A Summary of what has happened in Divorce Law since 1970ADRIAN J.G. PELLMAN, LL.B. SOLICITOR Pellman's Dear client You asked me to set out shortly, for your meeting with (name), a summary of what has happened in Divorce Law since 1970, to lead to the present state of affairs. Essentially, what has happened is that the Courts have virtually turned the Law upside down, contrary to the express intention of Parliament, and created a situation whereby people can break up marriages and obtain the same financial benefits as would only have been received had the other party broken up the marriage. Since actions may be taken without consequences, there is no incentive to refrain from those actions. Prior to 1970, the position was quite simple. Divorce could only effectively be obtained for cruelty (i.e. very unreasonable behaviour causing injury to health), desertion or adultery. There was no liability in law to maintain the other party if they deserted, or if a Court had found them guilty of cruelty or adultery. This was a very real constraint in that somebody who was bored with their marriage had to consider the consequences. If they walked out they lost their maintenance. They therefore had to make a value judgment as to what to do. Parliament, in passing the 1969 Divorce Reform Act., which became the 1970 Act, and is now the 1973 and 1984 Acts, made absolutely clear its intentions, as shown in the House of Commons Committee Report from the Bill. What Parliament contemplated was the following 1. Cruelty would be replaced by unreasonable behaviour to deal with the common situation of somebody who was subject to cruel behaviour but was not affected in their health. 2. Those who wished to bury their marriage by agreement without proving the matrimonial offence could do so on the basis of two years separation and Parliament clearly contemplated that that would be in the vast majority of cases. This was in fact not so. 3. Those who formerly could not obtain a divorce because they had no grounds could enforce a divorce after five years separation provided proper financial provision was made for the innocent party. The conduct provision remained, so that if a party had committed cruelty or adultery they could not expect to be maintained, and he common law rule that a party in desertion had no right to claim maintenance also was unaffected. An attempt was made by he "Reformers to overturn this in the Committee stage but it at failed. The Courts proceeded to turn this upside down. The language of the Act in relation to conduct was virtually the same as it had been since the 1857 Act, and there had been no changes by way of developments in case law which altered in any way the statement of the law that I have set out above. Notwithstanding this, the Courts made two fundamental changes in he Law which have brought about the wave of divorce. The first of these was to apply a subjective and not an objective test to unreasonable behaviour, so that behaviour which the average man or woman would not regard as unreasonable was treated as unreasonable if the party claiming it said that they found it unreasonable. This opened a floodgate of petitions n grounds which Parliament never contemplated, and this round became by far the most popular ground for divorce whereas it had been the least used (under the name of cruelty) before he 1970 Act. The Courts were supported by the Law Society n this, which proceeded to grant legal aid to bring contested divorces but to refuse legal aid to those who had defended upon the ground that the marriage must have broken up or there would not be a petition. If Parliament had intended divorces not to be defended it would have provided for them not to be defended. Effectively the Courts brought in divorce on demand in express defiance of Parliament. The second development was a 1974 case in which it was held that 'conduct' was no longer relevant unless it was "gross and obvious" and effectively the Courts rarely hold any conduct to be relevant, or if they do, pay lip service to it and otherwise ignore it. If the wife broke up the marriage the Courts would treat her in a way as if it had been her husband who had broken up the marriage. Whereas, if the husband did break up the marriage, he could rely upon being treated with greater harshness. The other subsidiary development was that the Courts announced that they would not enforce their own access Orders. The affect was rather like saying that in future burglars would not be prosecuted. You get a wave of burglaries. The specious ground for this was that if the custodial parent was upset the child would be upset. You might say to the contrary that the image to the child not seeing the non custodial parent would be much more serious. We tried to keep this as short as possible. Essentially what it boils down to is that: The Courts have quite willfully frustrated the intentions Parliament. I was actually present at a seminar when the 1984 Act, which was supposed to have altered things, had just been produced and an eminent Barrister said that "it was the opinion of the judiciary that nothing should change". Just as courts had turned the 1970 Act upside down they simply denied the spirit of the 1984 Act. Since the Courts take the view that wives may break up their marriage without any consequence, it is not surprising there is more of divorce. My own observation of the "unreasonable demeanor petition" is that the vast majority are thoroughly bad and reflect no more than boredom with the marriage and more so the majority of cases what triggers off the divorce is the arrival of the boyfriend hidden in the background. Sincerely. ADRIAN J.G. PELLMAN, LL.B. SOLICITOR CHAPTER 2: THE DIVORCE LEGISLATION OF 1971-1996. RETROSPECT AND PROSPECT.Chapter 2 by: Adrian Pellman, a practicing solicitor.Pellman's 1st Floor Suite, 1 Abbey Street, Eynsham.
