Baroness Deech – Divorce (Financial Provision) Bill [HL] -Second Reading: 27 January 2017
In my speeches on this Bill, most recently just over a year ago, I have set out the relevant uncertainty, unpredictability and inaccessibility of the law, largely judge-made, despite the existence of a statute of 40 years ago intended to clarify matters. But the rule of law requires that the law be accessible, intelligible, clear and predictable. Issues should be resolved by application of the law and not by discretion. Means must be provided for resolving disputes without prohibitive cost or undue delay. The procedures should be fair. The current law, based on Section 25 of the Matrimonial Causes Act [1973] and as embroidered by judges for over 40 years, fails all those tests.
Extract from The Law Commission Report No. 343 (2014) – Matrimonial Property, Needs and Agreements
3.143 ….Certainty of outcome on divorce is extremely important. We have “Palm Tree Justice” right now. …
In “A Better Way Out Reviewed” published in 1982 the Law Society made the following observations:-
“ …the five facts, or sets of facts, laid down by section 1 of the Matrimonial Causes Act, 1973 as proving irretrievable breakdown of marriage include subjective factors which experience has shown to be in practice un- triable by the courts ….”
“…. it is unrealistic to expect a court to ascertain with any degree of reliability the truth of a petitioner’s claim that he or she finds life with the respondent intolerable. What actually happens is that the courts have to take the petitioner’s word for it. Thus, this requirement is, in fact, meaningless …. “
“ …. The other section 1 fact which poses an equal dilemma for the courts is that set out in section 1.2.(b): that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him or her ….”
“…. Again, the courts have given up any attempt to decide what the standard of reasonableness is. It is only too obvious why: there is no such standard which can universally be applied to all marriages …. “
The above accurately describes the prevailing views and attitudes of family law practitioners and judges as described by themselves and as experienced by myself.
During the second reading of the Divorce (Financial Provision) Bill in the House of Lords on 27 January 2017 Baroness Shackleton of Belgravia (Con) stated:-
“My Lords, I thank the noble Baroness, Lady Deech, for the time and energy that she has devoted to bringing this Bill before your Lordships’ House. As a practising divorce lawyer for nearly four decades, I want to register my total support for this legislation, which is long overdue, and I beseech the Government to do something about the existing sorry state of affairs. Practicing in this field, I see people entering this area of litigation become victims of a statute that is no longer fit for purpose and which leaves too much discretion in the hands of the judges who apply it.”
And yet, the courts and the legal profession do their utmost to ensure that divorce is the outcome for almost all who have the misfortune to come into contact with the family law courts.
Extract from “Grounds For Divorce” – Davis and Murch
We now turn to some of the individual case studies which created the impression (particularly in the course of the Conciliation in Divorce project) that solicitors’ concern for administrative efficiency generated a momentum which carried people along faster than they would have wished. It was not so much that solicitors played down the possibility of reconciliation, but rather that they pressed ahead on the assumption that divorce was inevitable. As one woman recalled,
‘She [the solicitor] said, "Once the divorce has gone through . . . " and I said, "What divorce?"
Here is one final illustration of the way in which the solicitor’s highly instrumental approach can be unsatisfactory from the point of view of a client bewildered and uncertain as to how he should proceed. This time the speaker is a man, interviewed in the course of a parallel study of the South-east London Conciliation Bureau.
“Two days after the initial break-up I just popped along for half an hour’s assessment of my circumstances to a local solicitor, not the one I’m with now, but another one altogether. – – He started talking in terms of, oh well, a kind of pro forma arrangement straight away – . He said, well, you know, obviously you’re forty or whatever it was, you need to rebuild your life again. You want a lot of free time, he said, don’t want to be tied down probably something like fortnightly, weekend access and perhaps certain holidays in the year. He was lining me up for all this. Of course, I realize now this is what happens. It’s all predestined and so on. I said, no—! don’t want to talk about that. I want to talk about ways and means of negotiating and sorting out some kind of reconciliation. I haven’t come along here just to sort of write it all off. . . I don’t think that’s appropriate at all, you know. I want a much more active relationship with my daughter, even if it is ultimately the case that the marriage is ended. But I don’t want to begin by assuming that.”
