Justice and Support for Marriages in Difficulty
Donation protected
JustDivorce? - In Pursuit of Support and Justice for up to 70,000 Marriages per year in Difficulty
Introduction: This is my request for your financial assistance and support in my twin applications at the High Court for justice in the family law system.
My first High Court case seeks a declaration that aspects of the divorce and financial (spousal) settlement laws breach several of our collective Human Rights and also undermine a number of our Common Law rights. (My action does not touch on child maintenance. That is a separate issue in law and in fact).
**The first hearing is scheduled for 16th December 2020
My second application will seek to ensure that The Lord Chancellor, The Lord Chief Justice and the Ministry for Justice perform their constitutional duty to ensure that the Family Law Courts abide by laws passed by parliament.
About JustDivorce.uk
JustDivorce.uk is committed to raising public awareness and advancing social debate about the issues generated by and resulting from divorce and financial settlement in England and Wales.
JustDivorce.uk campaigns for divorce laws that give couples time, space and support to reconcile their differences instead of being processed by a machine.
JustDivorce.uk advocates for the formation of a coalition of individuals, professionals and advocacy groups with the common aim of providing support and justice for Up To 70,000 Marriages Per Year in Difficulty.
JustDivorce.uk is committed to raising awareness of Mental Health issues arising from divorce and financial settlement issues.
JustDivorce.uk is committed to raising awareness of Parental Alienation issues arising from divorce and financial settlement.
JustDivorce.uk exists to challenge and change our destructive divorce and financial settlement system that frequently imposes unwanted divorces on couples.
JustDivorce.uk exists to challenge and change our divorce and financial settlement processes that are so financially costly and are very often devastating to family wealth and assets.
JustDivorce.uk seeks to put an end to unfair and open ended financial settlements.
JustDivorce.uk is committed to raising awareness about malpractice in the family courts and in the legal system generally.
JustDivorce.uk is committed to improving both training and procedural practise in the judiciary and in the family courts in England and Wales.
JustDivorce.uk encourages everyone, women and men from all walks of life, to be part of the solution, to engage and to take action.
JustDivorce.uk seeks support and Justice for existing Sufferers and Victims.
JustDivorce.uk seeks to protect our collective right to privacy in our financial affairs.
Marriage is a partnership. Unilateral Divorce is not appropriate.
How You Can Help
Financial and moral support please. Active support in the form of emails to your local MP and social media posts will help to raise the profile of the need and desire for change.
If we are successful in these two applications we will force government and parliament to address these issues that they have ignored and now swept under the carpet. A victory will start the process of redressing the balance in divorce and financial settlement. Future changes as proposed on my website can and should provide a more stable platform for marriage. Up to 70,000 couples a year, every year, could be grateful for your support.
Further and more detailed descriptions of the issues and the challenges can be found at my website https://justdivorce.uk/
Summary
All public officials from the Prime Minister down are obliged to act within the law. They must act within the boundaries of the powers lent to them by us, the public, whilst they are public officers.
Although it might sound obvious public officials have a duty to execute the tasks and responsibilities of the job description they have undertaken for the social benefit. To fail or to refuse to fulfil the job description is a breach of public trust, and therefore Misconduct In Public Office.
All judges are public officers. Their job description starts with the Judicial Oath of office.
Judicial Oath
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
The family procedure rules are a single set of rules governing the practice and procedure in family proceedings in the high court, county courts and magistrates' courts. Section 1 is the The Overriding Objective.
" (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(c) ensuring that the parties are on an equal footing;"
Despite the Judicial Oath, the Overriding Objective and Article 6 of the Human Rights Act 1998, it is well documented that the Family Court judges start from a fixed view that the person making an application for divorce is to be believed.
Article 6 covers the right to a fair trial which includes the right to a hearing before an impartial tribunal (court), the right to present your case with all its associated evidence, and the right for all submissions from both sides to be properly considered.
The following instruction to the court is embedded in the Matrimonial Causes Act 1973 (MCA 1973).
"(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent."
In contrast the following statements were made in the Law Society report “A Better Way Out”, published in 1979
"19. …..there is now a marked divergence between the spirit (and indeed the letter) of the law and the way it is in practice applied."
"20. ….. The Court of Appeal has consistently held that the courts must observe the law strictly. "
"24. The way to resolve this conflict between practice and theory is, in our view, to abandon the pretence that the courts have the resources, or indeed the inclination, to investigate subjective factors in any more a than few exceptional cases and adopt an objective test to be applied in deciding whether a marriage has broken down."
