Consider this scenario: I (a man) get married to a woman. We
have two children and buy a house. Seven years later, my wife tells me that she
wants a divorce (women are statistically more likely than men to initiate divorces.
66% by women in the UK in 2011)[1].
She asks me to the sign the divorce papers; I refuse. I don’t want my family to
be broken up! Alas; I cannot stop it on my own. She files for a contested
divorce in court[2].
What can I expect from this court proceeding? Nothing good
I’m afraid. According to Statistics Canada, in the year 2000, just over 50% of
custody orders gave mothers sole custody, while joint legal custody was awarded
in about 37% of the cases[3].
‘But I’m a good dad,’ I tell myself. ‘Surely the court will grant me joint
custody.’ And they do; but only joint legal
custody. Joint legal custody only means that I have a say in some major
decisions involving the child (especially healthcare and education)[4].
The question of physical custody (ie.
where the children actually reside) is
very different. Here, according to a survey conducted by Statistics Canada for
the years 1998-1999 (seemingly the most recent Canadian data on the matter), when
custody was determined by a court order, joint physical custody (children split their time roughly evenly between
the two parents) was ordered in only 17.1% of cases (father custody in 5.2%). But,
as if these odds weren’t bad enough, in only 5.6% of the cases did the courts
order joint physical custody and the children actually have joint living arrangements. In most cases, the
children just resided primarily with the mom anyway, resulting in the fact that
a whopping 88% of cases involving court custody orders ended up with the
children living primarily with the mother[5].
In other words, unless I can prove in court that my ex-wife
is a terrible mother (which I can’t; because she’s not), it is highly likely
that the children will end up living primarily with their mother. As for the
house, it is highly likely that either the court will force us to sell it and
split the proceeds, or else they will award it to the spouse with whom the
children will primarily reside (that is, in the vast majority of cases, the
mother).
The upshot is this: as a result of the divorce (initiated by
my wife), I am kicked out of my home and am prevented from playing a major role
in my children’s lives anymore (I will probably only be allowed to see them
every second weekend, and on a few weekday evenings in between). In one fell
swoop, and through no fault of my own, I lose my wife, my children, and my
home. Now I ask you: is it desirable that we have a family law system that can
do this to me? I don’t know about you, but I say: HELL NO!
So, let’s think of a way to fix it. Currently, family courts
claim to make their custody decisions based on ‘the best interests of the child’.
There is nothing wrong with this basis, but the fact is that the ‘best
interests of the child’ are almost always best served by their parents not getting
divorced in the first place. There are a number of reasons for this. Firstly, a
child growing up in a household with two adults that are biologically
programmed to love them is better than growing up with just one. More love,
more support, more attention.
Secondly, men and women tend to have different parenting
styles, and have a deeper understanding of the issues of their own gender than
of the issues of the opposite gender. A child getting the benefit of both of these
complementary styles and perspectives will often be better than a more
one-sided approach from a single parent. This is especially the case where it’s
a male child living only with his mother (a fairly common occurrence); in this
case, the child is missing out on a masculine parenting perspective and will
probably feel like the mother alone can’t really understand him (similar
considerations apply to the rare case of a female child living only with her
father).
Thirdly, children tend to do better in a stable, rather than
a chaotic, environment. Divorce will always inject a certain amount of turmoil
into the child’s life; especially if it means losing the house in which they
were living, getting shuttled around to different parents’ houses on different
days of the week, or new ‘step-parent’ figures entering and exiting their lives.
These three reasons, and others, help explain the fact that
the children of divorced parents are more likely to experience more
psychological problems of various kinds than children of stable families[6].
As such, it is quite clear that, apart from cases of domestic abuse, the best
interests of the child are best served by the parents remaining together. Very
well, but of what use is this fact to the family court judge? It’s not like he
can order the parents to stay together! What he can do, however, is to make decisions in a way that disincentivizes
both the mother and the father from initiating a divorce or sabotaging the
marriage.
What might this look like? Basically, the judge would award
primary custody of the children to the parent who is the least at fault for the
marriage breaking up. In other words, the parent who initiated the divorce, or
the parent who rendered themselves such an intolerable pain in the ass to the
other parent so as to basically force the other parent to end the marriage,
should, by so doing, forfeit primary custody of the child to the other parent.
Enough of this ‘no-fault divorce’ crap; more often than not, there in fact is a parent who is more at fault for
precipitating the divorce than the other. By doing so, this parent has done a
grave disservice to their children, and as a result, should be penalized by
having less access to them, not rewarded with more power over them, as
frequently occurs in the current system.
