Extract from “Grounds For Divorce” – Davis and Murch
‘As soon as these solicitors entered upon the scene—which seemed to be unavoidable—the matter suddenly became inevitable; it would underwrite the breakdown of the marriage. On the other hand, I don’t really know what else you can expect from solicitors. I mean, if you keep a dog to bark at the postman, he barks at the postman.’
We discovered that it was not only solicitors who were felt to be in too much of a hurry to push ahead with the divorce. It is curious, given the present enthusiasm for conciliation, that there appears to be so little interest in helping people with the most difficult decision of all, which is whether they should continue with their marriage. We can only suppose that this appears a somewhat nebulous task compared with that of tying up the loose ends of an established breakdown. It is also an unfashionable one; apart from Marriage Guidance, no one seems particularly bothered. In the case of solicitors, perhaps we should indeed conclude that ‘if you keep a dog to bark at the postman, he barks at the postman’, but it’s odd to find Citizens’ Advice Bureaux staff apparently adopting the same outlook.
“I’ll tell you one thing that has surprised me from the start to finish, from the first time going to CAB. After twenty-six years of marriage, they all seemed to be amazed that it was that long a marriage, but there wasn’t one person out of the whole lot from beginning to end who said, ‘Have you ever thought about a reconciliation?’ That surprised me, because I would have thought that somebody somewhere along the line would have thought, ‘Well, after such a long time, why?’ It was all so easy, so cut and dried. It was all over before I was out of the spin.”
We currently have in England and Wales an unofficial “no-fault” divorce system.
A person can be divorced against their will and as a consequence have access to their children restricted.
Married partners who do not wish to be divorced have less protection under law than those living under tenancy contracts.
It is also no exaggeration to say that married partners who desire to reconcile and save their marriage can have their home, their assets, their pensions and substantial portions of their future income sequestrated by the courts.
They have less protection in divorce and financial settlement law than under contract law.
None of this accords with our ancient principals of natural justice handed down from Saxon law, and subsequently enshrined in Magna Carta. Nor does it sit well with the legal principals of equity developed uniquely in Britten over hundreds of years.
More recently in history we have witnessed the development of the principles of The Rule of Law and Human Rights. Unilateral divorce and the attendant financial settlement imposes ongoing obligations on one party without corresponding rights or protections. This is contrary to both the Rule of Law, Human Rights and individual dignity.
The so called “Professionals” (Judges, lawyers and academics) would have us believe that for all couples involved in the above marriage and divorce statistics a quick and easy divorce is the required outcome when their marriages hit difficulty and that divorce is invariably a joint decision.
Below are extracts from two studies where the authors have interviewed couples and individuals who had first-hand experience of the divorce process.
What emerges clearly from the studies and the book is the institutional opposition to the concept of defended divorce in the face of strong and clearly expressed aspirations to attempt to reconcile their differences by a high percentage of divorce respondents (23%). Astonishingly (to my mind) 17% of those that instigated divorce proceedings (petitioned) did not really want a divorce. A further 21 per cent of those who took part in the surveys stated that they were uncertain.
Extract from “Grounds For Divorce” – Davis and Murch
The dominant view, held by legal practitioners and the judiciary, would appear to be that there is little prospect of reconciliation once divorce proceedings have begun. This was the view expressed in The Field of Choice and in the Law Society publication, A Better Way Out, in which it was argued that ‘once the spouses are committed to legal action by the filing of a petition, the chances of their giving serious thought to reconciliation much diminishes, however long the delay before the actual hearing’ (Law Society, 1979, para. 51). In the revised document A Better Way Out Reviewed, the Law Society Committee held to the view that ‘once divorce proceedings have begun, people rarely go back. Whatever problems appear after the filing of a petition, the divorce goes through in the end’ (Law Society, 1982, para. 27).
