  quantitative The  accord greater  c a n be c a l c u l a t e d  weight  and  shared. *  Emphasising costs It  is  important  out-of-pocket  costs  to  This  expenditure  be c l e a r  the  foregone  time l o o k i n g a f t e r  immediately  whether  on f o o d , c l o t h i n g ,  and so o n , o r w h e t h e r spending  and  the d i s c u s s i o n  transport,  is  shelter,  earning opportunities  c h i l d r e n are  limited  recreation  involved  to be c o n s i d e r e d i n  r a i s e s a dilemma, which w i l l  to  be mentioned  in  addition.  further  108 below, of  for  financial  matrimonial kept the  t h o s e who w o u l d adjustment  property,  separate? caregiver?  without  the  treatment of respect  to  rewarding There  is  the  divorce.  costs  other  members?  How a r e  of  this  less  time spent activities  is  correct  omit  head o f  to  criticise 109 expense.  this  the  ambit  for  from  this  the  than  child  be  those  of  a household  opportunity to  The s p o u s e ' s  of  to  problem of  policies  children rather  no c o m p e l l i n g j u s t i f i c a t i o n is  to  to a t t r i b u t e  expenditure.  not w i t h i n  of  t o o n e member o f  The s o l u t i o n  caring for  issues  the p r o c e s s  and c h i l d m a i n t e n a n c e  somewhat d i f f e r e n t  tangible in  the  of  c h i l d r e n be s e p a r a t e d  n e e d and c o s t h a s b e e n  s p o u s e and a p p l y  Giampetro this  r e f o r m one element  How c a n s u p p o r t be o f f e r e d  affecting  to  to  s p o u s a l maintenance  How c a n  categorisation of costs  after  seek  in  the  loss  with  economically  maintenance.  compartmentalisation  s o - c a l l e d c o s t - s h a r i n g formulae  and which  156  There  are  other  problems w i t h r e l y i n g  concerning  the  costs  for  children.  c h i l d r e n w i t h i n an i n t a c t the  situation  figures  after  derived  inaccuracies Clearly, will  to  what e x t e n t Chambers  an i n c r e a s e is  the  percent'.  the  two  of  of  two-parent  total  but  parents  the  of  its  expenditure  'maintain  the  will  to  have  a broad  simple  be c o m p r e h e n s i v e l y d e f i n e d ,  fairly  the  is  in  be r a i s e d . to be an  It  argued  the  is  that  the  proportion  of  parents'  the  If  figure.  such m o d e l s .  1 1 1  savings in  the  it  For White  time are  b y how much and  to  a  of  the  simply  immense.  fit  Indeed,  share of  will  based upon c o s t  lies  the  parent.  problems of  obligation  required  total to  into of  of  arrive  a great  simplicity  how  cost  the  cases  cost  of  once  is  the  If  calculation  custodial  to  this the  an  inadequacy  the  total  factors  no m a t t e r  a formula  income b e a r s  and S t o n e ,  the  custodial parent.  out  is  living,  greater  inevitable,  information  to  and  cost,  is  of  of  10  non-custodial parent's  little  Adjudicators  two h o u s e h o l d s  the  by  to  running  to  totally  to  awards.  as w i t h a l l  lead  to  support  betwen  c a n be o p e r a t e d  cost which his  incomes, very  appropriate  for  translated  an adherence  that charges of  main appeal  s i m p l i c i t y w i t h which overcome.  rise  expense l e f t  be  raising  c h i l d r e n ' s expenses?  concept of  it  divided,  item paid  design are  the  is  An i t e m o f  likely  cost of  same s t a n d a r d  importance would  figure  the  range but,  cannot  again  to  c h i l d ' s upkeep f a l l i n g  costs  child  in  referrable  data  h o u s e h o l d s may l e a d  in  the d e c e p t i v e l y  underestimation  the  Too devoted  expenses i n v o l v e d  to  is  that  of  increase  This  1 1 0  which comprise  burden  breakdown.  constructing schedules for  suggest that,  income of 25  marital  the d u p l i c a t i o n  lead  may b e  on  household cannot meaningfully  from s t u d i e s  in  It  too h e a v i l y  is  its  that  the at  the  advantage  the  model  operation  of  and is  157  relevant support of  to is  the w h o l e only  expenses,  a matter  it  ceases  determination. up  to  process of of  to  decision-making.  relating  people's  be an a d j u d i c a t i o n  Removing d i s c r e t i o n  administration  two  in  the  by a b u r e a u c r a c y ,  If  fixing  incomes  to  and a m a t t e r  process could  which  is  another  child a  schedule  for  judicial  easily  open  issue of  it  policy  entirely. Once more the  the  formula  time-consuming out-of-pocket  custodial personal  parent  to  apply.  expenses with  the  services which  explicitly both  b e c o m e s more  to  recognise  parents.  No d o u b t  w i t h arrangements  for  the d i v i s i o n  of  w i t h i n a formula cost  of  parent.  work  in  Bergmann would  in  proportion  monetary  value  that  parent  that  the  the  has  with  the  which d i v i d e s the  home,  As Giampetro  in  points  113  the  of  parent  is  unpaid  services  liberally  than  defined  the  the  This  to is  that  by a d d i n g  subsuming to  of  cope  it  it  include  time spent w i t h  criticism of  is  the work  refined  significant  of  unpaid  112  doing  further is  the  child.  item rather  i n her  and  go b e y o n d a d i v i s i o n  given  accordance with out  easy  one h a l f  issue of  costs,  less  of  What  c o s t s as a s e p a r a t e  is  income by c r e d i t i n g  c o u l d be  parenting.  it  to  custodial  formula  joint  Bergmann c h o o s e s to d e a l to  sophisticated,  the  each  Franks'  114 attachment  of  significance  this  is  unrealistically  cost  of  a child's  proportionately  to  clothes,  gives  introduced  it into  the  assume  child  shelter  aspect  proper weight, w h a t was  divides  that a parent's  is  and o t h e r  of  greater  previously  5  p r o b l e m and  complexity  a relatively  or  expenses  each  proposal**  the  his  her  time,  contribution  fixed  spent with  from Bergmann's  recognise a particular  which  how  how much t i m e  What c a n be d r a w n to  to  to  is  to  the  varies  parent. is  that,  to  in  devise  seeking a  system  inevitably  simple  exercise,  158  rendering  it  difficulty unpaid the  potentially  difficult  to u s e .  Presumably,  c o u l d be r e d u c e d b y d e v i s i n g a s c h e d u l e o f  personal  need  very  to  services which,  receive  expert  whilst  evidence  open  on  the  to  this  the  value  of  criticism,  would  avoid  point.  To adopt  the  tenor  of  116 Giampetro's  argument,  extent  the  ajar  that  for  certainty,  be  are  formula w i l l  certain  discretion  to  it  is  require  surely  that whatever  purpose  of  true  subsidiary  the  costs**  that  promote  for  designer  once  strives  7  like  the of  certainty  o n l y keeps  fore  terms  formulae the  only  and u n c e r t a i n t y  come t o  Bergmann's d i v i s i o n but  services' order  terms  judicial  Admittedly,  the  the  door  again.  for  fairness,  'income'  purposes of  the  the  to  formula  and  not  'personal  definition  had  in  i n mind  can  achieved. Contrasting  the  single  to  parent  this  broad  family  approach  to  the  i s W h i t e and S t o n e ' s  child's attempt  situation to  within  allocate 118  weightings They the  seek  to  the  need  In  There  not  in  are  danger  knowledge  Further,  the  everything?  to  will  the  not  the  the  of  all  from  the  different  be  other  given  household.  in  the  the  that  and  this  scale  allocations  being in  scale. simple  in  approach.  it  in  our  two-parent  There  economic  and 120  seriously.  services may b e  in  intact  household but 119  inadequacies  and  presence  the  members  taken s u f f i c i e n t l y  index,  of  breakdown,  costs  commodities  the  e a c h member  attractively of  of  an i n d i v i d u a l ' s  numbers  derived  this  choice of  devising  to  members  employed on m a r i t a l  that Bruch's warning  the  the  needs o f  relative  problems w i t h  how i s  purpose of  measure  way,  the w e i g h t i n g s  families  of  economic impact  accordance with  with respect  one-parent  the  this  c a n be d i r e c t l y  accordance w i t h  the  the  can be determined  determined  is  consumption rates  evaluate  household.  household of  to  to  b e made  impossible  for to  159  T h i s i s r a i s i n g once a g a i n the problems s u r r o u n d i n g the i s s u e o f cost.  Espenshade found  depending  'great v a r i a t i o n  on the p a r e n t s ' socioeconomic  and w i f e ' s employment s t a t u s ' .  121  [ i n parental expenditures] status  He does, however, go on to r e p o r t  t h a t the f r a c t i o n of f a m i l y income committed v a r y much w i t h socioeconomic  number o f c h i l d r e n ,  to the c h i l d r e n does n o t  s t a t u s but does v a r y w i t h the number o f  122 children.  T h i s p a t t e r n has been u t i l i s e d  established and  g u i d e l i n e s based  the number o f c h i l d r e n .  systems which s e t f i x e d how  o n l y on  123  i n some s t a t e s which have  the n o n - c u s t o d i a l p a r e n t ' s income  Wisconsin  124  and I l l i n o i s  percentages of the payer's  125  b o t h employ  income, depending  on  many c h i l d r e n there a r e . However, i f the c h i l d r e n ' s standard o f l i v i n g  a g r e a t e r percentage o f j o i n t income may than was  the case i n the two-parent  standard o f l i v i n g  i s to be  maintained,  have to be committed  household.  to them  Maintenance of the p r i o r  i s i n many i n s t a n c e s an u n a t t a i n a b l e t a r g e t and  q u e s t i o n a r i s e s as to what standard should be s u b s t i t u t e d .  There  the i s no  l o g i c i n c h o o s i n g a minimum a c c e p t a b l e standard r a t h e r than any o t h e r . However, the f e a r has been expressed  that f o c u s i n g on  the c o s t s o f  r a i s i n g c h i l d r e n when f i x i n g g e n e r a l standards f o r c h i l d lead  support  will  to the e s t a b l i s h m e n t of the n o t i o n that there i s a b a s i c c o s t o f  children. predicts,  The l o w e s t common denominator w i l l be sought and, C a s s e t t y these amounts w i l l  f a i r , and r e a s o n a b l e ' .  126  come to be seen as  ' a l l t h a t are n e c e s s a r y ,  Weitzman b e l i e v e s t h a t too much emphasis on  c o s t s l e a d s to 'a w e l f a r e - l i k e basic-needs approach i  V ^ I J  children'.  to r a i s i n g  127  Y e t t h i s need not be so i f a cost-based formula i s s u b t l e enough to respond  to f a c t o r s such as  the i n f l u e n c e o f socioeconomic  s t a t u s by  160  d e a l i n g w i t h percentages Neither the  need  the  necessities  heads o f of  parent  family  living  which,  if  short  time o f  possibility i i  of  income r a t h e r  expense  life.  single  a  of  However,  to  share  divorce,  view  to  short  her  taken into  the  the  lucid  ideal  non-custodial  to  enable  parent's  may w e l l  have  given  the  standard  improved  to  to  of  within  the  model.  resources  account of  to  figures.  a c c o u n t be l i m i t e d  concern is  an American e c o n o m i s t ,  and  absolute  c o n s i d e r a t i o n s h o u l d be  d i s c o v e r i n g how f a r  of  if  a resource-sharing  Sawhill,  exceptionally  in  be  he h a s no new d e p e n d a n t s ,  Emphasising a sharing of Isabel  to  than  the  has  provided  possibilities  transfers  promoting  of  the  of  income a t  an  this the  approach with  present  marginalisation  of  day  a  fall  judicial  128 discretion within children's if, of  as the  in  the  standards the  process. should not  vast majority  two-parent  The g u i d i n g p r i n c i p l e s  family  of  decline cases,  renders  this  after  the  the  loss  are  parents  of  the  inevitable,  that  separate  but  economies o f  available  scale  resources  129 should  be  shared on  compare s t a n d a r d s absolute  level.  the  of It  basis  living  factor  costs-based  for  models,  However, attribute diminished according  a lowest the  items in to  of  w i t h some f o r m e r  between  there  requirement expenditure  household  is  that the  no  present  is  is  rather  is  for  to  if  performed  rather  members  the in  t h a n on the  of  in  and  of  the  to  household  resources  an u n s o p h i s t i c a t e d basis  this  expenditure.  the  d i v i s i o n of  to  an  regard  inevitability  child-rearing  particular  seek  the  to d i s s e c t household budgets to  to  than w i t h  erroneous  theoretical  particularly  size  it  tie  This  r e s o u r c e s - b a s e d and  common d e m o n i n a t o r  importance,  s i m p l y o n numbers  household s i z e .  has been argued  as a d i s t i n g u i s h i n g  s e l e c t i o n of  of  rates  of  manner,  is  161  consumption of the  particular  promulgation of  suggested rather  that  it  items.  guidelines  is  the  Another parents  them t o  attraction  adopt  this  c r i t i c i s m goes  should not  critics  founded on the  elusiveness of  than any p a r t i c u l a r  w h i c h has l e d  Indeed,  to  of  sharing of  the  approach.  to  t h o s e who  advocate  resources  an adequate d e f i n i t i o n  the h e a r t  be e x p e c t e d  of  share  of  have cost  r e s o u r c e - s h a r i n g model  130  of  the m o d e l .  their  It  resources  is  that  the  after  131 separation.  Particularly,  it  i s debated whether  shared between  the  If  there  needs,  consumption rates  individuals,  it  is  maintenance  of  the  within  It  is  the  it.  realities  lament  parents.  of  and  general  inevitable  that  the  that  attention of  paid  in  fact  of  t h e E n g l i s h Law C o m m i s s i o n ' s f a i l u r e  to  are  review  the  address  the  a c c o r d s more  M a c l e a n and E e k e l a a r  to  particular  r e s u l t i n g model w i l l  than maintenance  this  situation.  little  economic impact  the  household rather submitted  is  r e s o u r c e s s h o u l d be  children closely  right  family  with  to  support  as  132 an o p t i o n , into  thereby melding  a more  coherent whole  non-custodial  parent  children benefit the  concept of  with a legal spousal  should not  be  to d e v i s e  than  for  who c l a i m s  tradition  payments  the  guidelines  complaint of  'to  Whatever the  its  that  is  the the  spouses  immediate  s p e c i f i c a l l y for  h o u s e h o l d as a  at  whole.  the for  household' i s  now f a v o u r i n g the  the  the  the  the  earliest  step  bases  for  of  opportunity.  States  support of  appeal,  out of  severance  concern of  support  theoretical  w h i c h has d i s t i n g u i s h e d between  between  forgotten  the  s p o u s a l and c h i l d  t h a t payments d e s i g n a t e d  custodial parent.  maintenance  relations  concepts of  and a n s w e r i n g  and c h i l d s u p p o r t and  financial  is  the  the  in  children  It  t h e USA rather  162  In  Delaware,  where  the  s o - c a l l e d Melson formula  has  been  133 implemented, resources  a compromise between  has been s o u g h t .  a basic entitlement, custodial standard  parent's of  remaining a f t e r child's model  The o b l i g a t i o n  which  prioritised living  note lower  allowance  The q u e s t i o n standard  is  inculcated  into  than out  for the  that,  the  the  family  this  This  divided  of  to  the  joint  physical custody.  which  is  the  s u b j e c t was d i s c u s s e d  is  they  are  standard  remaining  priorities  the  It  recognised,  assured  a  The  of  income.  go b e y o n d a s s u r i n g a  sense of  the  income  a n y new d e p e n d a n t s .  