THE DIVORCE LEGISLATION OF 1971-1996. RETROSPECT AND PROSPECT.
Chapter 2 by: Adrian Pellman, a practicing solicitor.
Pellman's 1st Floor Suite, 1 Abbey Street, Eynsham. Oxford. 0X6 1 HR.
Tel:01865-884400. Fax:
01865-8844.
Introduction.
As a divorce practitioner with many years experience I find that most clients
come to me in a
state of total bewilderment and astonishment over what happens to them in
divorce proceedings.
Injustice in Secret Courts
What astonishes them is the perceived injustice, the abandonment of any
generally recognized
principles of justice and morality, and (lie hostility Co men, which
characterize the divorce
courts. The bewilderment results from a widespread lack of public understanding
- until
themselves involved - in the way in which the Divorce Courts (not the weasel
words ‘Family
Courts” for courts winch exist to break up families) have, over the past 25
years, deviated from
the laws as Parliament intended and expected them to be applied, and from the
generally held
views of men and women as to justice and fair play.
This bewilderment is found whatever the degree of education of the client. Its
prime cause is the
conspiracy of silence in which only a distorted and limited picture emerges from
the closed doors
behind which matrimonial cases are heard - in secret courts such as have not
been seen in Britain
since the days of the Star Chamber. Behind closed doors, and with closed eyes
and ears, the legal
and social work professions operate in an “invented world”, where it is assumed
that their actions
arc fair and just, and will be so regarded and approved of by right-minded
people, and the
general public. it also results from the approach of the media, who tend to
accept without
question the smooth and misleading picture put to them by the lawyers and social
workers and,
with a few honourable exceptions. tend to suppress any alternative view.
This deviation from justice began with the 1969 Divorce Reform Act and the 1970
Matrimonial
Proceedings and Property Act. For a number of years pressures had built up from
various
influential quarters for what was described as ‘reform” of the divorce laws. The
public and Parliament were sold the idea that there were many people who could
not obtain divorces
although they had lived apart for many years, who ought to be free to do so, and
many others who
wanted a divorce without the need to allege a matrimonial offence against the
other. This seemed
just on the face of it. just, which was why there was so little opposition to
proposals for change.
The Church of England further muddied the waters by its call for easier divorce
but with an
inquest into the causes of each marital breakdown. The divorce activists,
working to a hidden
agenda, used the Church to gain its support, but made sure it got something very
different from
what you hoped for.
The Activists for ‘Reform”
Among those most actively pushing for changes in the divorce laws. principally
the divorce
lawyers and senior judges, and the upper intellectual and professional classes,
there were a range
of motives but. among the lawyers particularly, a hidden agenda. The
intellectual and
professional class, as in many other fields, suffered from the bizarre belief
that, if the machinery
of conflict were removed or minimized, people would resolve their differences in
a civilized
mariner. Tame (1) wrote in the 19th Century. that the principal cause of the
French Revolution
had been that the governing classes were moved, above all oilier things. by an
extreme horror of
conflict and violence, and preferred the lives of maniacs and malefactors to the
maintenance of
order. Corelli Barnctt (2) wrote a i:w years ago that the educated classes of
Britain not only
thought the world ought to be a place where civilized people settled their
differences over tea in
the drawing room, a noble ideal, but in an extraordinary delusion really thought
it was such a place,. They believed, and still profess to believe, that if the
causes of divorce and the parties
behaviour were excluded from discussion conflict and bitterness would cease They
entirely failed
to realize that people in marital conflict are fighting over the most important
matters in their
lives, their children, and all they have worked for, and that such fundamental
issues can usually
only he resolved by conflict. They also failed to realize that there is no
greater bitterness than that
caused by injustice. In a word, they thought that weapons cause war, not that
war causes
weapons, and failed to understand that most people of any spirit prefer conflict
to submitting to
injustice.
The Naiveté of the Educated Classes
On the whole, the educated classes, except where they themselves have been
involved in divorce,
still naively believe they have a civilized divorce law, and the serious press
is constantly full of
letters from well-meaning people who say that those in divorce need sympathy and
help in “fairly
distributing their property and helping the children̓. They fail to realize that
for the bulk of the
population there is not enough property to distribute, fairly or otherwise, and
that all, whether
rich or poor. regard their property as theirs and not something to be taken from
them or. as one
eminent judge described it, “redistributed within the family̓. A woman solicitor
even wrote to
the legal press saving we should develop a system in which all Court Orders were
Consent
Orders!. This is the fear of conflict of which Tame wrote. In the real world,
however, two nations
who wanted the same piece of land fought for it, and in the domestic sphere two
people who
wanted the same house or custody of the same children also do. This is
blindingly obvious to all
but the "civilized" classes. People in the real world continue to believe that
it is ‘their” child and
‘their̓ house, and will not accept that the Olympian disposal of their child and
house to someone
else is some how “fair” and thus to be meekly accepted with a pat on the back
from the social
workers. In the invented world of the lawyers and social workers, however, the
holding of such
views is seen as mad or bad or both, and is guaranteed to incur judicial
hostility. I have even
heard one woman lawyer say how much she admired the ‘rnoderation and
reasonableness” of
men who voluntarily gave up all contact with their children because their wife
objected to it.
