Sir Paul Coleridge may not be on a moral crusade but his Marriage Foundation has certainly inspired the crusading spirit in the Daily Mail (download pdf of article here: It’s down to the judges to mend our divorce laws – they trashed them in the first place By STEVE DOUGHTY if you don’t want to give google juice to the Daily Mail, but if you must see it in situ here is the link).

The Mail’s Steve Doughty has written an article with a true identity crisis. When I read the words “A judge simply cannot launch controversial political campaigns, and particularly not about matters on which she is required to give daily judgements in court.” I thought Coleridge was about to get it in the neck for sticking out his own. But in fact, whilst the judiciary in general are the villains of this piece, Coleridge himself emerges as something of a hero. Steve Doughty begins by reporting the unremarkable fact that the Law Commission is comprised of lawyers:

“Judges have taken the lead in developing family law for 20 years now. It was in the early 1990s that a judicial quango called the Law Commission, which was set up to provide ministers with advice on updating arcane areas of the law, began recommending sweeping reforms for no-fault divorce to take the tears out of family break-up.”

The Law Commission of course advises the Government about Law Reform, and as we all know is often ignored, particularly where family law is concerned. But according to Doughty this has not stopped the judiciary from having their way by hook or by crook:

“It is the judiciary, not elected politicians, who have decided that the courts should take no account of adultery or other marital misbehaviour in divorce cases.

In a business contract, a party that breaks the rules is penalised. In marriage, the most far-reaching and solemn contract anyone can make, as far as the courts are concerned the rules don’t matter.

This is why a man who has to hand over a large slice of his income to an unfaithful ex-wife who is both living with a well-off partner and denying her former husband access to his children will sometimes feel driven to dress up as Batman and stop the traffic on Tower Bridge.

It is the judges who have decided that divorce settlements must be equalised so a wife can get a bigger share of money she has not earned. It is the judges who have given legal status to the pre-nup, introducing to the law the assumption that marriage is not for life.

Shall I take it in stages?

The Matrimonial Causes Act 1973 was enacted by Parliament. That tells the judiciary how it must determine divorces and applications ancillary to divorce i.e. financial applications. It permits the granting of divorce on the ground of adultery or other marital misbehaviour, and a divorce cannot be granted unless some marital behaviour is proven or accepted (except in separation cases). The Act also gives judges a broad discretion to make up their own mind about the division of assets based on the individual circumstances of each case. Parliament did not have to do this, but politicians decided this was the best way to achieve a good outcome for divorcing couples. s25 of the Matrimonial Causes Act 1973 says the court must consider all the circumstances, and then proceeds to give some guidance as to the specific factors that must be taken into account. The only restriction on the circumstances that can properly be taken into account is in relation to marital misbehaviour (“conduct”).

s25 …the court shall in particular have regard to the following matters…

(g) …the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

Judges have not interpreted this to mean that conduct should never be taken into account, since that would contrary to the wording of the statute. It is however true to say that it is rarely taken into account, and that it is even more rarely determinative.

So. It is politicians who have decided that the courts should take only limited account of adultery or other marital misbehaviour in financial matters.

Secondly. It is a matter of long established public policy that marriage is not a contract in any straightforward sense. As already explored the Matrimonial Causes Act 1973 does not operate on the basis of a punitive approach to bad behaviour, no doubt for reasons of public policy also – for example because to adopt a punitive approach would likely result in a greater burden on the public purse when the punished had to fall upon the state for subsistence or accommodation, or because the child being cared for by such a person would be adversely affected by such a policy, or because it would simply be unfair for a party to be stripped of their assets or income as a result of wholly unrelated behaviour, or because it is simply impractical, undesirable and a poor use of resources for the court to attempt to determine disputed facts as to conduct or to apportion blame in any mathematically translatable way. Should the spouse who has been unfaithful as an escape from an intolerable and abusive home life be penalised?

Next:

“This is why a man who has to hand over a large slice of his income to an unfaithful ex-wife who is both living with a well-off partner and denying her former husband access to his children will sometimes feel driven to dress up as Batman and stop the traffic on Tower Bridge.”

Note the paradigm gendered example chosen here. It is of course but one of many and varied tableaux which could have been portrayed. Batman is never unfaithful or abusive, or a bully. The wives are always unfaithful, scheming, venal and heartless. If only the bat girl could have the threat of punishment hanging over her perhaps she would not be so naughty. May I venture to suggest that the reason Batman often has to hand over a slice of his income is a) because he made a joint decision to create a life and he now has a duty to maintain that child, b) because Parliament has decided that he should do so under the child support provisions (as well as the MCA 1973), and c) because he is earning and has some money whereas his ex is probably not able to earn on the same level.

Bear with me. Last bit:

“It is the judges who have decided that divorce settlements must be equalised so a wife can get a bigger share of money she has not earned. It is the judges who have given legal status to the pre-nup, introducing to the law the assumption that marriage is not for life.”

Whilst the tendency towards equality is not expressly stated in the legislation and is far closer to judge made law, it is nonetheless a consequence of the deliberate decision Parliament made to give the judiciary a very broad discretion when it enacted the MCA 1973. And that money “she has not earned”? Must I really spell out how repugnant and oversimplistic that is? So-called women’s work of childraising and washing your the skid marks off your husbands pants has no monetary value in Daily Mail world, although of course many of us transgressive women are not doing much “Women’s work” at all. We should be burnt as witches, but thankfully that part of the Matrimonial Causes Act 1973 did not make it through the Committee Stage in the Lords and was thus never enacted.

Pre-nups. Have. No. Legal. Status. They are one of the factors that are taken into account under the MCA – you know, that piece of judge-made legislation I’ve been going on about.

And the assumption that marriage is not for life – not that I wish to state the obvious but the Matrimonial Causes Act 1973 is a piece of law ABOUT DIVORCE. It’s a piece of law that tells you HOW TO GET DIVORCED. And other ways to END A MARRIAGE. It’s hardly been invented by judges on a frolic of their own.

So much for judges “trashing divorce laws”. Politicians may have failed to improve or amend them, and the judiciary has done the best it can with what it has been given, exercising discretion and responsiveness to the uniqueness of each case as it has been tasked to do – but if it ain’t working the buck really stops with Parliament. But having made this broad and unfair swipe against judicial activism, Doughty is not above lauding a judge when it suits. Thus he opines that “it is left to Sir Paul to speak up for marriage, to condemn divorce, to point to the fragility of cohabitation, and to warn of the damage done to nearly four million children whose home life has to be settled by the courts.”

Doughty conveniently forgets that many of the children whose home life has to be settled by the courts are the children of married parents (And goodness only knows where the 4million figure comes from – it sounds improbably high, even in these busy days – my guess would be it includes public law cases, in which case it also includes a sizeable number of children whose parents have not even separated at all).

Is this sort of moral crusade what Sir Paul Coleridge intended or wished for? I doubt it. Does he subscribe to all of the assumptions that are insinuated by this article? Almost certainly not. But is it surprising that a well intentioned campaign to promote marriage has been so easy to hijack or that it should become associated with what some might regard as unattractive and regressive approaches to gender roles and relationships”? Sadly not.