Oxford. 0X6 1 HR. Introduction.As a divorce practitioner with many years experience I find that most clients come to me in a state of total bewilderment and astonishment over what happens to them in divorce proceedings. Injustice in Secret CourtsWhat astonishes them is the perceived injustice, the abandonment of any generally recognized principles of justice and morality, and (lie hostility Co men, which characterize the divorce courts. The bewilderment results from a widespread lack of public understanding - until themselves involved - in the way in which the Divorce Courts (not the weasel words 'Family Courts" for courts winch exist to break up families) have, over the past 25 years, deviated from the laws as Parliament intended and expected them to be applied, and from the generally held views of men and women as to justice and fair play. This bewilderment is found whatever the degree of education of the client. Its prime cause is the conspiracy of silence in which only a distorted and limited picture emerges from the closed doors behind which matrimonial cases are heard - in secret courts such as have not been seen in Britain since the days of the Star Chamber. Behind closed doors, and with closed eyes and ears, the legal and social work professions operate in an "invented world", where it is assumed that their actions arc fair and just, and will be so regarded and approved of by right-minded people, and the general public. it also results from the approach of the media, who tend to accept without question the smooth and misleading picture put to them by the lawyers and social workers and, with a few honourable exceptions tend to suppress any alternative view. This deviation from justice began with the 1969 Divorce Reform Act and the 1970 Matrimonial Proceedings and Property Act. For a number of years pressures had built up from various influential quarters for what was described as 'reform" of the divorce laws. The public and Parliament were sold the idea that there were many people who could not obtain divorces although they had lived apart for many years, who ought to be free to do so, and many others who wanted a divorce without the need to allege a matrimonial offence against the other. This seemed just on the face of it. just, which was why there was so little opposition to proposals for change. The Church of England further muddied the waters by its call for easier divorce but with an inquest into the causes of each marital breakdown. The divorce activists, working to a hidden agenda, used the Church to gain its support, but made sure it got something very different from what you hoped for. The Activists for 'Reform"Among those most actively pushing for changes in the divorce laws principally the divorce lawyers and senior judges, and the upper intellectual and professional classes, there were a range of motives but among the lawyers particularly, a hidden agenda. The intellectual and professional class, as in many other fields, suffered from the bizarre belief that, if the machinery of conflict were removed or minimized, people would resolve their differences in a civilized mariner. Tame (1) wrote in the 19th Century that the principal cause of the French Revolution had been that the governing classes were moved, above all oilier things by an extreme horror of conflict and violence, and preferred the lives of maniacs and malefactors to the maintenance of order. Corelli Bamett (2) wrote a few years ago that the educated classes of Britain not only thought the world ought to be a place where civilized people settled their differences over tea in the drawing room, a noble ideal, but in an extraordinary delusion really thought it was such a place,. They believed, and still profess to believe, that if the causes of divorce and the parties behaviour were excluded from discussion conflict and bitterness would cease They entirely failed to realize that people in marital conflict are fighting over the most important matters in their lives, their children, and all they have worked for, and that such fundamental issues can usually only he resolved by conflict. They also failed to realize that there is no greater bitterness than that caused by injustice. In a word, they thought that weapons cause war, not that war causes weapons, and failed to understand that most people of any spirit prefer conflict to submitting to injustice. The Naiveté of the Educated ClassesOn the whole, the educated classes, except where they themselves have been involved in divorce, still naively believe they have a civilized divorce law, and the serious press is constantly full of letters from well-meaning people who say that those in divorce need sympathy and help in "fairly distributing their property and helping the children?. They fail to realize that for the bulk of the population there is not enough property to distribute, fairly or otherwise, and that all, whether rich or poor regard their property as theirs and not something to be taken from them or as one eminent judge described it, "redistributed within the family?. A woman solicitor even wrote to the legal press saving we should develop a system in which all Court Orders were Consent Orders! This is the fear of conflict of which Tame wrote. In the real world, however, two nations who wanted the same piece of land fought for it, and in the domestic sphere two people who wanted the same house or custody of the same children also do. This is blindingly obvious to all but the "civilized" classes. People in the real world continue to believe that it is 'their" child and 'their? house, and will not accept that the Olympian disposal of their child and house to someone else is some how "fair" and thus to be meekly accepted with a pat on the back from the social workers. In the invented world of the lawyers and social workers, however, the holding of such views is seen as mad or bad or both, and is guaranteed to incur judicial hostility. I have even heard one woman lawyer say how much she admired the 'moderation and reasonableness" of men who voluntarily gave up all contact with their children because their wife objected to it. What I suspect underlies the desire of the lawyers the social workers and the 'well meaning classes to avoid conflict in divorce is the delusion that their anti-male attitudes are shared by the general public and that, if the machinery of conflict were somehow removed everybody would happily accept the diktats of the divorce courts. Behind the scenes were other forces, most strongly represented in the legal and social science professions, who had a fanatical belief in feminism in the widest sense. They wanted a system in which women had no obligations or duties in marriage, but unqualified rights regardless of conduct. I well remember being told by a lady barrister in a well known divorce chambers that most of the men in her chambers, Eton and Oxford types, considered that any woman who married however briefly, should he entitled to be kept in comfort for the rest of her life without working, regardless of her conduct. The rise of this element, always strong among the lawyers, was compounded by the growth since the war, as a result of widespread university education, of a large art graduate intelligentsia, whose views on social and moral issues had come to depart radically from those held by the general public. The Debate in ParliamentAll these various elements made their big effort in the House of Commons Committee stage of the 1970 Act when they attempted to have conduct deleted as an issue in maintenance and capital orders. Until then the