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All may be fair in love but not in divorce
‘All happy families,” as Tolstoy famously wrote, “are alike; each unhappy family is unhappy in its own way.” Each divorce is miserable in its own particular way too. That is why for all the best will in the world and all the best legal minds in the country, it is almost impossible to legislate justly for all the thousand and one combinations of grief and guilt in the dissolution of a marriage.
Three sensational divorce rulings were announced last week. Two went in favour of non-earning wives. “Wives Win Out!” “Payday for the wives who stay at home!” “Landmark victory for ex-wives!”, cried the headlines. Melissa Miller and Julia McFarlane, whose faces were splashed all over front pages and television screens, were supported by the law lords in their settlement claims.
Mrs Miller was told she could keep the £5m she was originally awarded after the break-up of her childless, 2¾-year marriage to a rich man, which comes to £4,935.83 a day as the tabloids unkindly pointed out, and Mrs McFarlane was told that as well as half the couple’s assets, she was entitled to £250,000 a year from her former husband, a tax specialist, for as long as she needs it.
Mr McFarlane refused to comment, perhaps wisely. His wife had given up a lucrative career every bit as good as his to look after their three children for many years. But Mr Miller was publicly outraged. “My £5m warning to wealthy husbands” was the headline of an angry interview he gave to the Jewish Chronicle. “It seems I have been penalised for the high standard of living I gave my wife . . . I believe there should be a fair compensation for the breakdown of a marriage, but surely this should not equate to a meal ticket for life after a short, childless marriage.”
This was swiftly followed by the third sensational divorce settlement last week; what is sauce for the goose is sauce for the gander these days. “The Men Strike Back!” screamed one headline. “After those landmark divorce payouts for two ex-wives, British Airways pilot wins £3.5m from the lady of the manor”, and she will have to sell her pretty manor to find the money.
The law lords’ findings were said to be the most important ruling for more than 20 years on the division of property upon divorce. And they were widely said to establish new principles, in a long overdue reconsideration of these painful matters. But I remain confused and unconvinced, in so far as I understand their rulings.
Of course the central concept of fairness that guided them must be right. But as Lord Nicholls began by saying on Wednesday, fairness is an elusive concept, “an instinctive response to a given set of facts”, and to achieve fairness in the division of property is “that most intractable of problems”. People’s instinctive responses vary, to put it mildly.
It has already been established that fairness means no discrimination between husband and wife; there should be no bias in favour of the earner, or against the homemaker. The new principle the law lords have introduced is one of compensation. If one spouse gives up earnings and future earning power to look after the family and support the other spouse’s career, she or he is entitled to compensation for that loss, as with Mrs McFarlane. Four cheers for that.
Clearly without the prospect of compensation, should the marriage fail, it is — and has been — an enormous risk for a woman to give up her career prospects, great or small, to stay at home to look after her family. It’s a positive disincentive to do so and this has been a great injustice. This new finding seems to me entirely fair. Marriage should indeed mean shared risk, shared reward, even after the divorce if necessary.
All the same, I do wonder whether the principle of fairness can really be stretched in the same sort of spirit to a massive pay out for a short, childless marriage to somebody filthy rich. The principle is the fairness of sharing in a married partnership.
On divorce each should be entitled to an equal share of the assets of the partnership — the fruits of the partnership — unless there is good reason to the contrary. And, the law lords found, this principle applies just as much to short marriages as to long ones. Try as I will, I cannot work out whether this includes assets brought into the marriage. Are they also fruits of the marriage and therefore the spoils of divorce? Wednesday’s rulings are without a doubt going to put people off marriage. Sure enough, various lawyers have already said precisely that. Mr McFarlane’s lawyer said that his advice to successful men would be “One: don’t marry. Two: if you do, make sure your other half is as wealthy as you are. Three: do a prenuptial agreement and keep your fingers crossed.” (This would apply to rich and successful women as well.)
As things stand now anyone with any assets or any serious earning power would do much better not to marry. However, this may not protect them for long. This week law reform advisers to the government will publish proposals that unmarried couples should have rights and duties to share their wealth on breaking up, yet another nail in the coffin of the institution of marriage.