What I suspect underlies he desire of. the lawyers. the
social workers and the ‘well meaning
classes to avoid conflict in divorce is the delusion that their anti-male
attitudes are shared by the
general public and that, if the machinery of conflict were somehow removed.
everybody would
happily accept the diktats of the divorce courts.
Behind the scenes were other forces, most strongly represented in the legal and
social science
professions, who had a fanatical belief in feminism in the widest sense. They
wanted a system in
which women had no obligations or duties in marriage, but unqualified rights
regardless of
conduct. I well remember being told by a lady barrister in a well known divorce
chambers that
most of the men in her chambers, Eton and Oxford types, considered that any
woman who
married. however briefly̓, should he entitled to be kept in comfort for the rest
of her life without
working,. regardless of her conduct. The rise of this element, always strong
among the lawyers,
was compounded by the growth since the war, as a result of widespread university
education, of a
large arts graduate intelligentsia, whose views on social and moral issues had
come to depart
radically from those held by the general public.
The Debate in Parliament
All these various elements made their big effort in the House of Commons
Committee stage of
the 1970 Act when they attempted to have conduct deleted as an issue in
maintenance and capital
orders. Until then the law had been clear for generations, adultery. desertion,
and cruelty were a
bar to any claim of maintenance and therefore a heavy deterrent to breaking a
marriage. If a
woman was “bored” with her marriage or ‘fancied” somebody else. or “needed
space”, she had to
make a value judgment before breaking up her marriage. Was it so unacceptable
that she was
prepared to forgo the financial benefits?. The Committee threw this out with
great firmness. and
a reading at the records of the Committee in the House of Commons is a salutary
exercise. The
Committee thought. outrageous that conduct should be irrelevant, and pointed out
that such
move would only lead to widespread divorce and injustice.
One other move by the “reformers as I shall now call them, was also defeated,
although actually
introduced by the government a statutory requirement for the courts to seek by
financial orders,
to maintain the financial position of the wife only, but not that of the
husband. The ‘reformers”
had been defeated. But this defeat was short lived.
The 1970 -73 Legislation
The 1970 Divorce Act preserved conduct, and the only significant chance in that
respect was that
cruelty as a ground for divorce was replaced by unreasonable behaviour, the
difference being that
the element of injury to health was no longer required. There was no suggestion
in Parliament
that the test of acceptable behaviour should change.
Further legislation followed in the form of the Matrimonial Causes Act of 1973
that was, in many
ways, a consolidating Act for the 1970 Act, and the associated legislation that
had taken place
immediately before and after it. These Acts had answered the pressures of the
‘reformers by
adding two additional grounds to the existing three grounds for divorce The
existing three had
been adultery, desertion, and cruelty (i.e. behaviour plus injury to health).
The two additional
grounds were: two years separation in the case of consent by both parties to
divorce, or five years
separation if one parties did not consent. The two years separation plus
consent ground catered
for the more sensitive elements of the educated classes who, in the case of
genuine mutual
consent, were repelled by divorce petitions containing allegations against the
other party and
wanted to do everything “by consent̓. The five years separation ground catered
for those caught
in the position where they could never obtain a divorce for lack of grounds. It
was quite apparent
that Parliament contemplated three classes of divorce: 1) a compulsory divorce
after five years
separation, 2) a consensual divorce after two years̓ separation in which people
could make their
own arrangements, and 3) a non-consensual divorce where one party did not want a
divorce, or in
the case of adultery, desertion unreasonable behaviour ( i.e. cruelty, without
the need to prove
injury to health). It was naively anticipated that most divorces would be by
consent. This never
proved to be the case. The financial provisions rested, as to the criteria for
making orders, on a
more detailed reiteration of the provisions, based on conduct, which had been in
the original
1857 Divorce Act. The courts had to make such order as was just “having regard
to the parties̓
conduct.”
Parliament’s Intentions Frustrated
The excesses of the reformers had apparently been frustrated by Parliament, but
the Courts
proceeded immediately to undermine Parliament’s intentions in a devastating
manner. First, they
ruled that the test of unreasonable behaviour was subjective as opposed to
objective, so that conduct which an ordinary reasonable person would find
insufficiently unreasonable to justify
divorce was nevertheless to be held sufficient if the petitioner claimed to find
it so (3). This
opened the gates to the ridiculously weak “behaviour” petitions of the past
twenty years, and led
to a widespread practice of anybody (particularly a man) who sought to defend a
weak
“behaviour” petition being subjected to hostile assault by judges. In addition,
such litigants
received extreme pressure from their own banisters and solicitors, who would
tell them that there
was no purpose in defending, since the marriage had broken down. Legal aid was
usually refused
although sometimes granted to women. The Courts themselves, in defiance of
Parliament, had
brought about the “divorce on demand” which most of the lawyers and academics
favored.
