The government of Malta is currently facing pressure to radically alter her divorce laws. It is argued that Malta’s resistance to laissez-faire divorce is outdated, over-religious in a post-Christian era, inconsistent with the law of other European jurisdictions and contrary to the interests of couples wanting to separate. The principle of personal autonomy, it is argued, ought to be respected so that people who choose to divorce may do so with a minimum of State interference. The choices adults make ought to be respected and facilitated by the State – so the argument goes.
The argument of unlimited personal autonomy is fundamentally flawed. Reasons of intergenerational justice suggest that the principle of personal autonomy must be limited. The effects on children and society cannot be ignored. There are good grounds for believing that privileging the desires of this generation over the interests of the next cannot be supported rationally. The law relating to pensions, probate, intestacy, child support, property, taxation and housing are all at stake in divorce. So the notion that these are private matters, in which the State has no business, is indefensible.
The community has an interest in self-preservation and the protection of its basic structures. The family is the wellspring from which future generations emerge. It is the font from which culture is transmitted. It cannot be assumed that widespread marriage breakdown will not have adverse social and cultural implications for Malta.
The lessons of family disintegration in the United Kingdom, far from supporting consumerist divorce law, point to its ruinous social and financial costs (to individuals, families and societies).
Consumerist divorce law may be linked to family breakdown on a number of fronts. To be sure, other factors play a part in the social breakdown evident in Britain today. The United Kingdom’s divorce law has been accompanied by liberalisation of her laws on illegal drugs, erosion of laws on obscenity and censorship, the recognition of homosexual civil partnerships, and widespread cohabitation. That said, liberal divorce law has undoubtedly contributed to a number of observable social problems. These effects are summarised in numerous documents but perhaps most clearly in “Fractured Families, a State of the Nation Report by the Centre for Social Justice”, on the state of the family in modern Britain.
These effects include:
Family dysfunction
This is the breakdown of “nurture within many families such that there is an increasing number of families who cannot offer certain core needs to their offspring: secure attachment; protection; realistic limits and self control; freedom to express valid emotions; autonomy, competence and a sense of identity, spontaneity and play”.
Poverty and welfare
dependency
Fractured Families demonstrated the way in which “families suffer financially after family breakdown. Fatherlessness has adverse effects not only on children but also on men who have never benefited from a relationship with their children; on women who have to cope, to a large extent, on their own; and on the wider society which bears the financial burden. Family breakdown is both contributor to and a consequence of poverty and most other social problems”.
Delinquency and crime
The report identifies the impact on crime as illustrated by the fact that “70 per cent of young offenders come from one-parent families and levels of all anti-social behaviour and delinquency are higher in children from separated families than in those from intact families. One third of prisoners and more than half of all young offenders have been through the care system (and have therefore experienced some form of family breakdown).
“Quite apart from the damage and fear (family breakdown) causes, there is also the cost of running the police and criminal justice system to consider. In the fiscal year 2004/05 total expenditure on the police, courts and prisons in England and Wales was more than £13 billion.”
Family Courts
The increased costs for the running of family courts as a result of family breakdown and divorce would be significant. The personal or State-assisted legal aid resources required to finalise a divorce, make financial settlements and resolve contact disputes over children also add up a huge bill for society.
• In England and Wales in 2005-2006, civil and family licensed work cash costs to the system of State-assisted legal aid were £547 million.
• The Legal Services Commission also spends around £60 million per year on an estimated 1,800 high cost civil and family cases.
Adverse impact on the elderly
The report identifies care for the elderly as also “compromised due not only to the increased complexity of family relationships (which has confused duties of care) but also to the changing ethos of relationships”.
• The Local Government Association has estimated that between 2002-2003 and 2005-2006, demographic changes alone will result in an increase of £146 million in the cost of providing services for what they term “adults and the elderly”.
