Home > Uncategorized > Fabricating History – Cohabitation Pt 2

Fabricating History – Cohabitation Pt 2

              Part 2. Cohabitation – fabricating a historic trend

    

                 For Part 1, click on “ https://cohabitationlaw.wordpress.com/2010/10/19/7/

    

The Numbers Game

According to official sources there are ‘millions of cohabiting couples in Britain today.’ Government press releases used by newspapers have variously put the number at ‘over 1 million’, 2 million, 2.5 million, and ‘over 3 million’. [1]  However, this is not an entirely accurate picture.

The best statistical guide to numbers involved in cohabiting comes from the ONS in its Household Survey and Longitudinal Study – see ‘Researching Households and Families’ using the ONS Longitudinal Study (http://www.celsius.lshtm.ac.uk/documents/userguide20.pdf). The latest national Census and the ONS’s ‘Longitudinal Study User Support Programme, Appendix F’, are also useful.

They show that in England & Wales, 1.56 million men and 1.56 million women cohabit – from a total population of over 55 million, i.e. about 6%. Approximately 50% of the 1.56 million from both sexes is formed by the age groups 24 to 35, i.e. the prime marrying age range (and it must be remembered cohabiting is technically a ‘flow variable.’ This makes future projections highly unstable).

The drawback is that figures for cohabiting in Britain only really started in 1979 and it was not until after 1991 when questionnaires deliberately included questions to ascertain marital status that more reliable numbers were forthcoming. So claiming ‘a trend’ one way or another is suspect. Generically, from 1971 cohabiting women were termed de facto to indicate a couple who may not actually be married. The same degree of politeness infected extra-marital fertility data, e.g. illegitimate births to divorced women. Prior to 1991 matters were ‘inferred’ with assumptions made using factors and answers from other data.

American statistics, by contrast, are much more detailed in cohabiting analysis, probably because of the long standing 3 way ethnic splits in their society (see American statistics).

If the official figure of over 2.5 million people currently living together (cohabiting) is used as the basis, the courts must be in fear of being overrun by a flood of disputes about who owns what, when such relationships are legalised.

The flood might prove greater than the level of work that divorce provides for having once divorced, the pain puts many men off risking matrimony again. It is a learning curve that cohabitees will either adapt to immediately or take some time to assimilate.

Cost to Society.

It is now recognised that divorce has a social cost far beyond the legal fees and depressed living standards that follow. These negative consequences impact economic activity and the market place.

Marriage has the advantage in that it is primarily self- funding and self-sustaining over time compared with either single mothers or cohabiting couples.

This is not to say cohabiting cannot be equally self-funding and self-sustaining but it is simply less likely to happen. The form of relationship is inherently unstable and therefore requires injections of money (state welfare benefits) to make it viable and get it over bumps in the road.

Single mothers are not only the least economically viable but by definition are next to impossible to make economically viable. As a result they require billions of pounds in subsidies every year. In 1996 it was calculated (using 1994 prices), that single mothers’ needs and benefits diverted £30 billion of national resources (tax-payer’s money) to sustain their chosen lifestyle (see also ‘The Cost of Family Breakdown’, David Lindsay, Sept 2000).

Divorce Criterion

The criterion for a divorce being granted (pre-1969 Act), in part rested on the proposition that the female spouse (always presumed to be not working and a non-wage earner) would not, as a consequence, become a burden on the taxpayer by her subsequent diminished financial circumstances necessitating her applying for state welfare benefits.

This was, undoubtedly, a limiting factor on how many couples were able to divorce, for how could average and less-than-average income household finance what would in effect be two separate households ?

The Divorce Reform Act (enacted 1971) ended that restraint and in the same decade state welfare benefits switched from being based on precise ‘contributions’ paid, i.e. paid to the party who had contributed sufficiently, to an arbitrary “need” basis where claimants need never have contributed in order to draw a ‘wage’ from the tax-payer.

If the Conservative Party or any future government is to stabilise marriage and at the same time cut down on wasteful expense this ‘switch over’ might prove a profitable area to re-investigate.