law had been clear for generations, adultery desertion, and cruelty were a bar to any claim of maintenance and therefore a heavy deterrent to breaking a marriage. If a woman was "bored" with her marriage, or 'fancied" somebody else, or "needed space", she had to make a value judgment before breaking up her marriage. Was it so unacceptable that she was prepared to forgo the financial benefits? The Committee threw this out with great firmness and a reading at the records of the Committee in the House of Commons is a salutary exercise. The Committee thought outrageous that conduct should be irrelevant, and pointed out that such move would only lead to widespread divorce and injustice. One other move by the "reformers as I shall now call them, was also defeated, although actually introduced by the government a statutory requirement for the courts to seek by financial orders, to maintain the financial position of the wife only, but not that of the husband. The 'reformers" had been defeated. But this defeat was short lived. The 1970 -73 LegislationThe 1970 Divorce Act preserved conduct, and the only significant chance in that respect was that cruelty as a ground for divorce was replaced by unreasonable behaviour, the difference being that the element of injury to health was no longer required. There was no suggestion in Parliament that the test of acceptable behaviour should change. Further legislation followed in the form of the Matrimonial Causes Act of 1973 that was, in many ways, a consolidating Act for the 1970 Act, and the associated legislation that had taken place immediately before and after it. These Acts had answered the pressures of the 'reformers by adding two additional grounds to the existing three grounds for divorce The existing three had been adultery, desertion, and cruelty (i.e. behaviour plus injury to health). The two additional grounds were: two years separation in the case of consent by both parties to divorce, or five years separation if one parties did not consent. The two years separation plus consent ground catered for the more sensitive elements of the educated classes who, in the case of genuine mutual consent, were repelled by divorce petitions containing allegations against the other party and wanted to do everything "by consent?. The five years separation ground catered for those caught in the position where they could never obtain a divorce for lack of grounds. It was quite apparent that Parliament contemplated three classes of divorce:
Parliament's Intentions FrustratedThe excesses of the reformers had apparently been frustrated by Parliament, but the Courts proceeded immediately to undermine Parliament's intentions in a devastating manner. First, they ruled that the test of unreasonable behaviour was subjective as opposed to objective, so that conduct which an ordinary reasonable person would find insufficiently unreasonable to justify divorce was nevertheless to be held sufficient if the petitioner claimed to find it so (3). This opened the gates to the ridiculously weak "behaviour" petitions of the past twenty years, and led to a widespread practice of anybody (particularly a man) who sought to defend a weak "behaviour" petition being subjected to hostile assault by judges. In addition, such litigants received extreme pressure from their own banisters and solicitors, who would tell them that there was no purpose in defending, since the marriage had broken down. Legal aid was usually refused although sometimes granted to women. The Courts themselves, in defiance of Parliament, had brought about the "divorce on demand" which most of the lawyers and academics favored. The Removal of ConductThe second and fatal step was for the Family Division in the case of Wachtel (4) to hold that conduct was usually irrelevant in the case of financial matters. This was only partially stalled by the Court of Appeal, which ruled that conduct was relevant if it was gross and obvious. Soon afterwards, the Court of Appeal, differently constituted, held in the case of Rogers (5) that the Wachtel decision was plainly wrong and contrary to the expressed intention of Parliament. This decision, although it appeared in the law reports, was virtually kept out of the legal press, and most lawyers are unaware of it. Wachtel was followed by the courts, and not Rogers, although each were of equal authority. This was a period in which the legal press tended to give great publicity to the views of those who supported the anti-conduct trends, and to ignore the views of those who opposed them. We now know from the recent memoirs of a Judge that this decision resulted from a private meeting of the Judges who decided this policy approach in secret, over twenty years ago. This revelation has received little publicity beyond an admiring comment in The Times, which seemed to fail to realize what it was saying. In practice it became rare for the courts to find anything 'gross and obvious? or on the fairly rare occasions when it did, to do anything about it. Judicial hostility to raising conduct, at least against wives, became the norm. Finally the Courts abandoned the age old rule that a deserting wife was not entitled to maintenance. The Courts were required under Section 25 of the Matrimonial Causes Act of 1973 to put the parties in the some position as prior to the divorce so far as possible having regard to their conduct", and in doing so to consider a number of factors including that of "need". However, despite Parliament having thrown out the reformers attempts to have "need" apply specifically to wives only, "need" became the only consideration that the Courts took seriously. 'Need was interpreted as meaning getting wife absolute security to the extent that this could be squeezed out of the husband. Whereas, the widow of a Falklands war hero was left to a meager pension, the adulterous wife was showered with sympathy and held to be entitled to the utmost security for the rest of her life. As shown in Wachtel, the orders of the court were made "without having regard to their conduct," In direct contravention of the Act. The Courts ignored all other statutorily required considerations that involved merit as distinct from need, and in so doing ignored all considerations of justice, "need being the only consideration that involves no "merit". A common approach was to give the wife (and her boyfriend) the house on the grounds that they "needed" it to bring up the husband's children. In contrast the husband without wife or children was then told that a bed-sitter met his needs. The "Weak" Behaviour PetitionThe net effect of these developments was to create a pattern in which spouses, mainly wives, brought weak behaviour petitions when they became bored