by Standerinfamilycourt
The first to plead his case seems right, Until another comes and examines him. – Proverbs 18:17
The “senior members of the Judiciary, the Family Mediation Task Force, Resolution (the national organization of family lawyers)” have the perfectly “simple” solution to the Solomonic dilemma posed above: make it henceforth unlawful for another to come and examine him.
(At least, until they’re all back in court afterward, fighting over the level of support and visitation of the children, upon which the next 10 years of fees may be billed, post-decree.)
Thomas Pascoe of the Coalition for Marriage called the House of Commons legislative “impact assessment” supporting enactment of “no-fault” divorce in the UK, on the premise that it will reduce conflict, “very flawed”. We call it, “not very original” – nor experientially true. We couldn’t agree more with Mr. Pascoe. In fact, after studying the study, we find his critique quite tactfully understated with regard to the entire study’s design, purpose and independence. Based on U.S. experience, we have much to say about the validity of the very premise that conflict over the involuntary dissolution of one’s marriage, and abridgment of parental and property rights, while innocent of any objective and provable charge, can or should be “managed” by the state as a primary goal of marriage regulation. The U.S. experience shows the acrimony can only be postponed until after the “dissolution” is imposed, and that this particular state-of-affairs has a long track record of being extremely lucrative for the legal community, while imposing absolute totalitarianism on the citizenry as a whole, outside of the protected special class.
In Part 2 of our coverage of these developments, we do a “deep dive” into the validity of the report, gleaning what we can about sponsorship, financing for the study, design, independence and objectivity. We do so from a U.S. experience-base of almost 50 years concerning the on-the-ground ability of the government to “manage conflict” in an adversarial divorce petition over inalienable property and parental rights, especially one where there’s no defense available to the “Respondent”, as is the appalling case in most U.S. states. We concede that the British constitution differs in various respects with the U.S. Constitution when we use terms like “inalienable”, and we forthrightly concede that these things have eroded over time in the U.S. due primarily to judicial corruption.
Undertaking this task has actually required the reading of several ancillary reports in addition to the House of Commons recommendation (briefing) report, including the public vetting results, and a 171-page commissioned “research” paper financed by a liberal public policy foundation (which states in a foreword that it also funded 1980’s research pushing unilateral divorce-on-demand), and spearheaded by a family law professor. This centerpiece research paper focuses primarily on administrative convenience for the courts, and “public perception” of the law, and not at all on evidence surrounding family integrity or outcomes (which should be paramount).
Pointedly not considered in the design of this “study” was any highly relevant U.S. data resulting from similar policies as here proposed, or whether the unilateral divorce laws enacted in the United States and Canada are sustainable in light of their extensive, progressive damage to the constitutional republics involved, nor even where similar policies (“postcard divorces”) had to be repealed even under communist regimes before those societies uttlerly collapsed. Most tellingly, Professor Tinder ignored Dr. Mark Regnerus’ landmark 2012 New Family Structures Study which was longitudinal over 15,000 subjects and a 30 year time period, and showed (among other things), that children raised in step-parent homes resulting from divorce did as almost poorly in their adult outcomes as children raised in single-parent homes – a clear rebuke on public policy which promotes non-widowed remarriage. Indeed, the study was not concerned at all with family structure outcomes; did not ask that question, therefore did not consider any of the abundant data along those lines. Despite engaging a statistics firm, this study did not even do a competent root cause analysis on the study questions it did ask, to validate the problem statement before defining “alternatives” and jumping to predetermined recommendations.
A properly-validated study would have examined the proposals from persistent reform efforts in other “no-fault” countries such as the United States, at least to have reasonable assurance that all viable reform models were being considered in this study. We further note that if the problem statement and root cause analysis had been properly constructed, the rather trivial complaints which the study said “justified” reform would have been more properly attributed to the lack of availability of a joint petition based on “irretrievable breakdown”, rather than mis-attributed to fault-based grounds — as was the true case in the United States in 1969.
It is quite implausible that Resolution would not have been aware of the steady wave “no-fault” reform bills over the last 15 years or so before legislatures in Michigan, Iowa, Texas and Oklahoma, where the persistent reform consensus has been around providing a combination of consent-only “no fault” grounds by mutual petition, and fault-based grounds that would apply in the event consent cannot be obtained. The best of these reform efforts also seek to apply fault-based property and child custody standards which have the goal of reforming the perverse financial incentives involved in the family law industry’s practice of actively contributing to the promotion of family breakup, to judicial collusion and corruption, and to preemptive control of all related legislative committees. It is also implausible that the lobbying organization “Resolution” would not be aware of the commercial advocacy of their counterparts in the various state bar associations and family law associations in the U.S. Surely, they would be aware of the rapidly-growing Parents’ Rights movement backlash in North America that has resulted from the very policies which this “reform” campaign advocates. Instead, this “study” takes a mere “snapshot” of existing problematic legislation which these intensifying reform efforts are aimed at, and disingenuously complains that the UK is “out of step” with what is occurring abroad.