The Removal of Conduct
The second and fatal step was for the Family Division. in the case of Wachtel
(4) to hold that
conduct was usually irrelevant in the case of financial matters. This was only
partially stalled by
the Court of Appeal, which ruled that conduct was relevant if it was gross and
obvious. Soon
afterwards, the Court of Appeal, differently constituted, held in the case of
Rogers (5) that the
Wachtel decision was plainly wrong and contrary to the expressed intention of
Parliament. This
decision, although it appeared in the law reports, was virtually kept out of the
legal press, and
most lawyers are unaware of it. Wachtel was followed by the courts, and not
Rogers, although
each were of equal authority. This was a period in which the legal press tended
to give great
publicity to the views of those who supported the anti-conduct trends, and to
ignore the views of
those who opposed them. We now know from the recent memoirs of a Judge that this
decision
resulted from a private meeting of the Judges who decided this policy approach
in secret, over
twenty years ago. This revelation has received little publicity beyond an
admiring comment in
The Times, which seemed to fail to realize what it was saying. In practice it
became rare for the
courts to find anything ‘gross and obvious̓ or on the fairly rare occasions when
it did, to do
anything about it. Judicial hostility to raising conduct, at least against
wives, became the norm.
Finally the Courts abandoned the age old rule that a deserting wife was not
entitled to
maintenance.
The Courts were required under Section 25 of the Matrimonial Causes Act of 1973
to put the
parties in the some position as prior to the divorce so far as possible having
regard to their
conduct”, and in doing so to consider a number of factors including that of
"need". However,
despite Parliament having thrown out the reformers attempts to have “need” apply
specifically to
wives only, “need” became the only consideration that the Courts took seriously.
‘Need was
interpreted as meaning getting wife absolute security to the extent that this
could be squeezed out
of the husband. Whereas, the widow of a Falklands war hero was left to a meager
pension, the
adulterous wife was showered with sympathy and held to be entitled to the utmost
security for
the rest of her life. As shown in Wachtel, the orders of the court were made
“without having
regard to their conduct,” In direct contravention of the Act. The Courts ignored
all other
statutorily required considerations that involved merit as distinct from need,
and in so doing
ignored all considerations of justice, “need being the only consideration that
involves no “merit”.
A common approach was to give the wife (and her boyfriend)
the house on the grounds that they
“needed” it to bring up the husband's children. In contrast the husband without
wife or children
was then told that a bed-sitter met his needs.
The “Weak” Behaviour Petition
The net effect of these developments was to create a pattern in which spouses,
mainly wives,
brought weak behaviour petitions when they became bored with their husbands or
found
somebody else. Husbands were then pressured not to defend themselves and found
they were
stripped of their assets and children by hostile Courts applying a quasi-Marxist
interpretation of
‘need and a Court of Appeal determined to decide any question in favour of the
wife if it
possibly could, under the leadership of the same judge who had decided the
Wachtel case before
it went to appeal.
The Ousting of Husbands from the Home
The “reformers had thus succeeded in fooling Parliament into passing
legislation and then using
that legislation to achieve the very opposite of what Parliament had intended,
without the public
ever being aware until it hit them, and usually not even then. The situation was
reinforced and
worsened by the domestic violence legislation, coupled with an extremely wide
interpretation of
its provisions. The Courts made use of a claimed inherent jurisdiction to oust
husbands at the
slightest pretext, the commonest one being that the wife suffered distress
husband to arrive at
court to Find his own barrister pressing him to leave those lawyers, like
myself, who came along
and announced that the husband was not leaving, found themselves the subject of
the most
indignant and outraged pressure from courts and wives' lawyers alike.
The Courts Held to He Acting Without Lawful Authority
Significantly, in 1984, in the case of Richards (6), the House of Lords held
that the Courts had
wrongly assumed an inherent jurisdiction arid had been issuing ouster orders for
many years
without, in many cases, any lawful authority whatsoever. Ouster became much less
frequent after
that with considerable restrictions being placed on it by the Courts. The bulk
of ouster cases I
encountered for some years were ones where the pressure came not from the Court,
but from the
husband's own lawyers. The situation has gradually resumed to the pie-Richards
position and the
l990 Act, with its absence of references to justice, is highly likely to worsen
the position, as most
judges are eager to restore the Richards position of ouster on wife's demand,
Indeed, the recent
case of the Portsmouth headmaster, ousted from his home, is likely to be the
precursor of many
more.
Public Bewilderment
All of these developments took place without being realized or understood
outside the ranks of
those involved in divorce, and it was widely assumed that divorce was as it had
been but merely
easier to obtain. Those involved in divorce did not really realize what had hit
them until it did.
Many could not believe what had happened to them, let alone understand it.