with their husbands or found somebody else. Husbands were then pressured not to defend themselves and found they were stripped of their assets and children by hostile Courts applying a quasi-Marxist interpretation of 'need and a Court of Appeal determined to decide any question in favour of the wife if it possibly could, under the leadership of the same judge who had decided the Wachtel case before it went to appeal. The Ousting of Husbands from the HomeThe "reformers had thus succeeded in fooling Parliament into passing legislation and then using that legislation to achieve the very opposite of what Parliament had intended, without the public ever being aware until it hit them, and usually not even then. The situation was reinforced and worsened by the domestic violence legislation, coupled with an extremely wide interpretation of its provisions. The Courts made use of a claimed inherent jurisdiction to oust husbands at the slightest pretext, the commonest one being that the wife suffered distress husband to arrive at court to Find his own barrister pressing him to leave those lawyers, like myself, who came along and announced that the husband was not leaving, found themselves the subject of the most indignant and outraged pressure from courts and wives' lawyers alike. The Courts Held to Be Acting Without Lawful AuthoritySignificantly, in 1984, in the case of Richards (6), the House of Lords held that the Courts had wrongly assumed an inherent jurisdiction arid had been issuing ouster orders for many years without, in many cases, any lawful authority whatsoever. Ouster became much less frequent after that with considerable restrictions being placed on it by the Courts. The bulk of ouster cases I encountered for some years were ones where the pressure came not from the Court, but from the husband's own lawyers. The situation has gradually resumed to the pie-Richards position and the l990 Act, with its absence of references to justice, is highly likely to worsen the position, as most judges are eager to restore the Richards position of ouster on wife's demand, Indeed, the recent case of the Portsmouth headmaster, ousted from his home, is likely to be the precursor of many more. Public BewildermentAll of these developments took place without being realized or understood outside the ranks of those involved in divorce, and it was widely assumed that divorce was as it had been but merely easier to obtain. Those involved in divorce did not really realize what had hit them until it did. Many could not believe what had happened to them, let alone understand it. Bizarre Processes of ReasoningIn order to justify their approach, bizarre processes of reasoning were adopted by the Court, which an eminent student of those developments, Dr John Campion, has, as part of the wider picture, summarized in the phrase 'the invented world. By this he meant a world in which the weird views of the "family? lawyers and social workers were regarded as the only normal approach to human relations, so that anyone who objected to being stripped of their home, property and children, in a way they would not be if they had committed a grave crime, was assumed to be mad or bad. It was a world in which it was normal, right and proper that men who had committed no crime could be stripped of everything, in which the Courts refused to enforce their own orders against wives if they chose not to obey them, in which it was "in the best interest of the family" for children to be deprived of their fathers, and to see their fathers stripped and humiliated, and in which husbands/fathers were not only expected to work to support or at least house their former spouses living with their Children and a new lover, but actually regarded as mad or bad if they raised any objection. There was no hesitation about throwing them into prison if they did not comply with the Court's order. It was a world in which several very senior judges proclaimed that there was no significance in the "blood tie" between father and child, but only in that between mother and child. Bogus Principles of Social BehaviourA number of quite extraordinary principles of social behaviour were put forward by the cowls to justify their reasoning, in response to the sense of moral outrage that began to develop among the public. A bizarre view was put forward by the judges that the husband was the "cock out feathering his nest while the wife was sitting at home on the nest,? and that the husband could not have feathered his nest were the wife not sitting on it. This has been uncritically repeated throughout the legal profession and the law reports, although even momentary examination reveals it to be manifestly) absurd. The man who has regularly worked would, in most cases, have acquired his property, whether married or not. A possible exception is in the case of the man pushed on by an ambitious wife, but then for every man pushed on by an ambitious wife there is likely to be one held back by an unambitious one. Indeed, it should further be pointed out that the wives who have acquired houses and property would, had they not married, have been unlikely to acquire such property, or even own any property, because of the lower pay of women. Injustice Better than ConflictIt was argued that, by stripping husbands of their property without investigating the causes of the marital breakdown, Courts were sparing the parties the distress of conflict and the bitterness which would have resulted from that conflict. If the victim protested, or expressed bitterness at being "stripped,? or pointed out that it was being "stripped" rather than conflict to which he objected, judges regarded and treated him as mad or bad. The lawyers would patronizingly boast that they had spared the husband the distress of a Court battle by stripping him at the courtroom door. Willful Confusion of ReasoningIt was said that relationships broke down for complex reasons, and that the Courts could not investigate these reasons in depth. Often true, but irrelevant. What should matter, and to the ordinary member of the public did matter, was who broke up the marriage and that they had objectively substantial reasons, not what the feelings were in a relationship. If this were not so then in the eyes of the Courts, marriage as an institution, is of less importance than other relationships, including cohabitation. It is the contract of marriage, and its breach, upon which Parliament intended the courts to adjudicate, not a 'relationship'. The Underlying Prejudice Against MenThe reality was that the Courts did not wish to investigate the facts, mainly because investigation might reveal matters adverse to the wife, and partly from an Olympian distaste for conflict. The