Routledge Handbook of Family Law and Policy

John Eekelaar, Rob George, John Eekelaar, Rob George

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000096507
• Edition: 2
• Topic: Droit
• Subtopic: Droit de la famille

Changes in family structures, demographics, social attitudes and economic policies over the last 60 years have had a large impact on family lives and correspondingly on family law.

The Second Edition of this Handbook draws upon recent developments to provide a comprehensive and up-to-date global perspective on the policy challenges facing family law and policy round the world. The chapters apply legal, sociological, demographic and social work research to explore the most significant issues that have been commanding the attention of family law policymakers in recent years. Featuring contributions from renowned global experts, the book draws on multiple jurisdictions and offers comparative analysis across a range of countries. The book addresses a range of issues, including the role of the state in supporting families and protecting the vulnerable, children's rights and parental authority, sexual orientation, same-sex unions and gender in family law, and the status of marriage and other forms of adult relationships. It also focuses on divorce and separation and their consequences, the relationship between civil law and the law of minority groups, refugees and migrants and the movement of family members between jurisdictions along with assisted conception, surrogacy and adoption.

This advanced-level reference work will be essential reading for students, researchers and scholars of family law and social policy as well as policymakers in the field.

PART 1
Marriage and alternative relationships

1.1
THE CHANGING FACE OF MARRIAGE

Marsha Garrison

The decline – and continuing appeal – of marriage

Across the industrialized world, young adults are marrying later and increasing numbers may not marry at all.¹ In the United States, which has long had one of the highest marriage rates among industrialized nations, barely 50 percent of American adults are now married – a record low.² This general statistic actually masks some portion of the trend away from marriage as rising male life expectancy has significantly increased the proportion of older Americans who are married.³ In younger age cohorts, marriage has declined precipitously. In 2018, the proportion of U.S. adults age 18–34 who were married was a mere 28 percent, down from 59 percent in 1972.⁴ Although marriage has declined in some regions more than others, the trend away from marriage seems to be universal. One expert has predicted that, by 2035, half of the Japanese population will be single and as many as a third of Japanese men will never have married.⁵ (See further Chapter 2.4 of this book.)

1 Eurostat, Marriage and Divorce Statistics, 2019. Available at https://ec.europa.eu/eurostat/statistics-explained/index.php/Marriage_and_divorce_statistics.

2 Pew Research Center, The Decline of Marriage and Rise of New Families, 2010. Available at http://pewresearch.org/pubs/1802/declline-marriage.

3 W. Wang, ‘Marriage Up among Older Americans, Down among Younger’, IFS Blog, 12 February 2018. Available at https://ifstudies.org/blog/the-state-of-our-unions-marriage-up-among-older-americans-down-among-the-younger.

4 W.B. Wilcox and L. Stone, ‘The Happiness Recession’, Atlantic Monthly, 4 April 2019.

5 ‘By 2035, Half of Japanese Will Be Single, Predicts Commentator’, Japan Today, 15 January 2018. Available at https://japantoday.com/category/features/kuchikomi/by-2035-half-of-japanese-will-be-single-predicts-commentator.

The decline of marriage is part of a much broader shift in family life that experts now generally describe as the ‘second demographic transition’.⁶ This transition has now taken place across most of the industrialized world, bringing with it not only lower marriage rates but also markedly lower fertility and increased non-marital cohabitation, divorce and childbearing outside marriage. In many nations, almost half of marriages now end in divorce, and cohabitation, as a precursor or alternative to marriage, has become mainstream. Except in Asia, the proportion of children born outside of marriage has also skyrocketed.⁷

6 B. Zaidi and S.P. Morgan, ‘The Second Demographic Transition Theory: A Review and Appraisal’, Annual Review Sociology 43, 2017, 473–92.

7 OECD Family Database, ‘Share of Births Outside Marriage’, SF2.4, 11 November 2018. Available at www.oecd.org/els/family/database.htm.

With the decline of marriage has come a shift in its meaning. Traditional, ‘institutional’ marriage based on fixed, gender-based roles has given way to marriage based on companionship or, more recently, personal fulfilment.⁸ Reflecting this new, individualized view of marriage, most adults, particularly young adults, are now neutral or positive toward non-marital and same-sex relationships, with or without children. For example, in recent US surveys, a large majority of respondents expressed positive or neutral views toward a diverse array of family arrangements, including, in one national survey, single women having children without a partner.⁹ Surveys in at least 20 other countries exhibit similar patterns.¹⁰ Many individuals also support extending ‘spousal’ support and a property-division entitlement to at least some heterosexual partners who could have but did not marry,¹¹ and, in 2011, 39 percent of Americans surveyed said that marriage is becoming obsolete.¹²

8 P.R. Amato, ‘Institutional, Companionate, and Individualistic Marriages: Change over Time and Implications for Marital Quality’, in M. Garrison and E.S. Scott (eds), Marriage at the Crossroads: The Brave New World of Twenty-First Century Families, Cambridge: Cambridge University Press, 2012, pp. 107–25.

9 Nat. Survey of Fam. Growth, 2011–15 Table 2, reprinted in S. Stanley, Cohabitation Is Pervasive, Inst. Fam. Studies, 2018. Available at https://ifstudies.org/blog/cohabitation-is-pervasive. See also Pew Research Center, op. cit., n 2; E. Coast, ‘Currently Cohabiting: Relationship Attitudes and Intentions’, in J. Stillwell et al. (eds), Fertility, Living Arrangements, Care, and Mobility, Dordrecht, NL: Springer, 2009, pp. 105–25, Table 7.1.