Extract from “Grounds For Divorce” – Davis and Murch
“In practice the vast majority of divorces go through unilaterally and, with the advent of the Special Procedure, one suspects that there may be a significant number of respondents who, although feeling that there may not yet be an irretrievable breakdown, simply do not know how to stop or arrest the process.”
…..the possibility of reconciliation may exist in a great many cases. In support of this, the evidence of the judicial statistics points to a very significant ‘falloff’ in numbers from petition to decree nisi and then from decree nisi to decree absolute. This is not a consequence of delay in the award of the decree, or of fluctuations in the divorce rate: the fall-off in numbers occurs every year. For example, from 1980 to 1983, the difference between the numbers of decrees nisi and decrees absolute varied from just under 3,000 per annum to over 5,000 per annum. This represents a ‘fall-off’ rate of around 2 per cent…
ONS – Divorce petitions started but are not completed each year.
Extract from “Grounds For Divorce” – Davis and Murch
The ‘fall-off’ at an earlier stage—from petition to decree nisi—is even more pronounced. From 1980 to 1983 there were, each year, some 20,000 fewer decrees nisi than petitions filed—a shortfall of between 12 and 15 per cent….. we are left with an interesting question concerning the number of reconciliations which may have contributed to this gulf between the two sets of figures.
Would you have preferred to stay married? (Conciliation in Divorce Survey)
Evidence such as this leads one to doubt whether the present procedures are at all effective in determining whether or not a marriage has irretrievably broken down.
One may, of course, question whether it should be the job of the courts to stop people carelessly and precipitately divorcing one another. But it is instructive to observe the way in which couples continue to wrestle with their relationship difficulties even after the commencement of proceedings.
But it is precisely this uncertainty which might lead some to conclude that, these days, divorce is too easily available. That, certainly, was Lord Hailsham‘s view, expressed when he was Lord Chancellor.
“Lest anyone should doubt my own views on the subject—and some foolish people have—let them now be placed on record. I believe that the family is the solid foundation upon which all human society should be built. I believe that the ideal of marriage is one man and woman during their joint lives. When it occurs, I regard divorce as a misfortune—even a disaster—for both parties, and especially for the children of the marriage. I believe that people flounce out of marriage too often, little recognising and seldom understanding the abiding consequences of dissolution. Marry in haste, they used to say, repent at leisure. Divorce in haste, say I, and the consequences will be with you for the greater part of your life to come.”6
6 Hansard, Lords, 21 Nov. 1983 – Matrimonial and Family Proceedings Bill.
Our own research also suggests that there is a potential for reconciliation in a significant number of divorce cases. Even in the course of the Special Procedure survey (from which initially defended cases were excluded) 39 per cent of respondents and 23 per cent of petitioners claimed that they would have preferred to remain married to their former partner.
In at least 50 per cent of these cases it appeared that the marriage breakdown reflected the will of only one party. Given that our interviews usually took place some months after the award of the decree nisi—and in some cases, several years after the initial separation – it is likely that the number wishing to continue with their marriage had, at the outset of proceedings, been even greater.
A quote from the Newcastle Centre for Family Studies in 2004 confirmed the Davis and Murch findings:-
“….17 per cent of those who actually initiated divorce proceedings did not want a divorce, and a further 21 per cent were uncertain. As we have noted in previous chapters, some people felt that they had no option but to get a divorce given the circumstances in which they found themselves. Almost four in ten (38%) of those people whose partner had made an application for divorce indicated that divorce was what they wanted, but a third indicated that they did not wish to divorce.”
Table 6.1 Divorce applications and feelings about divorce
| Divorce applications | |||
| Petitioner | Respondent | All Respondents | |
| % | % | % | |
| Wanted a divorce | 61.8 | 38.3 | 53.5 |
| Did not want a divorce | 17.2 | 33.3 | 22.9 |
| Uncertain | 20.9 | 28.4 | 23.5 |
| Number of respondents (100%) | 650 | 345 | 1,003 |
“….It is abundantly clear that even when divorce seems inevitable, it is not the outcome that many of those involved in it actually wanted.”