A couple of points of clarification and expansion. Firstly,
in cases where it is determined that fault lies pretty evenly with both
parents, what I have said does not apply and custody/property issues can be
decided on the current grounds. Secondly, the spouse at fault for the divorce,
whether the marriage involves children or not, should be granted no right to
alimony payments from the richer spouse. This is in accordance with the same
principle as above: initiators or precipitators of divorces should not, as much
as possible, be allowed to benefit financially or in child-rearing terms from
the divorce that they pushed for. This will, again, serve to disincentivize
divorce, and to help prevent the ridiculous plundering of the richer spouse that
often occurs in the current system. Assets accumulated during the marriage
will, however, continue to be split roughly evenly between both spouses in a
divorce. The matrimonial home, as in the current system, will be an exception
to this rule, but under my system, its full value and title will go to the
party deemed less at fault for the divorce. Thirdly, child support payments
will continue as before, with the non-custodial parent paying child support to
the custodial parent. And finally, parents who wish to voluntarily swap
custodial/non-custodial roles at a later date should always be free to do so.
Another benefit of my proposed system that should be noted is
that it will likely encourage more marriages and more reproduction. Currently,
many men are wary of getting married, because they are aware of how stacked against
them the family law system is. As a result, it is often the woman that is
cajoling the man into marriage, rather than the other way around. Perhaps if
more men were confident that they would be treated fairly in case of divorce,
rather than being scared that the life that they built during marriage could be
brutally torn apart on the mere whim of their wife, they would be more willing
to settle down and get married.
My proposal is bound to be controversial, so I will now take
the opportunity to address some objections that will likely arise to it.
Firstly, it could be objected that my system will simply pressure couples
involved in unhappy marriages to stay together, when really the marriage should
be broken up for both of their sakes. In response, I would distinguish two
cases: childless marriages and marriages involving children. In the case of
childless marriages, the only real loss for the party initiating the divorce is
the loss of their share of the matrimonial home, if there is one. This is not
really that great of an impediment to divorce if the person considers the
marriage to be truly unhappy. In the case of marriages involving children,
parents who truly care for their children will be willing to endure a less than
happy relationship with their spouse for the benefit of those children. If they
don’t care that much for the children, then losing primary custody of them by
initiating the divorce shouldn’t be all that devastating.
Secondly, it could be objected that determining fault for a
given divorce will be a very difficult, and often highly subjective, process
for the judge. In response, I would say that it is certainly no more difficult
or subjective than determining how ‘the best interests’ of children (that the
judge knows very little about) would best be served, or determining a ‘fair’
division of property between the spouses. In fact, I would say that determining
fault is a far more objective determination than what judges have to do in the
current system. In the case of an initiation of divorce in an obviously
non-toxic marriage, it is crystal clear: the initiator is at fault. In the case
of a toxic marriage made so by the actions of one spouse, the other spouse will
have ample opportunity to collect evidence for their case before initiating the
divorce proceeding. Just have a tape recorder handy for a bunch of choice
interactions, remain polite and respectful at all times in order to prevent
counter-evidence, and your case is basically made. And finally, in the case of
a toxic marriage made so by the actions of both spouses, there will probably be
ample evidence of unpleasantness presented by both sides, in which case the
judge can just make a ruling of ‘fault unclear’ and revert to the current
criteria.
Thirdly, it could be objected that if a stay-at-home parent
were deemed at fault for a divorce, the consequences would be excessively
brutal. They would lose their house, a lot of access to their children, and
would be left with no income due to not getting any alimony. In response, I
would say that the primary duties of a stay-at-home parent are maintaining the
marriage and caring for the children. If such a parent were to initiate or
precipitate a divorce, it would represent an utter dereliction of those two
duties. Rewarding such dereliction, as is done in the current system if the
perpetrator is female, is a good way of encouraging others to follow their
example. But I would prefer that others not
follow their example, and for that, we must ensure that dereliction and
failure have consequences. Although such consequences would, admittedly, be
quite severe under my system, I think that they are justified in this instance.
So there you have it: a system of family law that truly takes
the interests of the children, and those of the innocent spouse, into full
account. May it be implemented soon!
[1] http://www.telegraph.co.uk/men/relationships/10357829/Why-do-women-initiate-divorce-more-than-men.html
[2] http://family-law.freeadvice.com/family-law/divorce_law/spouse-refuses-to-sign-divorce-papers.htm
[3] http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/2004_6/f3_1.html
[4] http://www.legalmatch.com/law-library/article/legal-custody-definition.html
[5] http://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/2004_6/p3.html#f3_1
[6] http://www.marriage-success-secrets.com/statistics-about-children-and-divorce.html
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