Divorce is a bloody business. The couple are sucked into a gigantic legal machine that processes their assets (and them and their children), and spits them out raw and poorer, with mostly the man carrying the heaviest financial burden (as well as often deprived of any meaningful input into his children’s upbringing from that point on), and it is high time we kicked the judges and the lawyers out of the entire process.
Today, in the United Kingdom, almost half (45%) of marriages end in divorce and around half of those divorces happen before the 10th anniversary.1Statistical Bulletin ONS: Divorces in England and Wales. 2011 – 2011 is the latest year for which we currently have data. It is now an almost evens chance, little better than a toss of a coin, that a marriage will end in divorce: unlike only a few decades ago, a time before feminism had its marriage-destroying way in our lives.
One consequence of this appalling situation is that mature and responsible people are seeking to circumvent the courts’ interference in their lives by making prenuptial agreements that purport to set out the manner and means of the distribution of their assets upon divorce.
The problem is, however, in Britain prenups are pups in the hands of the rank and file family judges of England and Wales, who do not regard these agreements as binding. They are not worth the paper they are written on. Instead the judges continue to reserve to themselves the ultimate right to set such agreements aside and to substitute their own interpretation of the law.
Martin Mears was the first president of the Law Society of the United Kingdom to be elected by the whole solicitors’ profession. He is a practising solicitor himself, and a well-known legal journalist. In his book Institutional Injustice: The Family Courts at Work,2Mears M. (2005) Institutional Injustice: The Family Courts at Work. Civitas: Institute for the Study of Civil Society he says unequivocally,
‘In the realm of family law, in particular, we need to be concerned about the quality of judicial decision-making. This has acquired a dismal reputation over the years.’
Using case studies of real decisions from official court reports, Mears cites cases that show the degree to which the family justice system, as administered by the family courts of the United Kingdom, is biased against men.
It is true that the Matrimonial Causes Act 1973 lays down guidance to the court (which means the judges) in divorce cases, however, as Mears observes, in practice the judiciary flies in the face of this guidance. He says judges have taken the guidance of the Act to mean, ‘almost unlimited discretion’ in making orders, and he calls it ‘The Law According to Denning’.
He observes that the overriding characteristic of family law under these judges has an institutional bias in favour of wives, especially mothers, and against husbands – especially those who are fathers. This, he says, derives originally from an old-fashioned paternalistic approach, traditionally taken by more senior judges such as Lord Denning, in whose view ‘women were weak, put-upon creatures ever in need of the active protection of chivalrous courts.’
Furthermore, Mears says, family judges ‘are the products of the current orthodoxies. They too have… undergone their equality and diversity indoctrination. They, no less than any of us, carry their own baggage of cultural conditioning, prejudices and preconceptions. Moreover, they are far from leaving this baggage outside the courtroom, when they sit in judgement…’
‘This is the background’, he says, ‘which has produced the increasing flow of ‘right-on judges’ who although part of the establishment ‘will conform to the prevailing culture, whatever this happens to be’.
Chillingly, Mears points out that ‘In the exercise of his discretion, a District Judge can deprive a party of his/her home, or half his/her pension. He can order the transfer of assets representing a lifetime’s work. He can impose a crippling and continuing maintenance obligation. He can, in short, impose sanctions (albeit not described as such) considerably more burdensome than a sentence of a criminal court.’
He goes on:
‘Who are the King Solomons vested with this draconian jurisdiction? The answer is that the typical District Judge is a very average solicitor who has achieved very moderate success in private practice. For him his appointment will usually represent a significant increment both in salary and status.’
So, given this sorry state of affairs: given that we have low-grade judges who judge, not with wisdom, but with political correctness; and given prenuptial agreements are not the answer, what needs to be done?
I believe the answer must lie in removing all discretion from the judges in matters of divorce. Their subjective assessments are too open to influence, bias and a host of other things, that make the system an iniquitous mess. Our adversarial system has no place in this most difficult of legal areas.
In my view, the only way forward is to introduce codification of the law on divorce. After all, divorce is pretty much a rubber stamp exercise these days. We now need new laws enacted by Parliament that impose a process that is not only more just and fair, but also transparently so.
We need a simpler, clearer, fairer, more practical means of asset distribution in the event of divorce, rather than the biased process based on subjective judicial interpretations of ‘need’ and ‘fairness’ (which invariably favours the woman) rather than who is named on the property deeds, who paid for the assets, who has a rightful call on those assets etc.(and such an approach would also be a major step in the right direction when it comes to apportionment of child maintenance – and healthier outcomes for achieving meaningful ongoing care for children, by both parents).
