No Fault Divorce

Baroness Deech

Resolution, formerly the Solicitors’ Family Law Association, is pushing hard for the introduction of no-fault divorce. This is currently understandable because of the embarrassing and avoidable litigation of Owens v Owens, where a wife who had good reasons to want to divorce her husband found that the law stood in her way. I can see arguments on both sides. But, note, we already have no fault divorce. Separation for 2 or 5 years are grounds, no reasons needed. The grounds of adultery and unreasonable behaviour are immediate, subject to procedure, but involve allegations as specified. So the essence of the demand for reform is speed.

I wrote a pamphlet more than 20 years ago when a similar proposal was on the table ( explaining why reform would, in the end, achieve little. The essence of my argument was this: repeatedly over the last 100 years reformers have told us that the law relating to the grounds of divorce has to be amended to bring it into line with reality, because behind the facade of statute, consensual decrees are being obtained without substantiating the grounds, or are being withheld contrary to common sense. When the reform campaign succeeds, the black letter law is then brought into line with practice and reality. The divorce rate rises (though now this will be tempered by the existence of fewer marriages and more cohabitation), and soon we find that divorce practice is again out of step with the law. That’s what happened with the 1937 Matrimonial Causes Act, 1969 Divorce Reform Act and 1977 Special Procedure.

Unless we are going down the talaq route, in a no-fault reform plan there must surely be some fixed time delay (6 months is proposed) between initiating the proceedings and the dissolution of the marriage, so the delay will become the new (irritating) obstacle, as it is now. Speed is everything. The adoption of no-fault divorce now would be likely to be portrayed by the media as New Quickie Divorce and would convey the impression that promises, responsibilities and children’s welfare come second to an easy end of obligations with a clear conscience. The consent of the non-initiating spouse will apparently not be required.

I say reform would bring little benefit because the real harm in the divorce process is, first, to the children (who will probably be unaware of the legal grounds, but most affected by the actual separation of their parents), and second, the ghastly state of our financial provision law. It is so expensive in legal costs that it can eat up the assets of all but the richest, and so confrontational that it makes the substantive divorce mild by comparison. That is where reform should be directed. I suggest that all that is needed by way of substantive divorce reform of the “fault” grounds, is a slowing up, e.g no decree absolute for 12 months from the service of the petition.

19 comments for “No Fault Divorce

  1. 22/09/2017 at 5:32 pm

    Cart-before-Horse, still.

    What is needed is deep and “up-enabling” reform
    beginning with progressive NVQ-type training for prospective marriage-couples and parents

    similar training for all those in “human-development” and “human-supportive” workforces

    not stopping at focal and progressive NVQ training for “relationships”, “escorts” “companions” “carers” and “sex industry workers”

    and including NVQ courses for such other human-interaction workers as Police, Medical, Nursing, Waiters/Waitresses, Shop attendants, public-transport workers, church-‘welcomers’ and so on and so forth.

    Without such essential training
    everyone falls short
    of a “Sustainworthy” personal human-ness
    and hopelessly short of developing a longest-term future Sustainworthy Human Civilisation;

    – and “No Fault” divorces and suchlike will still be only ‘scratching-the-surface’ and ‘band-aiding’.

  2. 22/09/2017 at 7:45 pm

    I don’t really see how a “no fault divorce” can not require the “consent of the non-initiating spouse”. Surely if only one party agrees with the divorce, that implies some sort of fault on the part of the other? For it to be “no fault”, both parties should have to agree with the divorce. Where the action is one-sided, the existing arrangements should suffice.

  3. maude elwes
    24/09/2017 at 2:30 pm

    Unfortunately, similarly to my friends, who married last week in Poland, I no longer have any faith in GB’s meaning of, or, lack of meaning, in marriage. And as an addendum, to requirements for this jurisdictions divorce laws. Which were ‘readjusted’ to satisfy SSM contracts on fidelity. I consider marriage an event that occurs only between a man and a woman who are devoted to the concept of sanctity within that marriage and would not consider any vows made by myself in a ceremony where those promises are considered outdated.