are  into  e x p e n s e s , and  for  schemes w h i c h  to w h i c h  payers.  medical  non-custodial parent's  designers of  is  expenses r e l a t e d  a l t h o u g h new d e p e n d a n t s  of  emphasising  own b a s i c n e e d s a l l o w a n c e ,  cope w i t h  first  child  a proportion  parents'  to  the  extent  is  and a l l o w a n c e s  c a n a l s o be a d j u s t e d to  the  extraordinary  This  the  basic entitlement  important  and  allowance.  deducting  to  includes child-care  employment  living  e m p h a s i s i n g c o s t s and  minimum  c a n be in  the  previous  chapter. iii  The d e s i r a b i l i t y Weitzman's  claimed  that  guidelines  California  consistently  relied  suggested ranges What  support  concerns Weitzman the  reached, whether  in  USA i s  revealed the  Court awards about  that  60% o f  advisory  in  judges  guidelines 134  1978.  These  appropriate the  the  to  particular  establishment  of  o b s e r v a t i o n s l e a d her to 135 c o n c l u d e t h a t t h e y c a n d e p r e s s the l e v e l o f a w a r d s . I t appeared that t h e t o p o f t h e r a n g e was r e g a r d e d a s a c e i l i n g and c o n s e q u e n t l y i t was rarely  throughout  of  standard  on  the Los Angeles S u p e r i o r  income l e v e l s . guidelines  a quantitative  research in  they  propounded by  of  that her  contested  hearings  or  in  negotiated  136 settlements.  Solutions might  be  to  limit  judicial  freedom  to  163  manoeuvre w i t h i n  the  set  range,  to u s e p r o p o r t i o n s  rather  than  figures  137 or,  as Weitzman  there make  might  herself  be an e f f e c t  guidelines  monitoring What  suggests,  for  undesirable,  the  be a r e s i d u a l  role  to  reproduce  best of  is  the of  for  a more  which are should  presumed  not,  or  of  have  apply  ranges  does emphasise  the  judicial  flexible  to  it  higher.  the  quantitative  discretion?  both worlds:  p r e s u m a b l y why S t a t e s  the  That does  not  importance  of  consequences.  status  to  set  t h a t d e s c r i b e d by Weitzman  but  unanticipated  s h o u l d be  possibility  such as  to  favoured  perhaps u n l e s s  the  The  established  approach in  unless  guidelines?  the  the  the  its  to  of  try  the  case.  implementation  of  there  is  standards with  exceptional  parties  court  temptation  Is  This  guidelines  c a n show c a u s e why  they  own m o t i o n  the  rejects  138 o u t c o m e a c c o r d i n g to rebuttable  presumption  p r o v i d e d when unfair  the  the  result.  guidelines.  The argument  that guidelines  apply  x  rigid  application  Williams  cites  the  of  the  is  that  in  favour  illness  a  an e s c a p e r o u t e  g u i d e l i n e s would  terminal  of  of  the  is  lead  to  an  payer  as  an  139 exceptional payer's case  s h o u l d be s e t  disputed  itself that  guidelines  the the  package, ordinary.  More  school  and  if it  the n o t i o n  makes  it  of  the is  is  the  that  in  the  result.  power o f  the  adjudicator  policy  namely  power  judicial  to  the  but,  child's  the  here  that  account  o b v i o u s why  example  of  again,  the  the  this  the surely  It  is  d i s c r e t i o n by  nuances o f  tailor  into  earnings.  the  not  implementing  individual  case  i s whether,  having  outcomes  particular  by r e t u r n i n g  to d e t e r m i n e  take  immediately  The q u e s t i o n  s h o u l d be b l u r r e d  the  not  i n work  limiting  less likely  guidelines  convincing is  could contemplate  be r e f l e c t e d  removed  apart.  who h a s l e f t  guideline  cases,  but,  i n c o m e and b a s i c n e e d s ,  teenager  will  circumstance  it  in  a case i s  to a  out  different of  the  164  O'Donnell  140  recognises  t h i s problem i n commenting on  Supreme Court's d e c i s i o n i n Smith v Smith. formula wth  Whilst  a view to promoting c o n s i s t e n c y  the Oregon  providing a  i n the lower c o u r t s ,  the  Supreme Court would a l l o w f o r the m o d i f i c a t i o n o f the r e s u l t i n the 142 l i g h t of p o l i c i e s enunciated those m o d i f y i n g How  g u i d e l i n e s apply? The  i t be  to r e b u t  ready a r e s o r t to formula.  the presumption t h a t  the  hurdle  can  a d j u d i c a t o r c o u l d be l e f t a t l a r g e to d e s i g n a t e be a standard  to a l i s t o f f a c t o r s .  The  d i v i s i o n of m a t r i m o n i a l p r o p e r t y .  be  cases as  o f u n f a i r n e s s , perhaps w i t h  l a t t e r i s the scheme o f s 51 o f 143  B r i t i s h Columbian F a m i l y R e l a t i o n s A c t  Anderson J.'s  the  D i f f e r e n t standards f o r t h i s i n i t i a l  e x c e p t i o n a l or t h e r e may reference  Too  f a c t o r s undermines the purpose of  difficult will  envisaged.  i n e a r l i e r cases.  i n the d i f f e r e n t c o n t e x t  the  of  I t i s i n t e r e s t i n g to note t h a t  r e s t r a i n e d approach to the use  of h i s power to d e p a r t  from  the formula o f equal d i v i s i o n o f f a m i l y a s s e t s i n Margolese v 144 145 Margolese was o v e r - r u l e d on appeal i n favour o f a broad d i s c r e t i o n to d i v i d e the a s s e t s  fairly.  The  purpose o f c i t i n g  t h i s example i s to  suggest t h a t i t would not be d i f f i c u l t f o r an a c t i v i s t the presumption t h a t the g u i d e l i n e s apply view o f what c o n s t i t u t e s e x c e p t i o n a l whatever i n i t i a l depart  i s put  by  taking a lenient  c i r c u m s t a n c e s or u n f a i r n e s s  i n the path of  from the p r e s c r i b e d c o u r s e .  judiciary  the p a r t y s e e k i n g  T h i s c a p a c i t y o f an  or to  unsympathetic  to undermine the purpose of implementing the g u i d e l i n e s  to the c o n c l u s i o n  the USA  hurdle  simply  j u d i c i a r y to bury  has  t h a t the g u i d e l i n e should 146  y e t gone t h i s f a r .  Involved  be mandatory.  the  State i n  i n t h i s c o n c l u s i o n i s the  p r o p o s i t i o n t h a t i t i s worth a r r i v i n g a t some i m p e r f e c t c o u l d have been improved upon by  No  leads  outcomes, w h i c h  judicious exercise of a r e s i d u a l  165  discretion,  i n o r d e r to p r e s e r v e c l a r i t y o f approach.  The problem  i n d e f i n i n g the degree o f i m p e r f e c t i o n which can be t o l e r a t e d p u r s u i t of a general c l a r i t y . a p p l i c a t i o n i s extremely approach was r e j e c t e d  lies  i n the  Designing a guideline of universal  problematic.  I n England,  the s i m p l e one t h i r d  i n cases where the p a r t i e s had v e r y low incomes  and has been disapproved  147  o f i n cases a t the w e a l t h i e r end o f the  148 spectrum.  I n Oregon, the Supreme Court, i n p u t t i n g forward a formula 149  based  on a d i v i s i o n o f c o s t s o f the c h i l d  clear  t h a t the formula was n o t designed  i n Smith v Smith,  made i t  to be a p p l i c a b l e to cases i n  which the Support Enforcement D i v i s i o n was s e e k i n g to r e c o v e r d i s b u r s e d by the S t a t e on w e l f a r e p a y m e n t s . * D i v i s i o n ' s own formula, based  50  I n the l a t t e r c a s e s , the  s i m p l y on a percentage  o f the  n o n - c u s t o d i a l parent's e a r n i n g s , remained a p p r o p r i a t e . * * 5  must a t l e a s t be conceded  funds  the leeway to d e p a r t from  the l i g h t o f i t s o t h e r o r d e r s f o r f i n a n c i a l r e l i e f  The c o u r t s  the g u i d e l i n e s i n i n the p a r t i c u l a r  case, though t h i s d e v i a t i o n c o u l d i t s e l f be c o n s t r a i n e d by g u i d e l i n e s . F o r example, c a p i t a l c o u l d be n o t i o n a l l y converted deducted  to income and  from what would otherwise be the weekly e n t i t l e m e n t .  I f a d j u d i c a t o r s a r e to have no scope to d e p a r t from d i c t a t e d by the g u i d e l i n e s , a r e the p a r t i e s limited?  themselves  the s o l u t i o n  to be s i m i l a r l y  What i s the p o s i t i o n o f an a d j u d i c a t o r who i s asked  a s e t t l e m e n t which does n o t conform to the g u i d e l i n e s ?  to approve  The answer to  these q u e s t i o n s w i l l depend, e s p e c i a l l y i n low income c a s e s , on the e x t e n t to which the i n t e r e s t o f the S t a t e i n m i n i m i s i n g i t s e x p e n d i t u r e on the s i n g l e parent f a m i l y i s u p h e l d . c o n s i d e r e d c o n t r a r y to p o l i c y  F o r example, i t may be  to approve a s e t t l e m e n t below the l e v e l  d i c t a t e d by the g u i d e l i n e s , even when t h i s would have no e f f e c t on the  166  single  parent  family's  Income,  become a p u b l i c l i a b i l i t y . if  it  felt  that  interests, It the  quite  is  expenses  that  It  is  to  insufficient  issue  limit  preferable  the  m u s t be  to  certain  must have ensure  the  items  given  to  there  for  submitted  to  a flaw  outside  error, that  to  in  the  another  the  there  for  negotiation  incentive  settle  trial  example  the  family.  separately  from  This discussion  is  all  for  can s t i l l house.  the  total  than  exist  this  in  if  order  the  to  court  adhere  to  thwarted.  about  from  the  it?  If  it?  small  It  is  figure which i t  one p a r t y  the  to  parties  i s known w i t h i n a  the  has  process  the  wants  propriety  c h i l d maintenance  a c c u m u l a t e d by  involves another  which  their  departure  negotiate  by  and  invent  but not w i t h i n  However, to  time  w h i c h do n o t  issue  less  resolved  to  cases,  is  of  to  guidelines  process  to  to  by  important  Given that  in  adjudication  a p p r o a c h c a n be q u e s t i o n e d w i t h r e s p e c t viewed  the  promoted  a particular  any to  it  themselves  negotiation. outside  are  an a r r a n g e m e n t  Therefore, parties  children's  process  court's  may b e a n o b s t a c l e  of  the  intervene  solution dictated  approach which permits  process  incentives  item,  the It  a p p r o a c h to is  the  the  to  to  to  expenditure.  and  endorse settlements  this  to  c i r c u m s c r i b e the  parties'  s o l u t i o n s are  power  heed  the  negotiate  known w o u l d b e a c h i e v e d a t  parent  to  tempted  disputes  allow  Otherwise,  adjudicator's  item is  state  maintenance  that matrimonial  incapable of  freedom  the  to  problem.  that voluntary  guidelines  margin  and  the  guidelines. Is  of  parties  b e e n i m p o s e d may be more l i k e l y .  render  a l s o be  c a n b e s a v e d and b e c a u s e a d h e r e n c e  own s o l u t i o n s  of  the  b e c a u s e s o much o f  promote s e t t l e m e n t  the  from  paid  g u i d e l i n e s w o u l d be u n j u s t i f i a b l y  negotiation  the  The c o u r t might  settlement  apart  argued  negotiation.  not  the  b e c a u s e to do so p e r m i t s  issue,  the  if  of  more this  this  single  however,  is  and  167  that  is  the  basic question of  co-ordinating  the  use of  formulae  calculating child  and p o s s i b l y s p o u s a l m a i n t e n a n c e w i t h  the  discretionary  financial  4»  Who s h o u l d u s e In  the  field  based on o f t e n the  State  of  taxation,  discretion  marginalised is  it  is  than by a j u d i c i a l  entitlement  obligations,  of  jurisdiction.  formulae w i l l  assessment of is  remainder  the G u i d e l i n e s ?  complex  rather  relief  the  for  there  to  that  be r e n d e r e d body.  social  in  accepted  the  by  the  security  allowances.  need  the  it  a  of  the  Once  assessment of  to k e e p  tax  bureaucracy  T h e same g o e s f o r  connection with  any l o n g e r  a s s e s s m e n t s to  support  judicial  preserve? It  can c e r t a i n l y  better  suited  allocating Benefits run  to  the  be a r g u e d  administrative  task  of  each of cites  the  the  parties  otherwise  the  action.  nature  they  facts  considered  regarding  of  the  The F i n e r  a s s e s s i n g maintenance  Commission which  to d i s c o v e r i n g the  that  the  to  Committee  the  'better  it  advocated  Supplementary  suited  in  the  normal  f i n a n c e s and c i r c u m s t a n c e s  and m a k i n g c o n s i s t e n t d e c i s i o n s ' . unreported  e x e r c i s e makes  d e c i s i o n of Payne J .  152  Their  i n Winter  v  of  report Winter  153 which  is  to  discovery  similar  of  documents,  a recalcitrant  for  note  in  the  for  can prove  'has o f f i c e r s  obtaining  Barrington Baker procedures  they  A l t h o u g h the  non-custodial parent.  Commission which  facilities  effect.  et  al  context  of  relevant  also  obtaining  skilled  court  expensive This  extracting  to  to  i n making e n q u i r i e s 154  information'.  efficacy  information  the  It  is  of  with  prefer  of  judicial  interesting  punitive  the  and  The r e s e a r c h  information.*"'"'  for  u s e when f a c e d  l e a d s Payne J .  c a s t s d o u b t on the  relevant  has p r o c e d u r e s  provision  to of  168  s 60(2) court  of is  British  authorised  applicant This  the  if  to  order  a request  provision  disposal  Columbia Family R e l a t i o n s  of  is  for  an acknowledgement  of  A further to  the  task  simply  the  the  that  stage  in  the  parent  and it  place  process  of  determining  is  guideline?  it  simplified,  the  In  to  the  of  the  the  the  the  reasonably. expeditious  point  applicants  for  another  way,  support  c a n be  determination  of  their  herald  the  task  be  the the  the  process of  radical  If  a s s e s s m e n t as  tracing  there  not  to  is  use  For are  resources  example, to  assessing  task  of  reformation  be  be l a r g e l y  the  the  reduced  the  order and  assessment of  the an  to be a s c e r t a i n e d  the  suited  to  in  present such  agency f o r  in  place,  of  functions,  the  an  the  especially  if  straightforward.  said  against  is the  expenditure  of  award.  which arrears  may a l r e a d y  case of  number  at  the  process of  income has  relatively to  a g e n c i e s may be b e t t e r  assessment.  Allocating  s h o u l d be welcome the  put  thought wasteful  rate  a bureaucracy  simply diminish family,  to  there  that  foster  conceive of  the  purposes of  exercises  be  perform  guideline  accepted  may b e  the  to  enforcing  prioritised.  What i s  to  benefit  complied w i t h to  to  integrated  The d e f a u l t e r ' s  a g e n c y may n o t  the  for  similar  place.  to  need  that  prior  possible  in  means  battles  is  agency,  obligations  possibility  it  already  first  the  the  whereby  support.  first  non-custodial  involves  of  for not  r e a s o n why a d m i n i s t r a t i v e  is  enforcement  $5,000  proceedings and,  w o r n down b y p r o c e d u r a l for  to  disclosure is  a recognition  matrimonial  applications  up  Act  capable  a  transfer of  using  non-custodial of  that  agencies  the the  State  the  it  is  particular  parent  whose  on the  single  p r o c e d u r e would  involved  if  diminished  be  payments  will  parent  considerably  and  the  interest  169  of  the  State  in  privatisation  reimbursing i t s e l f  of  the  State's  made e x p l i c i t .  role  as m a i n t a i n e r  This  of  the  process is single  the  parent  family. The c i r c u m s t a n c e s are operate of  the  so t h a t State's  harnessing of  expenditure. bureaucratic  private  than  ensuring that  rights'.*"'  power What  7  is  the  a rigid  presumption that  framework.  