[The Law Society are the body that govern and regulate the legal profession in England and Wales]
Gwynn Davis and Mervyn Murch made the following observations in their 1988 book Grounds for Divorce by Published by Clarendon Press – Oxford
"The interesting thing about these explanations is that they are presented in the context of an argument that defended divorce is no longer a problem, whereas the explanations themselves reflect judicial policy, procedural rationalization, and the denial of funds—none of which need necessarily be welcomed by the parties to divorce proceedings. Indeed, one might present this same information very differently, as indicating an unwillingness or inability to operate the law as it stands. "
"The evidence of our research is very clear: opposition to the award of a decree (or to the contents of the divorce petition) still strongly persists. It is just that this resistance is 'dealt with' at some preliminary stage."
Lord Chancellor’s statement to the House of Lords. (Lord Mackay of Clashfern) - Published in Hansard, 30 November 1995, Volume 567
"The court's judgment proceeds on the basis that the marriage has broken down irretrievably…… The law makes no attempt to investigate what really made the marriage break down. "
Those statements, made in parliament, are a clear acknowledgement that the judges of the family courts are flouting the law and consequently the will of parliament and the will of the people.
The “VICTIM” Must Be Believed.
Implementing a policy that the “Victim” must be believed is a clear breach of every persons right to a fair hearing and to have heard their side of any story that finds its way into a courtroom. (Article 6).
Successive lord Chancellors have failed to address the issue of the Family Courts not implementing the law of the land, but instead they (the Family Courts) automatically believe the applicant (VICTIM). Having a starting point of believing one side to a dispute defies the principal of The Rule of Law. The very principal that forms the foundation of a democratic society. It also tramples all over Article 6, the right to a fair trial.
As recently as 2018, Professor Liz Trinder of Exeter University confirmed that the Family courts were still engaging in the same practices:-
No Contest: Defended Divorce in England & Wales
Conclusion
"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." [Illusion]
"….the courts have evolved a deeply pragmatic approach to defended and undefended cases that has enabled what amounts to unilateral divorce on demand, …... 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. ….. However, that gulf between law and practice does little to uphold the rule of law."
This is not justice and as Professor Trinder says, it is not compliant with the Rule of Law.
Upholding the rule of law is the Lord Chancellor’s constitutional responsibility. It is Misconduct In Public Office for the office holder not to uphold the Rule of Law.
The law must do what it says on the tin. That includes The Lord Chancellor, The ministry for Justice and individual judges. Otherwise none of us can know where we stand.
Assassination of Magna Carta – An Act of Political Expediency
June 1215 - Runnymede
Clause 39: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.“
This clause established the idea that people could only be judged according to the law, and that even the king himself had to follow the law. King John had previously acted as if the law did not apply to him. The other thing that is important about this clause is that it stipulates that a person should be judged by a group of their equals (not by the king or his men). The jury system that still exists in Britain today is a continuation of the idea put forward in this clause.
Clause 40: “To no one will we sell, to no one deny or delay right or justice.”
This is one of the shortest, most significant and most timeless clauses of Magna Carta. It ensures that nobody will be deprived of their rights, or have to pay for their rights, or be made to suffer by waiting for their rights.
Divorce, Dissolution and Separation Bill – June 2020
"(2) An application under subsection (1) must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably.
(3) The court dealing with an application under subsection (1) must—
(a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and
(b) make a divorce order."
As of June 2020 the above few lines embeds in statute law authority for judges to continue with their 40 plus years illegal practise of accepting the petitioner’s word without regard for impartiality, the judicial oath and the Overriding Objective.
I put it to everyone that reads this page that the implications of this order to the judiciary are horrendous.
Magna Carta: Rest in peace
June 2020
Heaven Help Democracy
The Need for an even playing field in divorce proceedings.
Clearly there are very many marriages that need to be brought to an end for various easily understood reasons. For example those who need to escape abusive and controlling behaviour.
However, on the opposite side of the scales, the divorce system must also support, encourage and protect those people who wish to work at saving a troubled relationship. The law itself should not and must not whip the rug from under the feet of already stressed relationships.
Sadly and unforgivably that is exactly what the Family Courts and the family lawyers have been doing for forty years.
The law allows either person in a marriage to walk away from a marriage of any length without reason and without explanation to their partner.
This is exactly what happened to me.
The judge in my case confirmed in the court room that my then wife had no obligation to discuss her reasons for wanting a divorce. He effectively endorsed her refusal to attend marriage counselling or to attempt reconciliation. The judge issued a court order banning me from presenting my evidence and stating that any questions that I might want to ask my now ex-wife must be “approved” by the court.
For over forty years this has been the unofficial policy implemented by the Family Courts. They refuse to engage with the story and the family tragedy in front of them.
Not only do they refuse to engage, the judges in the Family Courts actively apply pressure to stop any resistance as Davis and Murch observed . “It is just that this resistance is 'dealt with' at some preliminary stage.”