    Therefore, it is not proper to remark one way or another on new divorce laws here in the UK. As it no longer is a place I would wish to wed or comply with divorce. And the middle class trend in this matter is growing. So many are taking their wedding plans to countries that adhere to traditional concepts and deeply held beliefs this event implies.

  4. 27/09/2017 at 4:29 am

    maude, jonathan, the baroness
    – and those unable-to or otherwise not commenting or ‘visibly participating’ –

    There remains the both overshadowing and underlurking failure
    of both “Church and State”
    in whatever Country –
    to whole-of-body-emotions-mind and spirit
    honour and administrate
    “Holistic-Individual-and-Collective human Development”
    and therin somewhar ‘crucially’

    all as a part of the overall long-known natural-evolutionary and civilised human-development “NA-RNA-DNA Design”
    as laid out in the individually-and-collectively divinely-innate 7-fold Sacramental/Sefirotal/Chakraic/Somatopsychic guidance sources available through
    “Lifestreams” by David Boadella;
    “Analysis of the Spirit” by Caroline Myss,

    and in perhaps imminently-foundation-faculty-worthy Somatics –
    (see “Somatics” by Thoimas Hanna
    and perhaps both
    “Somatic Psychology” and “Wisdom of the Body Moving” by Linda Hartley. …

    that should be enough to show that there is also a “case” for underpinning all of that 7-foldness with a ‘notional’ “Chakra 0” being the ground one is standing on and the Earth beneath it
    and one’s initial bodily contact with that “support” –
    before proceeding up the legs to the Baptismal/Root/Grounding centre “number 1” at the tailbone and ‘rectum’ ‘and company’ –

    – before proceeding upwards to the ‘breadbasket’
    and it’s perhaps second or third sub-content namely
    the genital and procreational organs)

    – PS here maude, why didn’t you expressly mention
    “for the familial purpose of procreating and/or the raising of children” ?
    And no-one has even mentioned our need
    to seriously-practically start “co-living”
    the express distinction between “contractuals” (shackled to Law and Money) and “covenantals” ( ‘rooted-in’ and ‘founded-on’ Love and Marriage)…
    I give way –

  5. Senex
    27/09/2017 at 9:44 am

    What if a wife or husband is unsuitable? Unable to fulfil the promise of marriage. It appears some have simply to say the words “Talaq! Talaq! Talaq!” WOMAN, or should that be man, know your place.

    Ref: If your wife is useless say Talaq! Talaq! Talaq!

    • 27/09/2017 at 3:48 pm

      New “Life-Enablement” qualifications
      would do much to ‘obviate’ such “unsuitableness” obstacles

      [Lifeplace equivalent “enablements” to Workplace “NVQ skillings”]

  6. Senex
    28/09/2017 at 10:52 am

    You said “… and second, the ghastly state of our financial provision law…” Ghastly is perhaps an understatement a more appropriate word might be unlawful.

    The year is 1989; Margaret Thatcher is elected as party as leader. Being a mum she is receptive to issues surrounding the ghastly state of financial provision under the poor laws which are still in effect.

    The year is 1991 and the house is busy finalising the Child Support Act. The Labour Party is opposed to the bill and contentious issues arise in committee stage. Many of them will remain unresolved but one will become Chapter 48, Section 8: role of the courts with respect to maintenance for children. It technically creates two systems of justice or judicial jurisdictions.

    Parliament has transferred its sovereignty to a newly created public body called the ‘Child Support Agency’. Transference however is conditional and justice is only capable of being served because the Lord Chancellor sits on the Woolsack and the Lords of Appeal in Ordinary are present and able to convene a court.

    The Constitutional Reform Act 2005 renders the judicial jurisdiction of the Child Support Agency unlawful because all active Judges are removed from Parliament.

    Because Parliament had created a precedent by extending its sovereignty to a public body it could extend its sovereignty to the Supreme Court as a public body on the same basis allowing active Judges to once more convene a court within Parliament.

  7. Senex
    29/09/2017 at 3:25 pm

    The Mohammedans have evolved Talaq and it seems that such divorces are by no means quick. The question of being rich is side stepped because after who amongst us can really afford their wife.

    Their answer is if one cannot afford ones wife then divorce her.

