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Obligation and commitment in family law Douglas, Gillian Hart Publishing, 2018 The ties that bind? Family change and individual commitment To have and to hold A clean break Cant Pay? Wont Pay Parenthood is for life Who cares? The law of family obligations.
OBLIGATION AND COMMITMENT IN FAMILY LAW A tension lies at the heart of family law Expressed in the language of rights and duties, it seeks to impose enforceable obligations on individuals linked to each other by ties that are usually regarded as based on love or blood Taking a contextual approach that draws on history, sociology and social policy as well as law and legal theory, this book examines the concept of obligation as it has been developed in family law and the difficulties the law has had in translating it from a theoretical and ideological concept into the basis of enforceable actions and duties Increasingly, the idea of commitment has been offered as the key organising principle for the recognition of family relationships, often as a means of rebutting claims that family ties are becoming attenuated, but the meaning and scope of this concept have not been explored The book traces how the notion of commitment is understood and how far it has come to be used as a rationale for imposing the core legal obligations which underpin care and caring within families ii Obligation and Commitment in Family Law Gillian Douglas HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © Gillian Douglas, 2018 Gillian Douglas has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers All UK Government legislation and other public sector information used in the work is Crown Copyright © All House of Lords and House of Commons information used in the work is Parliamentary Copyright © This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/ doc/open-government-licence/version/3) except where otherwise stated All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018 A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication data Names: Douglas, Gillian, author Title: Obligation and commitment in family law / Gillian Douglas Description: Oxford [UK] ; New York : Hart Publishing, 2018. | Includes bibliographical references and index Identifiers: LCCN 2017052960 (print) | LCCN 2017055287 (ebook) | ISBN 9781782258537 (Epub) | ISBN 9781782258520 (hardback : alk paper) Subjects: LCSH: Domestic relations—Great Britain. | Parent and child (Law)— Great Britain. | Family policy—Great Britain Classification: LCC KD750 (ebook) | LCC KD750 D69 2018 (print) | DDC 346.4101/5—dc23 LC record available at https://lccn.loc.gov/2017052960 ISBN: HB: 978-1-78225-852-0 ePDF: 978-1-78225-854-4 ePub: 978-1-78225-853-7 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters Preface The idea for this book had been in my mind for several years, but it was only when I was fortunate enough to be awarded a Leverhulme Trust Major Research Fellowship that I was able to devote the time to develop it p roperly I am immensely grateful to the Trust for providing me with the opportunity to spend two years on a project exploring the notion of obligation and commitment in family law This book is the major output from that project The motivation for my project was initially to look more closely at some of the earlier development of what might be called the ‘modern’ family law era, which began when family issues shifted from being primarily dealt with through ecclesiastical and property law to a body of secular law distinctly concerned with ‘the family’ I was interested in the peculiar legal suit of ‘restitution of conjugal rights’, about which there seemed to be very little ever written The idea of attempting to use law to coerce the performance of the non-financial obligations of marriage then led me to think further about how, and how far, the law has been used to determine the nature and content of family obligations more generally The notion of family obligation assumed more significance when I was involved in an empirical study of people’s attitudes to the law of inheritance The study was intended to provide information for the Law Commission in its review of the law of intestacy, a law that has barely altered since 1925 In asking people for their views on who should receive (shares of) their estate, it was clear that what Janet Finch and Jennifer Mason, in their earlier qualitative study of attitudes to inheritance (Negotiating Family Responsibilities, 1993), had described as a ‘sense of obligation’ was highly important in determining their views of what would be ‘right’ and ‘fair’ But it seemed that despite the enormous social changes in family formation and attitudes to intimacy and relationships that have taken place since the 1970s, never mind the 1920s or 1850s, people were still rather traditional when it came to matters of inheritance We found that their ‘inheritance family’—the family they regarded as legitimate claimants on their estate—was generally the narrow nuclear family of partner (including a cohabiting partner) and children, with ‘own’ (ie genetic) children taking priority over step-children It seemed to me that as ‘identity’ has become more important in terms of social, cultural and political personhood, so the notion of relational identity—who is connected to whom—has become the focus of much of the energy of family law scholars who have examined and advocated the case for the legal recognition of a broader range of family relationships than vi Preface this narrow nuclear family type But somewhat less attention has sometimes been paid to considering what the legal consequences of such recognition would be, often because the drive for recognition has been motivated by a call, or an assumption, that this should deliver equality with the family relationships that are already recognised Yet we all know from socio-legal and empirical insights into the working of family law that how the law is applied in practice may be far removed from how it appears on its face And we also know that the law is communicated through a discourse imbued with underlying ideologies, attitudes and values that need to be unpacked and evaluated So the aim of my project, and this book, has been to focus not on the recognition of relationships, but on the consequences of recognition as articulated through core ‘obligations’ imposed by the law on family members towards each other As well as examining the concept of obligation, the other dimension of my project has been to explore the meaning of ‘commitment’ in family law and family relationships This is a concept that has become much more prevalent in both popular and legal discourse about the family and relationships in recent times, but as I