"For Better Or Worth", from the Sydney Morning Herald
For Better Or Worth Sydney Morning Herald Date: 19/08/2000 http://www.smh.com.au/news/0008/19/text/review4.html
A sure means of lowering the divorce rate? Now, wouldn't that be something? With most Western countries struggling with the high social costs of divorce, a drop in divorce rates has to be seen as a giant leap for mankind, somewhat akin to finding the cure for cancer.
Well, the Americans feel they are onto something. Having long had the dubious honour of leading the world divorce rates, the United States is keen to loosen the grip of its easy-divorce culture. There's talk of shifts away from no-fault divorce, new moves towards marriage education and "covenant" marriage, involving tighter marriage contracts.
But now, to everyone's surprise, they have stumbled upon a solution. The US divorce rate is slowing down, particularly in some States. And the vital factor which underpins the recent decline is custody of children.
In the US, like most Western countries, it is women who have pushed divorce to record levels. Divorced Dads - Shattering the Myths (Penguin Putman, 1998), by Sanford Braver, an Arizona State University psychology professor, is an important book which shows that between two-thirds and three-quarters of US break-ups are instigated by women. Women are the initiators in making the decision to leave, in first contacting lawyers, in filing for divorce. In Australia, two in three separations are female-led.
The news to emerge from US research is that the major factor accounting for this female-driven divorce push is custody. Women have long assumed that if they leave their marriages, they take their children with them. America is now discovering that when that assumption no longer applies, women are less likely to walk out.
Many American States have new legislation shifting from sole custody - which usually went to the mother - towards joint custody involving shared parental responsibility and often more equal share of residence of children. These are the States which show substantial dips in the divorce rate.
A Kent State psychologist, John Guidubaldi, and his colleague, Richard Kuhn, analysed data from the National Centre for Health Statistics and showed that, between 1989 and 1995, in States with high levels of joint custody, divorce rates have declined nearly four times faster than States where joint custody is rare. (Joint custody is defined by these authors as a minimum of 30 per cent time share with each parent.) The authors conclude that joint custody places constraints on the licence given under sole custody arrangements for the custodial parent to move elsewhere and break off all contact with the other parent. With sole custody also comes significant financial incentives, with mothers sometimes able to maintain the marital residence and receiving well over half the marital assets plus child support.
"Weighing these gains against the alternative of remaining in an unhappy marriage may result in a seductive enticement to obtain a divorce," say the authors. They believe joint custody provides a deterrent for divorce by constraining rights to relocate and requiring couples to continue to share parenting - hence denying opportunity for one parent to punish the other by removing the children. In these circumstances the parent considering leaving "may decide it is easier to work out problems and remain married," suggest the authors.
Given that in the past women have overwhelmingly won sole custody, these new constraints are primarily impacting on mothers. The powerful role sole custody has played in influencing women to leave their marriages is revealed in other new US research.
A University of Iowa economist, Margaret Brinig, analysed factors associated with 46,000 divorce filings in 1995 and found women were more likely to file when assured of sole custody. The men who initiated filing tended to be those rare males who gained custody.
"The question of custody absolutely swamps all the other variables," Dr Brinig says. "Children are the most important asset in a marriage and the partner who expects to get sole custody is by far the more likely to file for divorce." Her article was published earlier this year by the American Law and Economics Association under the lively title, These Boots are Made for Walking: Why Most Divorce Filers Are Women.
Brinig has also conducted research which supports the Guidubaldi finding of lower divorce rates in States with shared custody. She also finds increased child-support payments in these States.
Supporting the link between sole custody and women's decision to walk is the fact that when there are no children on the scene, the decision to break up is more evenly split. According to US National Centre of Health Statistics, between 1982 and 1986 the wife was the petitioner in 56 per cent of couples without children, but in 65 per cent of couples with one or more children.
The idea makes sense. Talking to other mothers about this, most acknowledge that if they ever entertain thoughts of leaving their marriages, they do so assuming their children come with them. And many admit they would never think of taking this step without the children.
Susan Holmes is executive director of Relationships Australia in Tasmania. Like most of her colleagues throughout Australia, Holmes has no doubt that sole custody has made it easier for women to leave their marriages.
"I think it certainly would make women pause if they could no longer assume the children would come with them. Women would realise there's a lot more at stake. If we were in a Muslim society where men automatically got the child and the system was changed so they could no longer make that assumption, then it would be the men doing the rethinking," she said.
Holmes isn't surprised to learn that shifting away from sole custody can lead to a drop in the divorce rate. She believes in part the explan- ation lies in the role sole custody has played in reducing any possibility of reconciliation in couples who are tentative about separation.
"At the time of separation, at least one party is usually extremely hurt, angry and upset and if, at that time, you throw in 'And I'm taking the kids' it escalates the conflict into a bonfire," says Holmes. "Instead of the separation giving a chance for things to cool down and issues worked on with some hope of reconciliation, the situation just explodes and there's no going back."