the  guidelines  the  a p p l i c a t i o n of  the  guidelines  the  private  on the  that  disputants the  State Is  acts  it  on i t s  parent's  one p a r t y  The i s s u e  turns  be s u b j e c t  to of  However,  if  there  apply or  if  they  place  its  inequitable. the  onus o f In  have  the  own f i n a n c i a l  to d i s t i n g u i s h between  own b e h a l f for  the  and  t h o s e where  purpose of  s h o u l d be c a r r i e d  out  it  is  dispute  to  of  it  cannot  only a  rebuttable  are merely that  these the  advisory,  the  circumstances matter between  position.  State  If  already  same f o r c e when  to  '[t]he  guidelines.  has is  In  the  excess  the d e g r e e  from,  putting  and  interest  in a  exercise  an argument  the  in  i n d o i n g more  on  the  argue  agency adopts a p a r t i a l  non-custodial parent  important  to  guidelines  caution against  The l e g i s l a t u r e  p o i n t does not  the  behalf  assessment  a State  this  are has  to  agency's interest  implementation  is  the  p a y a n amount  side of  non-custodial parent.  parties,  observed  right  non-custodial parent  t h o u g h t h a r s h to  court  to  calculation.  for  be  is  the  scope  might  is  the  to  when  a r e m a n d a t o r y and c a n n o t be d e v i a t e d  m a t t e r who makes established  on the  is  has  is  reimbursed?  notwithstanding  guidelines  there  it  Eekelaar  the n o n - c u s t o d i a l p a r e n t  discretion, the  so s t r a i g h t f o r w a r d  the n o n - c u s t o d i a l p a r e n t  over  which  not  for  It  it  before two will  be  the in  this  case  protect. those cases where a c t i n g on the  d e c i d i n g whether  administratively?  the If  the  single  function the  State  of  guidelines  170  are not the  State  courts the  to b e m a n d a t o r y , is  to o b l i g e  the  any c a s e s where  bureaucrats  it  b e s t way  determinations.  apply  for  does not  should not  the  preserve  think  agency the  in  to d e p a r t  the  to  even-handedness of  transfer  from  It  the  guidelines  but  in  s h o u l d a l s o be a b l e  is  non-custodial parent  to  should apply,  the  c o u r t s on the  have been a p p l i e d .  onus on the  the  guideline  The n o n - c u s t o d i a l p a r e n t  a complete r e - h e a r i n g  guidelines  to  administrative  s h o u l d h a v e no power  their  placing  the  not  t o do  ground  that  believed this  is  to  the  that  unduly  prejudicial. The o t h e r  principal  argument  an a d m i n i s t r a t i v e  against  support  to  disrupt  the d e c i s i o n - m n a k i n g p r o c e s s i n  which matrimonial  property  areas w i t h high rates especially i n which set  off  there  is  capital. entirety  owner  In of  the  the  the  In  administrative relationship of the  the  this  fragment  relief  of  applications  in  housing,  and  issue.  this  course, s t i l l  is  are  out  of  the  administrative  an  between  the  used  of  q u e s i o n due  agency w i l l  In  b e many  as a c a p i t a l i s a t i o n  cases to  an to  lack  deal with  former  in  spouses  of  the and  State. if  the  situation,  agency i s  between  or  relationship  Does any p r o b l e m a r i s e maintenance?  would  assessment of  i n v o l v e d and l u m p s u m s , w h e t h e r  entitlement,  financial  them and  occupation of  settlements  these c a s e s ,  it  financial  There w i l l ,  no p r o p e r t y  maintenance  that  and lump sum p r o v i s i o n a r e  cogent argument.  uneven p r o p e r t y  admitted  between  of  agency i s  transferring  the  not  agency's determination  of  it  is  concerned only w i t h  c a n be a r g u e d  dealing at  former  non-custodial parent's  formula  all  that  the  with  the  financial  spouses but w i t h  the  separate  liability  to  the  the  of  periodical  level  child  children.  question  Consequently,  payments  can  171  simply  be  tacked  onto  the  settlement  between  the  spouses.  If  this  were  158 the  case,  receive  'the  total  financial  b a l a n c e between  c o n s i d e r a t i o n a s an e n t i r e t y  been worked  out  majority  cases  of  immediately of  first.  that  such  the  is  not  to  be n e g o t i a t e d ,  or  to  towards  the  the  the  fact,  single  the  takes  family  will in  the a r t i f i c i a l i t y  light  of  inherent  by  the it.  in  the  and p r o c e d u r a l d i s t i n c t i o n b e t w e e n  members o f  same h o u s e h o l d .  Harris, failing  to  M c D o n a l d and W e s t o n w o u l d  give  sufficient  prominence  criticise to  property  the  the  not  had  the  income  time  provision  property  comes  to  the  children,  needs o f  the  single  T h i s would  makes a f o r m a l the  need  liability  b e known and the  happen i n  will  Therefore,  would  c h i l d maintenance  p l a c e whereas  non-custodial parent's  State,  parties'  i s what w i l l  parent  concern.  household assessed curing  in  separation  immediate  reimburse  parent's  for  This,  unless  the  go some way  system proposed which the  this  needs o f  different  approach  for  possibility  that  the  159 children's  needs w i l l  Their  for  need  transferring  the  long-term residential  the m a t r i m o n i a l  Consequently, into  be r e c o g n i s e d i n  they  urge  account imbalances children  in order  such s e t t l e m e n t s . * ^ itself,  a link  is  that in  that In  forged  this  rules  c o u r t would  have  administrative  alternatively,  allow  to  if  be a c k n o w l e d g e d  custodial parent, for  child  outcomes o f  the  c h i l d maintenance  court  the to  to  court  light  re-apply  of  to the  the  the  the  take  provide  refer  the  property  formula  for at  formula  administrative is  by  example.  not d i s c o u r a g e d from a r r i v i n g  the  the  for  support should  through p r o v i s i o n i n  permit  agency i n the  the  are  way,  between  However,  the  settlement.  s e c u r i t y might  formula  parties  processes.  to  the  property  property d i s t r i b u t i o n designed  judicial of  home t o  the  fixed  first,  matter  back  settlement  after  it  and  has  or,  172  decided  the  property  considerations  'call  authority'.* * the  potential  transferring Unless  for  for  files  'of  administrative  is  in  child the  Finer  machinery,  f r o m one body to  the m a c h i n e r y  j u r i s d i c t i o n over  As t h e  Committee  c l o s e l i a i s o n between  Problems  6  but  issues.  not  where  formula  to  by H a r r i s ,  M c D o n a l d and W e s t o n ,  efficiency  over  assistance  authorities  files,  is  oiled,  support from c o u r t  especially  lost  to  be a p p l i e d  the  delays  the  in  apparent.  transfer  administrative  has  these  t h e y may b e ,  readily the  out,  and  6  other,  p l a c e and w e l l  court  principle'* ^  chaos, the  the  pointed  of agency,  refinements  suggested  163 the  present  may e f f e c t  system i n which  no g r e a t  the  improvements  courts  may e x e r c i s e a d u p l i c a t e d  and  the  in  social  jurisdiction.  164 As between  the F i n e r R e p o r t d e m o n s t r a t e s , periodical  matrimonial  property  was d e s i g n e d variable  payments on  of  to  on  deal with  guaranteed  Committee  consists of  allowance  for  is  quite  the  the  allowances  allowance  for  custodial parent.*  the  absent  sums and  o t h e r w o u l d become more a c u t e  spousal maintenance  the  co-ordination  o n e hand and c a p i t a l  maintenance  sanguine about  a c h i e v e d when  the  problems o f  6 5  It  is a  liability  addition.  proposed by  each c h i l d  p o s s i b i l i t y of  parent's  in  if  and a  formula  T h e new  the  Finer  child-care  noticeable lucid  the  that  the  co-ordination  goes beyond  Report being  making  166 periodical  payments.  the  parent,  single  could  court  whether  be n o t i o n a l l y  non-custodial or  the  guaranteed  It  parent parties  is  suggested that  b y way o f  converted  to  the  could  into  maintenance  take  lump sum o r  i n c o m e and  r e d u c e d by  allowance,  the  capital transfer  the w e e k l y  same a m o u n t . * account  the  and r e d u c e i t ,  6 7  received of  by  property,  payments  by  the  Alternatively,  state  benefit,  but not  the  the  increase i t ,  in  168 the  light  of  the  capital  provision.  The l a t t e r  s u g g e s t i o n would  seem  173  to for  p r e j u d i c e the achievement o f c e r t a i n t y i n q u a n t i f i c a t i o n o f income the s i n g l e p a r e n t f a m i l y and i s a l s o n o v e l i n so f a r as i t concerns  bargaining for a State b e n e f i t . 169 It  i s i n this context that Eekelar's c r i t i c i s m  Report ^ 1 7  i s best  o f the F i n e r  understood:  ' I t i s p o s s i b l e t h a t a too single-minded c o n c e n t r a t i o n on the problems o f one-parent f a m i l i e s dependent on s o c i a l s e c u r i t y b l u r r e d the Committee's v i s i o n s l i g h t l y when c o n s i d e r i n g the impact o f t h e i r p r o p o s a l s on the d i v o r c e p r o c e s s . ' 171 F o r the F i n e r  Committee:  'the standard s i t u a t i o n i s , and so f a r as we can see ahead w i l l remain, one i n which the need would be o n l y f o r an o f f s e t o f [guaranteed maintenance allowance] a g a i n s t maintenance.' 172 Perhaps i t i s now an e q u a l l y standard s i t u a t i o n f o r the couple to own a house w i t h a s m a l l e q u i t y , perhaps,  i n B r i t a i n , purchased  from  the l o c a l  a u t h o r i t y from which they p r e v i o u s l y rented i t , and f o r the wage-earner to sum  be anxious  to buy o u t the c u s t o d i a l p a r e n t ' s c l a i m s by r a i s i n g a lump  on the s t r e n g t h o f the a l r e a d y mortgaged p r o p e r t y .  The problem o f  a c h i e v i n g a coherent f i n a l r e s u l t from the d i v i s i o n o f r e s p o n s i b i l i t y between the e x e c u t i v e and the j u d i c i a r y w i l l a r i s e as a matter o f routine. There a r e b e n e f i t s which i t i s hard right  to q u a n t i f y , f o r example the  to c o n t i n u e to occupy the m a t r i m o n i a l home d u r i n g the c h i l d r e n ' s  minority.  How a c c u r a t e l y c a n the v a l u e o f an uneven p r o p e r t y s e t t l e m e n t  be assessed In terms o f weekly income?  Should d i s t i n c t i o n s be drawn  between cash and income p r o d u c i n g a s s e t s on the one hand and a s s e t s l i k e the m a t r i m o n i a l home which a r e bound up w i t h o t h e r l i a b i l i t i e s n o t h i n g to the s i n g l e p a r e n t ' s weekly r e s o u r c e s ?  and add  I t i s concluded  that  the problems o f c o - o r d i n a t i o n w i t h i n each i n d i v i d u a l a p p l i c a t i o n f o r  174  financial  relief  administration the  courts  to  impractical  are  of  and l i k e l y  all to  in  transfer  the  agency.  the  the  of  between  5•  with  of  the  for  from  as  of  outcome  and  calculating  spousal  maintenance  parent  of  the  child  family,  it  may be  c h i l d maintenance  duration  with which of  to  more v i a b l e  indefinite  totality  maintenance  household support which  become a s t e a d i l y  the  the  is  not  comprehends  possible successfully an  administrative  proposition  if  orders  become r a r e r ,  for  there  f o r m u l a would  have  to  settlement.  Remarks  The replacement levels  in uncertainty  s p o u s a l and  t h e n be one l e s s v a r i a b l e  Conclud i n g  transfer  c a l c u l a t i n g s p o u s a l maintenance  some f o r m o f  assessment of  co-ordinate within  to  a g e n c y s h o u l d be a b a n d o n e d  result  single  This w i l l  proposal  courts.  spousal maintenance  would  the  Any g u i d e l i n e s  favour  members o f  for  to  the d i s t i n c t i o n  abandoned  for  an a d m i n i s t r a t i v e  be u s e d by  If  that  a guideline  unnecessary d e l a y . should  so g r e a t  of  the  discretionary  s u p p o r t may be a d v o c a t e d inefficiency  of  the  jurisdiction  from a s t a n d p o i n t  present  system,  its  for  of  setting  dissatisfaction  propensity  for  173 inconsistency  and  the  inadequate  orders  it  generates.  As  174 The F i n e r this  Report  field  illustrates,  can form p a r t  State  the  US C h i l d S u p p o r t E n f o r c e m e n t to  economic if  supporting single  privatise expenses o f  permitted,  guidelines  for  the  the the  courts  limiting  of  judicial  discretion  a p o l i c y which advocates a greater  the  may b e  in  of  the  support  parent  families.  Amendments,* obligation  separation  are  can e l a b o r a t e  consistent adjudication  to  Alternatively, the d o m i n a n t  7 5  and  to d e t e r m i n e  be s h a r e d .  upon the are  to  be  role as  for with  philosophy how  the  Legislatures  malleable  in  principle  established.  and, that  175  Without single  parent  knowledge  guidelines  the  of  c a s e has been  are  guidelines  unavoidable  of  not are  the  in  at  best  fortunes  only  treated  in  of  than,  for  which the  accordance with  the  from anybody e l s e ' s  members o f  the  formerly  the  case.  intact  The  household  economic l o s s e s  consequent upon d i v o r c e :  many c a s e s ,  single  the  by S t a t e  her  and  perhaps  example,  parent's  Weitzman  prospects.  programmes,  distribution  seeking a  the  sole  employment  income s u p p o r t  s e l e c t i n g an appropriate  divorce  benefits  o u t c o m e and  c h i l d r e n which a f f e c t s  supplemented  economic h a r d s h i p of economic  the  the  certainty  no d i f f e r e n t l y  expenses;  responsibility  however,  relative  cannnot a s s i s t  overcome the  they  are  principles,  duplication  If  elaboration,  obtains  that  established  to  this  greater  identified  of  the  equity  of  in  1 76 California  or  in V i c t o r i a . * resources, efficient cure  for  the  Australian Institute  For  7 7  no m a t t e r the  the  the  how r e f i n e d  process of  parent  of  single  whose n e e d s  because  the  parents  from making a p p l i c a t i o n . solution of  the  to  and  by u s i n g the  original  order.  are are,  ills.  never  adjudicated  for  one r e a s o n o r  the d e v a l u a t i o n  expense o f guidelines  of  variation to  in  problem of  guidelines  review  identified  available  adjudication  guidelines  the  Studies  sufficiency of  financial  address  However,  problem of  uncertainty  eliminated the  the  family's  guidelines  single  the  enforcement,  implementation parents  Family  t h o s e who d o u b t  process of single  for  themselves Neither the  the  another, the  orders with  would  no the  of  courts  discouraged prospect of time f o r  proceedings could present  how  are  numbers  upon by  do o f f e r  the  and  much  be  sufficiency  of  a  176  Footnotes  1.  M. Takas, C h i l d  2.  P. B a r t r i p , 'An H i s t o r i c a l Account o f the E v o l u t i o n o f the R e g i s t r a r s ' J u r i s d i c t i o n i n M a t r i m o n i a l Cases', Appendix A to W. B a r r i n g t o n Baker, J . E e k e l a a r , C. Gibson and S. R a i k e s , The M a t r i m o n i a l J u r i s d i c t i o n o f R e g i s t r a r s ( O x f o r d : SSRC 1977) p a r a 10.  3.  B a r t r i p , supra, f o o t n o t e 2, para 11.  4.  Rules and R e g u l a t i o n s f o r Her Majesty's Court f o r D i v o r c e and M a t r i m o n i a l P r o c e e d i n g s , nos 101 and 102.  5.  Rules and R e g u l a t i o n s , supra, f o o t n o t e 4, no.191.  6.  