This is all very depressing. It almost seems that the pursuit of fairness in marriage exposes its internal contradictions and ugly truths. People are not equal. Partnerships are not equal. People marry for all kinds of different motives, some of them very cynical. There cannot be any principles that govern the countless possibilities. No amount of elegant pronouncement can embrace the varieties of unhappy marriage.
That’s why I am sorry that the question of conduct in marriage has been clearly ruled out. Like many people I thought it might have been upheld from an earlier decision in the Miller case, but it wasn’t. Yet how people behave seems to me to make a great difference, in real justice, in determining fairness on divorce.
It’s true, as Lord Nicholls said, that it is notoriously difficult to unravel mutual recriminations and get to any sort of truth. Perhaps the courts are no place to try to do it, but in no other contract would the behaviour of the parties be ignored.
The time is long overdue for binding prenuptial agreements, and now — of course — binding pre-cohabitation agreements; prenups and cohabs. No one should embark on a serious relationship without taking very sober thought for the morrow.
The Sunday Times | Sunday, May 28, 2006 | Comments (1)
Squandering the glories of Thatcherism
Anyone who claims to remember the 1960s, so people say, can’t have been there. Anyone who claims to remember the 1980s with affection, so people also say, can’t be very nice. That is liberal orthodoxy to this day. Openly to admit that you loved the 1980s is in most circles — and, now, in many Conservative circles — to invite contempt and disapproval. This has always seemed sad to me. The 1980s was one of the best, most generous, most hopeful periods in recent times in this country and an example to other countries. To see the decade primarily as grotesquely vulgar, greedy and selfish is to misunderstand it and to be prepared to squander the huge advantages the decade brought. Sure enough, we have been busy squandering them.
I was reminded of this sadness last week, watching the much-publicised television series The Line of Beauty, based on Alan Hollinghurst’s prizewinning novel of that name. The book is a story of disenchantment; a clever and beautiful young man of humble origins finds himself living in splendour in Notting Hill, west London, with the family of a close Oxford friend, discovering his own sexuality in the midst of great wealth and fairly high politics in the 1980s; it all ends painfully.
The first of the TV series was a delight to look at — lush, beautifully produced and beautifully acted, not least the touching homosexual love scenes. Unfortunately, though, it could not reproduce what was best about the book — the complex inner life of the brilliant young hero and the subtle presence of the author. But the series does seem to be faithfully reproducing — perhaps enhancing — one of the greatest weaknesses of the novel, the stereotyped representation of the Tory toffs and their 1980s world.
Perhaps it is a little early to say so; this will all become clearer in later episodes. But judging from last week’s episode, we will be offered the standard received view of the 1980s: power was in the hands of a group of emotionally crippled, sexually incontinent, morally vacuous and mercenary rich prats with a ferocious sense of entitlement and few redeeming features.
Was this really typical of the top of the Conservative hierarchy and the culture? Were there really any politicians remotely like that? A very few, perhaps, and how frightful they were. One, to my own personal knowledge, was Alan Clark, whose behaviour to me on one occasion was quite hilariously bad; it has been said that the ghastly Thatcher-worshipping MP at the centre of The Line of Beauty was modelled on Clark. But to use him as some sort of icon of the time is to take a distorted view. Most senior Conservatives were reasonably serious, intelligent and hardworking and considerably less venal than their present-day Labour counterparts.
Of course creative artists are under no obligation to provide us with balance. The Line of Beauty is not a documentary. That is not my point. What struck me, once again, was the failure of creative writers to make anything, so to speak, of the 1980s or indeed of Thatcherism. It seems to reduce them to unthinking orthodoxy — to a long drawn-out liberal sneer. Caryl Churchill’s dazzling 1980s play Serious Money, for instance, was one of the funniest performances I have seen, and yet in the end it was simply a one-sided rant against the City. Why not? But there is something about this immensely interesting and complex era that brings out the most simple-minded artistic response.