In “standerinfamilycourt’s” humble opinion, the only portion of these study documents that were not primarily lobbying propaganda was the very interesting public vetting results (which were basically ignored in the final recommendations), along with very valid criticisms in Section 5 of the report.
The official recommendation for the new legislation reads as follows:
“The Government proposes that there will still be only one ground for divorce: that the marriage has broken down irretrievably. However, this would be established in a new way. The Government proposes to move away completely from both the ability to allege “fault” and the ability to contest (defend) the divorce: We propose to move away from an approach that requires justification to the court of the reason for the irretrievable breakdown of the marriage to a process that requires notification to the court of irretrievable breakdown. We also propose to remove the ability of a spouse, as a general rule, to contest the divorce (this is formally called defending in the legal process…). The Government reasons that if one spouse has concluded that the marriage is over, then the legal process should respect that decision and should not place impediments in the way of a spouse who wants to bring the marriage to a legal end. Importantly, this change would also prevent the legal process from being used to exercise coercive control by one spouse over the other spouse who may be a victim of domestic abuse.
“The Government therefore proposes to repeal the requirement for petitioners to give evidence of one or more facts and to replace it with a process of giving notice of irretrievable breakdown. In this process, the person seeking the divorce (or potentially the couple jointly) would give notice to the court of the intention to divorce, stating their belief that the marriage had broken down irretrievably. Irretrievable breakdown would therefore continue to be the sole ground for divorce. In the two-stage decree process that we propose to retain, the court would not be able to grant the first and interim decree (the decree nisi) if it was not satisfied that the marriage had broken down irretrievably.”
( 
SIFC : Notice the clever pretense of a residual “judicial discretion function” in the last sentence, mimicking a pseudo separation-of-powers but no longer with any actual substance, since explicitly all that will be legally required is the Petitioner’s subjective assertion which would then bind the judges to just one possible decision, once appealed. Under the U.S. Constitution this sort of window-dressing would be an imperative due to Articles 3 and 10.)
How did the vetting population feel about this? And who were they?
Overwhelmingly, these UK citizens are opposed to the main legislative recommendation to remove fundamental family protections, but their voice is clearly being ignored. This figure tracks right along with data gathered three decades ago in the U.S. that showed 80% of Respondents to a “no-fault” petition alleging “irretrievable breakdown” opposed the dissolution of the marriage based on religion and conscience, even if they could not afford to formally contest. Clearly, these UK citizens know when their civil rights and the sovereignty of the family are at risk, and when they don’t buy into the problem definition to begin with.
Based on who the vetting population consisted of, it is clear to see who made up the 15% minority in favor of forced, non-consensual divorce.
Independence in the research study?
SIFC found that in digging into the Nuffield study on which the legislative recommendations almost entirely rely, the backward-engineering (n.b. desired solution defines the “problem” which scopes the “research”), and cozy relationships between the legislators, judiciary and the family law industry didn’t take long at all to detect. Clicking over to the webpage of one of the partners in the study, statistician firm Bryson Purdon Social Research, we find their list of current and past projects shows that they are regularly hired by legislators. The acknowledgments page of the study gushes about the extensive contributions of the family law lobbying association in the UK called Resolution, several members of which served as advisors and “recruited interviewees”.
It would have been great to compare the list of officers and trustees of the Nuffield Foundation with those of Resolution, but unfortunately, the latter was unavailable to non-members. We have already mentioned the study director’s extensive ties to family law. As a touching finish, we read this dedication: “This report is dedicated to the memory of Sir Nicholas Wall, a former President of the Family Division (of the Judiciary) and an advocate of divorce law reform.
Rationale for disregarding overwhelmingly negative public input
On page 16 of the study, we read the following (bold emphasis added by SIFC):
“In our national opinion survey, 71% thought that fault should remain part of the law. However, the general public are unlikely to be aware that the current law does not in fact seek to make a definitive allocation of blame or of the very limited scrutiny that the court can undertake in practice.
(
SIFC: In other words, the ignorant peasantry simply “doesn’t understand” that the current statute is meant to preserve an appearance, and isn’t meant to foster the best family outcomes, renovate the system from the ground up so that the judiciary can manage its case load, preserve fundamental rights of innocent family members or promote any meaningful changes in the existing power structures for the good of society as a whole.)
