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Introduction.  
As a divorce practitioner with many years experience I find that most clients come to me in a state of total bewilderment and astonishment over what happens to them in divorce proceedings. 

Injustice in Secret Courts.
What astonishes them is the perceived injustice, the abandonment of any generally recognised principles of justice and morality, and the hostility to men, which characterise the divorce courts. The bewilderment results from a widespread lack of public understanding –  until themselves involved  ­­–  of the way in which the Divorce Courts (not the weasel words “Family Courts” for courts which break up families) have, over the past 25 years, deviated from the laws as Parliament intended and expected them to be applied, and from the generally held views of men and women as to justice and fair play.

This bewilderment is found whatever the degree of education of the client. Its prime cause is the conspiracy of silence in which only a distorted and limited picture emerges from the closed doors behind which matrimonial cases are heard in secret courts such as have not been seen in Britain since the days of the Star Chamber. Behind closed doors, and with closed eyes and ears, the legal and social work professions operate in an “invented world”, where it is assumed that their actions are fair and just, and will be so regarded and approved of by right-minded people, and the general public. It also results from the approach of the media, who tend to accept without question the smooth and misleading picture put to them by the lawyers and social workers and, with a few honourable exceptions tend to suppress any alternative view.

The deviation from justice.
This deviation from justice began with the 1969 Divorce Reform Act and the 1970 Matrimonial Proceedings and Property Act. For a number of years pressures had built up from various influential quarters for what was decribed as “reform” of the divorce laws. The public and Parliament were sold the idea that there were many people who could not obtain divorces, although they had lived apart for many years, who ought to be free to do so, and many others who wanted a divorce without the need to allege a matrimonial offence against the other. This seemed on the face of it, just, which was why there was so little opposition to proposals for change. The Church of England further muddied the waters by its call for easier divorce but with an inquest into the causes of each marital breakdown. The divorce activists, working to a hidden agenda, used the Church to gain its support, but made sure it got something very different from what it hoped for.

The naivete of the educated classes.
On the whole the educated classes, except where they themselves have been involved in divorce, still naively believe they have a civilised divorce law, and the serious press is constantly full of letters from well-meaning people who say that those in divorce need sympathy and help in “fairly distributing their property and helping the children”. They fail to realise that for the bulk of the population there is not enough property to distribute, fairly or otherwise, and that all, whether rich or poor, regard their property as theirs and not something to be taken from them or, as one eminent judge described it, “redistributed within the family”. A woman solicitor even wrote to the legal press saying we should develop a system in which all Court Orders were Consent Orders!. This is the fear of conflict of which Taine wrote. In the real world, however, two nations who wanted the same piece of land fought for it, and in the domestic sphere two people who wanted the same house or custody of the same children also do. This is blindingly obvious to all but the “civilised” classes. People in the real world continue to believe that it is “their” child and “their” house, and will not accept that the Olympian disposal of their child and house to someone else is somehow “fair”, and thus to be meekly accepted with a pat on the back from the social workers. In the “invented world” of the lawyers and social workers, however, the holding of such views is seen as mad or bad or both, and is guaranteed to incur hostility. I have even heard one woman lawyer say how much she admired the “moderation and reasonableness” of men who voluntarily gave up all contact with their children because their wife objected to it. What I suspect underlies the desire of the lawyers, the social workers and the “well meaning” classes to avoid conflict in divorce is the delusion that their anti-male attitudes are shared by the general public and that, if the machinery of conflict were somehow removed, everybody would happily accept the diktats of the divorce courts.

The debate in Parliament.
All those various elements made their big effort in the House of Commons Committee stage of the 1970 Act when they attempted to have conduct deleted as an issue in maintenance and capital orders. Until then the law had been clear for generations, adultery, desertion, and cruelty were a bar to any claim for maintenance and therefore a heavy deterrent to breaking up a marriage. If a woman was “bored” with her marriage or “fancied” somebody else, or needed “space”, she had to make a value judgement before breaking up her marriage. Was it so unacceptable that she was prepared to forgo the financial benefits?. The Committee threw this out with great firmness, and a reading of the records of the Committee in the House of Commons is a salutary exercise. The Committee thought it outrageous that conduct should be irrelevant, and pointed out that such a move would only lead to widespread divorce and injustice.

