“Never, never be afraid to do what’s right, especially if the well-being of a person or animal is at stake. Society’s punishments are small compared to the wounds we inflict on our soul when we look the other way.”
Dr. Martin Luther King Jnr.
Under the current regime marriage is an unstable platform. This is evidenced by the fact that approximately 50% of marriages end in divorce.
In his essay Marriage and Trust: Some Lessons From Economics, Robert Rowthorn made the following observations:-
“… a marriage can only work if the individuals concerned commit themselves seriously to their joint enterprise.”
“This raises the issue of trust.”
“Individuals who commit themselves in a serious way to a marriage or business venture may suffer grievously if the enterprise fails because others do not keep to the bargain, or terminate the relationship when new opportunities arise elsewhere or because their preferences have altered.
“Fear of such an outcome may either prevent individuals entering a marriage or business venture, or lead them to behave in a half-hearted fashion which reduces their mutual gain and increases the risk of failure.”
“In the absence of trust, individuals may play safe, keeping their options open and avoiding actions which expose them to exploitation by others.”
“Trust in this broad sense is virtually synonymous with confidence.”
“The role of marriage as a trust-creating institution is illustrated by the common remark, ‘I got married because I wanted security’.”
“… marriage should be seen as an institution for creating trust between individuals in the sphere of family life, and that legal and social policy should be fashioned so as to allow this function to be effectively performed. Many of the legal and social reforms which have been implemented in modern times have undermined the ability of marriage to perform its basic role as a trust-creating institution.”
“The reforms which have undermined marriage were motivated by the existence of genuine misery and inequality, but they have had many unintended consequences and have failed to achieve some of their own objectives. The result has been harmful to many of the adults and children directly involved, and also to the wider population which has been forced to bear many of the economic and social costs of family instability. The aim should not be simply to reverse modern reforms, but to modify and complement them so as to deal with their negative consequences while preserving as far as possible their undoubted benefits.”
The above quotes by Robert Rowthorn are as published in Cambridge Journal of Economics 1999, 23,661–691
Towards a Superior Divorce and Financial Settlement System
Devising a far superior divorce and financial settlement system than the current discredited one is not beyond the wit of man. Elements of such a system are already in place and are being used successfully in other parts of the world. I propose that we bring together some of these well thought out and well-constructed procedures.
The objective of reform must be a system that balances the tension between providing an exit route where abuse or maltreatment are in evidence and protecting the interests those who wish to save their marriage. The wishes of those couples that are in mutual agreement about the dissolution of their marriage should be respected as well.
Legal opinion in Britain is mostly against fault-based divorce on the grounds that it is impractical, because evidence is difficult to obtain and the number of cases would be too great. However, this has not deterred the State of Louisiana which has recently introduced a twin-track system allowing couples to choose what kind of marriage they want. One is the normal type which allows speedy, unilateral, no-fault divorce; the other is ‘covenant’ marriage, which is harder to terminate and for which speedy divorce is only available in the case of fault at the request of the injured party. The definition of fault is narrowly drawn to avoid abuse by overly liberal judges. Couples wishing to convert from normal to covenant marriage can do so, but the reverse transition is not allowed.
It is interesting to note that in France almost 50,000 divorces a year, or about 45% of the total, are based on fault (Mazeaud et al., 1995, p. 691). These are genuine cases, since speedy divorce by consent is readily available in France, and couples wanting such a divorce have no need to collude in fabricating evidence. If French judges can process so many fault cases with apparent competence, it is difficult to understand why their British counterparts think the task is so impractical.
The key features of the new Louisiana law are as follows. For an ordinary marriage, divorce can be obtained virtually on demand and is automatically granted on the petition of either spouse following a brief period of separation.
In the case of covenant marriage, exit is more difficult and couples must undergo counselling prior to their marriage and also later on should they experience marital difficulties.