same factors were involved in the reluctance of the Courts to hear the views of children as to where they wished to reside. They might hear what they did not want to hear, children saying that they wished to live with their father. Again., it was said that it was best for the children to see a difficult marriage broken up, and the wife in secure accommodation, preferably with her new "man" to form a new "family". Why the children should benefit from losing a father, seeing him impoverished, probably losing contact with him, and a decline in their living standards, was not explained. It was only explicable on the ground that the judicially and the bulk of the legal and social work professions saw fathers as figures of no significance. Indeed there many judges, and many more lawyers, quite prepared to say that they were not in the least concerned with what happened to the husband/father, and often that the 'blood tie" between father and child was of no significance. The Courts wholeheartedly embraced this view, ruling that, when the parents divorced, there is a new family consisting of the wife, children and the new man. The old family, i.e., the husband, had ceased to exist, except for maintenance, where the courts did not hesitate to say that the husband "ought to be supporting his family", even if not allowed to see the same family of which the same courts no longer regarded him as part. New Principles to Justify PrejudiceThe Courts justified their prejudice by developing principles ad hoc, whenever they were necessary to place the wife in a favorable position. If the property was in joint names it was said that the wife was entitled to her half, regardless of the merits and issues, because her name was on the deeds, in accordance with the law relating to land, whereas the husband was stripped of his half share, despite his name being on the deeds, on the grounds of the wife's "needs". The "principle" which caused the greatest outrage was that adultery by? wives could not be criticized because "it took three to commit adultery" - yet another absurd generality without foundation which, significantly, applied only in favour of wives. I remember being in the Court of Appeal, in a case in which a most senior judge, then a household name, who had repeatedly said that wives' adultery was of no consequence, remarked "Your client [a man] has committed adultery". My clients woman Counsel replied "Conduct is not in issue", whereupon the Judge replied "I am not saying conduct is in issue. I merely remarked that your client has committed adultery". My client then found himself going downhill, castigated for adultery, with remarkable speed! Public outrage over these attitudes became so widespread that a Lord Chancellor, in the face of this public outrage over the exclusion of conduct, started to talk about punishing adulterous husbands, while making no apparent mention of punishing adulterous wives at all. New Judges - Increased PrejudiceThese views persisted and intensified and the practices which resulted became the subject of a rather sick joke in the 1970's; men committed more crime than women because the man who wanted £50,000 had to hold up a bank, whereas the woman had only to take a man with £50,000 to the Register Office. Not only did those views persist but the new breed of liberal judges upheld them much more vigorously. The occasional maverick, brought up in a non 'family law? background or in an older tradition of justice, is dying out. We now have judges who have carried on most of their career in the post-1970 environment. They know nothing different; their attitudes generally are such that it would not occur to them to challenge the injustices which they daily administer, let alone to see them as injustices and they are further inhibited both by the general tendency of English lawyers to conform and by the national tendency not to think too hard. An illustration of the attitudes of the ear, from which most judges are drawn, was contained in a recent article in a law journal, where comment was made that it was useful that solicitors could appear in the new Patent County Court as barristers appeared to have "problems" about cross-examining female witnesses. Judges Provide Incentive to DivorceApplied to everyday situations, all this meant that the law as Parliament intended it pre-1974 had gone. Prior to then, a wife who deserted her husband was disentitled to maintenance at common law, and could be divorced without maintenance after three years, and an adulterous or cruel wife was divorced usually without maintenance in none of these cases did she have a capital claim against any property not hers in law. Until only a few years before there had been no maintenance for the child if with a mother in a state of desertion. This was a powerful deterrent to desertion. Those who planned to ditch their husband without good cause had to make a value judgment. If they went off with the boyfriend they received no maintenance and no capital. In the new situation the judges said "if you want to ditch your husband and take a boyfriend we will support you and see that you do not lose out. You can have your husband's money and your boyfriend." They then proceeded to express surprise and even puzzlement at the huge rise in the divorce rates, to become the highest in Europe, without in the faintest degree seeing that they were the cause. Those that did understand it seemed not concerned. If easy divorce without consequences was what women wanted, women should have it. The Corrupting Effect of Injustice on the LawyersThe development of judicial attitudes was accompanied by a corresponding corrupting effect on the legal profession. Judges who cease to do justice according to law, themselves come to be indifferent to legal principles, and ordinary principles of justice. Lawyers become similarly infected. The basis of all professional relationships is a duty to the client, the duty in the case of a lawyer being to do his best on behalf of a client, impartially to advise the client, and then to put the clients case and wishes to the best of his ability, subject to the general limits of professional conduct and keeping within the law. It soon became obvious that many divorce lawyers (who began hypocritically to call themselves 'family lawyers") were not acting in the interests of male clients. Attitudes to male clients often ranged front the openly hostile through the plausible sell-out approach to hopeless defeatism. The quality of advice was frequently poor, helpful case law frequently ignored, and serious attempts to resist or answer claims were not frequently made. A general attitude developed of find out what she'll take and give it to her. So accustomed were