This is not an even playing field as is required by the Rule of Law and by the Hunan Rights Act 1998. It is just not cricket!
Protection from Discrimination.
Article 14 of the Human Rights Act 1988 is in place to protect us from discrimination.
“The court's judgment proceeds on the basis that the marriage has broken down irretrievably”.
And
In practice, however, the court’s starting point is to assume that the petitioner’s allegations are true.
Having a starting position that assumes the “petitioner’s allegations are true” is discriminatory. This is a breach of Article 14.
The Size of the Problem
Under the current regime marriage is an unstable platform. This is evidenced by the fact that approximately 50% of marriages end in divorce, but with the proper help and support this need not be the case.
The Newcastle Centre for Family Studies stated the following in their 2004 government commissioned study:-
“….17 per cent of those who actually initiated divorce proceedings did not want a divorce, and a further 21 per cent were uncertain.………”
“….It is abundantly clear that even when divorce seems inevitable, it is not the outcome that many of those involved in it actually wanted."
The above report and an earlier study by Gwynn Davis and Mervyn Murch have shown that approximately 50% of people at the outset of divorce proceedings did not actually want a divorce, or were uncertain about getting divorced.
To put this statistic into perspective, the average number of divorce applications over the 10 years between 2006 and 2016 was nearly 140,00 per annum. These are figures from the Office of National Statistics (ONS). That is at least 70,000 couples per year that need to be helped away from the clutches of a destructive divorce system.
In the Policy paper Looking to the Future, Mediation and the ground for divorce, presented to Parliament in April 1995, The Lord Chancellor at the time, Lord Mackay of Clashfern stated:-
"2.15 The Government believes that at least some divorce petitions, possibly many, represent a ‘cry for help’, which may not reflect a seriously thought out decision to end the marriage….."
Where Is That Help?
The need for time, space and support for counselling and reconciliation
I am seeking recognition that the divorce law and process is unnecessarily hurting families when they are at their most vulnerable. For over forty years successive governments have been warned that the laws of divorce and financial settlement are causing a great deal of distress and harm.
The warnings have come from official legal bodies and the government’s own advisers. Academics researching this area of law and family relationships have also raised the alarm.
A former Lord Chancellor has acknowledged these warnings in both written and verbal statements to parliament.
Looking to the Future, Mediation and the ground for divorce - 1995. Presented to Parliament by the Lord Chancellor. Lord Mackay of Clashfern.
"…... However, I recognise that the civil law must accommodate many situations which, although less than ideal, do occur in practice (Mark’s Gospel, chapter 10 at verses 4 and 5) supports this responsibility for the legislator."
"….I consider we have a heavy responsibility to ensure that our law recognises the importance of the institution of marriage and also to ensure that it does not impose unnecessary damage on the personal relationships with which it deals…"
"1.3 The Government has received clear indications of dissatisfaction with the current system, and considerable desire for reform. These concur with the responses received by the Law Commission during its own consultation period in 1988."
"1.10 Each year in England and Wales over 150,000 couples divorce. The divorce rate is now the highest in Europe. The social, economic and emotional costs of divorce are considerable. Apart from the grief to the couple there is clear evidence that children often suffer greatly as a result of the breakdown of their parents’ marriage. The financial costs are high, whether to individuals, the National Health Service, central and local Government or employers."
"1.9 The Government is committed to supporting the institution of marriage, and to protecting family life. Nevertheless, however desirable it might be for marriages generally not to be dissolved, some do break down, and, as was stated in the Consultation Paper, the Government is limited in its ability to ensure the survival of marriages, and to influence individual family relationships. The law and procedures for divorce, however, can and do have a major impact on the way people approach divorce, on the way divorces themselves are conducted, and consequently on the way divorce affects those involved."
Then in the following statement to the House of Lords on 30 November 1995 - Hansard Volume 567 - Lord Mackay of Clashfern again.
"I should like to begin this important debate by reaffirming my commitment and that of the Government to marriage."
"What has emerged very clearly from the recent debate is a very grave concern about marriage and the need for greater emphasis on and support for marriage. This debate has been as much about marriage as it has been about the finer details of a divorce system. This must be right because we cannot look at marriage and divorce in isolation from each other. The Government firmly believe that they have a role in supporting the services available to help not only those whose marriage is in difficulty but also those considering entering marriage. ….."
Where are those services? Where is that support from the government?
Stop Unfairness In Financial Settlement
We have a system that actively supports the unilateral breaking of a solemn agreement between two people. The system then imposes financial obligations on the reluctant party. This is so that the person breaking the agreement does not become a financial burden on the state.
The Law Commission are the governments advisory body set up to advise each and every government on how different areas of law are working in practise. They report directly to the Lord Chancellor and to parliament. All of their reports are in the public domain.