    Having spoken with Mohammedans about wives I recall one such conversation about a wife a simple uneducated women that had come here from abroad. She was home bound, obedient and knew her place, a credit to her husband. She however came into inevitable contact with British born Muslim women who worked for a living and he said she changed. She started buying just to keep up with her friends even wanting to have a car of her own to drive. Her husband a man of modest means with three children shook his head from side to side appearing quite distraught as he spoke.

    But what if his wife had an endearing quality such as being the heiress to a small fortune and wealthy estate over here, why divorce her? Having learned the lesson why not take a second wife and one away from the UK. Indeed as far as I know this is what actually happens.

    With polygamy now established in SSM, sexual infidelity is not grounds for divorce it is reassuring to know that you oppose no fault divorces and by association are committed to monogamy.

    Ref: The Period of Waiting

    • maude elwes
      03/10/2017 at 3:23 pm

      Perhaps it is because we are no longer stable and deeply rooted in our English values. Successive governments wanted and carried out the obliteration of our culture. It is now considered to be obscene to believe in the traditions we love and stand by in heart. It is likewise considered humorous to mention Christian practice.

      The French of course knew how to rid themselves of such tyranny.

      • Senex
        05/10/2017 at 11:22 am

        Maude, regime change yes, but nobody need lose their head.

        In reaction to the Constitutional Reform Act 2005 the Lords of Appeal in Ordinary came together as a Constitutional Court. The issues affecting them were aired and the Court acted on a majority vote to leave Parliament to form the Supreme Court.

        Because Parliament had not resolved the Sovereign Jurisdiction of the public body charged with implementing the Child Support Act 1991 the decision of the Court to leave Parliament was ‘Beyond Powers’ or Ultra Vires.

        This means that a Lord Justice would need to serve as an active Judge and member of the house just to legalise the relevant section of this Act. Its section 8 would not allow a civil or criminal court to convene to dispense justice or to hold accountable the absolute power granted by Parliament to the Secretary of State for Work and Pensions.

        The Judge however could convene a constitutional court to decide whether procedural treason had taken place within Parliament. If the accused were found guilty a death sentence would apply but only if warrants signed by the sovereign had been issued.

        The Crown on compassionate grounds would no doubt be open to doing a deal where members of each house upon their own deaths would surrender their taxpayer paid estates in their entirety to the royal coffers of the Duchy of Lancaster which in turn would fund the house removing its accountability to the taxpayer. No blood need be spilt.

  8. 01/10/2017 at 4:22 am

    Instead of the God-made-Taken-Aback usual modernistic “Wow!” –

    let me just say as to the working-horse-team-of-yesteryear

    “Whoa – ”

    “What’s It All About, Alfie … ?”

  9. 07/10/2017 at 5:16 pm

    The world is in an increasingly “extinction-ensuring” blindly quicksanded sinking mode;
    still founded upon
    (i) the 5,000 years ago political and inter-civilisation mindset “regular destructive wars to ‘acquire’ surpluses”
    [see David C, Korten’s “The Great Turning – from Empire to Earth Community ]

    (ii) the 500 years old European Colonialisation Drives which also still operative.and also are dominantly benefiting the few-elite at the expense of both the Earth’s “carrying-capacity” and the World-Peoples resilience and fitness-for-Life-Purpose.
    [ see “The Divide” by Jason Hickel].

    Small wonder that nothing is “sacred” not even Marriage
    and the raising of healthy and longest-term sustain-worthy
    and sustainworthying
    Families and Communities.

    This huge underlying and overarching Fault of our Civilisation
    makes ‘No-Fault’ Divorce “a mind-functional impossibility”
    as well as a socially-inhibitive and hugely-costly material “mere band-aid”!

  10. Senex
    25/10/2017 at 11:48 am

    The Child Support Act s.8 (3) uses the word ‘court’ when one would have expected use of ‘civil court’. Parliament clearly intended the Service Provider to have immunity under the criminal law.

    During the trial of King Charles I, he refused to enter a plea claiming that no court had jurisdiction over a Monarch. On this basis the creation of the Supreme Court removed the Judicial Jurisdiction of Parliament from the Act’s Service Provider and moved it to that of the Regent with the Secretary of State bypassing the Royal Prerogative to exercise the power of the Regent directly.