10 J. Treas et al., ‘Attitudes on Marriage and New Relationships: Cross-National Evidence on the Deinstitutionalization of Marriage’, Demographic Research 30, 2014, 1495; Z. Gubernskaya, ‘Changing Attitudes toward Marriage and Children in Six Countries’, Sociological Perspectives 30, 2010, 179–200.

11 S. Braver and I. Ellman, in M. Garrison and E.S. Scott (eds), op. cit., n 8, pp. 170–98.

12 Twenty-eight percent agreed with this statement in 1978. D.B. Elliott et al., Historical Marriage Trends from 1890–2010: A Focus on Race Differences, Population Association of America, SEHSD Working Paper Number 2012-12, 2012, p. 2. Available at www.census.gov/hhes/socdemo/marriage/data/acs/ElliottetalPAA2012paper.pdf.

While these general trends suggest, at first blush, that marriage is rapidly becoming a moribund legal institution, a closer look reveals both that the trend away from marriage is uneven and that marriage continues to enjoy broad public support. First, the decline in marriage and marital childbearing is concentrated among the least advantaged. In the United States, Russia and many parts of Europe, non-marital birth is associated with lower educational attainment and ‘a pattern of disadvantage’.¹³ This pattern is particularly striking in the United States, where non-marital birth and marriage behaviour are now highly correlated with race and class. Ninety-six percent of children born to black high school dropouts are born outside of marriage,¹⁴ as compared to about 6 percent of children born to white college graduates.¹⁵ The divorce rate of white college graduates – but not other groups – has also declined.¹⁶ Because of these divergent trends, children of black and poorly educated parents are much more likely to live in a single-parent household. In a recent survey, more than 75 percent of black children whose mothers lacked a high school education lived in a single-parent home, as compared to less than 20 percent of white children whose mothers had at least some college education.¹⁷ Although the data is less robust, single parenthood is also significantly linked to low maternal education in most of Europe¹⁸ and industrialized Asia.¹⁹

13 J. Mikolai et al., ‘The Role of Education in the Intersection of Partnership Transitions and Motherhood in Europe and the United States’, Demographic Research 39, 2018, 753–94; B. Perelli-Harris et al., ‘The Educational Gradient of Nonmarital Childbearing in Europe’, Population and Development Review 36, 2010, 775–801.

14 J. Carbone and N. Cahn, ‘Red v. Blue Marriage’, in Garrison and Scott, op. cit., n 8, pp. 9–29.

15 S. Lundberg et al., ‘Family Inequality: Diverging Patterns in Marriage, Cohabitation, and Childbearing’, Journal of Economic Perspectives 30, 2016, 79–102.

16 W. Wang, ‘The Link between a College Education and a Lasting Marriage’, Pew Research Center, 4 December 2015. Available at www.pewresearch.org/fact-tank/2015/12/04/education-and-marriage/; S. McLanahan and W. Jacobsen, ‘Diverging Destinies Revisited’, in P.R. Amato et al. (eds), Families in an Era of Increasing Inequality, Berlin: Springer, 2015, pp. 3–24.

17 D. Autor and M. Wasserman, Wayward Sons: The Emerging Gender Gap in Labor Markets and Education 2013, p. 36, Figure 16. Available at www.thirdway.org/publications/662.

18 J. Härkönen, Diverging Destinies in International Perspective: Education, Single Motherhood, and Child Poverty, LIS Working Paper Series 713, 2017. Available at www.econstor.eu/handle/10419/169273.

19 Raymo et al., op. cit., n 5.

Second, the trend away from marriage masks continuing public enthusiasm for marriage as both a life goal and the prime signifier of a committed relationship. Indeed, the decline of marriage seems to be attributable, at least in part, to the fact that marriage is increasingly idealized as a marker of success.²⁰ As one young American survey respondent … put it:

Marriage is something you earn. … If [she] graduates and [I] graduate, you can start working and we can afford [a wedding] and that’s when you get married. It’s not just ’cause we have a child and all of a sudden we need to go out and do it.²¹

Although the ‘marriage idealization’ phenomenon has been studied most in the United States, there is evidence that marriage continues to be an important lifetime goal in a broad range of nations.²² The high priority that advocates for gay and lesbian rights have placed on access to civil marriage – and growing public support for such access – also suggests that marriage remains a core social institution that uniquely signifies lifelong relational commitment. In the words of the Lambda Legal Defense Fund: ‘Only the word married conveys the universally understood meaning applicable to the lifetime commitment many couples make’.²³ In seeming agreement with this sentiment, 61 percent of same-sex couples living together had married within two years after the Supreme Court of the United States declared that same-sex marriage was a constitutional right.²⁴

20 A. Cherlin, ‘The Deinstitutionalization of American Marriage’, Journal of Marriage and Family 66, 2004, 848–86.

21 M.J. Kefalas et al., ‘Marriage Is Something You Earn’, J. Fam. Issues 32, 2011, 845–75.

22 G. Andersson and D. Philipov, ‘Life-Table Representations of Family Dynamics ...