Below are sections 24 and 25 from The Financial Consequences of Divorce: The Basic Policy Law Com. No. 103 – published in 1980
"24. A fundamental complaint is, we think, that the underlying principle of the law governing the financial consequences of divorce is inconsistent with the modern divorce law. The law (it is said) now permits either party to a marriage to insist on a divorce, possibly against the will of the other party, regardless of the fact that the other party may have honoured every conceivable marital commitment. Why (it is asked), if the status of marriage can be dissolved in this way, should the financial obligations of marriage nevertheless survive—particularly in cases where divorce has been forced on an unwilling partner, or where a wholly innocent partner is required to support one whose conduct has caused the breakdown? Instead (it is argued), divorce ought to provide a “clean break” with the past in economic terms as well as in terms of status, and, so far as possible, encourage the parties to look to the future rather than to dwell in the past."
"25. We have been told that the continuing financial obligations imposed by divorce often cause severe economic hardship for those who are ordered to pay, normally of course the husband. It is not uncommon for a man to be ordered to pay as much as one- -third of his gross income to his- ex-wife until she either remarries or dies, and to be deprived of the matrimonial home (which may well represent his only capital asset) at least during the minority of the children.Unless she remarries this obligation to maintain an ex—wife can put divorced husbands under financial strain not only over a very long period of years but even into retirement. The obligation to maintain an ex-wife is particularly resented if the husband feels that it is his wife who is really responsible for the breakdown of the marriage; and such feelings are further exacerbated where he believes that his ex-wife has either chosen not to contribute toward her maintenance by working, or has elected to co-habit with another man, who might be in a position to support her but whom she has decided not to marry so as not to be deprived of her right to maintenance from her first husband. Finally it should be remembered that many more wives than husbands receive legal aid. The cost of legal proceedings therefore frequently weighs upon a husband as an additional financial burden and may even effectively prevent him from pursuing his case before the courts. For many husbands the effect of divorce may seem to involve not only the end of their marriage, but also the loss of home, children and money."
Our Collective Right to Privacy In Our Financial Affairs
The moment that a divorce application is filed it triggers the ability of the courts to interfere with the financial affairs of both sides. (Sections 23, 24 and 25 of the MCA 1973)
As part of the financial settlement process, the Family Court requires both parties to complete and exchange a Form “E”. The Form “E” is a financial questionnaire that demands the disclosure of all financial assets wherever they may be located in the world.
Article 8 of The Human Rights Act 1998 is in place to protect our private and family life, home and correspondence.
Private Life includes our financial information.
How is an order to hand over private financial information to a person with whom you have no legal connection compatible with the article 8 right to a private life?
This does not happen in Scotland.
Transcripts of very many financial settlement hearings which include detailed breakdowns of the financial assets of the named couple are available on the internet.
How is public availability of such private information compatible with the article 8 right to a private life?
We need answers to these questions.
Examples Of Unfairness And Absurdity In Financial Settlement Cases.
In the case of Seaton v Seaton [1986] the husband became dependant on the wife after being sacked. He then failed to hold down a job because of drink and suffered a debilitating stroke shortly before the divorce. He had little prospect of recovery and was wholly dependent. The court relieved the wife of all future obligations to support him.
In the case of Fisher v Fisher [1989] the ex-husband was required to continue paying spousal maintenance to his ex-wife when she was unable to support herself due to having a child by another man.
What is the logic behind these two diametrically opposed judgements?
Where is the consistency in the application of the law?
A Public View of Divorce and Financial Settlement in England and Wales
as reported in The Law Commission Report No. 343 MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS - Presented to Parliament in February 2014.
"3.143 Most of the members of the public who responded were vehement in their support of a formula [for financial settlement]. The comments of one anonymous consultee were typical of these responses:
Certainty of outcome on divorce is extremely important. We have “Palm Tree Justice” right now. … I would favour a publicly available table of % financial settlement results on a divorce with maximum and minimum % in different situations. "
"3.144 Another said:
Every maintenance payer and every child to a marriage has the right to know that at some point their duties are paid and they have the right to be able to move on and be free from their dissolved contract."
Use of your Donations.
Your donations will be used to support me financially and to pay for legal advice, legal representation, court costs and transcripts.
Both of these cases involve complex law. I anticipate that these cases will be hard fought by the government. The cases will probably go all the way to the Supreme Court. The governments previous record of resisting a Private Members Bill introduced by Baroness Deech in the House of Lords confirms their reluctance to make changes in the financial settlement area of family law.
Sometimes, direct action in court is more effective than protests in the street.
Introduction: This is my request for your financial assistance and support in my twin applications at the High Court for justice in the family law system.