explain in Chapter 1, its meaning has shifted from a term largely synonymous with burden—and obligation—to one that embodies dedication and allegiance to a person or a relationship I seek to show how this change in meaning is a reflection of the liberal view of intimate relationships as existing to provide emotional self-fulfilment for the autonomous individual, who should be free to ‘move on’ from them if they fail to deliver such satisfaction I note throughout how this conception of commitment is gendered, and how it also reflects the traditionally patriarchal stance of the law in the regulation and control of family relationships The core obligations imposed by the law on family members fall squarely, in my view, within the notion of ‘caring’, the various meanings of which I explore in Chapter Care has rightly become central to the understanding of what a ‘functional’ approach to families and to family law might look like, but it is sometimes forgotten how (far) it might already be included within the content of family law One can identify a specific ‘duty of care’ applying to the relationships that have traditionally been given legal recognition through a recognised legal status—marriage and parenthood—with family law imposing a variety of both positive and negative obligations on spouses and parents The core positive obligations of care concern the duty of a spouse to cohabit with, and to maintain, the other spouse, and the duty of a parent to support, and to maintain a relationship with, his or her child The negative obligations of marriage might be regarded as including a duty not to commit adultery and a duty not to act with cruelty (or now, loosely, ‘unreasonably’) Negative obligations of parenthood might include the duty not to neglect or to ill-treat the child The distinction between positive and negative obligations is discussed further in Chapter The focus of the case studies discussed in this book is on the positive obligations only Preface vii This is because, apart from adultery, which, by definition, can only apply to marriage (or, should it be so defined, although this has not been the case in the United Kingdom, to a civil partnership), such negative obligations are not confined to those in legally recognised ‘family’ relationships Acting with cruelty towards an intimate partner, or towards a child, might be a criminal offence regardless, and a spouse behaving in such a way that the other cannot reasonably be expected to live with him or her may well involve criminal offences (eg acts of violence) or other acts controllable by civil law applicable to non-family members (eg harassment), or acts which would be regarded as anti-social regardless of the relationship (eg drunkenness, personal neglect) I have chosen not to deal with adultery and the duty of fidelity, in order to avoid becoming side-tracked into a different discussion of the grounds for divorce, which raise issues separate from the notions of obligation or commitment I have sought to trace the development of the law taking a retrospective approach, largely from the Victorian era, up to the current time, seeking to contextualise the primary legal sources and the ways in which relationships are viewed and evaluated within them, through reference to social, historical and demographic data and insights These are discussed in detail in Chapter and referred to throughout the book I make extensive use of the primary legal sources In my view, case law and statute are invaluable as sources of information regarding the attitudes that the state considers as important to promote and enforce through law, always bearing in mind, as I have noted, that one cannot assume that the ‘messages’ being sent are an accurate and complete reflection of how people actually behave, nor that the messages are received, understood and acted upon as intended The focus of Chapter is on the action for ‘restitution of conjugal rights’—a remedy for desertion in the form of a decree requiring one spouse to resume cohabitation with the other This was not finally abolished until 1970 Chapter considers the approach taken to financial support within and after marriage, and the establishment of the ‘clean break’ principle ending all financial ties between the spouses This was put into statutory form in 1984 Chapter examines the law governing child maintenance and the pendulum swings that have taken place in policy between a focus on the role of the state or the private sphere in providing financially for children The high-water mark of state intervention in the parental duty to support one’s child came with the establishment of the child support scheme in 1991 Chapter focuses on how the law has been used to allocate rights and obligations relating to parenting and the upbringing of children both during and after the parental relationship has ended A drive to encourage more equal roles for both parents received particular recognition in the Children and Families Act 2014 These chapters seek to build up a picture of how the law has reached its current state, and to reflect its interaction with the major social changes that have taken place in the modern and post-modern eras viii Preface Chapter changes the focus from the obligation to provide care in its various forms within the nuclear, form- or status-based family, to the recognition of care work as giving rise to a right to redress or compensation, as advocated by those who argue for a more functional approach to relationship recognition Here, the discussion considers the recognition of care as a ‘contribution’ to the family, in divorce or property law and as extended to cohabiting and ‘caring’ relationships in Australia Chapter evaluates the development of the law as traced in the earlier chapters, and its fit with the changing nature of families and changing social attitudes The case study approach that I have adopted to exploring family legal obligations means that I not address three significant developments in family law in recent years The first is the legal recognition of same-sex relationships and of families formed by these One might legitimately argue that the adoption of non-discriminatory laws on sexual orientation is in many ways the most fundamental social shift in the sphere of intimacy and family relations that has been experienced in modern British (and western) society However, as I have indicated, the focus of this work is not on the recognition of relationships and relational identities, but on the consequences of such recognition, in the form of legal obligations of care As same-sex relationships have come to be included within the sphere of family law, this has been on the same basis as traditional ‘family’ relationships The retrospective