“Drawing on qualitative interviews with the parties, we drew a contrast between two different and mutually exclusive moralities in relation to divorce: a traditional one based on ideas about individual justice for the petitioner, and a responsibility morality based on the ‘good divorce’ where the focus is on harm-minimisation, especially in relation to children. The first emphasises the importance of a strict adherence to and finding of fault; the second would eliminate fault if possible.
“We also traced how adherents of both moralities experienced the divorce process. In general, the experience of both groups was largely negative, but for different reasons. For some embracing a justice morality, the pragmatic orientation of the justice system could be deeply frustrating, whilst for others the experience of fault turned out to be problematic due to the conflict and upset it generated. Those embracing a responsibility morality also found the experience difficult. Some were using fault pragmatically but found the process slow and painful; whilst some who were avoiding fault on principle found the long separation required to avoid fault very difficult in practical terms and also left them feeling they had lost control of private family decisions. A small number of interviewees a dopting the justice morality wanted the role of fault to be strengthened, but for most the removal of fault was strongly preferred. ”
( SIFC : The removal of fault may have been “preferred” for Resolution’s hand-picked interviewees for the study, but this was certainly not born out in Commons’ vetting effort with the general public, which showed an even stronger result at 83% than the still-overwhelming 71% found in the study. We should also note that the last statement directly contradicts the beginning statement in this quote: so, which is it, Resolution?)
Why is increasing the role of fault important to this “small number of interviewees”? Dr. Stephen Baskerville, Professor of Government and Public Policy at Patrick Henry College, and author of two enormously important books, “Taken into Custody” (2007) and “The New Politics of Sex: The Sexual Revolution, Civil Liberties, and the Growth of Governmental Power” (2017) travels all over Europe explaining this very eloquently…
Dr. Baskerville (~ 2 minutes): “Nobody’s claiming we have to force somebody to live in a house with somebody they don’t want to live with. The question is…who bears the consequences? It’s a legal contract, or it should be, and if one walks away from it, what are the consequences? Who gets the house? Who gets the children or property and so forth ? Under what circumstances does the state have the role to come in and start allocating things? So fine, if someone wants to leave a marriage then I think we have no choice but to allow them to do that. But that’s not what we’re talking about here in the divorce machinery is positive state action against the other spouse. Why should that spouse who wants to leave the marriage without legal grounds…
( SIFC : excluding purely subjective legal grounds not based in any provable offense against the marriage or family members)
“… shouldn’t he or she leave with just the clothes on their backs, what they can get in a suitcase, and nothing else? Do they have the right to take the children, take the house, take the property with them when they leave? And this, of course, is where the state has to step in and say…has to allocate fault. They have to say where justice and injustice is.”
We provide this additional brief link to another key segment of the February, 2019 interview with Dr. Baskerville, for important further context. The study respondents in favor of increasing the role of fault know that the true best moral interest of the children and the only avenue to actual, objective justice, upon which a sustainable society depends, absolutely requires the application of fault, at least with respect to the effects of the divorce. The real barrier to this policy alternative, of course, is the hoped-for business model of the family law special interests, including the sponsors and designers of this “research study”.
Quoting the “Equality Statement” within David Gauke’s report,
“The aim of the policy is to reduce conflict between couples involved in divorce, dissolution and legal separation. The policy objectives are in line with wider strategic objectives to deliver a modern courts and justice system, including to provide a fair and effective justice system which supports better outcomes for children and families.
“The objectives are:
• To ensure that the decision to divorce or dissolve a civil partnership continues to be a considered one
• To minimise the adversarial nature of the legal process, to reduce conflict and to support better outcomes by maximising the opportunity for the parties to agree arrangements for the future
• To make the legal process fair, transparent, and easier to navigate
• To reduce the opportunities for an abuser to misuse the legal process to perpetrate further abuse”
These are purely ideological statements, with an undertone of making the law as LGBTQ-friendly as possible (code word: “Equality”). We point out that if a justice system which supports better outcomes for children and families were really the objective, then the research study would have been designed accordingly around family structure outcomes, and Dr. Regnerus’ rigorous 2012 NFSS study would have been invaluable support in reaching that outcome.
Because the April, 2019 position paper by Lord Chancellor David Gauke brings no other independent evidence to bear other than this heavily-biased and less-than-arm’s-length “research” (extensively requoted verbatim in the final recommendations, including the incomplete set of policy alternatives)– and the public citizen input has been patently ignored and discounted, “standerinfamilycourt” rests our case against the validity of “support” for this legislation here, rather than picking apart the legislative conclusions point-by-point (which was nevertheless tempting!)
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7 Times Around the Jericho Wall | Let’s Repeal “No-Fault” Divorce!