One other move by the “reformers” as I shall now call them, was also defeated, although actually introduced by the government – a statutory requirement for the courts to seek by financial orders, to maintain the financial position of the wife only, but not that of the husband. The “reformers” had been defeated. But this was short-lived.

The 1970 - 1973 legislation.
The 1970 Divorce Act preserved conduct, and the only significant change in that respect was that cruelty as a ground for divorce was replaced by unreasonable behaviour, the difference being that the element of injury to health was no longer required. There was no suggestion in Parliament that the test of acceptable behaviour should change.

Further legislation followed in the form of the Matrimonial Causes Act 1973 that was, in many ways, a consolidating Act for the 1970 Act, and the associated legislation that had taken place immediately before and after it. These Acts had answered the pressures of the “reformers” by adding two additional grounds to the existing three grounds for divorce. The existing three had been adultery, cruelty (i.e. behaviour plus injury to health) and desertion, and the two additional grounds were two years’ separation in the case of consent by both parties to divorce, and five years’ separation if one party did not consent. The two years’ separation plus consent ground catered for the more sensitive elements of the educated classes who, in the case of genuine mutual consent, were repelled by divorce petitions containing allegations against the other party and wanted to do everything by “consent”. The five years separation ground catered for those caught in the position where they could never obtain a divorce for lack of grounds. It was quite apparent that Parliament contemplated, in this, three classes of divorce; a compulsory divorce after five years’ separation, a consensual divorce after two years’ separation in which people could make their own arrangements, and a non-consensual divorce in the case of adultery, unreasonable behaviour (i.e. cruelty without the need to prove injury to health) or desertion where one party did not want a divorce. It was naively anticipated that most divorces would be by consent. This never proved to be the case.

The financial provisions rested, as to the criteria for making orders, on a more detailed reiteration of the provisions, based on conduct, which had been in the original 1857 Divorce Act. The courts had to make such order as was just “having regard to the parties conduct”.

Parliament's intentions frustrated.
The excesses of the reformers had apparently been frustrated by Parliament, but the Courts proceeded immediately to undermine Parliament’s intentions in a devastating manner. First, they ruled that the test of unreasonable behaviour was subjective as opposed to objective, so that conduct which an ordinary person would find insufficiently unreasonable to justify divorce was nevertheless to be held sufficient if the petitioner claimed to find it so (3). This opened the gates to the ridiculously weak “behaviour” petitions of the past 20 years, and led to a widespread practice of anybody (particularly a man) who sought to defend a weak “behaviour” petition being subjected to hostile assault by judges. In addition, such litigants received extreme pressure from their own barristers and solicitors, who would tell them  that there was no purpose in defending, since the marriage had broken down. Legal aid was usually refused although sometimes granted to women. The Courts themselves, in defiance of Parliament, had brought about the “divorce on demand” which most of the lawyers and academics favoured.  

(3) i.e., the subjective test

Public bewilderment.
All of these developments took place without being realised or understood outside the ranks of those involved in divorce, and it was widely assumed that divorce was as it had been but merely easier to obtain. Those involved in divorce did not really realise what had hit them until it did. Many could not believe what had happened to them, let alone understand it.

Bizarre process of reasoning.
In order to justify their approach, bizarre processes of reasoning were adopted by the Court, which an eminent student of these developments, Dr John Campion, has, as part of the wider picture, summarised in the phrase "the invented world". By this he means a world in which the weird views of the "family" lawyers and social workers were regarded as the only normal approach to human relations, so that anyone who objected to being stripped of their home, property and children, in a way they would not be if they had committed a grave crime, was assumed to be mad or bad. It was a world in which it was normal, right and proper that men who had committed no crime would be stripped of everything, in which the Courts refused to enforce their own orders against wives if they chose not to obey them, in which it was "in the best interest of the family" for children to be deprived of their fathers, and to see their fathers, stripped and humiliated, and in  which husbands/fathers were not only expected to work to support or at least house their former spouses living with their children and a new lover, but actually regarded as mad or bad if they raised any objection. There was no hesitation about throwing them into prison if they did not comply with the Court's order. It was a world in which several very senior judges proclaimed that there was no significance in the "blood tie" between father and child, but only in that between mother and child.