Before the Divorce Reform Act 1969 both parties to the action had to agree to separate, and accept that their marriage was over. If one party wanted the marriage to continue, albeit in name only, the other party could do very little about it. The change in 1971 was a reversal of power. It meant that only one of the spouses had to petition to end the marriage. The objections of the other spouse were ignored by the court leaving that party impotent to modify the outcome.

Independent of the State

The one fact that is always skirted around is the economic viability of SLMs, which is zero. Unlike the traditional 2 parent family which can survive without state subsidies and can even survive when the state and/or its apparatus are destroyed, SLMs depend on the traditional 2 parent family paying taxes. Remove ‘the state’ and its apparatus and SLMs can no longer function.

In terms of how independent from the state are other marital forms we find that single mothers – and by implication cohabiting mothers – are overwhelmingly dependent on public resources, e.g. local authority housing (circa 50%), with private housing a second choice (circa 20%). [2]  However, the data shows single fathers to be more independent from the state and less of a burden upon it.

The diagram below (Fig 1) shows the different types of accommodation achieved by sex and marital status.

The drain on public resources that single mother pose is contrasted by single fathers who are more self-reliant and are more likely to be in gainful employment. Well over 50% of single fathers (12% plus 42%) will be either buying a home or have already bought it outright (this may even be after losing their first home in a divorce). The comparable figure for single mothers, at approx 30% (6% plus 26%), is masked by divorce settlements exaggerating the true level (statistical aggregation) where ownership is transferred to them.[3]

Fig 1.   Lone parents with dependent children: by tenure % age , (April 2001, GB)

Source : http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

In purely financial terms the following data, taken from Social Trends (ONS), illustrates who can survive independent of the state and benefits:

  1. 30% of Lone Fathers have incomes exceeding £350 p/w.
  2. 31% of widowed mothers have incomes exceeding £350 p/w.
  3. 12% of divorcees mothers have incomes exceeding £350 p/w.
  4. 8% of separated mothers have incomes exceeding £350 p/w.
  5. 8% of single mothers have incomes exceeding £350 p/w.

Married couples are not listed in the 8% or the 30% categories above. Generally speaking their income is sufficient to meet thier own demands without recourse to state hand outs or subsidies. As a unit they are economically viable where the others are marginal and single mothers, eg never-wed and divorced, are not economically viable family units.

Penalties of Partnering

Pregnant women cannot, in the traditional sense, be economically independent, nor in the modern idiom where the era demands two incomes to fund a basic household can they be expected to be economically independent. By definition, they become dependent on others either through a network formed from family members, their husband or the state. Ethically and morally it is wrong to expect them to be economically independent or to burden them with feelings of guilt.

Continual re-partnering, which cohabiting generally involves, leads to unsettled if not temporary housing arrangements. This can lead to insufficient personal resources (money, assets) being built up as the diagrams (Fig 1 and 2), illustrate.  Whereas single lone mothers comprise around 10% of households in Fig 2 below (when the number of never-married mothers are combined with divorced women) yet lone mothers – which might include divorced women with children – absorb almost 50% of available housing in the social rented sector (see Fig 1 above).

Fig 2. Living Arrangements, April 2001, UK (%)

 Source: http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf and http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

The dangers of structurally shifting the emphasis from married to cohabiting couples becomes immediately apparent when looking at ‘couples living together’ in Fig 2 above. Married couples constitute about 50% of couples and although they may utilise a variety of forms of housing from mortgaged to social housing, they tend to be over-represented in the mortgaged and ‘owned outright’ (i.e. paid in full) sectors seen in Fig 1.

Should the cohabiting proposals be adopted there might be a shift which would see married couples constitute only about 25%  with cohabiting couples making up the balance, i.e. a step change from 10% to 25% of ‘couples living together’.

The lack of stability and the repeated hemorrhaging due to compensation payments would then alter Fig 1. Owned outright and buying on a mortgage would dramatically fall away, say, to 20% for lone fathers and mothers, with a concomitant increase in the demand for state provided ‘social-rented’ and the privately rented housing sector.

The Office for National Statistics concedes that, “1 in 2 lone mothers live in social housing” (ONS, ‘Focus on gender’, 8th Jan 2004). In contrast, married women are least likely to live in local authority accommodation (interestingly, the majority of widows own and live in their own home. The generation we have created since 1990 will not be in that position come their retirement or widowhood).