The speed with which a covenant marriage can be dissolved depends on the ground for divorce. An immediate divorce is granted if the other spouse is proved guilty of adultery, physical or sexual abuse or of a felony for which the sentence is death or hard labour.
Following a period of legal separation, a divorce is also available on account of habitual drunkenness, cruel treatment, or other ‘outrages’ which render their living together insupportable.2
Finally, if a spouse has been deserted, a divorce can be obtained one year after the departure of the other spouse. The preceding list refers to cases where one spouse is guilty of misconduct and the divorce petition is brought by the innocent spouse.
Louisiana covenant marriage also allows for divorce simply on the ground of de facto separation. Either spouse can petition for a divorce after the parties ‘have been living separate and apart continuously without reconciliation for a period of two years’.
Divorce by Mutual Consent.
The one omission from the Louisiana Covenant marriage is divorce by mutual consent. So, to the above we should add the amendment to the MCA (1973) proposed by Richard Bacon MP in his private members bill in 2015.
1 Amendment of the Matrimonial Causes Act 1973
(1) The Matrimonial Causes Act 1973 is amended as follows.
(2) After section 1 (Divorce on breakdown of marriage), insert—
“1A Divorce on breakdown of marriage: joint petition
(1) The court receiving a joint petition to divorce from both parties to a marriage shall grant a decree of divorce subject to subsections (2) and
(3) below.
(2) Before granting a decree of divorce in response to a joint petition it shall be the duty of the court to satisfy itself only that an individual statement from each party that the marriage has broken down irretrievably, signed freely and independently, is affixed to the joint petition.
(3) Every decree of divorce arising from a joint petition shall in the first instance be a decree nisi and shall not be made absolute before the expiration of twelve months from its grant unless—
(a) the High Court by general order fixes a shorter period, or
(b) in any particular case the court in which the proceedings are for the time being pending from time to time by special order fixes a shorter period than the period otherwise applicable for the time being by virtue of this subsection.
Financial Settlement
In Scotland the divorce and financial settlement laws are different to England and Wales and broadly speaking are in line with the Rule of Law and the European Convention for Human Rights. There is absolutely no reason why the financial settlement aspects of the Family Law (Scotland) Act 1985 could not be introduced in England and Wales.
Baroness Deech made the following statement in the House of Lords on 11th May 2018:-
The Scottish law, very like European law—with which alignment is arguably more desirable than ever—has been reviewed after 30 years of operation. The Family Law (Scotland) Act 1985 was based on the work of the Scottish law commissioner, Eric Clive; Scotland has no-fault divorce and cohabitation law. The recent report, Built to Last, gives Scottish law a glowing review; in particular, it spells out how much better it is than English law—a view widely shared except by the lawyers at the English Bar. I give you just two comments from the report. First, the law in Scotland,
“has been successful in achieving one of its aims which was to encourage parties to reach their own agreements about the financial and property consequences of divorce”.
Secondly:
“English law is broken and needs mending: but ours doesn’t … generally speaking, it’s a gem”.
The Benefits Of My Proposed Revisions To The Current Divorce Laws.
The law of divorce and financial settlement would become certain and predictable. It would then conform with The Rule of Law, The European Convention For Human Rights and The Human Rights Act (1998).
It would remove discretion from judges which in turn would prevent arbitrary outcomes in both divorce and financial settlement disputes.
It would prevent abuse and manipulation of the law by lawyers, which in turn will avoid disrepute for the Law
Prevents disrepute for the Judges
It would facilitate mediation with a view to reconciliation, or facilitate a more constructive approach to separation, divorce and financial settlement.
It would provide a more stable platform for marriage and family life.
All of the above contribute to conformity with the Rule of Law and individual rights as set out by The European Convention For Human Rights, The Human Rights Act (1998) and common law principles founded by Magna Carta.
“The only thing necessary for the triumph of evil is that good men should do nothing.”
Edmond Burke
I ask for your help and support in getting my proposals implemented as soon as possible.