M a t r i m o n i a l Causes Rules 1924, r 69.  7.  Rules o f Supreme Court, Order XXXVa.  8.  B a r t r i p , supra, f o o t n o t e 2, paras  9.  Supra,  10.  See, f o r f u r t h e r e x p l a n a t i o n o f the s p e c i a l procedure, B.M. Hoggett and D.S. P e a r l , The F a m i l y , Law and S o c i e t y (2nd ed) (London: B u t t e r w o r t h s 1987) pp 199-202.  11.  M a t r i m o n i a l Causes A c t 1973 s 41.  12.  33-34-35 E l i z I I c 4.  13.  Supra,  f o o t n o t e 2, paras 23 and 24.  14.  Supra,  f o o t n o t e 2, paras 16 and 17.  15.  P a r l i a m e n t a r y Papers 1946-7, v o l X I I I , Cmnd 7024, p 208.  16.  P a r l i a m e n t a r y Papers 1945-6, v o l X I I I , Cmnd 6945, p 802.  I *  Supra,  18.  (1939)6 Law and Contemporary Problems 213.  19.  Loc. c i t . .  20.  Supra,  21.  B a r r i n g t o n Baker e t a l , supra, f o o t n o t e 2.  7  Support  (Harper and Row 1985) p 13.  14-20.  f o o t n o t e 2, para 12.  f o o t n o t e 2, para 17.  f o o t n o t e 18, pp 183-320.  177  22.  Supra, footnote 2, para 3.30.  23•  Loc. c i t . .  24.  Matrimonial Causes Act 1973 s 25(1) p r i o r to i t s amendment by the Matrimonial and Family Proceedings Act 1984.  25.  Supra, footnote 2, para 2.2.  26.  M. Finer and O.R. McGregor, 'The History of the Obligation to Maintain', Appendix 5 to The Report on the Committee on One Parent Families (Finer Report) Cmnd 5629 (London: HMSO 1974) para 26.  27.  P.M. Bromley and N.V. Lowe, Family Law (London: Butterworths 1987) p 689.  28.  [1973] Fam 72.  2 9  *  JEliEE .* footnote 28 a t p95. 3  30.  [1977] 3 A l l ER 957.  31.  [1982] 3 A l l ER 321.  32.  Supra, footnote 31 at p 326.  33.  Supra, fotnote 31 at p 324.  34.  (1986) 16 Family Law 129.  35.  Loc. c i t . .  36.  (1986) 16 Family Law 335.  37.  Loc. c i t .  38.  Barrington Baker et a l , Supra, footnote 2, para 3.28.  3 9  *  Sjapra, footnote 2, para 3.29.  40.  Supra, footnote 2, Table 9.  41*  8u_pr_a_, footnote 28.  42.  [1966] P 52.  ^3*  Supra, footnote 42 at p 55.  ^*  Sjupra> footnote 2, para 2.27.  45.  [1972] 3A11 ER 872.  178  46.  There are signs that the courts are s h i f t i n g their ground somewhat i n the l i g h t of their duty to sever the parties' f i n a n c i a l relationship as soon as possible. See Ashley v Blackman (1988) 18 Family Law 430.  47.  Supra, footnote 2, Table 2.  48.  Supra, footnote 2, para  49.  Rodewald v Rodewald [1977] 2  50.  Supra, footnote 2, para  5 1  *  2.6. WLR  191.  2.10.  Supra, footnote 28 at p 90.  52 •  Supra, footnote 2, para  2.22.  53.  Supra, footnote 2, paras 2.22-2.23.  54.  Supra, footnote 2, para  55.  Supra, footnote 26.  56.  See P. Snow, 'Ashley v Blackman and the L i a b i l i t y to Maintain' (1989) 133 S o l i c i t o r s ' Journal 206.  57.  Finer Report, supra, footnote 26, para 4.108.  58.  Supra, footnote 2.  59.  Supra, footnote 2, Table 10. I t i s not absolutely clear whether this includes reviews of settlements or only contested hearings.  60.  Supra, footnote 2, para  4.6.  6l»  Supra, footnote 2, para  4.9.  62.  Supra, footnote 2, Table 13.  63.  Supra, footnote 2, para  64.  L.M. Yee, 'What r e a l l y happens i n Child Support Cases' (1979) 57 Denver Law Journal 21.  65.  Supra, footnote 64 at pp 25-37.  66.  Supra, footnote 64 at p 37.  67.  Supra, footnote 64 at p 38.  68.  Loc. c i t . .  69«  Supra, footnote 64 at p 27.  3.30.  4.18.  179  70.  Supra, f o o t n o t e 64 a t P 29.  71.  Supra, f o o t n o t e 64 a t P 30.  72.  Supra, f o o t n o t e 64 a t P 34.  73.  Supra, f o o t n o t e 64 a t P 27.  74.  Supra, f o o t n o t e 64 a t P 25.  75.  K.R. White and R.T.. Stone, R u l i n g s w i t h some Recommendations*  (1976) 10 FL<_)  75.  76.  Supra, f o o t n o t e 75 a t p  83.  77.  Loc. c i t . .  78.  Loc. c i t . .  79.  Supra, f o o t n o t e  80.  I t w i l l be r e c a l l e d t h a t the o b j e c t i v e was b r o a d l y to p l a c e the p a r t i e s i n the p o s i t i o n they would have been i n had the m a r r i g e c o n t i n u e d : M a t r i m o n i a l Causes A c t 1973 s 25(1) as o r i g i n a l l y enacted.  2.  Supra, f o o t n o t e 2, para  3.30.  82.  Supra, f o o t n o t e 64 a t p  50.  83.  Supra, f o o t n o t e 75 a t pp 83-84.  84.  S. Wexler, ' D i s c r e t i o n : the unacknowledged s i d e o f law' U n i v e r s i t y o f Toronto Law J o u r n a l 120 a t p 153. f o o t n o t e 84 a t p  149.  86.  Supra, f o o t n o t e 84 a t p  135.  87.  [1948] 1 A l l ER  88.  Wexler, sup_ra, f o o t n o t e 84 a t p  89.  P u b l i c Law  90.  Supra, f o o t n o t e 26,  para  91*  Supra, f o o t n o t e 26,  para 4.217.  92.  M.  8 5  *  Supra  t  No  343  at  (1975) 25  345. 153.  98-378 (42 U.S.C. para  667).  4.90.  H a r r i s , P. McDonald and R. Weston, 'Payment o f C h i l d  Maintenance i n A u s t r a l i a ' (1987) 1 I n t e r n a t i o n a l J o u r n a l o f Law and the F a m i l y 92 a t p 119.  180  93.  C. Cockburn and H. H e c l o , 'Income Maintenance f o r One-Parent F a m i l i e s i n o t h e r C o u n t r i e s ' , Appendix 3 to The F i n e r Report, supra, f o o t n o t e 26, para 138.  9  Supra, f o o t n o t e 93, para  4  .  139.  95.  Supra, f o o t n o t e 1 a t p  96.  Supra, f o o t n o t e 2, para  97.  R.G. W i l l i a m s , ' G u i d e l i n e s f o r s e t t i n g L e v e l s o f C h i l d O r d e r s ' (1987) 21 FL£ 281 a t p 317.  98.  Loc. c i t . .  "*  Supra, f o o t n o t e 97 a t p  100.  Loc.  101.  D.L. Chambers, Making F a t h e r s Pay 1979) p 40.  102.  Loc. c i t . .  103.  Chambers, supra, f o o t n o t e 101  104.  T . J . Espenshade, I n v e s t i n g i n C h i l d r e n (Washington D.C.: I n s t i t u t e 1984) p 8.  105.  Loc.jcit._.  106.  Supra, f o o t n o t e 104  107.  L . J . Weitzman, The p 271.  108.  I n f r a , S e c t i o n 4 o f t h i s chapter,  109.  A. Giampetro, 'Mathematical Approaches to c a l c u l a t i n g Support Payments' (1986/87) 20 FLq 373 a t p 381.  110.  Supra, f o o t n o t e 101  111.  K.R. White and R.T. Stone, 'Consumer U n i t S c a l i n g as an A i d i n e q u i t a b l y d e t e r m i n i n g Need under Maintenance and C h i l d Support Decrees' (1979/80) 13 J L £ 231.  112.  B. Bergmann, ' S e t t i n g A p p r o p r i a t e L e v e l s o f C h i l d Support Payments' i n J . C a s s e t t y , ed, The P a r e n t a l C h i l d Support O b l i g a t i o n ( L e x i n g t o n : L e x i n g t o n 1983) p 115 a t p 117.  113.  Supra, f o o t n o t e 109,  c i t  14. 2.6. Support  320.  v  at p  at p  (Chicago: U n i v e r s i t y o f  41. The Urban  6.  D i v o r c e R e v o l u t i o n (New  at p  Chicago  'Who  York: F r e e P r e s s  would use  1985)  the G u i d e l i n e s ? ' . Child  45.  p 378  a t her f o o t n o t e  30.  181  114.  M.R. Com  Franks, 3.  'How  to c a l c u l a t e C h i l d  115.  Supra, f o o t n o t e  112.  116.  Supra, f o o t n o t e  109.  117.  Supra, f o o t n o t e  112.  118.  Supra, f o o t n o t e  111.  119.  Supra, f o o t n o t e 111  120.  C.S. Bruch, 'Developing Normative Standards f o r C h i l d - S u p p o r t Payments' i n C a s s e t t y , ed, supra, f o o t n o t e 112, p 119 a t p 125.  121.  Supra, f o o t n o t e 104  122.  Supra, f o o t n o t e 104 a t p 3.  123.  W i l l i a m s , su_pra, f o o t n o t e 97 a t p  124.  Wisconsin  125.  I l l i n o i s Ann.  126.  J . C a s s e t t y , 'Emerging Issues i n C h i l d - S u p p o r t P o l i c y and P r a c t i c e ' i n C a s s e t t y , ed, supra, f o o t n o t e 112, p 3 a t p 6.  127.  Supra, f o o t n o t e 107  128.  I.V. S a w h i l l , 'Developing Normative Standards f o r C h i l d - S u p p o r t Payments' i n C a s s e t t y , ed, supra, f o o t n o t e 112, p 79 a t p 80.  129.  Supra, f o o t n o t e 128  130.  See Bergmann, supra f o o t n o t e 112  131.  Bergmann, s u p r a , f o o t n o t e 112  132.  M. Maclean and J.M. E e k e l a a r , 'The F i n a n c i a l Consequences o f D i v o r c e ' i n M. Brenton and C. Ungerson, eds, The Year Book of S o c i a l J * ^ ^ 1985-6 (London: Routledge and Kegan P a u l 1986) p 42 a t p 46 d i s c u s s i n g the E n g l i s h Law Commission's d i s c u s s i o n paper No 103, 'The F i n a n c i a l Consequences o f D i v o r c e : The B a s i c P o l i c y * , Cmnd 8041 (London: HMSO 1980).  133.  See W i l l i a m s ' d i s c u s s i o n , supra, f o o t n o t e 97 a t pp 295-301.  134.  Supra, f o o t n o t e 97 a t p  135.  Loc. c i t . .  136.  Loc. c i t . .  S t a t . Ann.  Support'  (1981) 86 Case and  a t pp 245-246.  a t p 2.  290.  767.25.  S t a t , c h 40,  at p  para  505.  269.  a t pp 80-81.  268.  at p  at p  115.  116.  182  137.  Loc. c i t . .  138.  W i l l i a m s , supra, f o o o t n o t e 97 a t p  139.  Supra, f o o t n o t e 97 a t p  140.  M.  141.  (1981) 626  142.  O'Donnell, supra,  143.  RSBC 1979  144.  [1980] 2 WWR  145.  24 RFL  146.  W i l l i a m s , s u p r a , f o o t n o t e 97 a t p  147.  Cann v Cann, s u p r a ,  148.  P o t t e r v P o t t e r , supra,  149.  Supra, f o o t n o t e  150.  Supra, f o o t n o t e 141  151.  Loc. c i t . .  152.  Supra, f o o t n o t e 26,  para 5.185.  153.  Supra, f o o t n o t e 26,  para 4.104.  154.  Ibid.  155.  Supra, f o o t n o t e 2, Chapter 4, P a r t A,  156.  Supra, f o o t n o t e  157.  J.M. E e k e l a a r , ' P u b l i c Law and P r i v a t e R i g h t s : [1976] P u b l i c Law 63 a t p 72.  158.  Loc. c i t . .  159.  Supra, f o o t n o t e 92 a t pp 113-114.  160.  Sjupra, f o o t n o t e 92 a t p  161.  _Sj_i£ra, f o o t n o t e 26,  162.  Loc. c i t .  O'Donnell,  (2d)  312.  'Smith v Smith' (1982) 18 W i l l a m e t t e  P(2d)  c  313.  Law  Review  353.  342. f o o t n o t e 140  a t pp 353  and  359.  121. 723 176,  at p  745.  e s p e c i a l l y per Hinkson JA a t p  footnote  182.  312.  30.  footnote  31.  141. a t pp 345-346.  passim.  143.  114.  para 5.211.  the F i n e r  Poposals'  183  163.  Supra, footnote 92 a t p 114.  164.  Supra, footnote 26, paras 5.234-5.247.  165.  Supra, footnote 26, para  166.  Supra, footnote 26, para 5 .247.  167.  Supra, footnote 26, paras 5.240-5.242.  168.  Supra footnote 26, paras 5.243-5.245.  169.  Supra, footnote 157.  170.  Supra, footnote 26.  171.  Supra, footnote 157 a t p 63.  172.  Supra, footnote 26, para 5.246.  173.  This i s Williams' approach to the need f o r reform, supra, footnote 97.  174.  Supra, footnote 26.  175.  Supra, footnote 89.  176.  Supra, footnote 107 at pp 337-340.  177.  R.E. Weston, 'Changes i n Household Income Circumstances' i n P. McDonald, Settling; Up (Sydney: Prentice-Hall 1986) pp 114-117.  5.104.  184  CHAPTER 6 THE MAINTENANCE OF THE SINGLE PARENT FAMILY AS A COMMUNITY R E S P O N S I B I L I T Y  In  this  chapter,  the  argument  be e x c l u s i v e l y r e s p o n s i b l e f o r family  will  be  investigated.  responsibility  to  household w i l l  be e x p l o r e d  effort  will  the  b e made  State  to  how f a r  some W e s t e r n  primary  responsibility  could but  be a r g u e d  theory  and  that that  moved o n c e a g a i n whether  present  household  to  explicitly  for  but,  in  the  putting  for  the  forward  of  of  already  real  the  members o f  single  former  parent  the  to  an  emphasise  accepting  families.  responsiblity  and  former  It  responsiblity in  family  formalised  parent  arguments,  towards  has p r i m a r y  the  these  r a d i c a l i s m and  q u e s t i o n i s whether  s h o u l d be  single  should  allocating  h a v e a l r e a d y moved  the w e l f a r e  State  of  e m a n c i p a t i n g members o f  veneer  the  practice  community as a whole  the maintenance  and  countries  the  the  The r a t i o n a l e  remove  for  that  unit  former  absolved from r e s p o n s i b l i t y f o r  all  s h o u l d be  themselves, members o f  or  the  transferring  income. In  the  who a d o p t should is  the  two  principal  arguments  p o s i t i o n that maintenance  essentially  State  place,  of  the  be a n e x c l u s i v e l y p u b l i c c o n c e r n w i l l  distinguish  of  first  it  that  single  from any o f  concerns i t s e l f .  parenthood the  to  with respect  some d e g r e e  the  related  to d i s s o l u t i o n o f  s i n g l e parent  be c o n s i d e r e d .  v i c i s s i t u d e s of  light to  forward  by  those  family The  first  h a s no s p e c i a l c h a r a c t e r i s t i c s  The second argument  preserving dependencies i n  which are  other  put  the  marriage.  of  life  emphasises the changing family  State's  w i t h which  to the  impossibility patterns,  own l e g i s l a t i v e  actions  185  1.  S i n g l e Parenthood In  1968,  as a y i c l s s l t u d e o f  P r o f e s s o r Brown was  Life  prepared  to  predict  that:  ' b y t h e y e a r 2000 t h e l a w w i l l h a v e a b a n d o n e d a s s o c i a l l y u n d e s i r a b l e , f r e q u e n t l y i n e f f e c t u a l and w h o l l y uneconomic the hounding o f spouses through the c o u r t s f o r n o n - s u p p o r t o f t h e i r families. N o n - s u p p o r t b y s p o u s e o r p a r e n t w i l l be r a n g e d a l o n g s i d e those o t h e r v i c i s s i t u d e s of l i f e unemployment, s i c k n e s s , i n d u s t r i a l injury, c h i l d - b i r t h , death i t s e l f - for which s o c i a l i n s u r a n c e s h o u l d make p r o v i s i o n . ' 1 As w i l l  be c o n s i d e r e d i n  become t r u e , of  it  greater  detail  must be p o l i t i c a l l y  p u b l i c money  to  single  competing i n t e r e s t s ,  for  parent  below,  acceptable  families  example  for  the  to  when  elderly  this  allocate  the  and  prediction large  suggestion is  the  to  amounts that  physically  2 handicapped, public  are  could,  support of  more  over  single  popular with  a period parent  of  the  time,  families?  public.  How i s  it  that  become s a n g u i n e a b o u t The answer  to  this  the  the public  question  will  3 extract that for  from Brown's  single  prediction  parenthood  some o f  c a n be v i e w e d  in  the the  elements same way  of as  the  argument  unemployment,  example.  4 First, are  all  the  examples w h i c h Brown g i v e s  ordinary  from s e p a r a t i o n , the  list  should  divorce  events  involve  surrounds single  of  occurrences.  it.  itself,  life it  single  birth with  the  extract  parenthood,  outside marriage,  the  consequences of  must shed any p a t h o l o g i c a l  To be r e g a r d e d  parenthood  become u s u a l .  in  or  If  in  must c e a s e  as to  just  another  whether is  to  which  unfortunate  reviewed  in  above  arising  be added the  to  State  aura which  be c o n s i d e r e d a p e c u l i a r  The demographic m a t e r i a l  quoted  still  occurrence, affliction  Chapter  and  1 suggests  186  that t h e r e Is c e r t a i n l y n o t h i n g unusual about s i n g l e parenthood.  To  c i t e but one example here to a v o i d r e p e t i t i o n , i n the mid-1980's i n Australia,  t h e r e was  a chance i n the range o f 11-12% o f a p a r e n t a l  divorce before a c h i l d c h i l d reached The  reached  ten, and an 18-19% chance b e f o r e the  sixteen, a f i v e - f o l d  s c a l e o f s i n g l e parenthood  g r e a t e r chance than In the 1960's.  5  can be f u l l y a p p r e c i a t e d o n l y when o t h e r  events as w e l l as d i v o r c e a r e taken i n t o account, however. T h i s demonstrable  p r e v a l e n c e may  lead  to s i n g l e parenthood  being  regarded as u s u a l but i t does not, w i t h o u t more, p r e c l u d e stigma  and  promote the n e u t r a l i t y which D r i n a n advocates: 'Should s o c i e t y b e g i n to admit t h a t d i v o r c e , l i k e d e a t h and d i s a b i l i t y , i s a f a c t o f e x i s t e n c e and t h a t c h i l d r e n a d v e r s e l y a f f e c t e d by the d i v o r c e should, l i k e o t h e r disadvantaged c h i l d r e n , r e c e i v e from s o c i e t y those b e n e f i t s n o r m a l l y a v a i l a b l e to a l l children?' 