The same publication also states; “Living arrangements for men and women are broadly similar. Most live in a couple and 81% of couple households live in owner occupied accommodation.”

It would appear that dependency on the state, in this case housing, is determined by whether a man lives in the household or not. A point underlined by the next paragraph stating that, “In 2001 a higher proportion of single men than single women were owner-occupiers in Great Britain (54% and 40% respectively).”

If the present situation surrounding cohabitation leads to insufficient personal resources (money, assets) being built up, with its attendant dependency on the state, one has to surmise that even less personal assets will built up if parts are continually being ‘confiscated’ as outlined in the Law Commission’s new cohabiting proposals.

Poverty Targeting

It is widely believed that identifying poverty sub-sets within the broad sweep of a society will enable relief to be brought rapidly to that group’s aid and they will more quickly be lifted out of poverty. Concurrent with this assumption is that it provides better ‘value for money’, costs the tax payer less and is more effective. However, such faith may be woefully misplaced.

Dr Patricia Morgan has studied the targeting of poverty relief schemes and finds it exacerbates rather than diminishes or attenuates it (“Family matters: family breakdown and its consequences”, 2004).

If cohabiting is to expand as promised, the temptation for politicians will be to transform programmes currently geared to combat poverty for single lone mothers, into programmes for impoverished cohabiting mothers and their children.

Addendum – Sept 2010 saw the removal of Child Benefit payments to the wealthier sections of society. The need for budgetary constraints was an ideal opportunity to delete Child Benefit payments to teenage mothers and bring a sense of adult responsibility to their situation. A new premise could have been constructed whereby Child Benefit payments became payable only after a certain number of years of NIC contributions and income tax payments

Lack of incentive

There is precious little reason for a married man to build up wealth and assets for in so doing he only aims and then plunges a bigger dagger into his heart.

If he is assured of losing both his children and his assets (as under the present regime), there is precious little reason to marry. For the same rationale there is precious little reason for him to re-marry. The marriage figures bear this out, and so in opting to cohabit, as currently construed, he is availing himself of the best remedy a situation not of his making, i.e. being ‘fleeced’ during a divorce.

Whatever her past ideologies and views on ‘family values’ may have been Ruth Deech, a former Law Commissioner, has sobered up and has since been propelled to write:

“Our ancillary relief is already a vengeful process and is based on the premise that all husbands should maintain their wives regardless of conduct, and regardless of her ability to keep herself. The pressure to settle in twelve months will make it worse in every respect.” 

A cynic might describe those who remarry as epitomising the triumph of optimism over realism or, given that re-marriages break down faster than first-time marriages, as a triumph of hope over experience, for as can be seen above the trend of re-marriage while downward is not completely dead.

If the current punitive mandate is to be extended from divorcing to cohabiting couples, we can predict with a reasonable degree of accuracy that a). it will not work well or b). it will work in an unexpected way. Perversely, we reward single mothers with state assistance and assured accommodation yet offer nothing approaching such support to couples who want to be free of state subsidy.

If it were possible to make marriage attractive once again that dagger needs to be removed – the asset stripping has to stop and the gold diggers neutralised – an aspect acknowledged by the Law Commission in the days of breach of promise suits. Only when this change has been applied to divorce law will men increase the marriage and birth rates with all the implications that has for pension funds, GDP, standard of living etc, (see also below).

Behavioral Targeting

Could the lack of incentives to marry be in part due to ‘behavioural targeting’ ?  In the strictest sense of the term this form of manipulation uses information collected on an individual’s PC and creates a profile of his web-browsing behaviour, e.g. the pages he visits, the searches made etc (Google does this). This data is then ‘engineered’ to select which advertisements are to be displayed to that individual when next he visits a website. Google assumes it has “implied consent” – always a dangerous presumption.

The PC user is unaware that this is happening to him and has no choice to ‘opt out’ but is deemed by, say, Google to have opted-in. This is called “behaviors targeting”.

The insidious nature of manipulating choices and engineering change through non-disclosure and silence arguably has parallels with ‘social engineering’ and cohabiting reforms ?