My first High Court case seeks a declaration that aspects of the divorce and financial (spousal) settlement laws breach several of our collective Human Rights and also undermine a number of our Common Law rights. (My action does not touch on child maintenance. That is a separate issue in law and in fact).
**The first hearing is scheduled for 16th December 2020
My second application will seek to ensure that The Lord Chancellor, The Lord Chief Justice and the Ministry for Justice perform their constitutional duty to ensure that the Family Law Courts abide by laws passed by parliament.
About JustDivorce.uk
JustDivorce.uk is committed to raising public awareness and advancing social debate about the issues generated by and resulting from divorce and financial settlement in England and Wales.
JustDivorce.uk campaigns for divorce laws that give couples time, space and support to reconcile their differences instead of being processed by a machine.
JustDivorce.uk advocates for the formation of a coalition of individuals, professionals and advocacy groups with the common aim of providing support and justice for Up To 70,000 Marriages Per Year in Difficulty.
JustDivorce.uk is committed to raising awareness of Mental Health issues arising from divorce and financial settlement issues.
JustDivorce.uk is committed to raising awareness of Parental Alienation issues arising from divorce and financial settlement.
JustDivorce.uk exists to challenge and change our destructive divorce and financial settlement system that frequently imposes unwanted divorces on couples.
JustDivorce.uk exists to challenge and change our divorce and financial settlement processes that are so financially costly and are very often devastating to family wealth and assets.
JustDivorce.uk seeks to put an end to unfair and open ended financial settlements.
JustDivorce.uk is committed to raising awareness about malpractice in the family courts and in the legal system generally.
JustDivorce.uk is committed to improving both training and procedural practise in the judiciary and in the family courts in England and Wales.
JustDivorce.uk encourages everyone, women and men from all walks of life, to be part of the solution, to engage and to take action.
JustDivorce.uk seeks support and Justice for existing Sufferers and Victims.
JustDivorce.uk seeks to protect our collective right to privacy in our financial affairs.
Marriage is a partnership. Unilateral Divorce is not appropriate.
How You Can Help
Financial and moral support please. Active support in the form of emails to your local MP and social media posts will help to raise the profile of the need and desire for change.
If we are successful in these two applications we will force government and parliament to address these issues that they have ignored and now swept under the carpet. A victory will start the process of redressing the balance in divorce and financial settlement. Future changes as proposed on my website can and should provide a more stable platform for marriage. Up to 70,000 couples a year, every year, could be grateful for your support.
Further and more detailed descriptions of the issues and the challenges can be found at my website https://justdivorce.uk/
Summary
All public officials from the Prime Minister down are obliged to act within the law. They must act within the boundaries of the powers lent to them by us, the public, whilst they are public officers.
Although it might sound obvious public officials have a duty to execute the tasks and responsibilities of the job description they have undertaken for the social benefit. To fail or to refuse to fulfil the job description is a breach of public trust, and therefore Misconduct In Public Office.
All judges are public officers. Their job description starts with the Judicial Oath of office.
Judicial Oath
“I, _________ , do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of ________ , and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”
The family procedure rules are a single set of rules governing the practice and procedure in family proceedings in the high court, county courts and magistrates' courts. Section 1 is the The Overriding Objective.
" (1) These rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly, having regard to any welfare issues involved.
(2) Dealing with a case justly includes, so far as is practicable –
(a) ensuring that it is dealt with expeditiously and fairly;
(c) ensuring that the parties are on an equal footing;"
Despite the Judicial Oath, the Overriding Objective and Article 6 of the Human Rights Act 1998, it is well documented that the Family Court judges start from a fixed view that the person making an application for divorce is to be believed.
Article 6 covers the right to a fair trial which includes the right to a hearing before an impartial tribunal (court), the right to present your case with all its associated evidence, and the right for all submissions from both sides to be properly considered.
The following instruction to the court is embedded in the Matrimonial Causes Act 1973 (MCA 1973).
"(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent."
In contrast the following statements were made in the Law Society report “A Better Way Out”, published in 1979
"19. …..there is now a marked divergence between the spirit (and indeed the letter) of the law and the way it is in practice applied."
"20. ….. The Court of Appeal has consistently held that the courts must observe the law strictly. "
"24. The way to resolve this conflict between practice and theory is, in our view, to abandon the pretence that the courts have the resources, or indeed the inclination, to investigate subjective factors in any more a than few exceptional cases and adopt an objective test to be applied in deciding whether a marriage has broken down."