6 B e f o r e s o c i e t y w i l l make t h i s a d m i s s i o n and r e g a r d s i n g l e parenthood 'a f a c t o f e x i s t e n c e ' ,  7  as  t h e r e must be a l a c k o f t h a t marked  c e n s o r i o u s n e s s which l e d to the g i v i n g o f r e l i e f by means apt to d e t e r the remainder  o f the p o p u l a t i o n i n the days o f the Poor  Law.  C o n s i d e r a t i o n s o f f a u l t r u l e out the s i m p l i c i t y o f D r i n a n ' s  approach,  g summed up i n the r h e t o r i c a l q u e s t i o n quoted above. f a c t o r s which lead  I f the complex  to the c r e a t i o n of the s i n g l e p a r e n t f a m i l y are to be  r e p r e s e n t e d as c a p a b l e o f d i s s e c t i o n i n such a manner t h a t degrees p e r s o n a l f a u l t are d i s c l o s e d , on what b a s i s o t h e r than compassion  can the argument f o r the assumption  be s u s t a i n e d ?  of  charitable  of public  responsibility  187  Kevin Gray argues that: 'Once the notion of personal r e s p o n s i b i l i t y for marriage breakdown i s abandoned, i t becomes impossible to draw any l o g i c a l d i s t i n c t i o n between marital dysfunction and those forms of breakdown which are already covered by s o c i a l insurance.' 9 In short, once the a l l o c a t i o n of blame i s dispensed with as a p r e - r e q u i s i t e for divorce, loss of support from a marital relationship can be assimilated to loss of support from a job or loss of the a b i l i t y to earn a l i v i n g due to poor health.  The individual i s not held  responsible for loss of health or employment and therefore, runs, n o - f a u l t divorce f i t s e a s i l y into the m o d e l . *  the argument  0  Although r e s p o n s i b i l i t y for the marital breakdown may not be assigned on an individual basis to the former husband or former wife, as the case may be, i t is not to retreat from the abandonment of personal r e s p o n s i b i l i t y for marriage breakdown to suggest that, from the point of view of society as a whole, the r e s p o n s i b i l i t y i s assigned to the former spouses j o i n t l y .  What has been discarded i s the notion that i t i s  possible or proper f a i r l y to allocate r e s p o n s i b i l i t y between them.  That  this task i s impossible or improper does not unwaveringly lead to the conclusion that economic losses a r i s i n g out of the marriage breakdown should be primarily a c o l l e c t i v e r e s p o n s i b i l i t y .  I t remains appropriate  to study the f i n a n c i a l history of the marriage with a view to determining whether economic advantages have been gained by one spouse, or disadvantages sustained by the other, as a consequence of the organisation of their married l i f e . I t i s important to point out that in the passages cited above, Brown and Gray are p r i n c i p a l l y concerned with spousal maintenance.  188  Brown e x p l i c i t l y of  maintenance  matrimonial value  recognises  A property  than a maintenance  from d e f i n i t i o n s  of  capital  of  award  away o f  is  in  the  presently of of  the  private  field  less  cases.  law  of  potential  This  arises  p r o p e r t y w h i c h e x c l u d e many a s s e t s from the  to d e m o n s t r a t e  as a s u b s t i t u t e (US)  is  the m a j o r i t y  c a p a c i t y and  Glendon seeks  $100,000  award  in  matrimonial  associated with earning  inappropriate  the w i t h e r i n g  must b e c o u n t e r - b a l a n c e d by r e f o r m s  property.  many c a s e s .  that  for  to  of  how p r o p e r t y  maintenance  required  paucity  raise  property  awards  by p o i n t i n g o u t the  federal  in  so  are that  a  government's  12 poverty  level  income f o r  inappropriate  to  reject  a  family  present  division  financial  of  to  relief  the  and  tangible  Perhaps i t  a b o l i s h the  jurisdiction.  property  private  is law  of  i n a d e q u a c y o f w h a t w o u l d be l e f t  economic r e l a t i o n s h i p s  maintenance  four.  p r o p o s a l s to  maintenance w i t h r e f e r e n c e the  of  of  McDonald et  parties  ...  al  find  to a m a r r i a g e  no l o n g e r  of  'the  into  an adequate  basis  for  13 family law' and p r o p o s e a new b a s i s f o r e c o n o m i c a d j u s t m e n t : compensatory payments f o r economic d i s a d v a n t a g e s a l r e a d y s u s t a i n e d  but  14 without regard the  joint  to  post-divorce events.  r e s p o n s i b i l i t y of  such an i d e a r e c o g n i s e s  partnership  for  disadvantages  sustained,  fails  to  give f u l l  durability  these disadvantages  if  circumstances after  regarded  of  as  irrelevant  emphasise a h i t h e r t o the m a r r i e d  years.  responsibility market  for  it  the m a r i t a l  Whilst  in  all  circumstances.  relatively  unimportant  F o r example, care  of  the  the  due  to  taking  part-time  or  to  disadvantage  spouse w i t h  possible  divorce  are  d i v o r c e may  traceable  to  principal have l e f t  have maintained temporary  the  Events after  c h i l d r e n may n e v e r  c o m p l e t e l y and may a p p a r e n t l y  However,  credit  economic  jobs  to  earning  the  labour  capacity.  accommodate  the  189  children's years  needs,  after The  to  of  this  effecting  how s i n g l e  a c l e a n break  parenthood  relief  this  is  is  not merely  no l o n g e r  be  traceable  spouse has full  the  spouses' in  It  regulating  the  the  Supreme C o u r t o f  Is  unable  national as try  to  single  to d e l i n e a t e  intrinsic  to to  individual, the  into  latter  the  single life  has n o t  this is  judgement  case,  responsibility  of  '[t]he the  labour  market  problem i s  government  a  in his  leads  if the  seeks r e l i e f the  may  other  to make  exigencies  a  into  responsibility for the  State's  the role  d i s s e n t i n g judgement Mclntyre  5  i n w h i c h he s o u g h t  and  due  to as  find  for  the  in  c o n d i t i o n of  the  same  but the  predicament to  employment w h i c h  which  the  factors  former  'extrinsic  the  former  is  are  spouse to  the  economic s i t u a t i o n ' . *  s o c i a l o n e and i t than  to  working s k i l l s  the  in  and  a p p r o a c h l e d Lamer J .  to  those  and  rather  t o show  fault,  the w h e r e w i t h a l  This  s h o u l d e r r e s p o n s i b i l i t y and  the  scale.  market  individual  is  even of  u n r e s p o n s i v e to  causing i n a b i l i t y  particular  the  that,  from which  notion of  by Lamer J .  labour  some  events which  parent  possible future  unemployed p e r s o n .  factors  such as  is  s p o u s e who h a s m a r k e t a b l e  the  spouses  life's  Canada i n M e s s i e r v P e l a g e . *  a former  break  of  economy s h o u l d p r o p e r l y b e r e g a r d e d  any o t h e r  may h a v e  but  that  Wilson J J . concurred with his that  the  economy o n a n a t i o n a l explored  former  argument  married  economic fortunes  i s s u e was  demonstrate  of  taking  may b e p r o t e s t e d  divergent  This  a pattern  settlement,  associated with  p r e c e d e d by an a l l o c a t i o n  gained an advantage  and f i n a l  account.  to  the  another  economic d i s a d v a n t a g e s a g a i n s t which well  arguments  between  The f l a w o f  and d e v e l o p m e n t s  failing.  excursion into  economic h a r d s h i p .  financial  may h a v e b e e n n e g l e c t e d  d i v o r c e may e x p o s e  point  wisdom o f  training  therefore  husband'.*  6  In the  7  The  190  d i f f i c u l t y o f t r y i n g to e x t r i c a t e  the marriage  from i t s economic c o n t e x t 18  i s c l e a r from W i l s o n J.'s judgement A p a r t from two  temporary  in  Richardson v Richardson.  j o b s , Mrs R i c h a r d s o n , who  was  seeking a  v a r i a t i o n In her maintenance from the amount f o r m e r l y agreed, had worked i n the p a s t t h i r t e e n y e a r s , t h a t i s s i n c e the b i r t h of second  child.  difficulties  not  their  The problem o f a t t r i b u t i n g Mrs Richardson's p r e s e n t i n the l a b o u r market to p r e v a i l i n g economic c o n d i t i o n s  r a t h e r than to her d e p a r t u r e from the l a b o u r market d u r i n g the marriage i s f a r g r e a t e r than W i l s o n J . p r e s e n t s i t : 'In sum, she was employed more o f t e n than not d u r i n g the m a r r i a g e . Moreover, the p e r i o d of time from h e r l a s t employment u n t i l the date o f the s e p a r a t i o n was not t h a t g r e a t . In t h i s sense i t cannot be s a i d t h a t the m a r r i a g e a t r o p h i e d her s k i l l s o r impaired t h e i r m a r k e t a b i l i t y . ' 19 F i n d i n g a half-way house where former spouses a r e h e l d r e s p o n s i b l e f o r c e r t a i n economic d i s a d v a n t a g e s but not f o r those a t t r i b u t e d  to  l a r g e r - s c a l e economic f o r c e s beyond t h e i r c o n t r o l w i l l be f a r from and  likely  easy  to r e s u l t i n some marked d i v e r g e n c e s amongst a d j u d i c a t o r s .  More important than t h i s d i s t i n c t i o n between the supposed  sources o f  economic h a r d s h i p f o r the s i n g l e f a m i l y i s t h a t between those who s i n g l e parenthood  i t s e l f as a s o c i a l r i s k ,  accepted by s o c i e t y , and  those who  view  the c o s t s o f which should be  would eschew t h i s  'radical  20 liberalisation'. at l i b e r a l i s a t i o n behind  The l a t t e r a r e presumably today i s p r a c t i c a l l y l i m i t e d  c o n t e n t t h a t 'the e f f o r t to c o n f i n i n g  Itself  the f r o n t i e r s o f p r i v a t e law which u n a v o i d a b l y impedes i t s 21  efficacity'. The c o n c l u s i o n to be drawn from t h i s d i s c u s s i o n i s t h a t parenthood  single  i s not another of the u s u a l v i c i s s i t u d e s of l i f e which the  S t a t e should o f f e r r e l i e f a g a i n s t .  The a s s i m i l a t i o n o f d i v o r c e to  191  unemployment reasons not  for  and the  illness single  p r e c l u d e d by  foundation  the  stone of  is  unconvincing, for  parent  family's  abandonment financial  of  it  present  the  relief.  fails  to  delve  into  the  need, research which  matrimonial  offence  as  is  the  The s e d u c t i v e s i m p l i c i t y  of  the  22 argument  is well  a  of  report  Marriage  exemplified  by G l e n d o n  a F i n n i s h Government  who q u o t e s  committee  in  translation  concerned w i t h reform  from  of  the  Act:  ' t h e need o f the d i v o r c e d s p o u s e g e n e r a l l y i s c a u s e d e i t h e r by u n e m p l o y m e n t o r by i n a b i l i t y t o w o r k , and t r a d i t i o n a l l y c a r i n g f o r c i t i z e n s who f o r s u c h r e a s o n s h a v e been l e f t w i t h o u t s u b s i s t e n c e has b e e n c o n s i d e r e d t o be a t a s k f o r s o c i e t y . ' 23 The n e x t work,  question  i s why  answer  to w h i c h  the  dependence  fostered  facilitate  the  the is  former often  spouse i s disclosed  during marriage.  changing of  the  It  rules  in  is  unemployed  or  unable  by an e x a m i n a t i o n  to  of  unfair  to  the  taxpayer  the m i d d l e  of  the  game,  to  to  24 employ W e i t z m a n ' s the  metaphor,  consequences of In  the  marriage,  case of  and  single of  parent  the  less  important  in  that  the  should accept  the  child,  it  dependencies  is  involved,  it  is  contribution. financial respect  to  a large  parents'  number o f  in  proper  light for  the  children's  of  the  T o do s o w o u l d  c o n c e r n to the  the  the  mother upkeep  f o c u s away the  the  may be  from  to  excuse  render  unfair  the  alone.  and  and  of  to  the  parties  from  a matter  This  support  encouraged  father  birth  argument  the  relationship  the  outside  significantly  the  for  evade  marriage.  by b i r t h s  n e e d s and r e s o u r c e s o f  and S t a t e is  created  responsibility  during  the  to  s p o u s e to  i n s t a n c e s . To r e b u t  State be  former  relationship  exclusive  n e c e s s a r y t o move  the  which arose d u r i n g  families  and e c o n o m i c a c t i v i t y  enquire whether,  enable  economic p a t t e r n s  the h i s t o r y  State  to  of  imbalance  e x p l a i n s why  the  with  192  arguments are  at  for  least  abolishing private more c r e d i b l e  Finally, between State  it  single  the  i s worthwhile  parenthood  does n o t  in  maintenance context  of  in  favour  o f work  unquestioningly offer  fails  relief  public  support  spousal maintenance.  to q u e s t i o n b r i e f l y  and l o s s  of  to  whether  on the  the  analogy  grounds t h a t  citizens  who  the  find 25  themselves unemployed. State It  may r e g a r d  Contrary  unemployment  to  the  model p u t  as a matter  of  personal the  may r e f u s e  to  pay unemployment b e n e f i t  if  unemployed o r  at  fault.  citizen  dismissed  m i s c o n d u c t c o n n e c t e d w i t h h i s work 26  for  without  good c a u s e .  decline  to  be  fulfilling  For  primarily  instead  State  is  not  established 2.  a  The E f f ec t o f This  of  of  State  reason,  it  single  with  for  the  of  life  the of  relationship  than  been  is  the  resigned  State  worker's  in  may  upkeep,  payment  of  made r e d u n d a n t  after  is  that  other,  more  the  the  introduction  families.  that divorce  to  accepting exclusive  s i n g l e parent  have a l r e a d y  parent  idea  the  The p o i n t  State  c a n be a p p l i e d more c o m f o r t a b l y  financial  fault,  An example  c o n s i d e r a t i o n s than  t o w h i c h some c o u n t r i e s  children,  for  provides a useful  for  voluntarily  Patterns  the m a i n t e n a n c e  responsibility  may h a v e  former  the  activity.  second j u s t i f i c a t i o n  pragmatic  Is  o r may h a v e  e m p l o y e e s who a r e 27  Chang_ing^ F a m i l y  concerned with  by G r a y ,  responsibility.  citizen  and u n q u e s t i o n i n g p r o v i d e r  for  extent  to  the  c o n t i n u o u s employment.  responsibility  this  investigating  a secondary r o l e .  primary  fields  as  the  responsible for  r e d u n d a n c y money i n B r i t a i n  two o r more y e a r s  example,  As w e l l  forward  the  to  parent  first  is  like the  is  more  argument.  a discussion of  accepted It  is  to  families  For the  social  a l s o more c o n c e r n e d any o t h e r  severing of  and c h i l d  vicissitude the  spouses'  relationship.  193  The  c o n c l u s i o n t h a t the S t a t e should have an e x c l u s i v e  r e s p o n s i b i l i t y may  be reached  somewhat r e l u c t a n t l y , o n l y a f t e r  a p p r e c i a t i o n of the i r r e m e d i a b l e f a u l t s of the p r e s e n t  an  system:  'by the year 2,000 the law w i l l have abandoned as s o c i a l l y u n d e s i r a b l e , f r e q u e n t l y i n e f f e c t u a l and w h o l l y uneconomic the hounding o f spouses through the c o u r t s f o r non-support of t h e i r f a m i l i e s . Non-support by spouse o r parent w i l l be ranged a l o n g s i d e ... o t h e r v i c i s s i t u d e s of l i f e . ' 28 The  State w i l l  have to admit the s i n g l e parent f a m i l i e s a t i t s doors  because t h e r e w i l l  be no a l t e r n a t i v e .  