Child Abuse

Nearly every social reform of the past 30 years has been legitimated sooner or later by the advocates insisting that children come first and that they are presently suffering because of a refusal to reform.

Discussions of social reform are explicitly premised, in one form or another, ‘what is best for children’ (a ‘guilt trip’ frequently used to advance legislation favourable to women).

A scan of child abuse stories, and even child torture stories, shows how often the victimised child lives in a single mother household (SMH) where the new father-figure has easy and frequent access to the child but the true biological father has only obstacles or refusals placed in his path.

The practicalities of female “liberation” are that either mothers move from one new consort’s address to another, or stay put and have West Indian style ‘visiting man’ friends move in. Regardless of these two options the children see one ‘father figure’ after another take their place in their mother’s bed.

No consideration is given to the violent psychological disturbance this has on children. Matrimonial re-arrangements have always been troubling especially to teenagers (e.g. Shakespeare’s Hamlet).

It is worth reminding ourselves that even the world’s most elegant reforms are worthless if they become an embarrassment and if they are bought at the price of opening the floodgates to more child abuse.

The Law Commission has not taken this into account and seems to be willfully unaware (deliberately so ?) that increases in fatherlessness caused by greater numbers of SLM and or more serial monogamy by cohabiting women/mothers, increases the risk to of abuse to children.

In this context, the argument that women need protection after a 30 year period of cohabitation shrinks to an irrelevance. If we cannot curb child abuse after 3 decades of being publicly embarrassed by case after case, we have no right as a society to squander time on the relatively insignificant problems of cohabiting payouts.

Equally absurd is the argument that a bad policy towards cohabiting can be avoided by simply jumping to a stage where there is no marriage and no cohabiting, that is to say where there is no difference between the two.  This option was trialled in the early the early Soviet regime and led to such chaos that marriage had to be re-introduced by Stalin in 1937 (see ‘1918 Soviet Family Code on Marriage’, http://fatherknowledgecentre.wordpress.com/2008/01/28/1/ .

Of course, this is not to say there are never radical alternatives. But one alternative that can be guaranteed never to see the light of day is the default position of ‘father custody’. Advocates of this reform point to, among others, a 1997 Canadian Gov’t survey that showed children brought up by single fathers have none of the pathological traits displayed by children from single mother households (SMH). The report, submitted to the United Nations, will no doubt become ‘lost’ and gather dust.

Employment

Children impact the level of women’s participation in the work force in a way that is not seen among men. Only 4% of men with dependent children work part-time while the figure for women is 40% (a ratio that has remained relatively unchanged since 1993).

Not only do children negatively impact women’s ability to earn a living and pay taxes but the impact is ‘age sensitive’, i.e. the younger the child the less likely the mother is to be in work. Compare that with men:

Around 93% of men with dependent children are in the labour force regardless of the age of their youngest child.

Men can, apparently, juggle both home and children with a full time job in a manner women find impossible.

The percentage of working age women, with children aged under 5, who were active to some extent in the labour force was 55%. This figure rose to 73% for those with children aged 11 to 15.[4]

Conversely, men with dependent children are more likely than those without to be in the labour force. The age of their children has no impact.

ONS data shows time and again that men with duties, i.e. fathers, who have a direct need to ‘care’ and provide for children (as opposed to being allowed to see them for a few hours once a fortnight) are more likely to be employed – so why do we ‘detach’ fathers from their children at divorce ?

The old chestnut that women work less because they spend more time with their children is scotched in the same report which finds that a mother working full time spends, on average, nearly 4½ hours on childcare and other activities on weekdays. For full time working men in the same circumstances the figure was 3½ hours.

In the same ONS report it states, “A smaller proportion of lone mothers are in the Labour force than mothers who are married or cohabiting.” From the Treasury and tax-payers point of view this is one benefit of ‘pushing’ lone mothers into cohabiting that can easily be conceded to the reformers.

Complicating Employment Law

Employment law, once so straightforward, has in the 2nd half of the 20th century become a cancer. For employers large and small it is a malignancy with tentacles everywhere-.

In an attempt to ‘do right’ by everyone and to provide a minimum floor for all employees, employment law has become complex, riddled with contradictions and because of sometimes ludicrous and disproportionate penalties it has fallen into disrepute.