[The Law Society are the body that govern and regulate the legal profession in England and Wales]
Gwynn Davis and Mervyn Murch made the following observations in their 1988 book Grounds for Divorce by Published by Clarendon Press – Oxford
"The interesting thing about these explanations is that they are presented in the context of an argument that defended divorce is no longer a problem, whereas the explanations themselves reflect judicial policy, procedural rationalization, and the denial of funds—none of which need necessarily be welcomed by the parties to divorce proceedings. Indeed, one might present this same information very differently, as indicating an unwillingness or inability to operate the law as it stands. "
"The evidence of our research is very clear: opposition to the award of a decree (or to the contents of the divorce petition) still strongly persists. It is just that this resistance is 'dealt with' at some preliminary stage."
Lord Chancellor’s statement to the House of Lords. (Lord Mackay of Clashfern) - Published in Hansard, 30 November 1995, Volume 567
"The court's judgment proceeds on the basis that the marriage has broken down irretrievably…… The law makes no attempt to investigate what really made the marriage break down. "
Those statements, made in parliament, are a clear acknowledgement that the judges of the family courts are flouting the law and consequently the will of parliament and the will of the people.
The “VICTIM” Must Be Believed.
Implementing a policy that the “Victim” must be believed is a clear breach of every persons right to a fair hearing and to have heard their side of any story that finds its way into a courtroom. (Article 6).
Successive lord Chancellors have failed to address the issue of the Family Courts not implementing the law of the land, but instead they (the Family Courts) automatically believe the applicant (VICTIM). Having a starting point of believing one side to a dispute defies the principal of The Rule of Law. The very principal that forms the foundation of a democratic society. It also tramples all over Article 6, the right to a fair trial.
As recently as 2018, Professor Liz Trinder of Exeter University confirmed that the Family courts were still engaging in the same practices:-
No Contest: Defended Divorce in England & Wales
Conclusion
"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." [Illusion]
"….the courts have evolved a deeply pragmatic approach to defended and undefended cases that has enabled what amounts to unilateral divorce on demand, …... 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. ….. However, that gulf between law and practice does little to uphold the rule of law."
This is not justice and as Professor Trinder says, it is not compliant with the Rule of Law.
Upholding the rule of law is the Lord Chancellor’s constitutional responsibility. It is Misconduct In Public Office for the office holder not to uphold the Rule of Law.
The law must do what it says on the tin. That includes The Lord Chancellor, The ministry for Justice and individual judges. Otherwise none of us can know where we stand.
Assassination of Magna Carta – An Act of Political Expediency
June 1215 - Runnymede
Clause 39: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.“
This clause established the idea that people could only be judged according to the law, and that even the king himself had to follow the law. King John had previously acted as if the law did not apply to him. The other thing that is important about this clause is that it stipulates that a person should be judged by a group of their equals (not by the king or his men). The jury system that still exists in Britain today is a continuation of the idea put forward in this clause.
Clause 40: “To no one will we sell, to no one deny or delay right or justice.”
This is one of the shortest, most significant and most timeless clauses of Magna Carta. It ensures that nobody will be deprived of their rights, or have to pay for their rights, or be made to suffer by waiting for their rights.
Divorce, Dissolution and Separation Bill – June 2020
"(2) An application under subsection (1) must be accompanied by a statement by the applicant or applicants that the marriage has broken down irretrievably.
(3) The court dealing with an application under subsection (1) must—
(a) take the statement to be conclusive evidence that the marriage has broken down irretrievably, and
(b) make a divorce order."
As of June 2020 the above few lines embeds in statute law authority for judges to continue with their 40 plus years illegal practise of accepting the petitioner’s word without regard for impartiality, the judicial oath and the Overriding Objective.
I put it to everyone that reads this page that the implications of this order to the judiciary are horrendous.
Magna Carta: Rest in peace
June 2020
Heaven Help Democracy
The Need for an even playing field in divorce proceedings.
Clearly there are very many marriages that need to be brought to an end for various easily understood reasons. For example those who need to escape abusive and controlling behaviour.
However, on the opposite side of the scales, the divorce system must also support, encourage and protect those people who wish to work at saving a troubled relationship. The law itself should not and must not whip the rug from under the feet of already stressed relationships.
Sadly and unforgivably that is exactly what the Family Courts and the family lawyers have been doing for forty years.
The law allows either person in a marriage to walk away from a marriage of any length without reason and without explanation to their partner.
This is exactly what happened to me.
The judge in my case confirmed in the court room that my then wife had no obligation to discuss her reasons for wanting a divorce. He effectively endorsed her refusal to attend marriage counselling or to attempt reconciliation. The judge issued a court order banning me from presenting my evidence and stating that any questions that I might want to ask my now ex-wife must be “approved” by the court.
For over forty years this has been the unofficial policy implemented by the Family Courts. They refuse to engage with the story and the family tragedy in front of them.
Not only do they refuse to engage, the judges in the Family Courts actively apply pressure to stop any resistance as Davis and Murch observed . “It is just that this resistance is 'dealt with' at some preliminary stage.”