Higher financial costs to the nation
The report highlights the fact that “family breakdown represents a significant economic burden”. It suggests that the cost to the country is now well over £20 billion per annum, a significant proportion of which is paid in benefits to lone parents. The report makes the following observation:
“If there were less family breakdown and lone parenthood, there would be fewer children taken into care, less homelessness, less drug addiction, less crime, less demand on the health services, less need for remedial teaching in schools, better average educational performance and less unemployment. All of these would save the taxpayer money and some would contribute to better economic performance in the country as a whole.”
• Using official Tax and Benefit Model Tables, Kirby (2005) provides a variety of common examples in which the net cost of lone parenthood to the exchequer is between £4,000 and £12,000 per family per year.
Adverse effects on housing
Housing stocks, it is reported, “are under immense pressure having expanded by only one third since 1971”. Over this same period “dissolution and lone parenthood have sharply increased in frequency producing greater numbers of separate family units who require their own dwellings.”
“For those partners forced to leave the family home the future is often uncertain and it is difficult to obtain official support. At the same time there are concerns that social housing is often used less efficiently due to the reduction in the number of adults in a property following divorce.”
Pensions
In most couples after children are born, one party (usually the woman) will often give up work or significantly reduce her working hours in order to fulfil childcare responsibilities. This has a dramatic impact on the pension fund they are able to build for themselves, which they anticipate sharing in their partner’s fund so this is not usually problematic. However, post-divorce, they tend to be in a disadvantaged position in comparison with their partner who has tended to work continuously throughout their life and has been better placed to make greater career advancements.
The impact on pension provision following family breakdown, particularly for those women, is not inconsiderable and has fiscal implications for governments that cannot be ignored.
Childcare costs
With the increase in family breakdown comes a greater need for the outsourcing of childcare facilities. This may arise either when parents, who had previously undertaken childcare themselves while their husband/wife financially supported them, are now required to find their own employment, or when both worked outside the home and shared childcare. With one parent now non-resident and possibly available for less of the time than before, there may be a need to go outside the family to cover all childcare needs. As a result of the breakdown, there may also be fewer family members available to help with childcare than was once the case. Therefore, greater investment is required to ensure adequate provision of childcare places and financial support for parents who must use them.
• Private sector childcare typically costs between £5-8000 per annum
Child support
The costs of setting up and maintaining a Child Support Agency are very substantial:
• “The Child Support, Pensions and Social Security Act 2000 introduced a new Child Support Scheme that came into force from March 2003. By October 2005, when the reform programme was closed, the Agency had spent £539 million on its implementation.”
• Between 2003/4, the cost of running the Child Support Agency was £323 million
• The Net Administration Cost for (the Child Support Agency) 2008/09 is expected to be £489 million (excludes capital).
Conclusion
This paper has attempted to make clear the costs of family breakdown, financial and emotional, present and future.
The notion that unlimited personal autonomy ought to be respected at the cost of intergenerational justice is doubtful. The effects upon children, society, culture and future generations cannot be ignored.
The divorce debate was conducted in the UK decades ago. The current state of affairs is a warning to those last remaining nations, like Malta, that resist the Western trend toward marriage and family breakdown. Malta was once a bastion against the forces of polygamy, concubinage and conquest. May she be so again.
Jacqueline Laing D.Phil. (Oxon.) is Senior Lecturer in the Human Rights and Social Justice Research Institute and the Department of Law, Governance and International Relations at London Metropolitan University. She has degrees in philosophy and law from the Australian National University where she was awarded prizes in philosophy and jurisprudence. She worked as Associate to a Justice of the Australian Federal Court before accepting a Commonwealth scholarship to study at Brasenose College, Oxford, where she completed her doctoral thesis in jurisprudence. She is a barrister of the High Court of Australia and a solicitor of the Supreme Court of England and Wales. She has taught Moral Philosophy at St. Edmund Hall, Oxford, at the University of Melbourne and has worked as a prosecutor for the Crown Prosecution Service. She supplies comment on developments in law and ethics for newspapers in the UK and abroad.
She has published widely in philosophy and law. Her recent publications include a book, Human Lives: Critical Essays on Consequentialist Bioethics and contributions inter alia in numerous journals.