The rehearsed arguments for changing employment law has a familiar sound to today’s calls for cohabiting law reform – the poor, the vulnerable, the need for protection, unfair etc, etc.

Reformers suggest that the present complicated regimen re: property, disadvantages cohabiting women. What is really meant is that their ‘gold digging’ efforts to gain another person’s property and/or money can be frustrated.

Kevin, Myers, succinctly summed up the predicament of ‘the liberal tendency’ when he wrote:

“What is truly flabbergasting about victim-feminists is their inexhaustible ability to scan a landscape of facts and merely see the topographical features in which only women suffer”. – An Irishman’s Diary, The Irish Times.

Curiously, when ‘community property’ style laws were proposed as a possible alternative at the March 31st meeting, one reformist speaker, Elizabeth Cooke (Reading Uni), was not at all enthusiastic. Although this basis is adopted by some countries, e.g. USA, she was not at all sure that a switch to ‘community property’ was a good idea.

She never stated her reasons or the nature of her reservations but she accepted it brought with it other complications (see Community Property below). Could it be that property division along community property lines would actually leave divorced men with some assets and by implication divorced women would not have the full and free rein over all of them they presently enjoy  ?

As she has authored several books on matrimonial property law and community property law one would have thought she would have been a lot more forthcoming and one wonders why she was so reticent before an audience.

Community Property

Community property is a concept of dividing land, money and personal property upon death or divorce. It is said to have originated in Spanish law and is quite unrelated to Common Law. It is found usually in the western states of the US, e.g. California, Arizona, Texas.

In theory it is more straightforward and equitable than the system we have at present. It has more of a ‘de novo’ texture about it (resetting the clock to zero) than Common Law.

Only property acquired during the marriage (except for gifts or inheritances) must to be shared out 50/50 (unlike Beatles’ Paul McCartney who had to share his lifetimes fortune amassed years prior to his marriage to his 2nd wife and her subsequent departure). Joint ownership of assets is automatically presumed by law in the absence of specific evidence to the contrary.  Men who are currently cohabiting may find themselves being sued for their total asset worth not once but 3, 4, or even 5 times as they move on, or their partner leaves them for pastures new.

This would appear to make community property the prime candidate for settling the property claims when cohabitees separate. The downside is that if this is adopted for cohabitees it would suddenly expose the present regime of matrimonial law for divorcing couples for what it is – totally indefensible.

In addition, community property law would limit the grab for wealth and money a female cohabitee could make to the community property acquired during her relationship with her former partner. Problematically for reformers, there could be circumstances when no community property was purchased so the mot recent female cohabitee to leave might depart with nothing.

If, instead, English matrimonial law were to be applied to cohabitees then successive cohabitees would be better off vis-à-vis any pay-out. They would be in the position of Heather Mills who in her divorce of Sir Paul McCartney was able to have a run at all his assets (see also the 2004 award against footballer Ray Parlour). [5]

Although community property law rules are basically simple and straightforward inasmuch that the sovereignty of property that each partner brings into the marriage or receives by way of gift, bequest or devise during marriage, remains sovereign and is not deemed community property. Spouses are therefore allowed to leave the marriage without loosing it (unlike Britain’s divorce system).

However, over time the purity of community property law has been contaminated as it has been forced to yield to one fad after another, e.g. vulnerable spouse, women’ rights etc.  Appeasement has inevitably led to the development of complexities.

Whereas community property is wholly compatible with the overarching concept of marriage bringing about man and woman as ‘one flesh’, it begins to unravel in its attempts to smooth off some of the harsher aspect of equality that are seen to ‘disadvantage women’.

“Distribution” of community property is where most of these complications have arisen and where extensive legal battles are fought out. For instance, California has mandated by law a 50/50 division of community property by value; in Texas the  division is not by value, worth or quantity, but by ‘equitable distribution’ which will result in an unequal division (for the husband) and which is more or less the same in Common Law states (and Britain). 

Alaska is of interest in this regard as it is a state that permits couples to ‘opt-in’ to community property law if they choose. Property is viewed as separate property unless both parties agree to make it community property through a community property agreement or a community property trust. This is a model the UK might usefully adopt but it is the format the Law Commission is currently rejecting.