Bogus principles of social behaviour.
A number of quite extraordinary principles of social behaviour were put forward by the courts to justify their reasoning, in response to the sense of moral outrage that began to develop among the public. A bizarre view was put forward by the judges that the husband was the "cock out feathering his nest while his wife was sitting at home on the nest", and that the husband could not have feathered his nest were the wife not sitting on it. This has been uncritically repeated throughout the legal profession and the law reports, although even momentary examination reveals it  to be manifestly absurd. The man who has regularly worked would, in most cases, have acquired his property, whether married or not. A possible exception is in the case of the man pushed on by an ambitious wife, but then for  every man pushed on by an ambitious wife there is likely to be one held back by an unambitious one. Indeed, it should further be pointed out that the wives who have acquired houses and property would, had they not married, have been unlikely to acquire such property, or even own any property, because of the lower pay of women.

Injustice better than conflict.
It was argued that by stripping husbands of their property without investigating the causes of the marital breakdown, Courts were sparing the parties the distress of conflict and the bitterness which would have resulted from that conflict. If the victim protested, or expressed bitterness at being "stripped" or pointed out that it was being "stripped" rather than conflict to which he objected, judges regarded and treated him as mad or bad. The lawyers would patronisingly boast that they had spared the husband the distress of a Court battle by stripping him at the courtroom door.

Wilful confusion of reasoning.
It was said that relationships broke down for complex reasons, and that the Courts could not investigate these reasons in depth. Often true, but irrelevant. What should matter, and to the ordinary member of the public did matter, was who broke up the marriage and whether they had objectively substantial reasons, not what the feelings were in a relationship. If this were not so then, in the eyes of the Courts, marriage as an institution is of less importance than relationships, including cohabitation. It is a contract of marriage, and its breach, not a relationship, upon which Parliament intended the courts to adjudicate.

The underlying prejudice against men.
The reality was that the Courts did not wish to investigate the facts, mainly because investigation might reveal matters adverse to the wife, and partly from an Olympian distaste for conflict. The same factors were involved in the reluctance of the Courts to hear the views of children as to where they wished to reside. They might hear what they did not want to hear, children saying that they wished to live with their father. Again, it was said that it was best for the children to se a difficult marriage broken up, and the wife in a secure accomodation, preferably with her new "man" to form a new "family". Why the children should benefit from losing a father, seeing him impoverished, probably losing contact with him, and a decline in their living standards, was not explained. It was only explicable on the ground that the judiciary and the bulk of the legal and social work professions saw fathers as figures of no significance . Indeed there were many judges, and many more lawyers, quite prepared to say that they were not in the least concerned with what happened to the husband/father and often that the "blood tie" between father and child was of no significance. The Courts wholeheartedly embraced this view, ruling that, when the parents divorced, there was a new family, consisting of the wife, children and the new man., The old family, i.e., the husband, had ceased to exist, except for maintenance, where the courts did not hesitate to say that the husband ought to be "supporting his family", even if not allowed to see the same family of which the same courts regarded him as no longer part.

Judges provide incentive to divorce.  
Applied to everyday situations all this meant that the law as Parliament intended it pre-1974 had gone. Prior to then, a wife who deserted her husband was disentitled to maintenance at common law, and could be divorced without maintenance after 3 years, and an adulterous or cruel wife was divorced usually without maintenance. In none of these cases did she have a capital claim against any property not hers in law. Until not many years before there had been no maintenance for the children if with a mother in a state of desertion. This was a powerful deterrent to desertion. Those who planned  to ditch their husband without good cause had to make a value judgement. If they went off with the boyfriend they received no maintenance and no capital. In the new situation the judges said "if you want to ditch your husband and take a boyfriend we will support you and see that you do not lose out. You can have your husband's money and your boyfriend" they then proceeded to express surpise and even puzzlement at the huge rise in the divorce rates, to become the highest in Europe, without, in the faintest degree seeing that they were the cause. Those that did understand it seemed not concerned. If easy divorce without consequences was what women wanted, women should have it.