As H a r r i s , McDonald and Weston  29 p o i n t out,  the important  than whether, to pay. for  c h o i c e open to the community i s how,  Chambers i s e q u a l l y concerned  c h i l d r e n i n s i n g l e parent f a m i l i e s i n the USA  detachment between them and  rather  t h a t , i f the f u t u r e  i s one  t h e i r non-custodial parents,  o f even g r e a t e r 'we  should  be  r e l u c t a n t to r e t a i n a system o f government enforced n o s t a l g i a f o r a 30 world t h a t has been l o s t ' . Despite  the p r e s e n t emphasis on  the c o l l e c t i o n o f c h i l d  support i n  31 the USA,  Chambers p r e d i c t s t h a t the consensus c o n c e r n i n g the  o b l i g a t i o n s of absent  p a r e n t s may  grudgingly a l t e r ,  financial  even though the  32 numbers o f c h i l d r e n i n s i n g l e parent f a m i l i e s c o n t i n u e to i n c r e a s e . R e s i s t a n c e to support o b l i g a t i o n s ' w i l l never be commended, but ... i t may  someday be condoned and  g r u d g i n g l y accepted,  like  the Incidence  of  33 divorce i t s e l f .  To summarise Chambers' argument, i t i s not t h a t the  a l t e r a t i o n s i n r e s p o n s i b i l i t i e s are to be e n t h u s i a s t i c a l l y welcomed, but they a r e i n e v i t a b l e as l o n g as n o n - c u s t o d i a l p a r e n t s d r i f t out o f  the 34 'inner c o r e of most f a m i l i e s ' and become ' i n the end j u s t v i s i t o r s ' . Lord Denning's hope, expressed e x t r a - j u d i c i a l l y some twenty years ago, 35 ' t h a t the t i d e w i l l t u r n ' has proved v a i n .  194  On t h i s role  basis,  but whether  it  problematical. of  the  to  accept  is  accepted  should  It  is  one  the  burden of issue in  an u n i n t e n d e d  parent  thing  the  that  household  to  the d e t r i m e n t to  is  parent's of  the  support  regarded  the  former  the  the  should play a  absent to  parent  accept  proper  role  emancipation  disengagement  of  of  from  more  distancing  it  household.  greater  is  the  household, but  former  is  another  This the  the  the  raises  State.  non-custodial  former  children?  a particular by  State  public  that  consequence of  foster  relationship  the  connection with  to  the  for  from  the  supplant  supporting  be  A requirement  that  totally  non-custodial parent  an i m p o r t a n t Would  it  the  p e r s o n Is  State  an i n d i c a t i o n  as s i g n i f i c a n t  at  that  this  36 particular  moment.  involvement  Chambers u t i l i s e s  as a key  to  this  notion  of  u n d e r s t a n d i n g how o b l i g a t i o n s  significant to  support  have  37 varied.  T h e y h a v e b e e n b y no means c o n s t a n t ,  the  and  parent  child  relationship:  it  S u p r e m e C o u r t d e c i d e d Gomez v P e r e z  was n o t  38  that  even i n  until  the  the  context  the U n i t e d  father  of  of  States  a child  born  39 out  o f w e d l o c k was o b l i g e d  to  support  S c o t t i s h Law C o m m i s s i o n d e m o n s t r a t e s c a n be o b l i g e d  to  aliment  primarily  that  of  the  it  to  the the  child  in Texas.  width of  the  a c h i l d born i n marriage:  father,  secondarily  that of  The  family  the  group  which  obligation  the m o t h e r ,  and  is then  40 passes  the  ascendants of  the  parents  in direct  line.  This  wide  41 network  of  alimentary  obligations  is  also  reciprocal.  This  is  not  a  42 unique  a p p r o a c h amongst  Chambers  refers  grandparents  to  anad  of  the  Romano-German l e g a l  American s t a t e siblings  origins with reference foundation  the  to  laws  requiring  t h o u g h he e x p l a i n s then  particular  existing  state  systems  legal  family  indeed,  s u p p o r t payments  their  nineteenth  patterns  system.  and,  rather  As f a m i l y  from  century than  the  patterns  195  and n o t i o n s o f domestic r e s p o n s i b i l i t y have a l t e r e d , so have s t a t e s w h i t t l e d down the f a m i l y group p o t e n t i a l l y l i a b l e particular child.  Chambers c i t e s  o b l i g i n g grandparents and s i b l i n g s  American  to s u p p o r t a  e i g h t s t a t e s which have r e p e a l e d laws to support i n the e a r l y 1970's, 44  n o t w i t h s t a n d i n g concern about  the s o c i a l a s s i s t a n c e  The dilemma i s whether to respond  budget.  to f u r t h e r changes i n f a m i l y  p a t t e r n s by f u r t h e r l i m i t i n g the s e t o f r e l a t i v e s who can be c a l l e d upon to m a i n t a i n a c h i l d .  Such a l i m i t a t i o n may be unwelcome to many o f the  n o n - c u s t o d i a l p a r e n t s themselves.  The I n s t i t u t e o f Law Research and  Reform conducted a survey o f men i n C a l g a r y and Edmonton w i t h a view to g a i n i n g some i n s i g h t i n t o the reasons why some men pay support and 45 others do n o t . Of 261 respondents, o n l y 4.6% thought the S t a t e should support t h e i r former wives, and o f 245 respondents, o n l y 1.2% thought 46 the S t a t e s h o u l d support the c h i l d r e n .  I t i s also i n t e r e s t i n g  that,  o f 202 respondents who were good payers, 47% agreed and 21.8% d i s a g r e e d w i t h the statement:  'I would n o t l i k e to see my ex-wife b e i n g supported 47 by s o c i a l a s s i s t a n c e ' . Furthermore, j u s t over 75% o f 199 good payers 48 expressed r e s p o n s i b i l i t y  f o r and c l o s e n e s s to t h e i r c h i l d r e n ,  positive  f e e l i n g s which might be p r e j u d i c e d by i n t r u s i v e p o l i c i e s o f the S t a t e . F o r some s i n g l e p a r e n t s , the concern o f n o n - c u s t o d i a l p a r e n t s , i f m a n i f e s t e d s o l e l y i n f i n a n c i a l a s s i s t a n c e , may appear  to emphasise  a  c o n t i n u i n g , d e b i l i t a t i n g dependence on the e c o n o m i c a l l y powerful former spouse  r a t h e r than to r e p r e s e n t a p o s i t i v e c o n t r i b u t i o n to the  household. I t would be unduly c y n i c a l  to a t t r i b u t e payment i n a l l ,  o r even the  m a j o r i t y o f c a s e s , to a wish f o r power over the household o f which the payer i s no l o n g e r p a r t .  R a t h e r , i n some cases i t may demonstrate  a  196  continuing desire for a stake in the household, for relationships which have been disrupted and to demonstrate the c h i l d r e n .  the persistence  of a f f e c t i o n for  The a v a i l a b i l i t y of the non-custodial parent may be of  profound psychological value to the c h i l d and a s s i s t the c h i l d i n coming 49 to terms with the parents'  separation.  Whilst f a i l i n g to establish a  causal l i n k , Furstenberg has demonstrated how regular payment of c h i l d support often corresponds with regular v i s i t s to the c h i l d r e n . ^  If  it  i s accepted that the prevalence of single parenthood and i n e f f i c a c i o u s procedures for obtaining transfers of income necessitate the displacement of the non-custodial parent as primary provider, the reform adopted must not leap ahead of the expectations of the community at large or of those immediately affected by the reform and must be sympathetic to the d e s i r a b i l i t y of nurturing the relationship between non-custodial parents and c h i l d r e n . 3.  Social R e s p o n s i b i l i t y : the Present P o s i t i o n In the conclusion to the previous section,  there may be unintended deleterious consequences  i t was suggested  that  for the c h i l d r e n i f  the  State were to r e l i e v e the non-custodial parent of f i n a n c i a l responsibility.  I t i s also necessary to enquire whether the  replacement  of the family as the major i n s t i t u t i o n for dealing with dependence has had or w i l l have any other undesirable consequences.  A possible  scenario i s that there w i l l be a progression i n State a c t i v i t y from assistance and responsiveness  to the needs of the single parent family  to, on the other hand, an unwelcome intrusiveness.  Put simply, the  single parent family may find there i s a price to pay for the resources which the States makes a v a i l a b l e .  197  Lawson, W o r l d War for  in  his  II, *  comments  5  single  review  parents  of  s o c i a l assistance reform  that  the  'most  important  was a new r e c o g n i t i o n  of  i n Denmark  feature  their  of  financial  the  after reforms  problems  as  52 social  risks'.  This  is  not  to  indulge  in  the  emotive  language of  Lord  53 Denning i n  his  foreword  The T i d e o f  the  irreparable  p s y c h o l o g i c a l harm s u s t a i n e d b y 54  in  two-parent  t h a t measures whole,  into  is  of  the  the  the  single  custody of  the  children.  especially  vulnerable With  5 5  the  the  the  family  the  it  is  child,  by  in  the  and  the  to  to  the  family  unit  be p r e v a l e n t  affairs will  of  not  appreciate  can, unless monitored, in  which  many c h i l d r e n who d o  important  believed  intervention  as  in  a  the  germinate  the  family.  prove unpopular  and  s e r v i c e s become n o t o r i o u s and u n d e r - u s e d .  State's  of  children.  shield  Divorce,  threatened  over-responsible State  valuable  Specifically,  is  However,  harms w h i c h a r e  general  that  potentially  welfare  to  cicumstances of  The danger its  introduced  a strategy  civilisation  families.  from a v o i d a b l e  particular  that  book,  he p r o m o t e s  live  thesis  to L a t e y ' s  parent  adoption  family  Samuels  to  for  the  role  of  should not  be a  threat  to  the  single  parent  suggests  pressures  demand  of  to  that  g i v e u p the  provider  care of  c h i l d r e n from p o t e n t i a l  for  the  parental is  the adoptive  56 parents  so g r e a t ,  option.  Perhaps  outside marriage Duncan r e l a t e s  stigma attaching  care  loneliness  the is  how a  the R e p u b l i c o f  child  having a c h i l d adopted  the  parent  to  single  family  most v u l n e r a b l e  'very  their 58 are  to  raise  situation.  their  this 5 7  of  unmarried  care  often  the  birth  disruption.  own c h i l d r e n d u e  Voluntary  and a r e  easiest  from a  form o f  a p o s s i b l e response to  parenthood  the  which a r i s e s  high p e r c e n t a g e '  I r e l a n d do n o t  authority of  single  may a p p e a r  mothers to  in  the  agreements w i t h  frustration  a prelude  to  the  a  and  permanent  198  separation of out,  this  parent  route  blameworthy,  to  and c h i l d .  care  and c a s t s  casts the  As Packman, R a n d a l l  'parents  local  and J a c q u e s  as u n f o r t u n a t e  authority  in  the  rather  role  of  point  than  the  child's  59 caretaker,  a c t i n g on the  supportive care,  ideally  cope w i t h a p a r t i c u l a r which attention undertake  is  greater to  crisis, in  rate  which valuable  intrude  into  to  'intense  miracle'  private  marked  silent  he c o n t e n d s , o f t e n to  about  their  that,  affairs,  The c o n c e r n society is  thereby  apply  for  in  prejudicing  the  to to  take the  parents. available  t h e Germany o f  poverty'.  be l i m i t e d  own m i s f o r t u n e ,  6 0  Poverty  to m a r g i n a l  thereby  of  to  as a c o r o l l a r y ,  taken up by s i n g l e to  ideal  c u s t o d i a l parent  if  may,  this  social  i n W e s t Germany and he a t t r i b u t e s  their  c o n s i d e r e d to  the  is  practice?  State  p r e s s u r e s o n many p o o r p e o p l e  to keep  contributed  the  reluctance  particularly  in  passage i s  services are  Lawson s u g g e s t s t h a t is  delivered  this  How o f t e n  and e n a b l i n g  responsibilities,  power  assistance  behalf.  temporary  drawn  greater at  parents'  the  this  'economc  i n Germany g r o u p s who  eliminating  the  is, have  subject  as  61 a major  topic  for  debate.  In  any e v e n t ,  W e s t German g o v e r n m e n t s h a v e a d o p t e d a p p r o a c h to of  the  stress  family  family. on the  'a widespread be  affairs,  This need  of  between  the  prejudicing  expectation  the  e n c o u r a g e d by some o f The b a l a n c e  to  the  state', the  struck  citizen's  by  that  [single  the u p b r i n g i n g o f  the  and  its  to what Lawson c o n s i d e r s mothers] to  and s o c i a l a s s i s t a n c e  to w o r k  preserves  Nazism, with  s h o u l d work have  the  children brings  need into  and  been  authorities'.  t h e W e s t German s o c i a l a s s i s t a n c e  obligation  succesive  abstentionist  intrusiveness of  a view which appears  courts  era,  e n c r o a c h i n g on the  t o . r e p r o d u c e , may h a v e l e d  public  'independent  an e s s e n t i a l l y  being chary of  reaction  s i n c e the N a z i  to  authorities  avoid  focus  the  199  question of parent.  the  Heclo  regulations  is  availability  of  earnings  as a r e s o u r c e of  and C o c k b u r n s t a t e  that  that  school-age children  the  parent  of  the  usual  the  single  interpretation  of  the  s h o u l d be a b l e  to  63 work.  In  sources  of  West Germany,  it  would  p r e s s u r e on s i n g l e  acceptance  that  it  is  appear  parents  that  to work,  there  are  a number  and a d e s i r e  n e c e s s a r y and d e m a n d e d , o n t h e  part  chapter,  and  of  to work,  of  single  the  single  or  parents. Thus parent's has  far  implicitly  add  the  acceptance  employment  in the  the  the  could  State  single  form o f  source of  the  on  state,  single-minded  the  this  public  stage,  of  d i s c u s s i o n of  this  for  its  the  to  the  could equally well  This of  social  to  also,  the  curtailing  financial  the  time,  embracing f a c i l i t i e s  as w e l l  as  p r o v i s i o n of  with respect  money,  the  which  relationship  the dependence o f  goal.  promoting  to  the  earnings the  of  to  view  State  the  single  parent  a of  employment  c o u l d be more  of  family's  This broader  first  to  development  pursuit  its  of  social assistance  have a r i s e n due  of  and  responsibility  the  of  to  variables  family,  c o u l d b e a m o d e l b y means o f  severing  the  b u r d e n by  include  c a p a c i t y w i t h a view  of  extent  provision of  choice  appropriate  parent  own f i n a n c i a l  indefinite  is  list  single  The a c c e p t a n c e o f  the  it  the  the  purse or  a d e p e n d e n c e w h i c h may w e l l  responsibility, child-care  b a c k g r o u n d and  income becoming, o v e r a p e r i o d  goal  spouses and,  the  capacity  earning  single parent. promote  At  earnings  earning  parents.  It  in  as between  can r e l i e v e  money.  former the  issue of  social responsibility  the of  context  single parent's  the  the  resources.  not n e c e s s a r i l y imply  principal of  parent's  in of  extent  does  been presented  custodial parent's  enquire,  what  this  own r e s o u r c e s h a s b e e n k e p t  non-custodial  to  in  social and  intrusive  if  200  i n s e n s i t i v e l y managed sustainable  solution  but to  the  existing dependencies. the  In  does hold out problem o f  so f a r  economically d e b i l i t a t i n g  provide  for  only a  non-custodial parent will State  parent  sufficient  inevitably for  is  in  the  leeway  lead  support.  