Bizarre Processes of Reasoning
In order to justify their approach, bizarre processes of reasoning
were adopted
by the Court,
which an eminent student of those developments, Dr John Campion, has, as part of
the wider
picture, summarized in the phrase ‘the invented world. By this he meant a world
in which the
weird views of the “family̓ lawyers and social workers were regarded as the only
normal
approach to human relations, so that anyone who objected to being stripped of
their home,
property and children, in a way they would not be if they had committed a grave
crime, was
assumed to be mad or bad. It was a world in which it was normal, right and
proper that men who
had committed no crime could be stripped of everything, in which the Courts
refused to enforce
their own orders against wives if they chose not to obey them, in which it was
“in the best
interest of the family” for children to be deprived of their fathers, and to see
their fathers stripped
and humiliated, and in which husbands/fathers were not only expected to work to
support or at
least house their former spouses living with their Children and a new lover, but
actually regarded
as mad or bad if they raised any objection. There was no hesitation about
throwing them into
prison if they did not comply with the Court's order. It was a world in which
several very senior
judges proclaimed that there was no significance in the “blood tie” between
father and child, but
only in that between mother and child.
Bogus Principles of Social Behaviour.
A number of quite extraordinary principles of social behaviour were put forward
by the cowls to
justify their reasoning, in response to the sense of moral outrage that began to
develop among the
public. A bizarre view was put forward by the judges that the husband was the
“cock out
feathering his nest while the wife was sitting at home on the nest,̓ and that
the husband could not
have feathered his nest were the wife not sitting on it. This has been
uncritically repeated
throughout the legal profession and the law reports, although even momentary
examination
reveals it to be manifestly)̓ absurd. The man who has regularly worked would, in
most cases,
have acquired his property, whether married or not. A possible exception is in
the case of the
man pushed on by an ambitious wife, but then for every̓ man pushed on by an
ambitious wife
there is likely to be one held back by an unambitious one. Indeed, it should
further be pointed out
that the wives who have acquired houses and property would, had they not
married, have been
unlikely to acquire such property, or even own any property, because of the
lower pay of women.
Injustice Better than Conflict.
It was argued that, by stripping husbands of their property without
investigating the causes of the
marital breakdown, Courts were sparing the parties the distress of conflict and
the bitterness which
would have resulted from that conflict. If the victim protested, or expressed
bitterness at being
“stripped,̓ or pointed out that it was being “stripped” rather than conflict to
which he objected,
judges regarded and treated him as mad or bad. The lawyers would patronizingly
boast that they
had spared the husband the distress of a Court battle by stripping him at the
courtroom door.
Willful Confusion of Reasoning.
It was said that relationships broke down for complex reasons, and that the
Courts could not
investigate these reasons in depth. Often true, but irrelevant. What should
matter, and to the
ordinary member of the public did matter, was who broke up the marriage and that
they had
objectively substantial reasons, not what the feelings were in a relationship.
If this were not so,
then, in the eyes of the Courts, marriage as an institution is of less
importance than other relationships, including cohabitation. It is the contract of marriage, and its breach,
upon which
Parliament intended the courts to adjudicate, not a ‘relationship’.
The Underlying Prejudice Against Men.
The reality was that the Courts did not wish to investigate the facts, mainly
because investigation
might reveal matters adverse to the wife, and partly from an Olympian distaste
for conflict. The
same factors were involved in the reluctance of the Courts to hear the views of
children as to
where they wished to reside. They might hear what they did not want to hear,
children saying that
they wished to live with their father. Again., it was said that it was best for
the children to see a
difficult marriage broken up, and the wife in secure accommodation, preferably
with her new
“man" to form a new “family”. Why the children should benefit from losing a
father, seeing him
impoverished, probably losing contact with him, and a decline in their living
standards, was not
explained. It was only explicable on the ground that the judicially and the bulk
of the legal and
social work professions saw fathers as figures of no significance. Indeed there
many judges, and
many more lawyers, quite prepared to say that they were not in the least
concerned with what
happened to the husband/father, and often that the ‘blood tie” between father
and child was of no
significance. The Courts wholeheartedly embraced this view, ruling that, when
the parents
divorced, there is a new family consisting of the wife, children and the new
man. The old family,
i.e., the husband, had ceased to exist, except for maintenance, where the courts
did not hesitate to
say that the husband “ought to be supporting his family”, even if not allowed to
see the same
family of which the same courts no longer regarded him as part.
New Principles to Justify Prejudice.
The Courts justified their prejudice by developing principles ad hoc, whenever
they were
necessary to place the wife in a favorable position. If the property was in
joint names it was said
that the wife was entitled to her half, regardless of the merits and issues,
because her name was
on the deeds, in accordance with the law relating to land, whereas the husband
was stripped of
his half share, despite his name being on the deeds, on the grounds of the
wife's “needs”. The
“principle” which caused the greatest outrage was that adultery by̓ wives could
not be criticized
because “it took three to commit adultery” - yet another absurd generality
without foundation
which, significantly, applied only in favour of wives. I remember being in the
Court of Appeal, in a case in which a most senior judge, then a household name,
who had repeatedly said that wives'
adultery was of no consequence, remarked “Your client [a man] has committed
adultery”. My
clients woman Counsel replied “Conduct is not in issue”, whereupon the Judge
replied “I am not
saying conduct is in issue. I merely remarked that your client has committed
adultery". My client
then found himself going downhill, castigated for adultery, with remarkable
speed! Public
outrage over these attitudes became so widespread that a Lord Chancellor, in the
face of this
public outrage over the exclusion of conduct, started to talk about punishing
adulterous
husbands, while making no apparent mention of punishing adulterous wives at all.