She has spent 18 years working with separating couples and believes there are some who can be helped to put their marriages back on track. She finds that when couples are presented with the notion of shared parenting, rather than sole custody, power battles are reduced and there are more opportunities for talk and possible reconciliation.
In 1996, Australia passed new legislation aimed at ensuring shared parental responsibility after divorce. The term "custody" was replaced by the notion of "residency" in the hope of reducing the "winner-takes-all" mentality associated with custody. While in practice women are still far more likely to gain residency of children, there is new evidence of more shared care and fathers achieving greater contact under the new laws.
According to Margaret Brinig's research, even this type of legislative change towards shared parental responsibility is impacting on US divorce rates. With the Australian divorce rate having dipped slightly in 1998 ( the most recent available figure), it is interesting to speculate whether this could be linked to the shifts towards more shared parenting occurring as a result of the new legislation. A recent joint project by the University of Sydney and the Family Court studied the impact of the legislation and found a shift away from fortnightly contact, with more non-resident parents negotiating extra time with their children and an overall increase in shared care arrangements.
In America the greatest impact is being seen in regions which have introduced educative measures alongside the switch to shared parenting. For instance, in Chattanooga, Tennessee, separating couples attend a mandatory education and mediation program to help them develop a shared parenting plan. There has also been a broad community education campaign, plus local churches are promoting covenants to strengthen marriage vows. The result has been a 19 per cent drop in divorce filings in the county in the three years since the programs began.
But can we assume this is all for the best? Discussion of this issue invariably raises the question of whether changing the rules on custody might encourage women to stay in violent or destructive marriages? There is that risk. Many are concerned that the new emphasis on children's right of contact with both partners means divorced women are sometimes forced to remain in contact with violent ex-partners - a situation which for some may be more dangerous than staying married.
But these marriages are rare. Brinig's research shows few women (6 per cent) name cruelty as their reason for leaving. Research by the Australian Institute of Family Studies (AIFS) shows women usually give other reasons for leaving their marriages - communication problems, lack of common interests, etc, with only 10 per cent citing violence.
With communication problems heading the list of causes of marriage break-down, Tony Gee, a family mediator with Relationships Australia in Victoria, believes there is a group of low-conflict couples where it makes sense to try to keep them together. His concern is the impact of divorce on children of these marriages who are often unaware of marital tensions and may blame themselves when things go wrong.
Gee mentions the research by Amato and Booth (published in A Generation at Risk, Harvard University Press, 1997) which demonstrates that when these low-conflict marriages end, children are worse off. He's intrigued by the idea that changes in laws on custody could provide opportunities to prevent some of these marriage break-ups - "I suspect there is a group who give up too easily."
Even though the kids may be the greatest asset in the marriage, they are only part of the deal. Ilene Woolcott, the former AIFS researcher who conducted much of the local research on separation decisions, says women are well aware that with the kids comes financial leverage. "If you don't have sole custody, you're not going to have a financial edge," Woolcott says, explaining that sole custody often means women retain use of the marital home, a greater share of assets plus child support.
While research on post-income has tended to show women at a huge disadvantage, newer research taking into account division of assets and costs of access to children is revealing a more complex picture. A few years ago, a Harvard University professor, Lenore Weitzman, was forced to retract her conclusion that women suffered a 73 per cent decline in their standard of living after divorce while males gained 42 per cent. Amending these figures to a 27 per cent drop for women and 10 per cent rise for men, she attributed her mistake to faulty computer calculations.
Sanford Braver's calculations, based on after-tax income and including visitation expenses, suggest a far narrower gap, with women's losses and men's gains each reduced to less than 5 per cent. Australian women are likely to be more disadvantaged with far fewer women in full-time employment, yet recent AIFS research confirms children are the major factor determining who receives the bulk of the marital assets. For many women, their actual financial circumstances may be less important than the control they have over family finances when on their own.
A Sydney family lawyer, Justin Dowd, believes that men's knowledge that women hold all the cards in divorce means they are reluctant to leave their marriages. "I think men have a perception that they are going to get screwed by the courts, they are not going to see their kids, they will lose up to 70 per cent of their property. You put up with a lot when that's the alternative," he says.
AIFS research by Woolcott shows women are far more likely than men to feel divorce worked out better for themselves (47 per cent, compared with 29). Similarly Sanford Braver finds women believe divorce is tipped in their favour - he found only 15 per cent of fathers compared with more than two-thirds of mothers managed to obtain the custodial arrangements they wanted.
"The woman has had all the power; the man almost none," were the words used four years ago by retiring Victorian Family Court judge Geoffrey Walsh, criticising the court's decision-making regarding sole custody. The real consequences of that power are only now emerging.