assessment in this book of the development of the law on family obligations is as relevant, I would therefore hope, to understanding its significance for same-sex relationships as it is for heterosexual couples and traditional families, although future legal development may identify ways in which same-sex partnerships should be treated differently by family law (eg in relation to assumptions regarding gendered dependency) The second omission is detailed discussion of the challenge of providing care for the elderly My rationale is twofold First, apart from under the Poor Law, there has never been a legal obligation on adult family members to support their parents or other kin in England and Wales, which raises particular issues of cultural and social expectation I touch upon the issue in Chapters and Secondly, until an assessment has been made of the utility and desirability of the imposition of binding obligations that have been recognised in the past, we cannot form a sensible view on whether these should be extended to additional family forms or ways of caring for each other I hope that the discussion and conclusions in this book provide insights that are helpful to those shaping policy for all forms of caring, in respect of all forms of ‘family’ relationships, in the future Thirdly, it should be noted that I have not sought to provide a comprehensive ‘statement of the law’ as it currently stands In particular, international human rights standards and internationally developed norms and processes play a part in regulating family relationships through law, particularly in relation to ‘international’ families formed, living and changing across Preface ix state borders However, the development of the law in England and Wales (and, in Chapter 7, in Australia) discussed in this book has not entailed significant reference to or application of international and transnational law So although relevant provisions and instances are referred to, primarily in Chapter 6, which deals with the promotion of ‘contact’ and ‘involvement’ in the life of the child post parental separation, I not discuss them in detail I have been able to discuss ideas and issues arising in this book with many friends and colleagues, including (in alphabetical order), Rebecca BaileyHarris, Anne Barlow, Caroline Bridge, Julie Doughty, Kathy Griffiths, John Haskey, Emma Hitchings, Nigel Lowe, Judith Masson, Mervyn Murch, Leanne Smith, Sharon Thompson and Liz Trinder I would like to thank Belinda Felhberg and Helen Rhoades at the University of Melbourne, Patrick Parkinson at the University of Sydney and Bruce Smyth at the Australian National University, for hosting my visits and providing valuable information on family law in Australia I am lastly and especially grateful to Stephen Gilmore, Kathy Griffiths, Jo Miles, Daniel Monk, Rebecca Probert and Frederik Swennen, for reading and commenting on various chapters in draft This book is dedicated to my husband, Hugh Rawlings, with the deepest sense of love, obligation and commitment Gillian Douglas September 2017 260 Bibliography Reece, H, Divorcing Responsibly (Oxford, Hart Publishing, 2003) Regan, M Jnr, Family Law and the Pursuit of Intimacy (New York, New York University Press, 1993) ——, Alone Together: Law and the Meanings of Marriage (Oxford, Oxford University Press, 1999) Rhoades, H, ‘The No Contact Mother: Reconstructions of Motherhood in the Era of the New Father’ (2002) 16 International Journal of Law, Policy and the Family 71 ——, ‘Annex G, Helen Rhoades evidence in relation to shared parenting’ in Family Justice Review, Final Report (London, Ministry of Justice, 2011) Ridge, T and Millar, J, Work and Well-Being over Time: Lone Parents and Their Children Research Report No 536 (London, DWP, 2008) Royal Commission on Divorce and Matrimonial Causes (Chair, Lord Gorell), Report (Cd 6478, 1912) Royal Commission on Equal Pay 1944–46 (Chair, Sir C Asquith), Report (Cmd 6937, 1946) Royal Commission on Marriage and Divorce (Chair, Lord Morton), Report 1951–1955 (Cmd 9678, 1956) Royal Commission on Population, Report (Cmd 7695, 1949) Royal Commissioners into the Law of Divorce, (Chair, Lord Campbell), First Report (London, HMSO, 1853) Rundle, O, ‘An examination of relationship registration schemes in Australia’ (2011) 25 Australian Journal of Family Law 121 Sarat, A and Felstiner, B, Divorce lawyers and their clients: power and meaning in the legal process (New York, Oxford University Press, 1995) Saunders, H, Twenty-nine Child Homicides (Bristol, WAFE, 2006) Schauer, F, ‘Was Austin Right After All? On the Role of Sanctions in a Theory of Law’ (2010) 23 Ratio Juris Schneider, C, ‘The Channelling Function in Family Law’ (1992) 20 Hofstra Law Review 495 Scott, E, ‘Social Norms and the Legal Regulation of Marriage’ (2000) 86 Virginia Law Review 1901 Scott, J and Clery, E, ‘Gender Roles’ in A Park et al (eds), British Social Attitudes 30 (London, NatCen, 2013) Shanley, M, Feminism, Marriage, and the Law in Victorian England 1850–1895 (London, IB Tauris, 1989) Shipman, B and Smart, C, ‘“It’s Made a Huge Difference”: Recognition, Rights and the Personal Significance of Civil Partnership’ (2007) 12 Sociological Research Online 31 January Skinner, C and Main, G, ‘The contribution of child maintenance payments to the income packages of lone mothers’ (2013) 21(1) Journal of Poverty and Social Justice 47 Sloan, B, Informal Carers and Private Law (Oxford, Hart Publishing, 2013) Smart, C, The Ties That Bind: Law, marriage and the reproduction of patriarchal relations (London, Routledge & Kegan Paul, 1984) ——, ‘The Legal and Moral Ordering of Child Custody’ (1991) 18 Journal of Law and Society 485 ——, ‘Preface’ in R Collier and S Sheldon (eds), Fathers’ Rights Activism and Law Reform in Comparative Perspective (Oxford, Hart Publishing, 2006) Bibliography 261 ——, Personal Life: New directions in sociological thinking (Cambridge, Polity Press, 2007) —— and Neale, B, Family Fragments? (Cambridge, Polity Press, 1999) —— and Stevens, P, Cohabitation Breakdown (York, Joseph Rowntree Foundation, 2000) ——, May, V, Wade, A and Furniss, C, Residence and Contact Disputes in Court, vol DCA Research Series 6/03 (London, DCA, 2003) Smith, L and Trinder, L, ‘Mind the gap: parent education programmes and the family justice system’ [2012] Child and Family Law Quarterly 428 Smith, S, ‘The Normativity of Private Law’ (2011) 31 OJLS 215 Social Justice Policy Group (Chair, Samantha Callan), Breakthrough Britain: Ending the Costs of Social Breakdown Vol 1, Family Breakdown (London, Centre for Social Justice, 2007) Social Policy Justice Group (Chair, Samantha Callan), Breakdown Britain: The state of the nation report: fractured families (London, Centre for Social Justice, 2006) Spence, A, Social Trends 41, Labour market (London, ONS, 2011) Stanley S and Markman, H, ‘Assessing Commitment in Personal Relationships’ (1992) 54 Journal of Marriage and Family 595 Stetson, D, A Woman’s Issue: The Politics of Family Law Reform in England (London, Greenwood Press, 1982) Stone, L, The Family, Sex and Marriage in England 1500–1800 (Harmondsworth, Penguin Books, 1979) ——, Road to Divorce England 1530–1987 (Oxford, Oxford University Press, 1990) ——, Uncertain Unions: Marriage in England 1660–1753 (Oxford, Oxford University Press, 1992) ——, Broken Lives (Oxford, Oxford University Press, 1993) Stone, O, ‘The Matrimonial Proceedings (Magistrates’ Courts Act), 1960’ (1961) 24 MLR 144 Stowe, M ‘One couple: one lawyer?’ [2017] Fam Law 737 Sturge, C and Glaser, D, ‘Contact and Domestic Violence—The Experts’ Court Report’ [2000] Fam Law 615 Summerfield, T, ‘Understanding the Law of the Family: A Question of Practice, not Interpretation’ (2002) 11 Griffith Law Review 44 Sumner Holmes, A, ‘“Don’t Frighten the Horses”: the Russell Divorce Case’ in G Robb and N Erber (eds), Disorder in the Court: Trials and Sexual Conflict at the Turn of the Century (Basingstoke, Palgrave Macmillan, 1999) 140 Sunstein, C, ‘On the Expressive Function of Law’ (1996) 144 University of Pennsylvania Law Review 2021 Swennen, F and Verhaert, L, ‘Intergenerational solidarity and elder care in the Law Countries’ [2015] Child and Family Law Quarterly 285 Teubner, G, ‘How the Law Thinks: Toward a constructivist epistemology of law’ (1989) 23 Law & Society Review 727 Thane, P and Evans, T, Sinners? Scroungers? Saints? Unmarried Motherhood in Twentieth Century England (Oxford, Oxford University Press, 2012) Théry, I, ‘“The Interest of the Child” and the Regulation of the Post-divorce Family’ (1986) 14 International Journal of the Sociology of Law 341 262 Bibliography Thompson, S, Prenuptial agreements and the presumption of free choice: Issues of power in theory and practice (Oxford, Hart Publishing, 2015) ——, ‘In Defence of the “Gold-Digger”’ (2016) Onati Socio-Legal Series 1225 Tilbury, M, ‘Remedies and the Classification of Obligations’ in A Robertson (ed), The Law of Obligations: Connections and Boundaries (London, UCL Press, 2004) Trinder, L, Enforcing child contact orders: are the family courts getting it right? (Exeter, Exeter Law School, 2013) ——, ‘Climate change? The multiple trajectories of shared care law, policy and social practices’ [2014] Child and Family Law Quarterly 31 ——, Bryson, C, Coleman, L, Houlston, C, Purdon, S, Reibstein, J and Smith, L, Building bridges? An evaluation of the costs and effectiveness of the Separated Parents Information Programme (PIP) (London, DfE, 2011) ——, Hunt, J, Macleod, A, Pearce, J and Woodward, H, Enforcing contact orders: problem-solving or punishment? (Exeter, Exeter Law School, 2013) Tronto, J, ‘Women and Caring: Or, What Can Feminists Learn About Morality From Caring?’ in S Bordo and A Jaggar (eds), Gender/Body/Knowledge (New Brunswick, Rutgers University Press, 1989) ——, Moral Boundaries: A Political Argument for an Ethic of Care (London, Routledge, 1993) Tsoukala, P, ‘Gary Becker, Legal Feminism, and the Costs of Moralizing Care’ (2007) 16 Columbia Journal of Gender & Law 357 Van Krieken, R, ‘The “Best Interests of the Child” and Parental Separation: On the “Civilising of Parents”’ (2005) 68 MLR 25 WAFE, Nineteen Child Homicides (Bristol, WAFE, 2016) Wallace, M, A Proposal for Domestic Relationship Legislation in the ACT (Canberra, A-G’s Department, 1993) Wallbank, J, ‘Getting tough on mothers: regulating contact and residence’ (2007) 15 Feminist Legal Studies 189 ——,‘Parental Responsibility and the Responsible Parent: Managing the “Problem” of Contact’ in R Probert, S Gilmore and J Herring (eds), Responsible Parents and Parental Responsibility (Oxford, Hart Publishing, 2009) , ‘(En)Gendering the fusion of rights and responsibilities in the law of contact’ in J Wallbank, S Choudhry and J Herring (eds), Rights, Gender and Family Law (Routledge, 2010) Wallerstein, J and Kelly, J, Surviving the Breakup (New York, Basic Books, 1980) Weiner, M, ‘Caregiver payments and the obligation to give care or share’ (2014) 59 Villanova Law Review 135 Wikeley, N, Child Support: Law and Policy (Oxford, Hart Publishing, 2006) ——, Barnett, S, Brown, J, Davis, G, Diamond, I, Draper, T and Smith, P National Survey of Child Support Agency Clients, Research Report No 152 (London, DWP, 2001) ——, Ireland, E, Bryson, C and Smith, R, Relationship separation and child support study Research Report No 503 (London, DWP, 2008) Williams, D, The Rebecca Riots (Cardiff, University of Wales Press, 1986) Bibliography 263 Willitts, M, Anderson, T, Tait, C and Williams, G, Children in Britain: Findings from the 2003 Families and Children Study (FACS) Research Report 249 (London, DWP, 2005) Willmott, L, Mathews, B and Shoebridge, G, ‘De Facto Relationships Property Adjustment Law—A National Direction’ (2003) 17 Australian Journal of Family Law Wilson, D, Mary Ann Cotton: Britain’s First Female Serial Killer (Hook, Waterside Press, 2013) Wilson, N (Lord), ‘Changes over the Centuries in the Financial Consequences of Divorce’ [2017] Fam Law 728 Wise, S, Inconvenient People: Lunacy, Liberty and the Mad-Doctors in Victorian England (London, Vintage Books, 2013) Wong, S, ‘Property Regimes for Home-Sharers: the Civil Partnership Bill and Some Antipodean Models’ (2004) 26 Journal of Social Welfare and Family Law 361 Woodward, H, ‘“Everyday” financial remedy orders: they achieve fair pension provision on divorce?’ [2015] Child and Family Law Quarterly 151 Woodward, H with Sefton, M, Pensions on Divorce: An Empirical Study (Cardiff, Cardiff Law School, 2014) Wright, D, ‘Untying the Knot: An Analysis of the English Divorce and Matrimonial Causes Court Records, 1858–1866’ (2004) 38 University of Richmond Law Review 903 Yankah, E, ‘The Force of Law: The Role of Coercion in Legal Norms’ (2007–2008) 42 University of Richmond Law Review 1197 264 Index Abse, Leo 122 access see also contact with non-resident parent contact distinguished 177 custody or access order 165–167, 172–173, 176–177 custody and 172 father’s rights 165, 166, 167 generally 161 mother’s rights 164–165, 166, 167, 170–171 purpose and benefits 165–167 rights of child 172–174 welfare of child 174–176 accountability responsibility and activity conditions 183–185 activity directions 183–185 adultery action for criminal conversation 70n, 224n common law 101 condonation of 79n connivance at 79n consortium and 72 grounds for divorce 91 of husband 72, 78–79, 82, 86–87, 91, 165, 166–167 of wife 72, 76, 78–80, 87, 91, 101, 101n, 107, 109–110, 134, 164–165, 166–167, 168–169, 224, 226 affiliation proceedings illegitimate