Sir James Munby continues his description of the game of charades by stating his approval of Resolution’s guidance to members that they should encourage their clients to collude in presenting a false statement of behaviour to the courts.
94. ….It is ironic that collusion, which until the doctrine was abolished by section 9 of the 1969 Act was a bar to a decree, is now the very foundation of countless petitions and decrees.
“96. Let me make it absolutely clear that these observations imply not the slightest criticism of the lawyers engaged in this sensitive and difficult work….
……Resolution in its 2016 Guide to Good Practice on Correspondence has, as an example of good practice and how correspondence can be constructive, a form of letter beginning divorce proceedings:
“Jane tells me that neither of you is solely responsible for your marriage breakdown but she does feel that it is irreversible. The law relating to divorce does not permit a no-fault divorce until a period of a least two years has expired since you stopped living together. In order to obtain a divorce sooner, couples have to rely on the fault-based facts of adultery or unreasonable behaviour.
Jane tells me that neither of you have formed a new relationship so the purpose of this letter is to ask whether you would be prepared to consider co-operating with a petition based on details of behaviour.
I will let you have a draft of the divorce petition so that, if possible, this can be dealt with by way of agreement. Alternatively, if you would prefer to let me have some details of your behaviour that would be acceptable to you as the basis for a petition please let me have a draft. I enclose some sample examples that I have already provided to Jane to demonstrate the sort of things that may be referred to.
Jane would like both of you to retain your dignity throughout the divorce and the information about alleged behaviour will be as mild and uncontentious as possible.”
I find it disconcerting that the President of the Family Law Division can as part of a judgement handed down in a divorce appeal, openly endorse the above letter which calls for collusion by lawyers and their clients to subvert the statute law of England and Wales.