Another interviewee
“Their job is the legal aspect of the whole thing. They’re not there to give you a cup of tea and discuss it and say ‘never mind’. They’re there either to push you in one direction or another; either ‘out of my office, you’re wasting my time’ or ‘let’s go ahead with the divorce’. Isn’t that really what solicitors are all about? They’re not really nursemaids or anything. Basically they push you into divorce, but probably they’re right at the time. I felt I was being swept on a tidal wave and I didn’t have any control over it and I felt that I was rather pushed into divorce. . . . I don’t see how they can do their job in any other way.
Extracts from No Contest: Defended Divorce in England & Wales – 2018
Authors: Liz Trinder is Professor of Socio-legal Studies at the University of Exeter Law School.
Mark Sefton is an independent researcher. – Research funded by the Nuffield Foundation
Conclusions
Where divorce is based on allegations of fault, natural justice requires that there must be a legal process to test those allegations. That is indeed provided for, in law, in the duty of the court to inquire into Facts alleged by the petitioner and respondent under MCA s1(3) and in the right of the respondent to defend the divorce and to cross-petition. In practice, however, the court’s starting point is to assume that the petitioner’s allegations are true.
It is clear, too, that although there is a legal process available to respondents in theory to challenge allegations, in practice there is far from equal access to the court to defend, given financial, psychological and intellectual barriers. For respondents on the receiving end of allegations that they dispute, justice is a chimera.
Equally, if there is a legal process, then it must be meaningful, i.e. capable of establishing the truth. However, the very strong and sustained focus on settlement, means that most defended cases will be resolved by what can be ‘agreed’, rather than on the merits of any case. Our analysis suggested that up to half of respondents could do fairly well if they did challenge the particulars.
The financial and emotional costs of defence are significant in themselves. It is not surprising, therefore, that family lawyers and the courts do all that they can to discourage defence and fully contested hearings, even if the result will be procedurally unfair to some parties.
The result, therefore, is a deeply unsatisfactory compromise where there is technically a process for defending and testing allegations, but, in practice, the process for dealing with defended and undefended divorce cases is administrative. The lowering of the threshold for behaviour, the non-testing of allegations, and the discouragement of defence, has meant that the divorce is virtually guaranteed so long as the petitioner can navigate the paperwork.
In practice, defence of the marriage itself has been near impossible for many years, leaving aside the apparently unique circumstances of the Owens case.
Matrimonial And Family Proceedings Bill – Hansard 21 November 1983 Volume 445
“I said a moment ago that the reforms were urgent. … The law of divorce had been altered in 1969, and by 1979 the consequences were beginning to be felt as the vastly increased number of broken marriages began to accumulate.”
“I need not remind your Lordships of the nature of the reforms of 1969. By that statute, which I criticised at the time in another place, …. Whether or not I was right to criticise the Bill does not now arise. But I recall that I said ….[it] would greatly increase the number of divorces. It has, in fact, done so.”
The Law Commission made the following observation in its report No. 170 – FACING THE FUTURE A DISCUSSION PAPER ON THE GROUND FOR DIVORCE:-
“Thus, when the Archbishop’s Group’s recommendation of a single ground of breakdown with inquest was rejected as impractical,79 the resulting compromise80 apparently introduced the breakdown principle but in reality created just the sort of dual system deprecated in Putting Asunder.81
3.15 Experience since the implementation of the 1969 Act has borne out the predictions made by the Archbishop’s Group
Footnote 80:- See Divorce Reform Bill debate, Hansard (H.C.), 17 December 1968, vol. 775, col. 1125 (Mr. Leo Abse). The compromise has been described variously as “somewhat uneasy” (H. Finlay, (1975), op. cit, n.72), and “bungling” (M. Freeman, “When Marriage Fails—Some Legal Responses to Marriage Breakdown”, (1978) Current Legal Problems 109)