children 133–134, 141–143 aggravated assault husband convicted of 75n alimony adulterous wives 76 divorce a mensa et thoro 88, 99n, 100, 224 ecclesiastical courts 99–100, 99n, 100n, 225 meaning 88n restitution of conjugal rights 73, 76, 79–80, 82, 88–90, 92 wife’s right to claim 73, 76 anger management programmes 184–185 Arches Court 77 assets matrimonial see matrimonial assets ring-fencing 233, 233n, 241n unilateral 233, 233n Australia caring relationships 207–221, 239, 245 cohabitation (‘de facto partners’) 207–209, 239 contact with non-resident parent 189 beneficence, duty of 4–5, 12, 28 birth rate, demographic data 42–44, 59–60 breadwinner/housewife model capitalism and family function 60, 62 care work 55–56, 194, 197 efficiency 62–63 erosion 24, 57 generally 37, 51, 54, 59–60 maintenance and 102, 115, 128–129 burden, commitment as 18–19 canon law see ecclesiastical courts capitalism and family function 60–63 care see also carer; caring relationship access/contact 192 beneficence 4–5 breadwinner/housewife model 55–56, 128–129, 194, 197 caring and the law 2–3 child care and housework 55–57 as claim to remedy 193, 194–207, 219–221, 244–245 commitment and 3, 7, 33–34, 199–200, 219–220, 222–224 custody and 171–172, 234 dependency derivative dependency duty of beneficence 4–5, 12, 28 emotional support 212–213 ethic of care 4–5, 7, 222 family members, obligations upon 28–32, 193, 193n, 243–244 filial duty 193n financial support 192, 193 forms of 5–6 gendered division of labour 62–63, 194 gendered psychology 33–34, 194, 197 interdependence kinship and caring obligation 28–32, 194 meanings 5–7 moral obligation 29–30, 224–225 need 266 Index as non-financial contribution 197–201, 206–207, 217–218, 219, 220, 233, 241 obligation and 4, 28–32, 192–194, 193n, 219, 222–225, 240, 246 parent/child relationship 33, 192 parental duty of 11, 29, 130–131, 162, 240, 241 particularity public and family responsibility for relationship-generated disadvantage 128–129, 204–207, 217–218, 242 relationships fulfilling function of shared care arrangements 149, 192 state as beneficiary of care work 28 unpaid care work 58–59 valuing as work 6–7, 194 carer see also care child as 193n, 208–209, 210, 215, 243–244 cohabitees 201–207 commitment 217, 219–220 compensation for losses incurred 193, 194–207, 217–218, 219, 245 costs of 145 illegitimate children 143 mother’s role 166–167, 171, 234 non-financial contribution 197–201, 206–207, 217–218, 219, 220, 233, 241 property law and cohabitation 202–204 recognition 195, 197, 217–221 caring relationship Australia 207–221, 239, 245 cohabitants 196, 207–209 commitment 217, 219–220 emotional support 212–213 generally meaning 210, 213–215 meaning of caring 209–213 non-conjugal 196 non-financial contributions 217–218, 219, 220 parent cared for by child 208–209, 210, 215, 243–244 rationale for recognition 217–219 recognition 217–221, 223 registered 215–216, 220 same-sex couples 208–209, 213, 220 vulnerability 216–217 child see children child arrangements order 190–191 child born outside marriage affiliation proceedings 133–134, 141–143 bastardly laws 133 cohabitants 143 common law 133–134, 163 custody 163–164 enforceable agreement to maintain 134n father’s right to seek custody 163 maintenance 133–134, 141–142, 146 mother’s rights 163 number of births outside marriage 43–44, 68, 142 parental rights 163–164 payments to support carer 143 Poor law 132–134, 135, 163 wardship 134n, 165n Child Maintenance Service 158, 237 child support automatic deduction from earnings 155 calculation of maintenance 147, 150–151 changing attitudes 14 collection 157–159, 157n contact with non-resident parent 149–150 enforcement 147, 157–159 family-based arrangements 154–157, 157n, 159, 229 fathers’ lobby 152–153, 181, 186–187, 232, 234 gateway conversation 156–157 generally 121, 147–159, 228, 246 Henshaw report 155, 159 indicative calculation 157 liability under 148–150 non-compliance 150n, 153–154, 157–160 qualifying child 148 recovery by CSA 150–151, 157 reforms 151–154, 157 second families 23, 147, 150, 153–154 shared care arrangements 149 social security claimants 150, 153 step-children 148 Child Support Agency (CSA) 147–148 recovery of payments by 150–151, 157 replacement 158 children see also custody; parent/child relationship access to see access accommodation, provision 140–141, 146 affiliation proceedings 133–134, 141–143 birth rates 42–44, 59–60 child care, demographic data 55–57 child support see child support clean break settlements 120–121, 140–141, 231, 233 community responsibility for 29–30 contact with see contact with non-resident parent Index 267 cost of raising 133–134, 137–138, 233–234 as cost rather than asset 60, 61, 63, 67 custody see custody demographic data 42–44 duty of care 240 duty to support 130–131 education 135, 145 family 37 family size, democratic data 42–44 father’s authority over 134–135, 164–165, 223, 225 focus on the child 66–67, 68 illegitimate 43–44, 68, 132–133, 146, 147, 163–164 maintaining links after separation 67, 186–191, 223 maintenance payments see maintenance matrimonial home 118–119, 140–141, 146 mean age of mothers 42, 44 mother’s position 134–146 parental duty see parental duty parental responsibility see parental responsibility parental rights see parental rights relationship-generated disadvantage 242 rights 162, 172–176 second families 130, 150, 153–154 shared care arrangements 149, 192, 223, 231 standard of living 144–145 step-children see step-children wardship 134n, 165n, 170, 225n welfare of child 124–125, 139–141, 166, 167–168, 173–176, 189–190, 227, 229, 231, 234 Children Act Sub-Committee (CASC) 178–179, 178n, 182, 183, 186 civil partnership compensating relationship-generated disadvantage 217 family, status as 37 home rights 96n maintenance 105 separation order 95 clean break settlement advantage to husband 231, 235 advantages 126, 246 children 120–121, 124–125 140–141, 233 compensating relationship-generated disadvantage 128–129 consent order 119 court power to impose 125 deferred 125 facilitating new relationship 231 generally 106, 108, 116, 124–126, 128, 226–227, 232–233, 234–235 immediate 125 judicial endorsement 119–121 legislating for 123–125 matrimonial home 119–121, 140–141 pension and insurance rights 106, 124 predominance 125–129 sharing matrimonial assets 116, 118–119, 128, 146–147, 200–201, 227, 231 undue hardship 125 Cobbe, Frances Power 101 cohabitation Australia 207–209 births to cohabiting parents 44, 143 care and 196, 201–207 commitment and 20, 24–26, 30, 46, 196, 201–207 demographic data 39, 40–42, 45–46 dependency-causation 31–32 duration 205 duty of consortium 70, 71–76, 98 duty to cohabit 94–97, 98, 100–101, 192, 223, 225, 227 family, status as 37 financial relations on breakdown 229 