Is it unreasonable to expect the law to do “exactly what it says in the books”?
Is the law solely in place for the benefit of lawyers and judges?1
Is the law nothing more than a game to be played by lawyers, barristers and judges.
Is the law for the common man or not?
Or is the common man an inconvenient spectator who’s only use is to pay outrageous and exorbitant fees for the privilege of being a helpless onlooker?
Should the law not be clear so that the layman can easily understand what it is that he is supposed to do or what he is to avoid doing?
Are we not entitled to be judged by an objective standard? A standard that is written down in language that the average person can understand?
“At the end of the day, looking at the case, although I am sure that the recorder did his best to hear the evidence and to try to come to a decision between parties, the impression given, even if incorrect, is that it is unreasonable for husbands to object to divorce and that the evidence in support of the petition is somewhat of a formality. That is far from the truth.
All courts hope that spouses whose marriage fails will bury them decently and will not litigate the divorce in public with the consequential adverse effect upon each of the parties and upon their children. But the present state of the English law of divorce gives the respondent to a divorce petition the right to oppose it and to have the allegations made in the petition against him properly proved to the satisfaction of the court to the civil standard of the balance of probabilities.”
“These are potentially serious allegations [of violence, alcoholism etc]. They are allegations that the respondent does not wish to have made against him.
The fact that most other respondents do not bother too much does not prevent him having the right to say: ‘I do not agree with them. Prove them’, and I have to say that the allegations made in this petition were not proved.”
Deliberate contravention of parliaments will by the legal profession and the family law courts
Senior judges have repeatedly stated that the present divorce law does not allow “No Fault” divorce or “Unilateral” divorce.
Lady Justice Hallett made the following statement in her judgement in the Owens V Owens Court of Appeal case in 2017:-
99…. It was the trial judge’s duty, and ours, to apply the law [Matrimonial Causes Act 1973] as laid down by Parliament. We cannot ignore the clear words of the statute on the basis we dislike the consequence of applying them. It is for Parliament to decide whether to amend section 1 and to introduce “no fault” divorce on demand; it is not for the judges to usurp their function.
Furthermore, this court cannot overturn a decision of a trial judge who has applied the law correctly, made clear findings of fact that were open to him and provided adequate reasons, simply on the basis we dislike the consequence of his decision.
However, in the same case Sir James Munby, President of the Family Division acknowledged that the family law courts do in reality sanction unilateral divorce.
94. …. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b).
Put simply, the courts are themselves complicit in perverting the course of justice and are routinely acting outside the law (Ultra Vires).
This is what the Rule of Law has to say on this topic:-
The Venice Commission of the Council of Europe – Rule of Law Check List – Duty to implement the law
53. Although full enforcement of the law is rarely possible, a fundamental requirement of the Rule of Law is that the law must be respected. This means in particular that State bodies must effectively implement the laws.
The very essence of the Rule of Law would be called in question if law appeared only in the books but were not duly applied and enforced.
The duty to implement the law is threefold, since it implies obedience to the law by individuals, the duty reasonably to enforce by the State and the duty of public officials to act within the limits of their conferred powers.
54. Obstacles to the effective implementation of the law can occur not only due to the illegal or negligent action [or inaction] of authorities, but also because the quality of the legislation makes it difficult to implement.
www.venice.coe.int/images/SITE%20IMAGES/Publication/Rule_of_Law_Check_List.pdf
The UK Human Rights Act 1998 states:-
Acts of public authorities.
- [The European Convention on Human Rights]
(3) In this section “public authority” includes—
(a) a court or tribunal ….
The judiciary and the legal profession have taken it upon themselves to take a partisan approach in their interpretation and application of the current divorce and financial settlement laws.
By way of illustration, note the following passages from the Law Society’s “A Better Way Out” (1979) and A Better Way Out Reviewed (1982) reports contrasted with extracts from “Grounds For Divorce” – Davis and Murch (1988) and Defended Divorce in England & Wales – Trinder and Sefton (2018).
Extract from “A Better Way Out” – the Law Society 1979
“ …. The law not only imposes on the courts a duty to enquire into the truth of the facts alleged by a petitioner for divorce, so far as they can reasonably do so, …..The court of appeal has consistently held that the courts must observe the law strictly. For example, it was said in Cleary V Cleary (1974) 1 WLR pages 76 – 78 in which the petition was based on intolerability, that even where adultery is proved, the court must not accept at face value the petitioner’s claim that life with the respondent is intolerable but must inquire into the truth of the claim ….”