The effect on the clients. 
The hostility of the judges, reinforced by the unwillingness of lawyers to stand up to judges, and the prejudices and failings of the lawyers, led to clients frequently not being advised of their rights or their case not being pressed in the Courts. What also happened was that Courts often made orders quite beyond their powers if they felt they could get away with it, that is to say, if they felt the lawyers in front of them would do little about it, as was usually the case. Such attitudes spread throughout the profession to such an extent that some firms in London boasted that "We only act for wives". Solicitors at Law Society conferences called for lawyers to cease to be obliged to act in thei clients' interest but, in a new and ominous phrase "to act in the interests of the family". This was a code word for acting in the interests of the wife, and has become general usage among "family Lawyers". It became common practice, particularly among barristers, for them to get together and "settle" the case usually to the husband's disadvantage. The process of indoctrination began at an early stage. Exam papers with a dozen questions on Family Law contained as many as eleven saying "!advise the wife". The tendency of the Englishman  not to think had enabled a small and highly motivated minority to brainwash a profession into  unthinking acceptance of its views.

The so-called "interests of the family". 
The absurdity of the expression "acting in the interests of the family" is shown when one actually examines it. The only person in Court who is there to act in the interests of the family is the Judge. His function is to do justice between the parties. This is something which they now proudly boast of not doing, saying their function is to protect the wife and children, not to do justice. The "family" clearly does not include the father.  The function of the lawyers is to put forward the interests of their client, not the interests of the so-called "family," the other principal member of which in any event will have another lawyer. Indeed, the matter goes beyond that since, if the lawyers "act in the interests of the family" as they think they are doing, all they are doing is acting in what they think are the interests of the family. They may be wrong and thus do damage to the family. The ultimate line became "putting the child first" which really meant putting the mother first, and this has become the all-embracing excuse for all manners of injustice. Indeed, putting the child first appears to have been the basis of the recently reported case on in Re B, (Times Law Reports, 9th July 1997) in which a father was barred from seeing his child after the step father threatened to leave the mother  if contact were granted. This seems a questionable view if the child's interests, since continued contact with its father would seem of more importance than any short term distress of the mother caused by departure of the step father. Indeed this view appears to regard fatherhood as of no great importance.

Public outrage.
Increasing public outrage led, by 1979, to the formation of organisations such as Campaign for Justice in Divorce. Vigorous bombardment of the Press and Parliament began to lead to awareness of something being wrong, even though the precise nature of it was not understood. The casualties of the matrimonial battlefield appeared in social gatherings like disabled men after the First World War. In 1982 three hundred and fifteen MPs signed a motion to investigate the position. The pressure for change became so intense that the legal establishment decided that something had to be done. What happened, though was that they effectively seized control of the legislation and through skilful selection of the Committee, and rigorous control of the voting in Parliament, ensured that Parliament never really understood what was being complained about and, what went through was relatively innocuous. The establishment skilfully "conned" Parliament and was disastrously helped by many of the leaders of the men's organisations, who went along with what was happening, apparently jollied along by the civil servants involved.

Failure of the first men's organisations - the conduct issue.
In my view it was an unfortunate feature of those attempting to end the abuses that they failed to accept that, in order to get public opinion going with them, they would have to accept that middle aged and elderly ladies could not be seen to be left for young women and not provided for. This was a major cause of the failure of the husbands' groups to achieve wider support. Because the husbands' groups failed to push the "conduct" issue, which was the cause of most outrage among ordinary people, and campaigned instead for the total ending of all maintenance, they alienated a large body of public opinion which would not support this. I cannot over-emphasise that conduct is the key to everything because conduct is the issue that outrages ordinary people, and it is the abolition of conduct, together with the various invented "principles of social behaviour",which has made divorce so easy and tempting to wives. In essence, wives have been told by the Courts that it is right and proper to say "I don't want him but I want his money".