This is odd, because the Conservative 1980s brought — fast — some radical changes that you might have supposed left-of-centre liberals would have welcomed with cries of joy. The 1980s saw an explosion of freedom and meritocracy, a detonation of the strangleholds of the old Establishment, an explosion of opportunity following the breaking of the stockbrokers’ cartel in the Big Bang and the breaking of the unions’ cartels and restrictive practices, an explosion of house ownership and share ownership and, above all, the spreading of that sense of entitlement, right down the social classes, which until then had been felt only in the old Establishment.
Bring on the barrow boys. Bring on the grocer’s daughter. Bring on the circus artist’s son. A woman prime minister! Top Conservative politicians who hadn’t been to university, let alone to Oxbridge! Bring on the shopping malls, the consumer choice, the cheap flights, the Essex girls. If vulgar is what people want, why shouldn’t they have it? Suddenly it became fun to have some money, some freedom and some choice, and lots and lots of people did, for the first time.
People who had never before thought of owning houses or shares began to do so. They began to buy art as well and they began to become more discriminating about food and travel; the 1980s saw the most heartening democratisation of taste. This must be a good country, I remember thinking, when a poorly educated but bright young woman told me in 1985 that she was buying an Armani suit for her boyfriend’s birthday; that such an underprivileged girl should have acquired the money and the taste to offer him something that the most fastidious posh boy could want struck me as just the way things should be. For the first time, class began to seem unimportant.
As for liberal contempt for City men and women, the fact is these much maligned people made the rest of us richer than we had ever been. Britain would be nothing without the great wealth creation of the City. It’s true there were painful casualties, particularly in dying industries, and periods of high unemployment. Meritocracy can be harsh. But this great pain was a successful economic corrective; the economic policies of the 1980s liberated this country from the statist, protectionist, uncommercial follies of the post-war years which are destabilising the economies of France and Germany, and will probably before long bring us low again as well, if new Labour is determined to revert to this retrograde spirit.
By contrast Britain in the 1980s became more vibrant, creative, inventive in commerce, financial services, fashion and music, leaving the rest of Europe well behind. The result is that we still have, if not for much longer, a strong economy with low unemployment. My view is that people who remember the 1980s with distaste can’t know much about economics and care much about the less fortunate.
The Sunday Times | Sunday, May 21, 2006 | Comments (1)
An acceptable way to arrange our death
Last Friday the House of Lords voted, to my great disappointment, to wreck Lord Joffe’s private member’s bill on assisted dying for the terminally ill. The peers who oppose it, many of them for religious reasons, managed to kill the bill by 148 to 100 votes, and prevent any further parliamentary debate.
This was predicted. The Christian churches and others financed an enormous, very expensive campaign against it, organised by a group with the tendentious name of Care Not Killing — the Joffe bill has nothing to do with killing, only with the choice to commit suicide in extremis. All that Lord Joffe can now do is introduce another bill another time, and he has promised he will.
Remember Diane Pretty. She campaigned ceaselessly, despite the ravages of motor neurone disease, for the right to be helped to die, before her terrible disease reduced her to helpless misery, but she failed and she died exactly the terrifying death she most feared. This seems to me unspeakably inhumane.
There are conditions which palliative care cannot reach. Between 3% and 10% of the population cannot be helped by painkillers, for instance; besides, pain is not the only terror in the process of dying. In any case, why should a responsible adult be denied the freedom to die, with carefully supervised help, if she is one of the tiny minority of people who would wish to do so?
Whenever there are public discussions of matters of life and death, people never fail to talk ominously of slippery slopes. Last week’s impassioned debates, both inside and outside the Lords, were full of slippery slopes. Allow this one freedom, the argument goes — to choose to die, to select a healthy embryo or to do a few days’ stem cell research — and we will slide quickly into a hellish abyss of legalised mass murder or Nazi eugenics, or whatever.
The truth is that the slippery slope is the human condition. We are already on it, and we cannot escape it. It’s our destiny to struggle along in life, upwards or downwards, with very uncertain footing. There is no safe plateau of moral security; we are constantly faced with painful dilemmas. The threat of a slippery slope is no argument against something that’s acceptable in itself, even though if pushed to a logical conclusion it might lead to something unacceptable. That’s the nature of moral decision-making: human moral effort is to keep seeing and drawing the line, and struggling to stay above it.