financially weaker party 31, 33, 241 judicial separation 94 lone-parent families and 50 marriage of convenience 96 meaning 80n new marriage or cohabitation 130, 135, 147, 153–154, 161 New Zealand 207 non-financial contributions 202–204, 206–207, 241 obligation and 31 occupation order 96n pre-marital 40–41, 46, 68 pre-marital, and provision on divorce 20 property law 202–204, 207 proprietary estoppel claims 203–204, 203n reform of law 239 relationship-generated disadvantage 204–207, 217–218 restitution of conjugal rights see restitution of conjugal rights rise in Scotland 207n separation, demographic data 45–46 social acceptability 40–41 uneven couples 25–26, 30 commitment as burden 18–19, 26, 36, 223 care and 3, 7, 33–34, 199–200, 222–224 caring relationships 217, 219–220 268 Index changing understanding of 36, 223 cohabitants 20, 24–26, 30, 46, 196, 200, 201–207 concept generally 18–28, 247 constraint commitment 26, 47 contact with non-resident parent and 180–181 decline in as dedication 23–26, 223 desertion 95–96 developing 17, 18, 26 divorce and 46–47 ‘excessive’ and ‘obsessive’ 22 family law policy 22–23, 235–246 gendered psychology 33–34, 235 implied 20 in legal discourse 18–22 marriage 24, 30, 46, 219, 240 moral 19, 26–28, 68, 224–225 moral worth and 19 mutual 30 non-financial contributions 199 as obligation 18–19, 222–225 obligation distinguished 32 parent/child relationships 21–22, 23, 33, 160 parental obligation 160 parental rights and 160 personal 26–28, 95, 96–97, 163, 235 as promise and dedication 19–21, 22, 223 ‘pure relationships’ 24, 67, 195, 219, 247 separation 95–96 as social concept 23–28 structural 26–28, 36, 47, 68, 95–96, 163, 235, 247 use of term 3–4 voluntary 18, 102 wife’s childcare and domestic commitments 19 common law adultery 101 consortium 71–76, 224–225 custody 164–165 husband’s duty to maintain wife 96n, 99–100, 104 illegitimate children 133–134, 163 marriage per verba de praesenti 86 proceedings for cruelty 99 supplicavit 99n conjugal rights restitution see restitution of conjugal rights consortium adultery of husband 72 adultery of wife 72 alimony 73, 76 duty of matrimonial intercourse 71–76, 78 generally 70, 71–76, 78, 97, 98, 224–225 husbands right to 74 contact with non-resident parent see also access access and contact distinguished 177 activity conditions 183–185 activity directions 183–185 assumption of continuing involvement 189 Australia 189 child arrangements order 190–191 child unwilling 173, 174, 178, 186 commitment and 180–181 conduct of parents 169 contact order 177, 190 disparate standards of living 144–145 domestic abuse, danger of 178–180, 178n, 179n, 182, 189–190 duty to facilitate 177–180, 182, 185–186, 188, 190, 235 emphasis on 161–162 enforcement 173–174, 180–186 enforcement order 184 EU Charter of Fundamental Freedoms 163 generally 192 justification for 165–167 maintenance payments and 149–150, 160, 227–228 non-compliance 173, 174, 178–180, 224, 235, 238 parental obligation 162, 163, 175–176, 185–186, 188, 190–191 parental rights 162, 172, 173, 186–190 penalty regime 184, 190 perceived bias against fathers 152, 180–181, 188 proportion of children not having 181 psycho-analytical theories 175 re-marriage and 167 as right of child 162, 172–176, 233 sustaining 176, 180–181, 187, 187n UN Convention on the Rights of the Child 163 welfare of child 189–190, 231, 234 convenience, marriage of 96 court order obligations and replacement 190 court welfare officers 169n courts, restricted access to 13, 230, 236–237, 245 criminal conversation action for 70n, 224n Index 269 custody access order 172–173 adultery and 164–165 care and 171–172, 234 common law right 164–165 conduct of parents 166–167, 168–169 contact see contact with non-resident parent father having 170–172, 180–181, 234 illegitimate children 163–164 joint 171–172, 176–177, 181, 186–187 mother having 170–172 mother’s rights 168–172, 226 mother’s role 165–167 mother’s wishes 166, 168 psycho-analytical theories 169, 175 purpose and benefits of custody order 165–167 residence order 177 shared care arrangements 149, 192, 223, 231 shared residence order 186–187, 186n split order 171, 234 tender years doctrine 169 welfare of child 124–125, 139–141, 166, 167–168 demographic data average age of first marriage 38–39, 59 birth rate 42–44, 59–60 children 42–44 cohabitation 39, 40–42, 44, 45–46 divorce rate 45–48 employment rates 51–53 family size 42–44 fertility rate 42–43 gender pay gap 53–55 generally 36–37 households 45 illegitimate births 43–44, 68 lone-parent families 49–50 marriage 37–40 mean age of mothers 42, 44, 68 re-marriage 38, 39 teenage pregnancies 42 dependency dependency-causation 31–32 derivative 7, 31 desertion by husband 101, 135 by wife 101 commitment and 95–96 irretrievable breakdown of marriage 94 as offence 95 providing evidence of 86–88 statutory 82, 88 Direct Pay 157, 158 dispute resolution 154–157 divorce a mensa et thoro 78, 81, 88, 99n, 100, 224 accessibility 47 clean break see clean break settlement fault, focus on 101 fault and financial provision 109–110 frequency 91 grounds for 91, 91n, 228 insanity as ground 73, 77n, 91n irretrievable breakdown as ground 92, 94, 95, 102, 116, 128, 170, 228 judicial 87, 90, 107, 164, 165 maintenance payments following 106–108 modern function of divorce law 228–231 private Act to obtain 109 rates 45–48, 61, 68 as repudiation of marriage tie 117 stigma no longer attached to 226, 229 structural commitment and 47 suggested reforms 240–243 wife guilty party 107, 109–110 Divorce Court establishment 77, 226 restricted access to 13, 230, 236–237, 245 domestic abuse contact with abusive parent 178–180, 178n, 179n, 182, 189–190 power imbalance in settlement arrangements 238 separation order 101 of wife 101, 178–179 duty of beneficence 4–5, 12, 28 consortium filial 193n husband’s 99, 232 obligation and 8–10 parental see parental duty religious 224–225 rights and 162 to cohabit 94–97, 98, 100–101, 192, 223, 225, 227 Duxbury calculation 112 earnings see also breadwinner/housewife model; employment compensating relationship-generated disadvantage 128–129, 206, 217–218 gender pay gap 51, 53–55, 224, 227 women’s equality 118, 129, 227, 243 women’s weaker economic position 99, 128–129, 224, 233, 241 270 Index ecclesiastical courts alimony 99–100, 99n, 100n divorce a mensa et thoro 99n, 100, 224 husband’s duty to maintain wife 99, 232 penalty regime 77, 82, 224, 225 proceedings for cruelty 99 replacement by Divorce Court 77, 82 restitution of conjugal rights 70, 76, 232 transfer of function from 225, 226 employment see also breadwinner/housewife model; earnings child care and housework 55–57 compensating relationship-generated disadvantage 128–129, 206, 217–218 demographic data 51–53 individualisation and 65–68 