    Under the Bill of Rights 1688 ‘Dispensing and Suspending Power’ the Secretary of State’s creation of unpublished operating procedures within the Service Provider amounts to the creation of laws. Under ‘Levying Money’ the Secretary of State cannot extract money as a fee. To do either of these things would be illegal under the constitutional.

    Parliament exceeded its authority by legislating contrary to the Bill of Rights, rendering the enabling Act, the Constitution Reform Act 2005, Ultra Vires. Parliament acted in the tyrannical manner of King Charles I by removing from children caught by the Service Provider their right and access to justice through the courts.

    Notwithstanding ‘Freedom of Speech’ granted by the Bill of Rights no member of either house could be charged with substantive treason except where abuse use of the Royal Prerogative had been demonstrated. The court would have to determine whether it would have been reasonable for a King to use his power to change the established church in such a way that it would have denied him his divine right or to frustrate the succession of his heirs.

    Child Support Bill Clause 32: How to get blood out of a stone.

  11. Senex
    25/10/2017 at 11:49 am

    Prospectively, with charges of procedural and substantive treason being brought against Parliament and members, and the Crown having accepted a plea bargain in exchange for their lives, members or former members who had enjoyed an income from taxes during their lifetime would repay said taxes in full to the Duchy of Lancaster on their passing away and from their estate(s).

    If the value of a deceased members estate fell short of what was owed a debt would arise which would transfer to the members’ heirs. Former members (without writ) would see the same regimen applied if they were under writ at the time treason took place.

    Heirs would be in a position to negotiate with the Duchy to settle the debt. Settlement would mean signing over ownership of their assets to the Duchy at an agreed amount. Where a member had been successful in hiding the true worth of their assets then the Duchy would estimate their value.

    Because of the plea bargain the Duchy on an ongoing basis would be entitled to audit at regular intervals member’s assets to determine their worth. Audit information would be held private by the Crown.

    On the occasion of the first treason trial members would have something to trade; later trials would see members with nothing to trade. The consequence of the removal of the Lord Chancellor from the Woolsack would mean that Lord Justices would have to consider religious law.

  12. Maude Elwes
    26/10/2017 at 7:34 pm

    @ Senex

    From reading your posts, I am very serious when I write successive ‘governments’ are in a legislative mess. Not simply on these marriage change policies, and child protection matters, but on clearly other civil matters, such as individuals saying something ‘nasty’ to someone else. Or, writing something ‘nasty’ to someone else. This is the practice of the nursery. I cannot believe my ears when I listen to the trivial nonsense these Parliamentarians are pretending as serious issues. Usually coming from scruffy and severely obese MP’s, airing their frustration in the media. Whilst they turn a blind eye to horrendous growing acid attacks, honour killings, knife crime and mass murder out of all proportion, on our streets.

    You hear talk of ‘killing’ terrorists who beg to return to the UK after fighting with ISIS. We were told initially none of them will be granted permission to enter the UK again. As they present a clear and obvious threat to the population. This capital punishment threat is, and they know it, total nonsense. The one and only answer is to have due process for them in Syrian or Iraqi court and to carry out their sentence under those laws. This has to be, because these individuals are no longer British, if they ever were. Their allegiance lies with their Muslim brothers in the Middle East. And this pretence of fighting for Kurds beggars belief. They must remain stateless if their country of choice, after serving their sentence, does not offer them succour there.

    Then we hear the idea is to deny the obese treatment on the health service, should they need it, along with smokers. In principle, this should be discussed. However, surely members of Parliament who are so obviously grossly obese, or, big time smokers, should not be able to stand for office as they take up too much room on the benches. You could not be next to them in an economy flight seat. Why should they be allowed, by us, the citizens, to speak on our behalf when they are not equipped mentally to be able to control their weak eating habits? Similar to sexual groping really, out of control is out of control. The one unacceptable the other flaunted daily. Usually with ghastly swinging earrings and large chains gripping around the neck as if they are being choked. Strange statement that.

    I could go on for hours on the bewildering enigma we all face, but, suffice it to say, government want to cover their inability to deal with real danger by using the PC game of, ‘keep your eye on the fancy footwork.’