And
“ …. In another case, (Santos V Santos [1972] Fam 247), the court said: …. The bulk of such cases needs careful judicial scrutiny …. ought to be determined on affidavit evidence …. The legislature, in our judgement, intended the procedure before them to involve judicial care as opposed to rubber-stamping”
Extract from “A Better Way Out Reviewed” – the Law Society 1982
“ …. Following the passing of the Divorce Reform Act 1969 and the Matrimonial Proceedings & property Act 1970, it became increasingly clear that the courts were no longer prepared to attempt what in truth is, in the vast majority of cases, an impossible task: that of making a differential evaluation of the parties’ conduct ….”
And Yet…..
Extract from “Grounds For Divorce” – Davis and Murch
From the respondent’s point of view it may appear that solicitors and the court are conspiring to frustrate his efforts to preserve the marriage. Despite a divorce law couched in terms of ‘breakdown’, and despite the supposed test of irretrievability, this is the reality as many respondents experience it. The whole system, as far as they can see, is geared to the efficient processing of divorce petitions.
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
“…. the court’s duty to inquire into Facts alleged has, over the decades, in effect been reduced to ensuring that the petitioner has put forward a legal Fact, but the court is unable (and unwilling) to then test the veracity of that Fact.”
……in one case, the Deputy District Judge recorded on the case file his/her failed attempts to persuade the respondent to settle at CMH:
“Suggested to respondent she allows petition to proceed undefended on basis of no admissions. Explained realistic stance court takes to divorce petitions and distress of proceedings. Absolutely insistent she wants to defend. Told her to write in if changes mind.
….The focus was therefore on achieving the divorce, with the route to get there of little significance to the court. This highly pragmatic stance was reflected in a case recounted by one lawyer where two petitions had been issued:
“And we had this debate with the judge who said ‘Well look, which one’s going to go first? Does it really matter?’ And the attitude of that judge seemed to be ‘Well look you both agree the marriage has broken down, it doesn’t really matter who goes in’. It’s not the first time I’ve heard a judge simply say ‘Look. Who cares?’ (Lawyer focus group F).
….the courts have evolved a deeply pragmatic approach to defended and undefended cases that has enabled what amounts to unilateral divorce on demand, but concealed within an expensive and potentially harmful fault-based law.
The pragmatic approach is effective in enabling the efficient processing of tens of thousands of divorces each year, but at a cost in terms of conflict, fairness, access to justice and the rule of law.
Further, without a statutory underpinning, the pragmatic approach of the law in action is vulnerable to unexpected interpretations of the law in the books. The case of Owens is an obvious example of the potential instability of a system where, as Freeman notes, law and practice have drifted so far apart. It is testimony to the depth with which the pragmatic approach is embedded within the family justice system that the Owens decision appears to have had such little impact to date. However, the gulf between law and practice does little to uphold the rule of law.
State Interference in the private affairs of citizens is outside the law (Ultra Vires)
As a signatory to the European Convention for Human Rights the government has undertaken not to interfere in disputes between private individuals.
The Venice Commission of the Council of Europe – The Rule of Law Checklist, March 2016.- paragraph 36:-
…. The Rule of Law principle creates additional obligations of the State to guarantee that individuals under their jurisdiction have access to effective legal means to enforce the protection of their human rights, in particular in situations when private actors infringe these rights.
Thus the Rule of Law creates a benchmark for the quality of laws protecting human rights: legal provisions in this field – and beyond– have to be, inter alia, clear and predictable, and non-discriminatory, and they must be applied by independent courts under procedural guarantees equivalent to those applied in conflicts resulting from interferences with human rights by public authorities.
MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS – The Law Commission Report No. 343 (2014)
4.24 …. The Family Law Society expressed support for our provisional proposal by making a different point, telling us that “the democratic right of private ordering of affairs between legally consenting adults” had to take precedence over the public policy rule.
These cases (amongst others) and Law Commission advice to government establish that the state cannot favour one side or the other in a situation of equal and competing interests between individuals and the state cannot favour itself.
Surely, a contract of marriage is the quintessential private arrangement between individuals?
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| 1Is the law solely in place for the benefit of lawyers and judges? | Open justice and the Rule of Law Posted on 10th Jan 2014 in Open Justice “The law belongs to the people. Access to the legal system is a basic right and a public good.” So declared the Chief Justice of Canada, the Rt Hon Beverley McLachlin PC, in her lecture entitled “Is the open court principle sustainable in the 21st century? An examination of the open court principle as a component of the Rule of Law”, given on 8 January 2014 at Middle Temple Hall, London. |