lone-parents 51, 53 National Living Wage 55 sexual division of labour in the family 62–63 unpaid care work 58–59 women, generally 69, 129, 224, 227, 233 women’s employment rates 51–53 women’s equality 118, 129, 227, 243 European Convention on Human Rights post-separation contact with child 162–163 European Union Charter of Fundamental Rights post-separation contact with child 163 family altruism and obligation 224–231, 237–238 capitalism and family function 60–63 changing social attitudes 18 children 37 cohabitees 37 family size, democratic data 42–44 focus on the child 66–67 focus on the individual 59, 223–224; see also individualism gendered approach to 231–235 husband’s authority over 223, 225, 231–232 kinship 28–32, 194 legal conceptualisation 36, 223 lone-parent see lone-parent family meaning 36–37 moral obligation 224–225 non-justiciable matters 223, 224, 228–231 provisions seeking to solidify 223 religious duty 224–225 sexual division of labour 62–63 status as 37 voluntary commitment 18 welfare system and 63 Family Justice Review Panel 187, 189 family law educational function 236–237 laissez-faire 237–239 modern function 228–231, 236–237 remedial 240–243 restricted access to courts 13, 230, 236–237, 245 suggested reforms 238–246 Family Law Act 1996 96n, 236–237 family-based arrangements binding contract 157n generally 154–157, 159, 229 family-based remedies 245–246 father see also husband authority over child 134–135, 164–165, 225 custody of child 170–172, 180–181, 234 emphasis on importance 227 fathers’ lobby 152–153, 181, 186–187, 232, 234 illegitimate children 163 lone-parent families 57 perceived bias against 152, 180–181, 188 fertility rate demographic data 42–43 fidelity see also adultery obligation within marriage 11 filial duty 193n Finer Committee on One-Parent Families 45–46, 49–50 gendered approach to care work 33–34, 194, 197 to commitment 33–34, 235 to family unit 231–235 gender pay gap 51, 53–55 gendered division of labour 62–63, 194 to maintenance 148–149 men favoured by 232–235 to obligation 148–149 to parent/child relationship 148–149 grandparents caring relationships 210 sustaining contact with 187 Henshaw, Sir David Recovering child support 155, 159 household definition 45 demographic data 45 single-person 45 Index 271 housework demographic data 55–57 husband see also father adultery see adultery aggravated assault by 75n authority over child 134–135, 164–165, 223 custody see custody duty to maintain wife 96n, 98, 99–105 fathers’ lobby 152–153, 181, 186–187, 232, 234 individualism affective 64–65 capitalism and family function 60–63 children and 67 emphasis on 59–60, 62, 80, 130, 162, 223–224, 226–227 individualisation 65–69, 162 men favoured by 223–224 negotiation and 66 possessive 65 rise of liberal individualism 70, 97, 167, 226–227 irretrievable breakdown of marriage as ground for divorce 92, 94, 95, 102, 116, 128, 170, 228 maintenance orders and 128 James, Henry What Maisie Knew 166n judicial separation see separation kinship and caring obligation 28–32, 194 legal aid, withdrawal 230, 236 living apart together 31, 41–42, 45, 202 lone-parent family child care 57 cohabitation and 50 cost to state 147, 147n employment rates 51, 53 father-headed 57 number 49–50, 147 poverty 152 Loughton MP, Tim 190–191 maintenance see also alimony; child support affiliation proceedings 133–134, 141–143 assessment of amount payable 103–104, 108–114, 128–129, 137–141, 150–151 care and 145, 192, 193 child, generally 145, 146–159, 227–228 Child Support Act 1991 121, 131, 147–154 child’s welfare first consideration 124–125, 139–141, 229 civil partners 105 clean break see clean break settlement compassionate allowance 110 compensating relationship-generated disadvantage 128–129, 217–218 consent order 119 contact with non-resident parent and 149–150, 160 cost of raising child 133–134, 137–138 Custody of Infants Act 1839 134–135 deserted wives 135 Direct Pay 157, 158 Divorce Reform Bill 115–116 dum casta et dum sola condition 113–114 duration of orders 109, 113–114, 145–146 during marriage 96n, 98, 99–105 duty generally 98–99, 105, 130–131, 192 Duxbury calculation 112 ecclesiastical courts 99–100, 99n family-based arrangements 154–157, 157n, 159, 229–230 gender difference in attitude towards 148–149 High Court jurisdiction to award 92 husband guilty party 111–113 husband’s duty to maintain 96n, 98, 99–105, 136, 192, 223, 232 husband’s duty to state 132 husband’s entitlement to 101, 102 illegitimate children 132–134, 134n, 141–142, 146 irretrievable breakdown of marriage 128 law of agency 100 Law Commission reports 116–117, 121–123 lump sum 108, 111–112, 118–119 Mesher order 126 minimum loss principle 115–119, 121–124, 128, 139, 232 modern jurisdiction 102–103, 114–129 moral duty 130–131, 138 Morton Commission 114–115, 116, 136, 169n non-judicial resolution 154–157 non-payment 147, 153–160, 224, 232, 242, 243 one-third rule 104, 109, 110–111 parental obligation 160, 223 parental rights 160 pending suit 237 physical abuse of wife 101 Poor Law 100, 105, 131–134, 135, 136, 225, 226 272 Index post-divorce 106–108 present position 126–129, 238 private law power to seek 105, 130–131, 226 private maintenance era 131, 134–147, 225, 226–228 private separation agreements 100, 225 reasonable requirements 111–112 remarriage of recipient 109, 113–114, 115, 116 as remedy for matrimonial fault 100–102, 109–110 resources of payer 138 right to seek 100–104 shared care arrangements 149, 223, 231 sharing matrimonial assets 116, 118–119, 128, 146–147, 227 standard of living 144–145 step-children 135–137 unsecured periodical payments 108 wife guilty party 107, 109–110, 114 wife’s duty to maintain 101, 102, 105 wilful neglect to maintain 92, 101, 102, 105 Malthusian theory 132 marriage average age of first 38–39, 59 care as contribution to 197–201, 206–207, 217–218, 219, 220, 233, 241 commitment 24, 30, 46, 219, 240 of convenience 96 decline in rate demographic data 37–40 duties and obligations 11 duty of care 240 emphasis on individualism 59–60, 62, 80, 130, 162, 223–224, 226–227 as equal partnership 199–200, 219, 233 fidelity, obligation of 11 marriage rate 37–38 moral obligation 224–225 negotiation and 66 non-financial contributions 32, 197–201, 206–207, 217–218, 219, 220, 233, 241 per verba de praesenti 86 as personal commitment 96–97 pre-nuptial agreements 13–14, 238 property agreements during 238 as public commitment 24 re-marriage or cohabitation 130, 135, 147, 153–154, 161, 167, 229 re-marriage statistics 38, 39 religious duty 224–225 self-fulfilment as goal 70, 80, 97, 102, 117, 128, 130, 160, 161–162, 224, 226–227, 228, 237, 247 sexual division of labour 62–63 matrimonial assets clean break settlement 116, 118–119, 128, 146–147, 200–201, 231, 232–233 future earning