The anachronistic working of judicial minds in Britain, where women are always perceived as the weaker sex and in need of protection, still finds echoes in the land of our more progressive cousins. It would appear that although community property law has been adopted for both sexes, community debts has not. In California, for example, while community property is required to be divided “equally”, debts are not – they have to divided “equitably” which in practice means the man is responsible for it (one of the inconsistencies previously mentioned).

The community property system is usually justified by the idea that such joint ownership recognises the theoretically equal contributions of both spouses to the creation and operation of the family unit.

A question mark hangs over US distribution rules because so few states recognise cohabitation (see Cohabiting in the USA and American Statistics).

Community property does not automatically bring a much needed consistency or certainty in property re-allocation because in some US states, property is divided up according at the ‘discretion’ of the court (never a good idea).

Another drawback is the right of a creditor to liquidate whole or part of the community property in satisfaction of a debt or obligation incurred by one or both of the spouses. Additionally, conflicts can arise when an inheritance received by one spouse is used to pay off a jointly held mortgage, i.e. separate property is used to pay off community property debt for the mutual benefit of both spouses. How this should then be divided when the couple divorces is faced by many courts.

Defining such boundaries can often lead to much litigation with outcomes difficult to predict. For example, if one spouse owns a business before marrying, then it is clearly separate at that time. However, if the business grows during the marriage, is it due to the hard work of one or both spouses ? If the other spouse stays at home and arguably enables the other to focus more fully, should she not have a share in that wealth ?

It is ironic to have to point out that those states that have embraced community property strongly advise both parties to ‘seek professional advice’, adopt proper estate planning in order to avoid costly disputes. The advice is that ‘consumers’ who are considering holding property jointly should first research reliable legal source materials, or consult with a lawyer, a certified accountant or similar.

This underscores the ‘educational’ remedy suggested by this author to the March 31st meeting.

Capital Gains Tax.

There is another downside to community property – it gives rise to federal taxes and the temptation is that a British government would be equally seduced to levying some form of Capital Gains Tax (CGT).

One would slso expect women who repeated “divorced” their male  cohabitees to have to face this tax but one can be confident that as females an exemption will be made for them.

Land Law

The upshot of compromising the integrity of property law and property ownership if the cohabiting proposals get the ‘go ahead’ in parliament, will be that in future no one will have clear title of land – the certainty essential for good law will have been eradicated. Control will become more important than ownership.

It should be recalled that the Law Com has been angling for changes to marital/cohabiting law for several decades and its previous reforms have shown it to be unafraid to compromise the sanctity and clarity of land law. (see ‘The Field of Choice’, Law Commission report, 1966 and the Royal Commission, aka the Morton Report, 1956).

None of the other branches of the law can withstand judgments made in the Family Courts. They have grown, it could be argued, more powerful than the criminal courts and far more influential than Appeal Courts – for what percentage of the population can afford to take their case to a higher appeal ?

And what is worse, they are held in secret.

Saudi prince muirder trail – Oct 2010

End of part 2


[1] “According to official sources there are millions of cohabiting couples in Britain today”,   By Kevin Myers, 7th  Dec 2002, “…. three million heterosexuals in Britain who cohabit …. “

[2] ONS Focus on Families  (housing) Pub 7 July 2005 (Dependent Children, i.e. aged under 16). Published on 7 July 2005 at 9:30 am. http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

[3] For divorced or separated men and women there was no difference in owner occupation, with half of both sexes owning their home, whether with a mortgage or outright. – ‘Housing: 1 in 2 lone mothers live in social housing’ (UK ONS; Focus on gender; 8 January 2004). http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

[4] “1 in 2 mums of under 5s are in labour force”, ONS. http://www.statistics.gov.uk/downloads/theme_compendia/fog2004/gender.pdf

[5] The settlement won by Ray Parlour’s former wife included  1/. more than a third of his future income  2/. A £250,000 lump sum 3/. maintenance of £444,000 a year  4/. Two mortgage-free houses worth more than £1m  5/. an annual payment of £12,500 to each of his 3 children. Source: BBC on line http://news.bbc.co.uk/1/hi/uk/3872905.stm

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