wives lawyers to meeting no resistance that I found that, if resisted, they either treated the resistance as some type of joke or pretense to impress the client, or exploded with outrageous indignation. One significant consequence of this was that fewer and fewer really able lawyers did divorce work. The quality of divorce lawyers markedly deteriorated. The Effect on the ClientsThe hostility of the judges, reinforced by the unwillingness of lawyers to stand up to judges, and the prejudices and failings of the lawyers led w clients frequently not being advised of their rights or their case not acme pressed in the Courts. What also happened was that Courts often made orders quite beyond their powers if they felt they could get away with it. That is to say, if they felt the lawyers in front of them would do little about it, as was usually the case. Such attitudes spread throughout the profession to such an extent that some firms in London boasted that "We only act for wives". Solicitors at Law Society conferences called for lawyers to cease to be obliged to act in their clients' interest but, in a new and ominous phrase "to act in the interests of the family". This was a code word for acting in the interests of the wife, and has become general usage among family lawyers. It became common practice, particularly among barristers, for them to get together and 'settle" the case usually to the husband's disadvantage. The process of indoctrination began at an early stage. Exam papers with a dozen questions on Family Law contained as many as eleven saying "advise the wife". The tendency of the Englishman not to think had enabled a small and highly motivated minority in brainwash a profession into unthinking acceptance of its views. The So-Called "Interests of the Family".The absurdity of the expression "acting in the interests of the family" is shown when one actually examines it. The only person in Court who is there to act in the interests of the family is the Judge. His function is to do justice between the parties. This is something which they now proudly boast of not doing, saying their function is to protect the wife and children, not to do Justice. The "family" clearly does not include the father. The function of the lawyers is to put forward the interests of their women not the interests of the so-called 'family'. The other principal member of which in any event will have another lawyer. Indeed, the matter goes beyond that, since if the lawyers "act in the interests of the family" as they think they are doing, all they are doing is acting in what they think are in the interests of the family. They may be wrong, and thus do damage to the family. The ultimate line became "putting the child first" which really meant putting the mother first, and this has become the all-embracing excuse for all manner of injustice. Indeed, putting the child first appears to have been the basis of the recently reported case of in re: B (Times Law Report, 9th July,1997) in which a father was barred from seeing his child after the step father threatened to leave the mother if contact were granted. This seems a questionable view of the child's interests, since continued contact with its father would seem of more importance than any short term distress of the mother caused by departure of the stepfather; indeed this law appears to regard fatherhood as of no great significance. Public OutrageIncreasing public outrage led, by 1979, to the formation of organizations such as Campaign for Justice in Divorce. Vigorous bombardment of the Press and Parliament began to lead to awareness of something being wrong, even though the precise nature of it was not understood. The casualties of the matrimonial battlefield appeared in social gatherings like disabled men after the First World War. In l982 three hundred and fifteen MPs signed a motion to investigate the position. The pressure for change became so intense that the legal establishment decided that something had to be done. What happened though was that then effectively seized control of the legislation and through skillful selection of the Committee, and vigorous control of the voting in Parliament, ensured that Parliament never really understood what was being complained about and, what went through was relatively innocuous. The establishment skillfully conned Parliament and was disastrously helped by many of the leaders of the insert's organizations, who went along with what was happening apparently jollied along by the civil servants involved. The Failure of the First Men's Organizations: the Conduct IssueIn my view it was an unfortunate feature of those attempting to end the abuses that they failed to accept that, in order to get public opinion going with them, they would have to accept that middle aged and elderly ladies could not be seen to be left for young women and not provided for. This was a major cause of the failure of the husbands groups to achieve wider support. Because the husbands groups failed to push the "conduct? issue, which was the cause of most outrage among ordinary people, and campaigned instead for the total ending of all maintenance, they alienated a larger body of public opinion which would not support this. I cannot over-emphasize that conduct is the key to everything because conduct is the issue that outrages ordinary people, and it is the abolition of conduct, together with the various invented "principles of social behaviour?, which has made divorce so easy and tempting to wives, in essence, wives have been told by the Courts that it is right and proper to say, "I don't want him, but I want his money". What Is Conduct?What do I mean by conduct? The Courts will tell you that they have not the time to go into nit-picking issues of conduct and that, in any case usually one person is as bad as another. The lack of time is a quite extraordinary argument; because the implication is that the Courts are far too busy doing injustice on a production line scale to have the time to do justice on an individual scale. But, importantly, conduct does involve nit-picking issues. To most people, conduct means adultery, extreme violence and desertion and similar matters. Neither men nor women see why the adulterous or deserting wife receives maintenance or is allowed to strip the husband of his assets. More subtly, though, the real issue relating to conduct is who brought an end to the marriage itself and for what reason? Thus, if a wife breaks up a marriage for no good reason, there is no reason why she should receive maintenance other than her capital contribution to the marriage. It is quite wrong that a wife should be free to say she does not like her husband yet still wishes to have his money. The current