“The function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education.”
Dr. Martin Luther King Jnr.
My starting point in illuminating the systemic manipulation and abuse of the divorce process in England and Wales is the studies undertaken by Gwynn Davis and Mervyn Murch, the results of which were published in their 1988 book “Grounds for Divorce”
Their book is the end result of two studies undertaken by the authors into the process and procedures of divorce in the UK during the 1980s. The research projects were funded by the Joseph Rowntree Memorial Trust and by the Nuffield Foundation. Their research has subsequently been referenced by the Law Commission and the Law Society amongst others and more recently by Professor Trinder of Exeter University in 2018. All of these studies have been referred to in parliamentary discussions or briefings.
The narrative that emerges from these studies is that the opinions expressed by the Family Courts and by some divorce “professionals” can be characterised as at best being misleading, or less generously, as mendacious.
The prevailing theme that emerges is that outcomes in divorce proceedings are dominated by an institutionalised belief that defending a divorce petition is futile, and they, the Family Courts and family legal profession feel that they are entitled to manipulate the law to make defence near impossible. Such an approach, which is Ultra Vires (outside the law), is contrary to the Judicial Oath and the Law Society moral and ethical code.
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
The “About Us” page of the Law Society website states:-
We’re the independent professional body for solicitors in England and Wales.
We’re run by and for our members.
We:
are the voice of solicitors
drive excellence in the profession
safeguard the rule of law
work to make sure no-one is above the law
protect everyone’s right to have access to justice
Judges, the legal profession and some academics claim that the illegal manipulation of the divorce laws in the ways described in these pages is justifiable in the best interests of each couple.
Really ?!?
Says Who?
Are they democratically accountable for such a policy decision?
Manipulation of the divorce laws starts in the Family Courts and is enthusiastically supported by Resolution, the association of 500 or so family law practitioners. The institutional opposition to defended divorce has underwritten unfairness, misuse of case management powers, manipulation of procedure and law, inaccurate assessment of facts and finally judgements that are comprehensively flawed.
Applications and judgements in divorce cases are often based on absurd and or flimsy grounds with little or no evidence required.
In order to make decisions less transparent, the Family Courts deliberately ignore the Common Law principle of precedent (Stare Decisis). In Common Law this is the mechanism intended to ensure consistency between all cases and conformity across the country. In short, Judges in the Family Courts are acting outside the law (Ultra Vires).
The Matrimonial Causes Act 1973 (MCA 1973) that forms the basis of the divorce and financial settlement laws does not legislate or provide for divorce on demand.
However, the “Special Procedure”, as implemented by the Family Courts has created a de facto policy and an expectation of divorce on demand, or unilateral divorce. The “Special Procedure” was introduced without a vote in parliament.
The Family Courts and the supporting legal profession have a deeply established view that defending a divorce petition is pointless and futile and they vigorously discourage any attempts to defend.
This undermines the stability of marriage by encouraging the view that commitment to a marriage can be abandoned without consequence.
It encourages the notion that divorce applicants will be actively supported in ending their marriage by the Family Courts. Indeed, not only is there no penalty, there is in reality a positive incentive and reward for breaking the marriage contract. This comes in the form of financial settlements that frequently provide a meal ticket for life.
The incentive to break the marriage contract has been brought to the attention of Parliament by the MP Frank Field in his book entitled “Making Welfare Work”.
The financial settlement aspect of the divorce laws confers on judges an Unlimited Discretion to adjust the assets and property of one party to a divorce in favour of the other party. Any law conferring Unlimited Discretion is defined by the principal of the Rule of Law as being unlawful.
The financial affairs of both parties become subject to the scrutiny and control of the court, potentially for the remainder of their lives.
The burden of financial support falls disproportionately on the individual considered by the Family Court to be economically stronger. The obligation to financially maintain contained in the MCA 1973 applies only to people who have been married or have been in a civil partnership. This is potentially discriminatory under the terms of Article 14 of the Human Rights Act.
Couples who do not marry but instead co-habit are not financially tied to each other for life if they separate. This is regardless of the length of their relationship.
Parents are not legally obliged to maintain their children after the age of 18.
Children are not obliged under law to maintain elderly parents or grandparents.
Meanwhile, the recipients of the state sponsored transfer of assets, future income and home have no accountability and no obligations to their former spouse, the donor.
Adding insult to injury, the income of a new female partner to a man after divorce is taken into consideration when assessing his ability to pay ongoing maintenance.
The income of a new male partner to a female after divorce is not taken into consideration when assessing her “need” for ongoing maintenance.
This is not equitable. How is this not discriminatory?
Extract from MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS – The Law Commission Report No. 343 (2014)
3.144 ….“Every maintenance payer and every child to a marriage has the right to know that at some point their duties are paid and they have the right to be able to move on and be free from their dissolved contract.”
The outcome that I am looking for is that the government be made to review those aspects of the England and Wales Divorce laws and divorce procedures that are currently not compatible with the European Convention for Human Rights.
These non-conformities include Article 6, Article 8, Article 13, Article 14, Article 17 and Protocol 1 Article 1 and Article 5 of Protocol 7 of European Convention for Human Rights.
Meaningful provision needs to be made by the state to encourage and support mediation and reconciliation for marriages in difficulty.
Perhaps above all, the government urgently needs to address and possibly criminalise Parental Alienation as has been done in other countries. This is a form of abuse that as a society we should no longer tolerate.
“The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people.”
Dr. Martin Luther King Jnr.