Those who don’t believe in God are obliged to play God. Playing God on the slippery slope is not very comfortable, but unless you are religious, there is no alternative. Even religious people are not always agreed on what God has ordained. Christians disagree passionately on some matters of life and death, as was clear in the House of Lords, when some Christian peers spoke as eloquently in favour of doctor-assisted suicide as others spoke against it.
Friday’s debate strengthened my feeling that religion ought to be kept out of political decisions. You cannot argue with religious belief, or with holy writ; scriptures and edicts and personal convictions are knockdown arguments. You can, however, argue on secular questions. Secular thinking is open to change and compromise.
There has been a rather cunning rearguard action on the part of some religious people to suggest that the scientific-materialist world view is merely a chosen belief system like any other, in effect, another religion. It follows that that secular arguments are of no more value than religious. The Archbishop of Canterbury made this point in passing. But it isn’t true. The point about the scientific, empirical worldview is that it is open to evidence, it can be publicly tested and it can be shown to be wrong. It is corrigible. Scientific theories can be changed. Laws can be repealed. Facts help.
I’d like to suggest a few corrections that can be made to some current fears about the bill. In a letter to The Times on Friday, the Archbishop of Canterbury, the Archbishop of Westminster and the Chief Rabbi said that “such a bill cannot guarantee that a right to die would not, for society’s most vulnerable, become a duty to die”. There’s a widespread fear, we’re told, that insensitive, overmighty doctors might bully confused little old ladies into signing their lives away, perhaps because they were a burden, or under pressure from greedy relations, or because NHS funds were low.
But these fears can be allayed by strict, legally binding safeguards. There were more than enough in the Joffe bill. (Furthermore, had the bill been allowed to go on to a standing committee of both houses, this question could have been re-examined).
Under the Joffe proposals, nobody — no patient, no doctor — could be required to have any part in doctor-assisted suicide; nor could any hospital or other establishment. No doctor could be required to raise the question with a patient, or to refer the patient to another doctor who would. The little old lady herself must make the request herself, in writing, she must be examined by two doctors, one of them a consultant independent of the other, and they must be satisfied that she is indeed terminally ill, with six months or less to live and that she has the capacity to make such a decision.
If in any doubt, she must be referred to a psychiatrist or psychologist to assess her capacity. It’s my understanding that if she lacks capacity she will be protected by the Mental Capacity Act, like anyone else. She must also be told about and offered palliative care. If she still persists in wanting to die, she must sign a form, witnessed by two people, one of them a solicitor, and neither with any remote interest in her affairs (no greedy relations). Then after a period of two weeks, her doctor may give her a prescription, which she may never in fact choose to take, and she can revoke her decision to die at any time.
On my count that makes at the very least five independent professionals, not to mention the nurses and other care professionals surrounding her, who would all have to be complicit in pushing her into suicide, against her will and against her right to life. It assumes that her family members and friends would be either complicit or uninvolved. These sound to me like adequate safeguards; this is hardly a Shipman’s charter. It is indeed a slippery slope, but that’s inevitable in life, and how far we choose to slip lies in our own earthly power.
The Sunday Times | Sunday, May 14, 2006 | Comments (1)
Parents who don’t know what children are for
In some parts of the animal kingdom, when times are harsh, adult creatures start having problems breeding. Mating patterns are interrupted and the animals either eat their young or spontaneously abort them or abandon them or don’t have young at all. In the past few days it has begun to seem as if something like this is happening in the human species.
In one short week it has been reported that Britons are putting money and work ahead of having babies, that they are having them later. When they do have babies they don’t know what to do with them: they cry out for subsidised childcare. It also emerged, to add to this general confusion, that a 63-year-old woman psychiatrist — a child psychiatrist of all things — is seven months pregnant with an IVF baby.