approach to conduct is to exclude it in nearly all cases, unless it is the man's conduct. One other approach has been to limit conduct to the consequences of financial misconduct e.g., dissipation of assets, and then to top up the award so as to cancel the effect of that conduct. This, at least on paper, has been limited by the 1996 Act provisions which make clear that conduct is not limited to financial misconduct, in practice the courts are likely to ignore Parliament's intentions, and lawyers will continue to reject conduct as an issue. The First Men's Organizations CollapseThe failure of the men's organizations to achieve anything in the 1984 legislation, reinforced by their leader's support of this useless legislation, led to a decline in their membership for some years. Exemplifying the tendency of men's organizations the world over to split and even to litigate between themselves. The RevivalBy the 1990's the men's organizations were beginning to revive under new leadership. The new organizations, of which the United Kingdom Men's Movement was the most significant, had a better grasp of what had happened in the past, and had more defined policies on how to deal with the problem. They understood the conduct issue more clearly. I had written the original version of this paper in 1988 to create an understanding, precisely because I had watched the men's organizations for many of whom I had acted, floundering in the dark, railing against the system without understanding its causes. I concluded that I needed to update it to meet the challenge of the 1990's. The Prospect of ChangeSo powerful however, had become the weight of the establishment thinking in this field, combined with a lack of public and Parliamentary understanding of its cause - the lawyers - that the prospect of change in the foreseeable future seemed low. Change began to come from unexpected sourcesThe first was the increasing concern generally, and in the academic field about the breakdown of the family in this country. Second was the Government's desire to save money on Legal Aid. Social breakdown led to the increasing publication of articles on the breakdown of the family and the injustices in the Courts by outstanding writers such as Martin Mears in the Sunday Telegraph, and other writers in the Daily Mail. Only Martin Mears, however, grasped the importance of the conduct issue and that the attitude of the Courts and lawyers as the cause of the breakdown of the family. The others tended to see the cause as moral decline and the remedy as education in marriage and the seeking of reconciliation in mediation. They failed to realize that if you tell people that they can dump their spouses, and still take their money, all the social workers in the world will not hold them back. It might have taken many more years for these truths to sink in, and the pressure to do something to develop, but for the Government's desire to save money. Here two factors came together, the Government wanted to save money, and the family lawyers, and apparently the lawyers who advised the Government, wanted to realize their dream - divorce on demand. This led to the 1996 Family Law Act put forward by the Lord Chancellor. The Government ProposalThe Lord Chancellor's proposals, in effect, were for divorce on demand. mediators to solve the financial issues and save Legal Aid money, and a widened power of ouster which was to extend to cohabitees, thus reducing marriage to mere cohabitation. Upon all the evidence, much of the Cabinet did understand what was happening and certainly did not want it, but a small and powerful element did, and forced it through the Cabinet. Parliament's ReactionWhen Parliament, concerned by social breakdown, considered the legislation, it, as a result of an outstanding campaign by pro family campaigners, indicated that it was beginning to understand a little of what had been happening. All honors are due to the Daily Mail in particular for the way it mobilized opposition so that a strong opposition developed and the situation reached the point where the legislation was threatened with failure. A desperate Government made many concessions which for the first lime may drive in beginnings of a wedge into the present system. Despite us now having divorce on demand, conduct is supposed to be taken into account to a greater degree than in financial and child issues. It is my belief that the Courts will continue to defy Parliament's intention. I remember hearing a barrister, now a High Court Judge, claim at a lecture on the 1984 Act that they would ignore it. Nevertheless the continued social breakdown and the further flagrant defiance by the Courts, of which a wider public understanding is developing, will continue to arouse further Parliamentary and media concern. The Child Support ActAnother factor which had contributed to social breakdown was the Child Support Act, sold to Parliament as a means of saving the Exchequer from the cost of so-called "dead-beat dads" who were not supporting their families, in particular, the unmarried fathers. It was later admitted by the Child Support Agency chief that the real target, however, was the middle class married father with means. In other words, once again there was a hidden agenda. The whole concept was fundamentally flawed from the beginning. The burden of the Child Support Agency exactions was so heavy that, for 95% of fathers, it would mean working at subsistence level. If it be subsistence level they might as well as give up work anyway. Indeed, if they did carry on working, they would not be left with sufficient means themselves to found a family. Thus, a further under-class would be created of impoverished men who could not afford to support a family, and of women who, in consequence, could not find a husband with whom to form a family. The obviousness of this seemed entirely to elude the Government in so far as it was concerned about it all. In reality, despite the expenditure of nearly two billion pounds, the new Agency has recovered far less than the DSS did under the old liable relative system, and the position is worsening. Two thirds of all persons who receiving a Child Support Agency Assessment give up their employment within six months. Every form of falsification of figures disguises the non-recovery and arrears continue to rocket by hundreds of millions every year. The cost in Social Security for the men who have given up work is phenomenal. By depriving men of the family, the incentive to work, the system was accelerating the move to the matriarchal society that now dominates the American inner cities and many of our industrial areas - a world of unemployed single fathers and of fatherless children running wild. Feminists