This is not an even playing field as is required by the Rule of Law and by the Hunan Rights Act 1998. It is just not cricket!
Protection from Discrimination.
Article 14 of the Human Rights Act 1988 is in place to protect us from discrimination.
“The court's judgment proceeds on the basis that the marriage has broken down irretrievably”.
And
In practice, however, the court’s starting point is to assume that the petitioner’s allegations are true.
Having a starting position that assumes the “petitioner’s allegations are true” is discriminatory. This is a breach of Article 14.
The Size of the Problem
Under the current regime marriage is an unstable platform. This is evidenced by the fact that approximately 50% of marriages end in divorce, but with the proper help and support this need not be the case.
The Newcastle Centre for Family Studies stated the following in their 2004 government commissioned study:-
“….17 per cent of those who actually initiated divorce proceedings did not want a divorce, and a further 21 per cent were uncertain.………”
“….It is abundantly clear that even when divorce seems inevitable, it is not the outcome that many of those involved in it actually wanted."
The above report and an earlier study by Gwynn Davis and Mervyn Murch have shown that approximately 50% of people at the outset of divorce proceedings did not actually want a divorce, or were uncertain about getting divorced.
To put this statistic into perspective, the average number of divorce applications over the 10 years between 2006 and 2016 was nearly 140,00 per annum. These are figures from the Office of National Statistics (ONS). That is at least 70,000 couples per year that need to be helped away from the clutches of a destructive divorce system.
In the Policy paper Looking to the Future, Mediation and the ground for divorce, presented to Parliament in April 1995, The Lord Chancellor at the time, Lord Mackay of Clashfern stated:-
"2.15 The Government believes that at least some divorce petitions, possibly many, represent a ‘cry for help’, which may not reflect a seriously thought out decision to end the marriage….."
Where Is That Help?
The need for time, space and support for counselling and reconciliation
I am seeking recognition that the divorce law and process is unnecessarily hurting families when they are at their most vulnerable. For over forty years successive governments have been warned that the laws of divorce and financial settlement are causing a great deal of distress and harm.
The warnings have come from official legal bodies and the government’s own advisers. Academics researching this area of law and family relationships have also raised the alarm.
A former Lord Chancellor has acknowledged these warnings in both written and verbal statements to parliament.
Looking to the Future, Mediation and the ground for divorce - 1995. Presented to Parliament by the Lord Chancellor. Lord Mackay of Clashfern.
"…... However, I recognise that the civil law must accommodate many situations which, although less than ideal, do occur in practice (Mark’s Gospel, chapter 10 at verses 4 and 5) supports this responsibility for the legislator."
"….I consider we have a heavy responsibility to ensure that our law recognises the importance of the institution of marriage and also to ensure that it does not impose unnecessary damage on the personal relationships with which it deals…"
"1.3 The Government has received clear indications of dissatisfaction with the current system, and considerable desire for reform. These concur with the responses received by the Law Commission during its own consultation period in 1988."
"1.10 Each year in England and Wales over 150,000 couples divorce. The divorce rate is now the highest in Europe. The social, economic and emotional costs of divorce are considerable. Apart from the grief to the couple there is clear evidence that children often suffer greatly as a result of the breakdown of their parents’ marriage. The financial costs are high, whether to individuals, the National Health Service, central and local Government or employers."
"1.9 The Government is committed to supporting the institution of marriage, and to protecting family life. Nevertheless, however desirable it might be for marriages generally not to be dissolved, some do break down, and, as was stated in the Consultation Paper, the Government is limited in its ability to ensure the survival of marriages, and to influence individual family relationships. The law and procedures for divorce, however, can and do have a major impact on the way people approach divorce, on the way divorces themselves are conducted, and consequently on the way divorce affects those involved."
Then in the following statement to the House of Lords on 30 November 1995 - Hansard Volume 567 - Lord Mackay of Clashfern again.
"I should like to begin this important debate by reaffirming my commitment and that of the Government to marriage."
"What has emerged very clearly from the recent debate is a very grave concern about marriage and the need for greater emphasis on and support for marriage. This debate has been as much about marriage as it has been about the finer details of a divorce system. This must be right because we cannot look at marriage and divorce in isolation from each other. The Government firmly believe that they have a role in supporting the services available to help not only those whose marriage is in difficulty but also those considering entering marriage. ….."
Where are those services? Where is that support from the government?
Stop Unfairness In Financial Settlement
We have a system that actively supports the unilateral breaking of a solemn agreement between two people. The system then imposes financial obligations on the reluctant party. This is so that the person breaking the agreement does not become a financial burden on the state.
The Law Commission are the governments advisory body set up to advise each and every government on how different areas of law are working in practise. They report directly to the Lord Chancellor and to parliament. All of their reports are in the public domain.