Rather than follow the route of legalising prenups, I believe we need a set formula that presumes the need for an apportionment of the assets of the marriage, first according to what each brought into the marriage in the first place, and then to the contribution each partner has made to the couple’s joint assets during the marriage. This would be measured against a legal statement of assets drawn up at the beginning of the marriage in much the same way as prenups already do.
In other words, each partner would get back what he or she brought to the marriage, plus any appreciation in value (in property, for example) experienced during the marriage, and have his or her contribution to the couple’s joint wealth also be recognised in proportion.
At the very least, this would have the immediate advantage of eliminating the massive amount of legal wrangling, with mounting solicitor’s fees, anger and recrimination between the parties, that characterises divorce today.
This arrangement would be at least as good as a prenup and it would have the added advantage that it would remove the inherent idea in people’s minds of an implied lack of commitment to marriage that surrounds prenups. (Who knows, it could also make marriage a better proposition than living together.)
Of course, this would mean the repeal of the Married Women’s Property Act 1882 (as amended by subsequent legislation), which allows women to own and control their own property outside of their spouse’s control anyway. In an age of equality, this law is archaic and it is hard to imagine how women could object to the removal of this now anachronistic protection.
As to provision for children’s welfare, child maintenance should be set at a basic state-decided, state-enforced minimum to reflect the minimum amount needed for a child to be housed, fed, clothed and educated. Each parent would be deemed to be responsible for contributing an equal amount to this and either parent who failed to pay would be held to be accountable at law for child neglect. All this would be administered by the Child Support Agency in a neat inversion of the CSA’s current role.
After that, each parent would be expected to agree to provide, free of legal intervention, what further amount he or she wished to contribute out of his or her income to their children’s wellbeing and happiness – just as a normal parent would in an intact family. This would ensure that the child’s standard of living would be the primary consideration, not the wife’s (as far as this is possible in the context of a broken home, of course.)
These provisions would place enormous moral pressure on both parents to do the right thing by their children, irrespective of their differences, feelings, resentments etc. and it would force them to find an accommodation with each other in their children’s interests, not their own.
Without at least a basic arrangement being agreed upon by the parents, that included a memorandum of understanding of the further support of their children – all recorded in the mediation document – then no final divorce would be granted.
Such a voluntary arrangement by parents for the additional financial support for their children, could be facilitated through state-funded mediation. This would be massively cheaper to the state than the current courts’ support services, which are in any case seriously ideologically compromised by feminism.
There are other measures that society could take to deal with the situation.
Any state benefits intended for the welfare of the child should be deemed to be the property of the child, albeit administered by the custodial parent. Should custody change, the benefit would follow the child to the new custodial parent.
In tandem with this, there could be legal provision made such that if a parent who had sole custody of children, wilfully refused either overtly or constructively to allow the other parent access to the children, that parent would be deemed to be failing to act in the best interests of those children. (Custody, after all, is a legal obligation on the parent to insure the child’s welfare, it is not a certificate of ownership, as many parents, particularly mother’s who deny fathers access to their children, think it is.)
It would then automatically follow that the offending custodial parent would be deemed to be an unfit parent, and the state would automatically look to the other parent (or the grandparents) to stand in and take over custody of the child (with the automatic transfer of any state benefits that would follow the child, thus ensuring a contribution to the cost of full-time parenting.)
I end these musings by returning to Martin Mears. He observes that there are definite misgivings in the senior judiciary about the current situation in the Family Courts. He quotes Mr Justice Munby, a well-known senior family judge, who said this in a published judgement of a case that came before him in April 2004:
‘On 11 November 2003 a wholly deserving father left my court in tears having been driven to abandon his battle for contact with his seven-year-old daughter… Those who are critical of our family justice system may well see this case as exemplifying everything that is wrong with the system… There is much wrong with our system and the time has come for us to recognise that fact and to face up to it honestly. If we do not we risk forfeiting public confidence.’
There truly is much wrong with our current system. And there is much that needs to be put right.
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|1.||↩||Statistical Bulletin ONS: Divorces in England and Wales. 2011 – 2011 is the latest year for which we currently have data.|
|2.||↩||Mears M. (2005) Institutional Injustice: The Family Courts at Work. Civitas: Institute for the Study of Civil Society|