    Marriage, and the elimination of it, both in principle and practice, is paramount. As the family and the union this presents is a process that creates blocks against tyranny.

    • 04/11/2017 at 8:24 pm

      A tiny-little key-note is called or here,
      about “marriage” and its central-underpinning raison d’etre
      namely ‘the procreation and upbringing of children’.

      A small “movement” exists (worldwide I believe) the Raison d’Etre of which is [paraphrasedly] that
      (1) a prospective mother is naturally-&-civilisationally able and experienced enough
      to choose a quite different lifespan and social ‘father’
      (up to say the child reaching age 21 by which time the child has usually achieved
      self-control of all seven of the Innate Divine Human Energies [the successive ‘Chakras’; ‘Christian-sacramentals; and somatopsychjic-functional-energies]
      with the help of such “full-time social”-father
      [in immediacy over a yet different “godfather” and “god-mother”]

      as distinct from from the simply-brief but “best-available” “biological”-‘father’.

      (2) Some such “marriage-&-child rearing small-communities” exist in similar ‘spirits’ of
      (a) “co-social-mothering”
      as well as also further possibly
      (b) co-social-fathering.

      (3) Further “expedient” insight [a posteriori thinking/philosophising too ?] “goes further” –
      by considering it “practically-wise” to arrange the child-rearing-community
      such that the actual biological-father is only ‘known’ to the secret DNA archive;

      and the biological-mother’s DNA is also thus archived

      due to the need to have “egalitarian” “equalitarian” and/or “eclecticly-wholistic” co-parenting of the child/children;

      (4) Hereto the ‘No-Lose’ Method III of Cooperative (“win-win-win”)
      foundationing five or six enablement-steps would be a “sustainworthying-innovation” –
      of 1st-Resort Needs-&-Hows Recognition and Problem Solving”
      and would be of paramount necessity to be constituted and proactively implementationally-facilitated.(…)

      [Before further considering the necessities of first-and-foremostly “covenance” [“love”]
      within the marriage-and-child-rearing ‘scenario’
      as being of a somewhat higher moral and practical element than
      the (merely) materially-binding “contractual” bonds –

      let me “give-way” – ]

  13. 29/10/2017 at 4:44 pm

    Great Post,
    Nice information about the talaq.

  14. Senex
    02/11/2017 at 9:25 pm

    During the debate on Clause 32 Lord McGregor of Durris describes the experiences of Lord Stoddard called here the ‘Stoddard Effect’. It relates to issues involving the non payment of child maintenance. The amendment in attempting to create a mechanism to accommodate the effect fails to make it into law. Instead the debt collection mechanism becomes embedded within the Service Provider.

    The business of Parliament also has immunity from the courts making each MP a stakeholder within the Service Provider. The consequence of this is that people caught by the Service Provider have their representation within Parliament abused contrary to Bill of Rights 1688 ‘Violating Elections’.

    Parliament grants the Service Provider a monopoly to collect blood money. It takes the view that blood money debt is different from commercial debt and the businesses that collect commercial debt.

    Quoting from the DEA guide for employers:

    “The Welfare Reform Act 2012, which became law in March 2012, allows DWP Debt Management, part of the Department for Work and Pensions (DWP) to ask you as an employer, to make deductions directly from a customer’s earnings.”

    Because Parliament granted a monopoly to the Service Provider the employer cannot manage debt recovery because the Service Provider will not allow it. It micro-manages the employer who would otherwise use Table (A) deductions. As the Service Provider does not have payday payroll information employees often see their guaranteed 60% net income reduced even further. Such employees are a legal liability to their employer.

    When the employee complains of this to the Service Provider it resorts to Child Support Act 1991 s.29 Collection and Enforcement (3)(e) Standing Orders. Again because the Service Provider does not have payday payroll information it cannot recover debt (if a substantial debt has arisen it remains frozen) only collecting the scheduled maintenance payment. If this fails to materialise then the employee goes back to s.31 ‘Deduction from earnings orders’ and the abusive monopoly.

    Direct Earnings Attachment: A Guide for Employers, Version 11.8

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