capacity 233 sharing 116, 118–119, 128, 146–147, 198–201, 227, 231, 233 matrimonial home children’s continued occupation 118–119, 140–141, 146 clean break settlements 119–121, 140–141, 232–233 duty to provide 96n minimal loss principle 115–119, 121–124, 128, 139, 232 Morton Commission (1956) 92, 108, 114–115, 116, 125, 136, 169n, 197, 198 mother see also wife access to child 164–165, 166, 167, 170–171 emphasis on importance of 227 illegitimate child 163 rights 168–172 role as carer 164–165, 166–167, 171 New Zealand cohabitation 207 Norton, Caroline 134, 164, 171 nullity refusal to perform conjugal duties 73 Oakes MP, Gordon 93 obligation act-incurring 10 altruism and 224–231, 237–238 bargaining over 13–14 binding nature 32 care-giving as 4, 192–194, 219, 222–224, 240, 246 cohabitation and 31, 227 commitment and 18–19, 32, 222–224 contact with non-resident parent 161–164, 185–186, 188, 190–191 court orders and definition dependency-causation 31 developing commitments 17, 18 direct and indirect 11 discretionary 14–15 as duty 8–10 duty and remedy 12 enforcement 228 family law generally 235–246 family members, upon 28–32 family obligation, nature of 12–15, 224–231 family relationships and 11–12 Index 273 gender difference in attitude towards 148–149 imposition of interdependence and 30 kinship 28–32, 194 legal 3, 8–15 marriage, legal obligations 11 moral 29–30, 224–225 parental see parental obligation promise-incurring 10 religious 224–225 as remedy 11–12 rules and as social norm 12, 15–17 sociological ‘soft’ 12, 24, 95, 105, 106, 128, 162, 235 voluntary 10 occupation order 96n outdoor relief 132 parent/child relationship access see access care 33, 192; see also care commitment 21–22, 23, 33 contact see contact with non-resident parent continuing, assumption of 186–191 father’s authority over child 134–135, 164–165 fathers’ lobby 152–153, 181, 186–187, 234 gender difference in attitude towards 148–149 involvement with child 67, 186–191, 223, 231 moral obligation 29–30, 148, 224–225 mother’s role, recognition 164–165 new marriage or cohabitation 130, 135, 231 parental duty see parental duty parental responsibility see parental responsibility parental rights see parental rights religious duty 224–225 shared care arrangements 149, 192, 223, 231 social role of parent 135–137, 149 step-children 135–137, 161 step-parents 141, 161 suggested reforms 241–243 unmarried fathers 21 parental duty contact/involvement with child 67, 162, 223, 231 duty of care 11, 29, 130–131, 162, 190–191, 240, 241 facilitating contact 177–180, 182, 185–186, 188, 190, 235 financial support for child 162 generally 11, 162, 240 moral obligation and 29–30, 148, 160, 161–164, 224–225 obligation as duty 8–11 parental rights and 11, 160, 162 parental obligation 11, 29–30, 160, 161–164, 223, 227–228 parental responsibility 8, 21, 62n, 176–177 child support 158 contact and commitment 180–181 duty to facilitate contact 177–180, 186 equal basis for both parents 148, 176–177, 227 generally 176–177, 227 joint custody 176–177 obligation to be involved 190–191 parental rights and 172, 176 shared 148, 177, 186–187 parental rights assumption of continuing involvement 186–191 commitment and 160 conduct of parents and 166–167, 168–169 contact with child 162, 172, 173, 186–190 custody or access order 165–167 duties and responsibilities 162, 172, 176 generally 161–164 illegitimate children 163–164 maternal concession and 164–168 mother’s rights 168–170 splitting 170–172, 234 welfare of child 167–168, 172–176, 189–190, 234 paternity leave uptake statistics 57 pension and insurance rights clean break settlements 106, 124 physical abuse see domestic abuse Poor Law 43, 49, 131–132, 225, 226 husband’s duty to maintain 100, 105, 131–134, 135, 136 illegitimate children 132–134, 135, 163 step-children 135 pre-nuptial agreement 13–14, 238 proprietary estoppel non-financial contributions 203–204, 203n psychological theories 169, 175, 179, 224, 227, 229 ‘pure relationship’ commitment and 24, 219, 247 generally 67, 195 274 Index rape, marital 81 Rathbone, Eleanor 52 Rawlinson, Lord 123–124 Rebecca Riots 133n residence order 177 see also custody shared 186–187, 186n responsibility, definition restitution of conjugal rights abolition 85, 90–93, 94, 97, 228 alimony 73, 76, 79–80, 82, 88, 92 basis of action 76–78 consortium 70, 71–76, 78 cost of proceedings 85 court procedure 76–77 ecclesiastical courts 70, 76, 224 effect after 1884 82–85 establishing validity of marriage 85–86 generally 232 limits of decree 80 number of petitions for 90–91 penalty regime 77, 82, 224 providing evidence of desertion 86–88 purpose 78–82, 88 remedy of generally 70–71, 75–76, 224 restoration of cohabitation 80 tactical use of suit 81–82, 83, 85–90, 91, 97 used to secure financial support 83, 85, 88–90, 92 venereal disease 81 Royal Commission on Equal Pay (1946) 54 same-sex couple see also civil partnership Australia 208, 213, 220 care and commitment 196 Scotland cohabitation 207n self-fulfilment as goal 70, 80, 97, 102, 117, 128, 130, 160, 161–162, 224, 226–227, 228, 237, 247 separated parents information programme (SPIP) 184 separation adultery of wife 101, 101n civil partnership separation order 95 commitment and 95–96 divorce a mensa et thoro 78, 81, 99n, 100, 224 irretrievable breakdown of marriage 94, 95 judicial 82, 83, 91, 94, 135 private separation agreements 100, 225 separation agreement development 13, 82–83, 225 increasing use 13–14 separation order generally 84, 100–101 Matrimonial Causes Act 1878 75n single-parent family see lone-parent family single-person households demographic data 45 split order 171, 234 step-children generally 234 maintenance 135–137 parent/child relationship 161 Poor Law 135 step-parent parent/child relationship 141, 161 supplicavit 99n Taylor, Harriet 101 teenage pregnancy demographic data 42 tender years doctrine 169 Thatcher, Margaret 147, 161 Trollope, Anthony Kept in the Dark 72 United Nations Convention on the Rights of the Child 163 venereal disease restitution of conjugal rights 81 violence see domestic abuse wardship 134n, 165n, 170, 225n welfare check 169n welfare system effect on family 63 wife see also mother adultery see adultery custody see custody equality in marriage 199–200, 219, 227, 233 financial independence 227, 233 financial provision for see alimony; clean break settlement; maintenance guardianship or custody by husband 74, 75 husband’s duty to maintain 96n, 98, 99–105, 192, 223, 232 legal personality 102 mother’s rights 168–172, 226 non-financial contributions 32, 197–201, 233, 241 property rights 88, 99, 100 recognition of mother’s role 164–165, 197 sharing matrimonial assets 116, 118–119, 128, 146–147, 198, 200–201, 227, 231 weaker economic position 99, 125, 128–129, 224, 233, 241