this  in  to  It  the  of  is the  prospect of  that  fail  the  to  of  take  income  this w i l l  give  unavoidable period  parents  that  laws  the  are  custodial life  becoming dependent  some w i l l  best  of  which  independent  fail  to is  G l e n d o n ' s comments o n a p o s s i b l e theory  account  the  d u r i n g which maintenance  c l e a n break  long-term, parent's  full  from  establish a financially  a  single  past dependency,  transfer  belief  the  replacing  they  some c u s t o d i a l  sense that  consequence of  to  as  effects  transitional  successfully within It  it  on  the  re-organise available.  unintended  understood:  ' [ S e l f - s u p p o r t l a w s ] e n s h r i n e and p e r h a p s r e i n f o r c e the s e n s e t h a t the e c o n o m i c p r o b l e m s o f d i v o r c e a r e , l i k e i l l n e s s and u n e m p l o y m e n t , p r o b l e m s f o r t h e s o c i e t y as a w h o l e . ' 64 The d i f f i c u l t y inactive  will  child-care attained  which  the  experience  custodial in  responsibilities  exemplifies  the  non-custodial  who h a s b e e n  f i n d i n g work w h i c h and w h i c h e n a b l e s  need  p r o v i d i n g a s s i s t a n c e which  parent  for  is,  in  the  is  compatible  independence  involvement  any e v e n t ,  economically  of  beyond  the the  with  to  be  State  in  means o f  * the  parent.  Lawson c a u t i o n s  agaist  too  enthusiastic  an endorsement  of  the  65 State's Germany,  role  in  p r o m o t i n g employment  he a r g u e s  p r e s s u r e on the  single  work l o n g h o u r s a t their  lack  of  exchange one  that  h a r d s h i p s have a r i s e n as a parent  low-paid  training. form of  amongst s i n g l e  to  find  employment:  jobs which are  all  Such an e x i s t e n c e  insecurity  for  another.  is  parents. result  of  many s i n g l e  that not  are  In  West  the parents  available  due  independence but  to to  201  It  is  single  possible,  parents  certain  however,  to  identify  i n becoming e c o n o m i c a l l y  Western European c o u n t r i e s  parents  the  c h o i c e of whether  or  not  from p a r t - t i m e work w i t h i n  informed  by  a  supplement  appealing  goal  to  first  scale  of  earned. Mark  for  Mark  Whereas  in  Britain  into  from  penalised  the  explanation  prominent  of  than  the  labour  earnings  market,  part-time is  and pound  of  earnings  the  point  that  assistance. to  the  the  L a w s o n shows  that non-means-tested means-tested  as  work,  not  become  an  a  a s more  is  deducted is  though p a r t  allowances  a s s i s t a n c e payments  from  p a r t - t i m e work  in Britain  family  is  encouraged by  are  that  of  by  stringent  earnings  same e x t e n t  system  pound d e d u c t i o n s  w h i c h becomes more is  treatment  discouraged  for  of  single  eventually  i n W e s t Germany p a r t - t i m e w o r k i s  i n Denmark is  the  the  assist  approaches  to  social assistance  earnings.  important  not  First,  assistance w i l l  step  the  out  of  payments,  The  the  hold  payments  disregards  6 7  to w o r k .  in  that  parsimonious disregards assistance  independent  w h i c h do n o t  earnings  the  p o l i c i e s w h i c h would  are  on which  of  more  single  68 parent  families  often  P a r t - t i m e work cope w i t h Another  their  of  is  c h i l d r e n under 40% o r  work amongst again  three  60% o f third  sets  far  the  field  single  the  in  ideal  child-care  child-care  w h i c h Denmark  The  is  p o l i c y designed  provision  at  rely  to  Britain. for  responsibilities  facilities  1974. ^ 6  costs, of  parents more  a c c o m m o d a t e w o r k and  advanced, in  some s i n g l e  during  the  d e p e n d i n g on  the  international  is  e d u c a t i o n and  pace,  providing  This in  either  to  training  the an a r e a  day n u r s e r i e s or  means.  the  training.  can  result.  is is  free  parents'  they  as a  parenting  day.  p o l i c y which contributes  parents  easily  having 41,650 places Provision is  because  is  for  priced  7 0  frequency Denmark  centres  in  to  of  once attend  202  which non-means-tested  grants  co-ordinating  and  the  delivery  training of  the  are  available.  employment  but  Effort  is  commentators  put  have  into  questioned  service:  ' e v e n w i t h s o s p e c i a l i s e d a scheme o n l y a b o u t one i n e v e r y s i x u n m a r r i e d mothers c o n t a c t i n g the c e n t r e s in fact receives training. The g e n e r a l p i c t u r e w h i c h emerges i s one o f d i s a p p o i n t m e n t w i t h the extent to which l o n e mothers i n f a c t succeed i n taking advantage of t r a i n i n g f a c i l i t i e s . ' 72 Nevertheless, In  training  facilities  Sweden, o c c u p a t i o n a l  training  are widely is  emphasised i n  available  for  Scandinavia.  women who h a v e  been  73 out  of  the  labour market.  A taxable  occupational  training  allowance  74 is  payable.  appropriate  in  The Swedish s y s t e m acknowledges  that  every  always  c a s e and  providing for  the  pension  c a n be shown t h a t 75  if  it  diminished  by h a l f .  the d e b i l i t a t i n g workforce  can  These  to w h i c h  parent  family  It  the  the  concept of  entry  of  the  the  payments  However,  ability  of  be  successful  an e a r l y  t o work  such a b e n e f i t  not by  retirement  has been  permanently  makes  c a p a c i t y which removal  or  social responsibility  been a c c e p t e d , re-entry  has been a p p r e c i a t e d  family  not  essentially  upon e a r n i n g  has a l r e a d y  independence of  parent  the  will  explicit from  from n o r t h e r n Europe g i v e an i n d i c a t i o n  s u b v e n t i o n b y way o f  assistance  is  The e x i s t e n c e  effect  examples  facilitating  o f what  it  is  the  have.  extent  parent.  payment  that  job-training  in  single  parent  the  these  family  should supplement  to  the  principal  p o s s i b i l i t y of  the  State  of  labour  this  market  countries  that  c a n be r e d u c e d  single  of  to  bring  two-parent chapter  is  the  to single  public if  the  c a n be p r o m o t e d .  earnings  standards of theme  the  the  especially with respect  a s s i s t a n c e payments  closer the  into  for  of  Ideally,  the  single 76  families. the  investigation  assuming e x c l u s i v e r e s p o n s i b i l i t y  for  203  the s i n g l e p a r e n t f a m i l y In so f a r as self-sufficient.  the s i n g l e parent f a m i l y i s n o t  I t must be emphasised  t h a t the n o r t h e r n European  c o u n t r i e s from which the examples have been drawn have not exclusive responsibility.  To  accepted  take Sweden as an example, i f the  n o n - c u s t o d i a l p a r e n t d e f a u l t s i n p a y i n g maintenance, the l o c a l o f f i c e w i l l pay  insurance  the s i n g l e p a r e n t the amount o f the o r d e r and w i l l  seek to reimburse  itself  from  the n o n - c u s t o d i a l p a r e n t .  7 7  then  In o r d e r to  take advantage of t h i s system of maintenance advances, the s i n g l e mother must co-operate w i t h r e s p e c t to the e s t a b l i s h m e n t o f p a t e r n i t y ,  i f this  78 is i n question.  Cockburn and Heclo  p o i n t out t h a t :  'The f i c t i o n of an advance has g r a d u a l l y g i v e n way over the years to a more s u b s t a n t i a l r e a l i t y - the p r o v i s i o n o f a guaranteed l e v e l o f maintenance to c h i l d r e n o f d i v o r c e d , s e p a r a t e d o r unmarried c o u p l e s , a guarantee independent of the v a g a r i e s surrounding a f a t h e r ' s p r i v a t e l e g a l r e s p o n s i b i l i t i e s and h i s a b i l i t y o r w i l l i n g n e s s to pay.' 79 The  system o f advance maintenance, begun by Denmark i n 1888 w i t h a  guarantee  o f 60% of the c o s t s o f a c h i l d ' s upkeep i n a p a r t i c u l a r 80  locality,  i s p r o p e r l y i n t e r p r e t e d as a system which a l l o c a t e s  S t a t e a primary r e s p o n s i b i l i t y  to the  f o r maintenance but, when i t i s s t u d i e d  i n c o n j u n c t i o n w i t h the r e s o u r c e s a v a i l a b l e f o r r e c o v e r i n g money from 81 the n o n - c u s t o d i a l p a r e n t ,  i t i s c l e a r l y not the S t a t e ' s i n t e n t i o n to  assume e x c l u s i v e r e s p o n s i b i i t y . ^*  C o n c l u d i n g Remarks I n the E l e a n o r Rathbone Memorial L e c t u r e i n 1955,  P r o f e s s o r Titmuss  i d e n t i f i e s a steady r e c o g n i t i o n o f v a r i o u s s t a t e s of dependency as 82 collective responsibilities. n a t u r a l dependencies,  These may  be b r o a d l y d i v i d e d  such as extreme o l d age,  into  and dependencies  the  which  204  a r i s e due to human a c t i v i t y , which range from some forms o f i l l n e s s to 83 unemployment.  The dependency o f the s i n g l e p a r e n t f a m i l y f a l l s  into  the l a t t e r c a t e g o r y , which comprehends those dependencies which are o f t e n l e s s p o p u l a r w i t h the p u b l i c . 84 Hennessy's  review  of public attitudes  to s o c i a l s e c u r i t y i n the  U n i t e d Kingdom d i s c l o s e s some i n t e r e s t i n g o p i n i o n s r e l e v a n t to the acceptability of future p o l i c i e s .  p o s t a l surveys o f three thousand  F o r example, N o r r i s conducted two 85 people i n 1973 and 1976.  of the survey were asked whether p a r t i c u l a r s o c i a l helped a t a l l  Recipients  groups should be  by the S t a t e and which groups a r e most In need o f h e l p .  I n both s u r v e y s , unsupported mothers were s i x t h p r i o r i t y o u t o f the s i x t e e n groups, behind the e l d e r l y and the p h y s i c a l l y handicapped who * 86 The Schlackmann Research O r g a n i s a t i o n also  were the most p o p u l a r . identified  sympathy f o r the e l d e r l y and the s i c k .  I t found there was  g e n e r a l sympathy f o r s i n g l e p a r e n t s b u t some o p p o s i t i o n to a s s i s t a n c e f o r mothers o f c h i l d r e n born o u t s i d e m a r r i a g e . does  The e m p i r i c a l  research  tend to bear o u t Glendon's wry comment: 'Even i f one can imagine good c i t i z e n taxpayers who a r e n o t opposed to assuming more and more r e s p o n s i b i l i t y f o r such s o c i a l r i s k s as i l l n e s s , d i s a b i l i t y and o l d age i n s o c i e t y , i t would take an almost s a i n t l y taxpayer to c h e e r f u l l y assume the c o s t o f o t h e r people's s e r i a l m a r i t a l adventures.' 87 The p u b l i c has assumed some r e s p o n s i b i l i t y b u t i t does n o t want  e x c l u s i v e r e s p o n s i b i l i t y , n o t o n l y because i t f e e l s  t h a t former members  o f the household s h o u l d p r o v i d e f o r the s i n g l e p a r e n t f a m i l y , b u t a l s o because  there a r e p e r c e i v e d  to be h i g h e r p r i o r i t i e s amongst the  competing groups o f the poor. concede  The time i s n o t y e t r i p e f o r the S t a t e to  t h a t domestic r e s p o n s i b i l i t i e s , are l i m i t e d  to the u n i t w i t h i n  205  which to  the  citizen  is  presently  be s a n g u i n e a b o u t  for  the  State  As w i l l appropriate the  State  that  is  if  roles  it  is  for  the  the  State  following is wide.  chapter,  State  not  to d i s m i s s the  that  with special reference child-care  families.  Neither  parent  outweighs  the  family.  choice  of  suggestion  the  the  facilities,  is  the  b r o a d e n i n g the  to  benefit  Like  proposal  emanating from  of  would  a guaranteed  maintenance  the  for  that  ground  to  A s s e m b l y , when  in  single  in  fact  cost  single 1975  S o c i a l i s t and C o m m u n i s t P a r t i e s  scheme w h i c h w o u l d n o t  for  the  the  faced  social  emancipate  that  income to  of  but  employment  be b e n e f i c i a l  proposal completely  French National  ambit  opportunities  d i s m i s s e d s i m p l y on the  family.  guaranteed  proposal  have  s o much c h e a p e r  the  The p r e s e n t  would  s h o u l d have e x c l u s i v e r e s p o n s i b i l i t y s h o u l d be r e j e c t e d ,  non-custodial  a  for  the  d e p e n d e n c y c a n be accommodated w i t h i n  and p r o v i s i o n o f  State  To do s o ,  own e c o n o m i c f u t u r e  be s u g g e s t e d i n  responsibility,  parent  its  residing.  to  the to  the  parent  with  a  introduce  have r u l e d  out  88 the  seeking of  partly  based on a c o n c e r n f o r  non-custodial for  contributions  parents  a family's  financial  links,  children  of  the  social effects  significant  Severing that l i n k  no l o n g e r  family.  severing that  i n d i v i d u a l s , notably  may l e a d  and p s y c h o l o g i c a l , t o single parent  of  rejection  is  holding  Assuming e x c l u s i v e r e s p o n s i b i l i t y  s e c u r i t y may i n v o l v e  links with other  emotional  the  responsible.  financial  absent parent.  from n o n - c u s t o d i a l p a r e n t s ,  the  to  the  family's of  severing of  possible detriment  course other of  the  an  206  Foo tno tes  1.  L.N. Brown, 'Maintenance and E s o t e r i s m ' (1968) 31 Mojiern Law Review 121 a t p 137.  2.  See P. Hennessy, ' P u b l i c O p i n i o n about the S o c i a l S e c u r i t y System i n the UK' (1987) 40 Inte_rjnational S o c i a l S e c u r i t y Review 248.  3.  Supra, f o o t n o t e 1.  4.  Ibid.  5.  M. H a r r i s , P. McDonald and R. Weston, 'Payment o f C h i l d Maintenance In A u s t r a l i a ' (1987) 1 I n t e r n a t i o n a l J o u r n a l o f Law and the F a m i l y 92, c i t i n g a t 93 r e s e a r c h by G. Carmichael and P. McDonald I n 1986.  6.  R.F. D r i n a n , 'Has John Frank proposed a R a d i c a l Reform o f F a m i l y Law?' (1969) 47 Texas Law Review 991 a t p 1,001.  7.  Ibid.  8.  Ibid.  9.  K. Gray, R e a l l o c a t i o n o f P r o p e r t y on D i v o r c e P r o f e s s i o n a l Books 1977) p 326.  (Abingdon:  10.  Ibid.  11.  Supra, f o o t n o t e 1 a t p 137.  12.  M.A. Glenden, S t a t e , Law and F a m i l y (Amsterdam: N o r t h H o l l a n d 1977) a t p 263.  13.  P. McDonald w i t h K. Funder, M. H a r r i s o n and R.E. Weston, ' D i r e c t i o n s f o r Law Reform and S o c i a l P o l i c y ' i n P. McDonald (ed) S e t t l i n g Up (Sydney: P r e n t i c e - H a l l 1986) p 315.  14.  Ibid a t p 314  15.  (1983) 35 RFL (2d) 337 a t 353.  16.  S_upra, f o o t n o t e 15 a t 362.  17.  Ibid.  18.  (1987) RFL (3d) 304 a t 307.  1 9  «  v  Supra, f o o t n o t e 18 a t 311.  207  20.  The words are Carbonnier's i n 'La q u e s t i o n du d i v o r c e ' D.S. 1975. Chr 115 a t p 118. The t r a n s l a t i o n i s M.A. Glendon's, s u p r a , f o o t n o t e 12, p 298, her f o o t n o t e 22.  21.  Loc.cit..  2 2  «  Su_ora,  f o o t n o t e 12 p 261.  23.  The r e p o r t d a t e s  24.  L . J . Weitzman, The D i v o r c e R e v o l u t i o n (New York: F r e e P r e s s p 211.  25.  Sujora, f o o o t n o t e  26.  See S o c i a l S e c u r i t y A c t 1975 s 20 and A . I . Ogus and E.M. Barendt, The Law o f S o c i a l S e c u r i t y (London: B u t t e r w o r t h s 1978) pp 108-122.  27.  Employment P r o t e c t i o n ( C o n s o l i d a t i o n ) A c t 1978, P a r t V I .  28.  Brown, s u p r a , f o o o t n o t e 1 a t 137.  29.  Supra, f o o t n o t e 5 a t 100.  30.  D.L. Chambers, 'The Coming C u r t a i l m e n t o f Compulsory C h i l d Support' (1982) 80 M i c h i g a n Law Review 1614 a t 1634.  31.  See the C h i l d Support  32.  Sujpjra, f o o t n o t e 30, pp 1614-1617.  33.  Chambers, sujpjra, f o o t n o t e 30 p 1615.  34.  