New Judges - Increased Prejudice.
These views persisted and intensified and the practices which resulted became
the subject of a
rather sick joke in the 1970̓s; men committed more crime than women because the
man who
wanted £50,000 had to hold up a bank, whereas the woman had only to take a man
with £50000
to the Register Office.
Not only did those views persist but the new breed of liberal judges upheld them
much more
vigorously. The occasional maverick, brought up in a non ‘family law̓ background
or in an older
tradition of justice, is dying out. We now have judges who have carried on most
of their career in
the post-1970 environment. They know nothing different; their attitudes
generally are such that it
would not occur to them to challenge the injustices which they daily administer,
let alone to see
them as injustices. and they are further inhibited both by the general tendency
of English lawyers
to conform and by the national tendency not to think too hard. An
illustration of the attitudes of the ear, from which most judges are drawn, was
contained in a
recent article in a law journal, where comment was made that it was useful that
solicitors could
appear in the new Patent County Court as barristers appeared to have “problems”
about cross-examining female witnesses.
Judges Provide Incentive to Divorce.
Applied to everyday situations, all this meant that the law as Parliament
intended it pre-1974 had
gone. Prior to then, a wife who deserted her husband was disentitled to
maintenance at common
law, and could be divorced without maintenance after three years, and an
adulterous or cruel wife
was divorced usually without maintenance. in none of these cases did she have a
capital claim
against any property not hers in law. Until only a few years before there had
been no maintenance
for the child if with a mother in a state of desertion. This was a powerful
deterrent to desertion.
Those who planned to ditch their husband without good cause had to make a value
judgment. If
they went off with the boyfriend they received no maintenance and no capital. In
the new
situation the judges said ”if you want to ditch your husband and take a
boyfriend we will support
you and see that you do not lose out. You can have your husband’s money and your
boyfriend.”
They then proceeded to express surprise and even puzzlement at the huge rise in
the divorce
rates, to become the highest in Europe, without in the faintest degree seeing
that they were the
cause. Those that did understand it seemed not concerned. If easy divorce
without consequences
was what women wanted, women should have it.
The Corrupting Effect of Injustice on the Lawyers.
The development of judicial attitudes was accompanied by a corresponding
corrupting effect on
the legal profession. Judges who cease to do justice according to law,
themselves come to be
indifferent to legal principles, and ordinary principles of justice. Lawyers
become similarly
infected. The basis of all professional relationships is a duty to the client,
the duty in the case of a
lawyer being to do his best on behalf of a client, impartially to advise the
client, and then to put
the clients case and wishes to the best of his ability, subject to the general
limits of professional
conduct and keeping within the law.
It soon became obvious that many divorce lawyers (who began hypocritically to
call themselves
‘family lawyers”) were not acting in the interests of male clients. Attitudes to
male clients often
ranged front the openly hostile through the plausible sell-out approach to
hopeless defeatism. The
quality of advice was frequently poor, helpful case law frequently ignored, and
serious attempts
to resist or answer claims were not frequently made. A general attitude
developed of find out
what she'll take and give it to her. So accustomed were wives̓ lawyers to
meeting no resistance
that I found that, if resisted, they either treated the resistance as some type
of joke or pretense to
impress the client, or exploded with outrageous indignation. One significant
consequence of this
was that fewer and fewer really able lawyers did divorce work. The quality of
divorce lawyers
markedly deteriorated.
The Effect on the Clients.
The hostility of the judges reinforced by the unwillingness of lawyers to stand
up to judges, and
the prejudices and failings of the lawyers. led w clients frequently̓ not being
advised of their
rights or their case not acme pressed in the Courts. What also happened was that
Courts often
made orders quite beyond their powers if they felt they could get away with it.
That is to say, if
they felt the lawyers in front of them would do little about it, as was usually
the case. Such
attitudes spread throughout the profession to such an extent that some firms in
London boasted
that “We only act for wives”. Solicitors at Law Society conferences called for
lawyers to cease to
be obliged to act in their clients' interest but, in a new and ominous phrase
“to act in the interests
of the family”. This was a code word for acting in the interests of the wife,
and has become
general usage among family lawyers. It became common practice, particularly
among barristers,
for them to get together and ‘settle" the case usually to the husband's
disadvantage. The process
of indoctrination began at an early stage. Exam papers with a dozen questions on
Family Law
contained as many as eleven saying ‘advise the wife”. The tendency of the
Englishman not to
think had enabled a small and highly motivated minority in brainwash a
profession into
unthinking acceptance of its views.