Below are sections 24 and 25 from The Financial Consequences of Divorce: The Basic Policy Law Com. No. 103 – published in 1980
"24. A fundamental complaint is, we think, that the underlying principle of the law governing the financial consequences of divorce is inconsistent with the modern divorce law. The law (it is said) now permits either party to a marriage to insist on a divorce, possibly against the will of the other party, regardless of the fact that the other party may have honoured every conceivable marital commitment. Why (it is asked), if the status of marriage can be dissolved in this way, should the financial obligations of marriage nevertheless survive—particularly in cases where divorce has been forced on an unwilling partner, or where a wholly innocent partner is required to support one whose conduct has caused the breakdown? Instead (it is argued), divorce ought to provide a “clean break” with the past in economic terms as well as in terms of status, and, so far as possible, encourage the parties to look to the future rather than to dwell in the past."
"25. We have been told that the continuing financial obligations imposed by divorce often cause severe economic hardship for those who are ordered to pay, normally of course the husband. It is not uncommon for a man to be ordered to pay as much as one- -third of his gross income to his- ex-wife until she either remarries or dies, and to be deprived of the matrimonial home (which may well represent his only capital asset) at least during the minority of the children.Unless she remarries this obligation to maintain an ex—wife can put divorced husbands under financial strain not only over a very long period of years but even into retirement. The obligation to maintain an ex-wife is particularly resented if the husband feels that it is his wife who is really responsible for the breakdown of the marriage; and such feelings are further exacerbated where he believes that his ex-wife has either chosen not to contribute toward her maintenance by working, or has elected to co-habit with another man, who might be in a position to support her but whom she has decided not to marry so as not to be deprived of her right to maintenance from her first husband. Finally it should be remembered that many more wives than husbands receive legal aid. The cost of legal proceedings therefore frequently weighs upon a husband as an additional financial burden and may even effectively prevent him from pursuing his case before the courts. For many husbands the effect of divorce may seem to involve not only the end of their marriage, but also the loss of home, children and money."
Our Collective Right to Privacy In Our Financial Affairs
The moment that a divorce application is filed it triggers the ability of the courts to interfere with the financial affairs of both sides. (Sections 23, 24 and 25 of the MCA 1973)
As part of the financial settlement process, the Family Court requires both parties to complete and exchange a Form “E”. The Form “E” is a financial questionnaire that demands the disclosure of all financial assets wherever they may be located in the world.
Article 8 of The Human Rights Act 1998 is in place to protect our private and family life, home and correspondence.
Private Life includes our financial information.
How is an order to hand over private financial information to a person with whom you have no legal connection compatible with the article 8 right to a private life?
This does not happen in Scotland.
Transcripts of very many financial settlement hearings which include detailed breakdowns of the financial assets of the named couple are available on the internet.
How is public availability of such private information compatible with the article 8 right to a private life?
We need answers to these questions.
Examples Of Unfairness And Absurdity In Financial Settlement Cases.
In the case of Seaton v Seaton [1986] the husband became dependant on the wife after being sacked. He then failed to hold down a job because of drink and suffered a debilitating stroke shortly before the divorce. He had little prospect of recovery and was wholly dependent. The court relieved the wife of all future obligations to support him.
In the case of Fisher v Fisher [1989] the ex-husband was required to continue paying spousal maintenance to his ex-wife when she was unable to support herself due to having a child by another man.
What is the logic behind these two diametrically opposed judgements?
Where is the consistency in the application of the law?
A Public View of Divorce and Financial Settlement in England and Wales
as reported in The Law Commission Report No. 343 MATRIMONIAL PROPERTY, NEEDS AND AGREEMENTS - Presented to Parliament in February 2014.
"3.143 Most of the members of the public who responded were vehement in their support of a formula [for financial settlement]. The comments of one anonymous consultee were typical of these responses:
Certainty of outcome on divorce is extremely important. We have “Palm Tree Justice” right now. … I would favour a publicly available table of % financial settlement results on a divorce with maximum and minimum % in different situations. "
"3.144 Another said:
Every maintenance payer and every child to a marriage has the right to know that at some point their duties are paid and they have the right to be able to move on and be free from their dissolved contract."
Use of your Donations.
Your donations will be used to support me financially and to pay for legal advice, legal representation, court costs and transcripts.
Both of these cases involve complex law. I anticipate that these cases will be hard fought by the government. The cases will probably go all the way to the Supreme Court. The governments previous record of resisting a Private Members Bill introduced by Baroness Deech in the House of Lords confirms their reluctance to make changes in the financial settlement area of family law.
Sometimes, direct action in court is more effective than protests in the street.
Organizer
Charles Ayeh-Kumi
Organizer