boast that Stone Age societies were matrilineal - that is why they remained primitive. The Pension IssueOne other development in recent years has been the successive Acts of Parliament, first providing for maintenance out of pension provision, and then (1996 Act) providing for the pension to be treated as an asset and divided, so that a wife who has remarried will many years later be collecting a chunk of her ex husband's pension. There is a false logic in the whole pension issue. Pensions are being treated as a capital asset when they are not. A pension is a contingent income dependent on many factors. Splitting it could lead to the absurd and unjust situation where; on retirement, the ex husband has a proportion of his pension and his ex wife, by now married to somebody else, has the rest of his pension as well as her own and her "new" husband's. Previously, the principle had been that pensions are really only relevant if maintenance liability continued beyond retirement age. Once again the so called "reformers" had pushed through Parliament a provision the implications of which were not understood by MP's. Another encouragement to easy divorce had been created. The SolutionI wrote in 1988, and still hold, that the logical consequence of any situation which sought justice was that there should be three classes of divorce. The first would be where the parties agree both to have a divorce and on financial and related matters. The second would be where one party that wanted a divorce for good and substantial reason, such as grave misconduct by the other party, i.e., adultery, desertion, or serious (in the pre-1970 sense) behaviour, objectively assessed as justifying termination of the marriage. The third, and perhaps the great majority of cases, would be where one-party-only wants a divorce, and could not show such misconduct by the other party. In the first case, no dispute would arise. In the second, the payment of maintenance to the innocent party would be appropriate in some cases, particularly where the petitioner was a middle aged or elderly lady. In the third case the party wanting the divorce should effectively be put to their election. Either they continue with the marriage and its obligations, or repudiate the marriage and its obligations and thereby forego the right to receive any financial benefit from the marriage which they had unjustifiably broken up. "I do not want him, but I want his money is a morally unacceptable position (even prostitutes provide services for their reward), and one which has led to Europe's highest divorce rate. I have no doubt that if this approach were adopted there would be a radical reduction in the number of divorces. The "principle" invented by the Courts, that both parties are at fault in the termination of a marriage, results from a mixture of blind prejudice and deliberate intellectual muddle, and has led to Courts effectively determine marriage as a state in which the wife should have no obligations of any kind yet should have financial rights far greater than those of a widow, regardless of her terminating the marriage for no good reason. The justifiability of the termination of the marriage should be the key issue. There is no reason why someone should expect to break a contract arid still benefit from it. The FutureIt is clear from the content of the debates in Parliament that a substantial number of MP's are beginning to understand what has happened. The change of Government and the influx into Parliament of a mass of feminists and pro-feminists strongly suggest, however, that only slow progress will be made in this Parliament. However, the first floodgate likely to collapse is the Child Support Agency. Its ever increasing cost, and decreasing recovery rate, plus the reported billion plus bill to replace its computers, will make it increasingly insupportable. It is also likely that litigation over pensions will greatly increase the volume and bitterness of litigants in the courts, and bring home the scale of the disaster to more members of the public. Getting the Truth to MPsThe only way forward is to get home to MPs the message in this article which clearly sets out the true case of the divorce disaster: the way the Courts have overridden the intentions of Parliament and the way in which the divorce lobby have conned Parliament and the media. Laws to Override Judicial PrejudiceAn essential aspect of any ultimate reform must be to have laws drafted in sufficient detail that the Courts, in their decisions, are unable to fly in the face of the intentions of Parliament. Courts who are prepared to order a man to maintain a wife who is living with somebody else and see nothing wrong with this (7), or to maintain an ex-wife from a short, childless marriage who cannot work because she has become pregnant by another man subsequent to a divorce (8), cannot be entrusted with wide discretions. Financial Orders: Fundamental Changes of PrincipleThere is considerable scope for the law on financial entitlement to be far more clearly defined. In particular, it is quite wrong for the Courts to act as if there were an actual right to maintenance. There is no right as such, either in common law or statute, only a right to apply. This is as it should be. Maintenance should then only be awarded to mothers while with young children and to middle aged and elderly women, and then, only if they have not broken up the marriage without good reason. Equally, as a late 1980's Law Society paper pointed out (9) there is no justification for matrimonial courts, when dividing assets, to take away property inherited or received from relatives or friends or owned before the marriage. This outrageous aspect of present practice, unique to the English Courts, amounts to giving the Family Division a general power of appointment over one's property, and is effectively taking money from the divorced person's relatives. Further Legislation Called ForI do not believe that it will be possible for those who seek reform to achieve that reform through the gradual development of cases in the Courts (which will be barred by the defiance of the lawyers). Further legislation is called for by stripping the courts of their wide discretionary powers, and that legislation will not be effective unless Members of Parliament actually under stand the real issues and the part the Courts have played in the social disintegration of our society. References1 Taine, Hippolyte: The French Revolution. 2 Bamett, C.: The Decline of British Power 3 i.e., the subjective test 4 Wachtel v Wachtel, 1973 5 Rogers v Rogers, 1 973 6 Richards v Richards, 1984 7 Atkinson v Atkinson, 1987 8 Wagner v Wagner, 1978 9 Green, D. Maintenance & Capital Provision on Divorce. |