The So-Called “Interests of the Family”.
The absurdity of the expression “acting in the interests of the family” is shown
when one actually
examines it. The only person in Court who is there to act in the interests of
the family is the
Judge. His function is to do justice between the parties. This is something
which they now
proudly boast of not doing, saying their function is to protect the wife and
children, not to do
Justice. The “family” clearly does not include the father The function of the
lawyers is to put
forward the interests of their women not the interests of the so-called
‘family’. The other
principal member of which in any event will have another lawyer. Indeed, the
matter goes beyond
that, since if the lawyers “act in the interests of the family” as they think
they are doing, all they
are doing is acting in what they think are in the interests of the family. They
may be wrong, and
thus do damage to the family. The ultimate line became “putting the child first”
which really
meant putting the mother first, and this has become the all-embracing excuse for
all manner of
injustice. Indeed, putting the child first appears to have been the basis of the
recently reported
case of in re: B (Times Law Report, 9th July,1997) in which a father was barred
from seeing his
child after the step father threatened to leave the mother if contact were
granted. This seems a
questionable view of the child's interests, since continued contact with its
father would seem of
more importance than any short term distress of the mother caused by departure
of the stepfather.
indeed this law appears to regard fatherhood as of no great significance.
Public Outrage
Increasing public outrage led, by 1979, to the formation of organizations such
as Campaign for
Justice in Divorce. Vigorous bombardment of the Press and Parliament began to
lead to
awareness of something being wrong, even though the precise nature of it was not
understood.
The casualties of the matrimonial battlefield appeared in social gatherings like
disabled men after
the First World War. in l982 three hundred and fifteen MPs signed a motion to
investigate the
position. The pressure for change became so intense that the legal establishment
decided that
something had to be done. What happened, though was that then effectively seized
control of the
legislation and through skillful selection of the Committee, and vigororous
control of the voting
in Parliament, ensured that Parliament never really understood what was being
complained about
and, what went through was relatively innocuous. The establishment skillfully
conned Parliament
and was disastrously helped by many of the leaders of the insert's organizations,
who went along
with what was happening. apparently jollied along by the civil servants
involved.
The Failure of the First Men's Organizations: the Conduct Issue.
In my view it was an unfortunate feature of those attempting to end the abuses
that they failed to
accept that, in order to get public opinion going with them, they would have to
accept that middle
aged and elderly ladies could not be seen to be left for young women and not
provided for. This
was a major cause of the failure of the husbands groups to achieve wider
support. Because the
husbands̓ groups failed to push the “conduct̓ issue, which was the cause of most
outrage among
ordinary people, and campaigned instead for the total ending of all maintenance,
they alienated a
larger body of public opinion which would not support this. I cannot
over-emphasize that
conduct is the key to everything because conduct is the issue that outrages
ordinary people, and it
is the abolition of conduct, together with the various invented “principles of
social behaviour̓,
which has made divorce so easy and tempting to wives, in essence, wives have
been told by the
Courts that it is right and proper to say, “I don't want him, but I want his
money”.
What Is Conduct?.
What do I mean by conduct?. The Courts will tell you that
they have not the time to go into nit-picking issues of conduct and that, in any case. usually̓ one person is as bad
as another. The lack
of time is a quite extraordinary argument, because the implication is that the
Courts are far too
busy doing injustice on a production line scale to have the time to do justice
on an individual
scale. But, importantly, conduct does involve nit-picking issues. To most
people, conduct means
adultery̓, extreme violence and desertion and similar matters. Neither men nor
women see why
the adulterous or deserting wife receives maintenance or is allowed to strip the
husband of his
assets. More subtly, though, the real issue relating to conduct is who brought
an end to the
marriage itself and for what reason. Thus, if a wife breaks up a marriage for no
good reason,
there is no reason why she should receive maintenance other than her capital
contribution to the
marriage. It is quite wrong that a wife should be free to say she does not like
her husband yet still
wishes to have his money.
The current approach to conduct is to exclude it in nearly all cases, unless it
is the man’s conduct.
One other approach has been to limit conduct to the consequences of financial
misconduct e.g.,
dissipation of assets, and then to top up the award so as to cancel the effect
of that conduct. This,
at least on paper, has been limited by the 1996 Act provisions which make clear
that conduct is
not limited to financial misconduct, in practice the courts are likely to ignore
Parliament’s
intentions, and lawyers will continue to reject conduct as an issue.
The First Men’s Organizations Collapse.
The failure of the men's organizations to achieve anything in the 1984
legislation, reinforced by
their leaders̓ support of this useless legislation, led to a decline in their
membership for some
years. Exemplifying the tendency of men's organizations the world over to split
and even to
litigate between themselves
The Revival
By the 1990̓s the men's organizations were beginning to revive under new
leadership. The new
organizations, of which the United Kingdom Men's Movement was the most
significant, had a
better grasp of what had happened in the past, and had more defined policies on
how to deal with
the problem. They understood the conduct issue more clearly. I had written the
original version
of this paper in 1988 to create an understanding, precisely because I had
watched the men's
organizations. for many of whom I had acted, floundering. in the dark, railing
against the system
without understanding its causes. I concluded that I needed to update it to meet
the challenge of
the 1990's.