An ICM poll found that although people think it is best to have children while young, they feel forced by pressures of career and money and by the difficulties of finding a partner to postpone it — 49% of babies are born to mothers over 30. They would rather get rich and have fun, too: 64% of men and 51% of women think it is more important for women to enjoy themselves than to have children. Only 36% of women believe that people put children ahead of their careers, and only 32% of men believe that women should — a rapid change of perspective. The result is that Britain has an extremely low birth rate of about 1.77, though not as low as in many other European countries.
Those who do finally squeeze out 1.77 children find themselves unfit for purpose, in the current buzz phrase, and unfit for office. We parents are helpless, hopelessly indulgent of these late and inconvenient arrivals in our aspirational lives.
That, at least, is the view of Mick Brookes, general secretary of the National Association of Head Teachers. What our poor children get, he says, is “loving neglect”; too soft and self-indulgent to make proper rules and boundaries for them, or even to feed them properly. We park them in front of electronic babysitters to gorge on junk food. Children are then too tired and too wired up on chemical additives to learn at school and, equally importantly, they are a menace to themselves and others, obese, lazy, inattentive and unmanageable.
I think Brookes is right, up to a point. He says this loving neglect is not restricted to feckless or underprivileged families but is found in millions of aspirational middle-class families as well, where parents are exhausted by their work.
That is true in my own observation and, I’m sorry to say, in my own home and among my friends. Perhaps we were overreacting to our own upbringings; mine was certainly strict and not something I wanted to repeat for my own children. Or perhaps we were and are spoilt ourselves, the me generation, more interested in money and fun than in bringing up baby. However, for some reason and not much to my credit, my children have turned out all right. Perhaps it was the organic broccoli.
All this affluent neglect coincides oddly with a new obsession with every aspect of pregnancy and giving birth and above all with the baby as fashion accessory. No self-respecting film star would admit to anything less than an intense hunger for, or passionate attachment to, babies. Celebs love to be photographed with them, thus displaying their emotional street cred (and that includes male stars like Brad Pitt). Almost any alpha female will proudly describe how intensely maternal she is. Indeed, above a certain high-income level, having lots of babies is a status symbol.
There is also a certain status in extended fertility because it so clearly suggests extended youth — that latterday holy grail. I’m not suggesting that this kind of motive was what impelled Patricia Rashbrook to have a high-tech baby at 63, with a husband of 61, but I can’t help wondering just what her motive was.
She has two children, so it cannot be a never-fulfilled longing for motherhood. As a child psychiatrist she might be supposed to have some special sensitivity for children’s needs, above and beyond their parents’. She is a doctor so she might be expected to understand the grave risks to her baby’s health of such an experiment, and the enormous medical cost to the National Health Service if anything goes wrong. When her baby is 18 she will be 81, if she is still alive, and the father will be nearly 80.
Although most people agree about the phenomenon of affluent neglect and poor parenting, the government has a preposterous plan to make it worse by providing “wraparound educare”. By 2010 all schools will be open for 10 hours a day, right round the year, offering pre-school breakfast and after-school child-minding. In a terrible tribute to the wretched former education secretary, these are called the “Kelly hours”.
This does not strike me as a constructive response to the neglect of children. As Jill Kirby has argued eloquently in a paper for the Centre for Policy Studies, this is the nationalisation of childhood. That is something all totalitarian states have attempted, with tragic results.
So once again I am forced to agree with Brookes’ view that schools are in danger of becoming a national babysitting service as some parents wash their hands of their responsibilities.
What on earth is going on? What do we think children are for? Clearly this government thinks they should grow up to be good little workers and taxpayers, most of them — on current employment patterns — in the employment of the state. But parents’ feelings are more mysterious. It seems to me rather pointless to have children if you see them as a nuisance — or as a status symbol, for that matter.
There is no moral requirement on anyone to have children. There are plenty of people who want to come here to live and work, and we are certainly not facing a population shortage. Let people enjoy other things, if they so choose. But it seems worse than pointless to have 1.77 children only to hand them over to the state. It is nationalised baby farming. It’s not just that this general approach is selfish, although clearly it is; it seems like a faintly pathological attitude to parenthood, part of a general disturbance of patterns of breeding that suggests a much wider, much more profound social disturbance.
The Sunday Times | Sunday, May 07, 2006 | Comments (0)