D.L. Chambers, Making F a t h e r Pay (Chicago: U n i v e r s i t y o f Chicago 1979) p 277.  35.  P v i i i i n foreword Longman 1970).  36.  Chambers, sujjra, f o o t n o t e 34 a t p 272.  3 7  •  from 1972. 1985)  9.  Enforcement Amendments 1984.  to W. L a t e y , The T i d e _qf j l i vqr ce (London:  Sujira, f o o t n o t e 34 a t pp 272-277.  38.  409 U.S. 535  39.  Chambers, supra, f o o t n o t e 34 a t p 273.  40.  S c o t t i s h Law Commission, Memorandum forming Appendix 6 to the Report o f the Committe on One-Parent F a m i l i e s , Cmnd 5629 (London: HMSO 1974) para 41. Loc. c i t .  42.  Loc. c i t .  (1973).  208  43.  Supra,  f o o t n o t e 34 a t p  272.  ^*  Supra,  f o o t n o t e 34 a t p  273.  45.  The Canadian I n s t i t u t e f o r Research, M a t r i m o n i a l Support (Edmonton: U n i v e r s i t y o f A l b e r t a 1981).  46.  The Canadian on p 289.  47.  I b i d on p  ^8.  Loc.  49.  J.S. W a l l e r s t e l n and J.B. K e l l y , S u r v i v i n g the Breakup (London: Grant M c l n t y r e 1980).  50.  F. F u r s t e n b e r g , 'The L i f e course o f C h i l d r e n o f D i v o r c e ' , paper f o r the P o p u l a t i o n A s s o c i a t i o n o f America (San Diego 1982).  51.  R. Lawson, 'Western Europe' i n A. Samuels, ed, S o c i a l S e c u r i t y and F a m i l y Law ( G r e a t B r i t a i n : UK N a t i o n a l Committee f o r Comparative Law 1979).  52.  Ibid at p  53.  Supra, f o o t n o t e 35.  54.  T h i s i s s i m i l a r to the r a t i o n a l e which informs h i s judgement i n the Court o f Appeal i n Re L [1962] 3 A l l ER 1 a t 3.  55.  A.  56.  I . Grant and D. Cohen s t a t e , a t p 7-01 o f t h e i r f a m i l y law m a t e r i a l s ( U n i v e r s i t y o f B r i t i s h Columbia 1988) t h a t , i n B r i t i s h Columbia a t p r e s e n t , 'the w a i t i n g l i s t f o r p r o s p e c t i v e p a r e n t s exceeds 3,100 (a r a t i o o f 200 couples f o r every one c h i l d ) and w a i t i n g p e r i o d s o f up to f i v e years a r e commonplace'.  57.  W.R. Duncan, 'Republic o f I r e l a n d ' i n Samuels, s u p r a , f o o t n o t e 51 a t p 52.  58.  See, f o r example, s s 4-6 1980, c 11.  59.  J . Packman, w i t h J . R a n d a l l and N. Jacques, Who (Oxford: B l a c k w e l l 1986) p 194.  60.  Supra,  61.  Lawson, s u p r a , f o o t n o t e 51 a t p  62.  Loc. c i t . .  I n s t i t u t e f o r Research,  Failures  s u p r a , f o o t n o o t e 45, T a b l e  11  290.  cit..  282.  Samuels, ' C o n c l u s i o n s ' i n Samuels, s u p r a , f o o t n o t e 51 a t p  f o o t n o t e 51 a t p  o f F a m i l y and  287. 288.  321.  C h i l d S e r v i c e A c t , S.B.C.  Needs  Care?  209  63.  6  4  ,  C. Cockburn and H. H e c l o , 'Income Maintenance f o r One-Parent F a m i l i e s i n Other C o u n t r i e s ' , Appendix 3 to the R e p o r t o f the Committee on One-Parent F a m i l i e s , supra f o o t n o t e 40, para Supra, f o o t n o t e 12 a t p  291.  ^HEIS.' f °  290.  o  t  n  o  t  e  51 a t p  66*  L o c . cit.«  67.  Lawson, supra,  68.  Sujvra, f o o t n o t e 51 a t p  69.  Lawson, suj_ra, f o o t n o t e 51 a t p  70.  Loc. c i t .  71.  Loc. c i t .  72.  Report o f the Committee on One-Parent F a m i l i e s , s u p r a , f o o t n o t e 40, p a r a 7.30.  73.  A. A g e l l ,  74.  Loc. c i t . .  75.  Loc. c i t . .  76.  Lawson i l l u s t r a t e s how t h i s i s achieved i n Denmark i n the case an unmarried mother w i t h two c h i l d r e n e a r n i n g two t h i r d s of average male e a r n i n g s , supra, f o o t n o t e 51, p 283.  77.  A g e l l , supra,  78.  Ibid at p  7  Supra, f o o t n o t e 63,  9  .  f o o t n o t e 51 a t p  145.  289.  284. 281.  'Sweden' i n Samuels, supra,  f o o t n o t e 73 a t p  f o o t n o t e 51,  p  174.  of  172.  173. para  140.  80.  Lawson, supra,  f o o t n o t e 51 a t p  81.  See  82.  R.M. Titmuss, E s s a y s on the W e l f a r e U n i v e r s i t y Books 1963) pp 42-43.  83.  Loc. c i t . .  8^*  Sujpjra, f o o t n o t e  85.  M. N o r r i s , 'Those we l i k e to h e l p ' In New S o c i e t y on 6 t h J u l y 1978, d i s c u s s e d i n Hennessy, supra f o o t n o t e 2, a t p 253.  Cockburn and H e c l o ,  278.  supra, f o o t n o t e 63,  paras  S t a t e (2nd  ed)  137-138. (London: Unwin  2.  210  86.  8 7  «  88.  Schlackmann R e s e a r c h O r g a n i s a t i o n , 'Report on R e s e a r c h on P u b l i c A t t i t u d e s towards the Supplementary B e n e f i t System' (London: Schlackmann R e s e a r c h O r g a n i s a t i o n 1978), d i s c u s s e d i n Hennessy, s u p r a , f o o t n o t e 2 a t p 254. Sugra, f o o t n o t e 12 a t p 279. Glendon, supra,  f o o t n o t e 12 a t pp 276-277.  211  CHAPTER 1 INDEPENDENCE FOR SINGLE PARENT  In parent will  allocating families,  by  the  Most s i n g l e that of  the  the  time  It  the  obstacles  of to  family  begins.  to  ensure  t o make h i s  or  her  youngest c h i l d embrace  parents or  s h o u l d be n o t e d a  as a w h o l e .  non-custodial Neither the  single  and  for  the  State.  the  future There  avoid  their  goal  date  for  it  the  is  not  suggested is  taking to  the  Immediate  contribute  the  parent  parent,  c r i s i s of  of the  separation,  acknowledgement single  the would  by  society.  am a d v o c a t i n g not  for  onset  of  the of  single  parenthood  widowhood,  independence  provided  transition  single  there  from S t a t e  will  and  aim.  responsibility  the  on  at  majority.  t h e way o f  p o l i c y which I single  e x c l u s i o n of  to  age o f  vast majority  t h a t we s h o u l d a i m f o r  The n o n - c u s t o d i a l p a r e n t to  in  be a p e r i o d  a realistic  total  single  the w o r l d ,  b y an  placed  episode of  outside marriage,  children,  responsibility  the  the  so h o w e v e r  single  marginalisation  for  after  is  the  tempered  and  immediately  parent  parent  State,  the  in  to d e p e n d , whether  to  adjustment.  is  is  bound  With b i r t h of  that  the  own way  has a t t a i n e d  is  This  be a p e r i o d  to  that  security of  s u c h an aim e n t h u s i a s t i c a l l y ,  want  on the  p o l i c i e s designed  parenthood.  financial  independence p r e s e n t l y  parent  varying duration  the  self-sufficiency  Few s i n g l e  independence at  for  s h o u l d be  parents would  non-custodial welcome  goal  be a b l e  rhetoric  parents.  is  the  eventually  least  responsibility  FAMILIES  the  a situation  for  himself  in  or  herself  non-custodial parent  must a c k n o w l e d g e  a  which  and  personal  c h i l d r e n ' s maintenance  and  the  State  212  a collective citizens.  responsibility  The r e l a t i o n s h i p  problematical  but  nevertheless. morality for  to  their  We a r e  children  potentially  between  continued  these  disadvantaged  responsibilities  co-existence  is  some way f r o m a p p r o v i n g o f  which allows  their  its  people  simply  to  absolve  because  they  is  advocated an  themselves no l o n g e r  young  individualistic from  live  responsibility  in  the  same  household. It order  is for  tolerably child  clear  support  against  rigorous  enforcement  of  parent's  situation.  This  non-custodial  parent  received  the  single  from  parent  children If  from  to  the  This,  non-custodial that  the  children  such a l i n k held  of  the  from  the  There  to is  payments the  a partial  notions  baulk  non-custodial  entitlement  preserved  single  of  parent from  and  alter  payments  to  the  the  from  single  the payments to  the  maintenance  parent the  is  that  or,  basis it  more  of  the  suggestion  for  is  contribute, arguing  for  the  generally,  no  problem.  pay  in  that  of  that  the  good o f  the  that  responsibility,  presents must  should  to  payments  it  the It  order  s h o u l d b e d i s r e g a r d e d when  and  an  the  a disincentive  If  parent  the  the  possibility disregard,  is  parental  parent  at  parent  of  parent.  removed.  is  obtaining  social assistance  contribution  non-custodial  money who w i l l  the  namely  to  against itself,  the  materially  so o f t e n ,  should contribute  accords w i t h widely disincentives  not  non-custodial  s h o u l d be  parent  public  set in  many c a s e s ,  non-custodial  will  seek a f i n a n c i a l  the  that  the  because,  State.  non-custodial  insist  is  simply  such d i s i n c e n t i v e s  who  in very  order  are  one a c c e p t s  that  that,  removal  is  those  save  received  calculating  an  State. compromise between this  is  probably  the  the  two  best  positions,  solution.  Of  213  the  payments  should to  received  be a b l e  to  from  retain,  social assistance.  single  parent  whilst  preserving  assisting  the  There  is  to  put  great  let  in  place  parent scope  It  to  parent  some r e s p o n s i b i l i t y  scarce financial  prospect  for  be l i m i t e d  to  enforcement the  the  be  are  entitled  give  be welcomed  if in  resources,  State  due  intervention  to  child  area.  Otherwise,  the  expenditure  parents  enforcement.  nature to  the  or  of  voluntarily.  to  the  should  area  orders  of  the  order  not  of It  should  to w h i c h  discouragements,  a  they  and  should  be  through an improved system o f facilitate  limited  to  enforcement,  arrears  already  can l e a d ,  in  time-consuming e f f o r t s  at  h a s had  payer's  can c o n v i n c e the  obtain  s u p p o r t payments  by  payer  responsibility  o r d e r s would  repeated,  Once e n f o r c e m e n t  f r o m wages  c a n seem t o o d a u n t i n g  conflict-ridden  obtaining  are  the  the  other  s h o u l d be p u t  until  energy  fail  p r o s p e c t i v e enforcement deducted  non-custodial  this  s i m p l y be r e t r o s p e c t i v e ,  payers,  from  in  single  Computerised records of  recalcitrant  support  role  the  perhaps most a p p r o p r i a t e l y  of  in  assume an e n h a n c e d  The S t a t e ' s  intimidation  The p e r i o d i c  interest  can r e l i e v e  available,  accrued.  the  support  s h o u l d t a k e p l a c e much e a r l i e r .  connection with  which should not  child  to  State  in  aid.  financial  entitlement  incentive  for  parent  the  assistance  legal  an o r d e r  to  t i m e and  parent.  case that s i n g l e  a much-needed  enforce  providing assistance in  but  not  the  obtaining of  single  single  60% w i t h o u t a f f e c t i n g  independent  for  parents.  of  the  in doing so.  the  of  and  State's  connection with is  us s a y ,  T h i s would  the  single  the n o n - c u s t o d i a l p a r e n t ,  to in  be u n d e r t a k e n ,  a  o p e r a t i o n whereby  employer  registrar  of  and  the  this  court  the  system the  should  case  of  payments continue  t h a t he w i l l  pay  214  With respect it  is  the  u n n e c e s s a r y to  means o f  support  as o u t l i n e d means o f  greater  children  express a preference  for  above.  support of  the  role  of  both  The c h o i c e i s  the  public  financial  single  investment  obligation,  insignificant  parent  for  been s u g g e s t e d ,  to  support  many s i n g l e  in  particular  from  this  Let single  seeks  in  the  families.  c a n be a s s u r e d ,  majority.  to  is  of  the  a worthy parent  society,  dependent  on the  the  State  means o f  improving his  her  situation  partner.  The c i t i z e n  never  this  marginalised situation  because  the  should not  whereby labour  market  other  to  to  parents  their  the  is  far  to  of  be  support  parent the  individual have  because  periphery spouse,  with  few  another  alternatives  parents  are  Therefore,  the  unable  c h i l d r e n have d e p a r t e d  it  of  re-integration  themselves  of  family.  children  other  have  payments  forms  than by f i n d i n g  single  find  the  continue  former  s h o u l d have  occur.  private  parent's  social policy  perhaps a  whereby  be a l l o w e d  once  single  The q u e s t i o n o f  situation  many s i n g l e  or  position  f i n d i n g a new p a r t n e r .  arise  the  in  there  make b o t h  once the  b e i n g pushed  enhanced  improve  independence of  aim o f  single  or  c a n be  p u b l i c and  to  will  private  The reforms which  to  the  particular  the  besides  avoid  This  how  in  is  generous d i s r e g a r d  budget  us now c o n s i d e r f u r t h e r  parent  reached  items  support  quarter  families,  p u b l i c and  Unless  s o c i a l assistance purposes, are designed  support meaningful  into  not.  parent  the n o n - c u s t o d i a l  parent the  between  support  or  bolster  single  so much b e t w e e n  the  family  in  forms o f  not  s u p p o r t as between whether  standing of  for  to  must  should  present to  break  be  avoided. The p o l i c i e s opportunity  to  required  continue  to  in  order  earn  are  to  give  single  parents  necessarily radical.  an The key  is  to  215  permit  and  labour  market  career  structures  life,  to  this  the  of  that  children.  In be a  is not  as  the  greater  parent  commit  their  to  teenage  is  to  severance of  younger  the  with f l e x i b i l i t y to  places are  hours which  the  it  to  to  explicit for  bond,  earn  of a  the  and  as soon  that  as  the  full  employment  hours,  available is  parent  an  involved,  facilities  Ideally,  single  is  each other  there  p o s s i b i l i t y of  day-care  employment.  years,  the  person's  forty  can  lessen.  over working  accept  affordable  number o f  Commitment  children  working  a  the w e l f a r e  c h i l d r e n are  inappropriate.  in  the m a r i t a l seek  a to  maintain  d e p e n d e n t must  In  h o u r week and  envisaged  the  demands o f  to  What  despite  to w h i c h d a y - c a r e the  accommodate b r e a k s  liable  where  employment.  forty  not  willingness  determine  the  to  an extent which p r e j u d i c e s  provision of  extent  to  are  probably  parallel  Greater  to  commitment  idea.  financially  Therefore,  h o u r week i s increase  spouses  of  committed  w h i c h do n o t  lives,  s p o u s e who but  widely  a controversial  their  possible,  The  still  is  recognition rest  encourage a range  will  have  job-sharing.  is  will  also to  essential.  a large  extent  practicable  for  a  by  the  children  will  the  time  be r e a d y  to  for  single reach  full-time  employment. It  may b e p r o t e s t e d  demands a r e v o l u t i o n inflexible attitudes change. for of  the  p r a c t i c e s would t o women i n  The answer  reform. those  in  that  It  is  potential  much v a u n t e d  ideal  to  the  labour have  to  labour  this  that,  this  is  unless  progression into market.  not it  Hosts of  be r e f o r m e d .  market  would  simply is  full-time  that  reformed  In  have the to  independence  for  discriminatory  and  particular, to  undergo  profound  l a b o u r market accommodate  e m p l o y e e s who h a v e r e s p o n s i b i l i t y of  work  for  is  the  children,  t h o s e who h a v e d i v o r c e d o r  ripe  needs the had  a  216  child  outside marriage w i l l  adults which is until will  the  now s o f a s h i o n a b l e w i l l ,  hostility  b e no v i a b l e  whether  h a v e no s u b s t a n c e .  of  the  l a b o u r market  alternative  on a former  spouse,  for  the  family,  The c l e a n b r e a k  in reality, is  friends  be u n a c h i e v a b l e  tempered.  s i n g l e parent or  the  between  Until  then,  but dependence, State.  there  217  BIBLIOGRAPHY  Annual  Abstract  of  Statistics  B.  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