The Prospect of Change.
So powerful however, had become the weight of the establishment thinking in this
field
combined with a lack of public and Parliamentary understanding of its cause -
the lawyers - that
the prospect of change in the foreseeable future seemed low.
Change began to come from unexpected sources.
The first was the increasing concern generally, and in the academic field about
the breakdown of
the family in this country. Second was the Government’s desire to save money on
Legal Aid.
Social breakdown led to the increasing publication of articles on the breakdown
of the family and
the injustices in the Courts by outstanding writers such as Martin Mears in the
Sunday Telegraph,
and other writers in the Daily Mail. Only Martin Mears, however, grasped the
importance of the
conduct issue and that the attitude of the Courts and lawyers as the cause of
the breakdown of the
family. The others tended to see the cause as moral decline and the remedy as
education in
marriage and the seeking of reconciliation in mediation. They failed to realize
that if you tell
people that they can dump their spouses, and still take their money, all the
social workers in the
world will not hold them back.
It might have taken many more years for these truths to sink in, and the
pressure to do something
to develop, but for the Government's desire to save money.
Here two factors came together, the Government wanted to save money, and the
family lawyers,
and apparently the lawyers who advised the Government, wanted to realize their
dream - divorce
on demand. This led to the 1996 Family Law Act put forward by the Lord
Chancellor.
The Government Proposal.
The Lord Chancellor's proposals, in effect, were for divorce on demand.
mediators to solve the
financial issues and save Legal Aid money, and a widened power of ouster which
was to extend
to cohabitees, thus reducing marriage to mere cohabitation. Upon all the
evidence, much of the
Cabinet did understand what was happening and certainly did not want it, but a
small and
powerful element did, and forced it through the Cabinet.
Parliament’s Reaction.
When Parliament, concerned by social breakdown, considered the legislation, it,
as a result of an
outstanding campaign by pro family campaigners, indicated that it was beginning
to understand a
little of what had been happening. All honors are due to the Daily Mail in
particular for the way
it mobilized opposition so that a strong opposition developed and the situation
reached the point
where the legislation was threatened with failure. A desperate Government made
many
concessions which for the first lime may drive in beginnings of a wedge into the
present system.
Despite us now having divorce on demand, conduct is supposed to be taken into
account to a
greater degree than in financial and child issues. It is my belief that the
Courts will continue to
defy Parliament’s intention. I remember hearing a barrister, now a High Court
Judge, claim at a
lecture on the 1984 Act that they would ignore it. Nevertheless the continued
social breakdown
and the further flagrant defiance by the Courts, of which a wider public
understanding is
developing, will continue to arouse further Parliamentary and media concern.
The Child Support Act..
Another factor which had contributed to social breakdown was the Child Support
Act, sold to
Parliament as a means of saving the Exchequer from the cost of so-called
“dead-beat dads” who
were not supporting their families, in particular, the unmarried fathers.
It was later admitted by the Child Support Agency chief that the real target,
however, was the
middle class married father with means. In other words, once again there was a
hidden agenda.
The whole concept was fundamentally flawed from the beginning. The burden of the
Child
Support Agency exactions was so heavy that, for 95% of fathers, it would mean
working at
subsistence level. If it be subsistence level they might as well as give up work
anyway. Indeed, if
they did carry on working, they would not be left with sufficient means
themselves to found a
family. Thus, a further under-class would be created of impoverished men who
could not afford
to support a family, and of women who, in consequence, could not find a husband
with whom to
form a family. The obviousness of this seemed entirely to elude the Government
in so far as it
was concerned about it all. In reality, despite the expenditure of nearly two
billion pounds, the
new Agency has recovered far less than the DSS did under the old liable relative
system, and the
position is worsening. Two thirds of all persons who receiving a Child Support
Agency
Assessment give up their employment within six months. Every form of
falsification of figures
disguises the non-recovery and arrears continue to rocket by hundreds of
millions every year. The
cost in Social Security for the men who have given up work is phenomenal By
depriving men of
the family, the incentive to work, the system was accelerating the move to the
matriarchal society
that now dominates the American inner cities and many of our industrial areas -
a world of
unemployed single fathers and of fatherless children running wild. Feminists
boast that stone age
societies were matrilineal - that is why they remained primitive.
The Pension Issue.
One other development in recent years has been the successive Acts of
Parliament, first
providing for maintenance out of pension provision, and then (1996 Act)
providing for the
pension to be treated as an asset and divided, so that a wife who has remarried
will many years
later be collecting a chunk of her ex husband’s pension.
There is a false logic in the whole pension issue. Pensions are being treated as
a capital asset
when they are not. A pension is a contingent income dependent on many factors.
Splitting it
could lead to the absurd and unjust situation where; on retirement, the ex
husband has a
proportion of his pension and his ex wife, by now married to somebody else, has
the rest of his
pension as well as her own and her "new" husband's. Previously, the principle
had been that
pensions are really only relevant if maintenance liability continued beyond
retirement age.
Once again the so called “reformers" had pushed through Parliament a provision
the implications
of which were not understood by MP's. Another encouragement to easy divorce had
been
created.
The Solution.
I wrote in 1988, and still hold, that the logical consequence of any situation
which sought justice
was that there should be three classes of divorce. The first would be where the
parties agree both
to have a divorce and on financial and related matters. The second would be
where one party that
wanted a divorce for good and substantial reason, such as grave misconduct
by
the other party,
i.e., adultery, desertion, or serious (in the pre-1970 sense) behaviour,
objectively assessed as
justifying termination of the marriage. The third, and perhaps the great
majority of cases, would
be where one-party-only wants a divorce, and could not show such misconduct by
the other party.
In the first case, no dispute would arise. In the second, the payment of
maintenance to the
innocent party would be appropriate in some cases, particularly where the
petitioner was a middle
aged or elderly lady. In the third case the party wanting the divorce should
effectively be put to
their election. Either they continue with the marriage and its obligations, or
repudiate the
marriage and its obligations and thereby forego the right to receive any
financial benefit from the
marriage which they had unjustifiably broken up. “I do not want him, but I want
his money is a
morally unacceptable position (even prostitutes provide services for their
reward), and one which
has led to Europe's highest divorce rate. I have no doubt that if this approach
were adopted there
would be a radical reduction in the number of divorces. The “principle” invented
by the Courts,
that both parties are at fault in the termination of a marriage, results from a
mixture of blind
prejudice and deliberate intellectual muddle, and has led to Courts effectively
determine marriage
as a state in which the wife should have no obligations of any kind yet should
have financial
rights far greater than those of a widow, regardless of her terminating the
marriage for no good
reason. The justifiability of the termination of the marriage should be the key
issue. There is no
reason why someone should expect to break a contract arid still benefit from it.
The Future.
it is clear from the content of the debates in Parliament that a substantial
number of MP's are
beginning to understand what has happened. The change of Government and the
influx into
Parliament of a mass of feminists and pro-feminists strongly suggest, however,
that only slow
progress will be made in this Parliament.
However, the first floodgate likely to collapse is the Child Support Agency. Its
ever increasing
cost, and decreasing recovery rate, plus the reported billion plus bill to
replace its computers, will
make it increasingly insupportable. It is also likely that litigation over
pensions will greatly
increase the volume and bitterness of litigants in the courts, and bring home
the scale of the
disaster to more members of the public.
Getting the Truth to MPs
The only way forward is to get home to MPs the message in this article which
clearly sets out the
true case of the divorce disaster: the way the Courts have overridden the
intentions of Parliament.
and the way in which the divorce lobby have conned Parliament and the media.
Laws to Override Judicial Prejudice.
An essential aspect of any ultimate reform must be to have laws drafted in
sufficient detail that
the Courts, in their decisions, are unable to fly in the face of the intentions
of Parliament. Courts
who are prepared to order a man to maintain a wife who is living with somebody
else and see
nothing wrong with this (7), or to maintain an ex-wife from a short, childless
marriage who
cannot work because she has become pregnant by another man subsequent to a
divorce (8),
cannot be entrusted with wide discretions.
Financial Orders: Fundamental Changes of Principle.
There is considerable scope for the law on financial entitlement to be far more
clearly defined. In
particular, it is quite wrong for the Courts to act as if there were an actual
right to maintenance.
There is no right as such, either in common law or statute, only a right to
apply. This is as it
should be. Maintenance should then only be awarded to mothers while with young
children and
to middle aged and elderly women, and then, only if they have not broken up the
marriage
without good reason. Equally, as a late 1980̓s Law Society paper pointed out (9)
there is no
justification for matrimonial courts, when dividing assets, to take away
property inherited or
received from relatives or friends or owned before the marriage. This outrageous
aspect of
present practice, unique to the English Courts, amounts to giving the Family
Division a general
power of appointment over one's property, and is effectively taking money from
the divorced person's relatives.
Further Legislation Called For.
I do not believe that it will be possible for those who seek reform to achieve
that reform through the gradual development of cases in the Courts (which will
be barred by the defiance of the lawyers). Further legislation is called for by stripping the courts of their wide
discretionary powers,
and that legislation will not be effective unless Members of Parliament actually
under stand the
real issues and the part the Courts have played in the social disintegration of
our society.
References.
1.Taine, Hippolyte: The French Revolution.
2.Bamett, C.: The Decline of British Power
3 i.e., the subjective test
4 Wachtel v Wachtel, 1973
5 Rogers v Rogers, 1 973
6 Richards v Richards, 1984
7 Atkinson v Atkinson, 1987
8 Wagner v Wagner, 1978
9 Green, D. Maintenance & Capital Provision on Divorce.
|