What is conduct.
What do I mean by "conduct"?. The Courts will tell you that they not  the time to go into nit-picking issues of conduct and that, in any case, usually one person is as bad as another. The lack of time is a quite extraordinary argument , because the implication is that the Courts are far too busy doing injustice on a production line scale to have the time to do justice on an individual scale. But, importantly, conduct does involve nit-picking issues. To most people, conduct means adultery, extreme violence and desertion and similar matters. Neither men nor women see why the adulterous or deserting wife receives maintenance or is allowed to strip the husband of his assets. More subtly, though, the real issue relating to conduct is who brought an end to the marriage itself and for what reason. Thus, if a wife breaks up a marriage for no good reason, there is no reason why she should receive maintenance other than her capital contribution to her marriage. It is quite wrong that a wife should be free to say she does not like her husband yet still wishes to have his money. The current approach to conduct is to exclude it in nearly all cases, unless it is the man's conduct. One other approach has been to limit conduct to the consequences of financial misconduct e.g., dissipation of assets, and then to top up the award so as to cancel the effect of that conduct. This, at least on paper, has been limited by the 1996 Act provisions which make clear that conduct is not limited to financial misconduct. In practice the courts are likely to ignore Parliament's intentions, and lawyers will continue to reject conduct as an issue. 

The first men's organisations collapse.
The failure of the men's organisations to achieve anything in the 1984 legislation, reinforced by their leaders' support for this useless legislation, led to a decline in their membership for some years, exemplifying the tendency of men's organisations the world over to split and even to litigate between themselves.

The revival.
By the 1990's the men's organisations were beginning to revive under new leadership. The new organisations, of which the United Kingdom Men's Movement was the most significant, had a better grasp of what had happened in the past, and had more defined policies on how to deal with the problem. They understood the conduct issue more clearly. I had written the original version of this paper in 1988 to create an understanding, precisely because I had watched the men's organisations, for many of whom I had acted, floundering in the dark, railing against the system without understanding its causes. I concluded that I needed to update it to meet the challenge of the 1990's.

The prospect of change.
So powerful however, had become the weight of the establishment thinking in this field combined with a lack of public and Parliamentary understanding of its cause - the lawyers - that the prospect of change in the foreseeable future seemed low.

Change began to come from unexpected sources.

The Government's proposals.
The Lord Chancellor's proposals, in effect, were for divorce on demand, mediators to solve the financial issues and save Legal Aid money, and a widened power of ouster which was to extend to cohabitees, thus reducing  marriage to mere cohabitation. Upon all the evidence, much of the Cabinet did understand what was happening, and certainly did not want it, but a small and powerful element did, and forced it through the Cabinet.

Parliament's reaction.
When Parliament, concerned by social breakdown, considered the legislation, it, as a result of an outstanding campaign by pro family campaigners, indicated that it was beginning to understand a little of what had been happening. All honours are due to the Daily Mail in particular for the way it mobilised opposition so that a strong opposition developed and the situation reached the point where the legislation was threatened with failure. A desperate Government made many concessions which for the first time may drive the beginnings of a wedge into the present system. Despite us now having divorce on demand, conduct is supposed to be taken into account to a greater degree in financial and child issues. It is my belief that the Courts will continue to defy Parliament's intention. I remember hearing a barrister, now a High Court Judge, claim at a lecture  on the 1984 Act that they would ignore it. Nevertheless the continued social breakdown and the further flagrant defiance by the Courts, of which a wider public understanding is developing, will continue to arouse further Parliamentary and media concern.

The Child Support Act.
Another factor which had contributed to social breakdown was the Child Support Act, sold to Parliament as a means of saving the Exchequer from the cost of so-called "dead beat dads" who were not supporting their families, in particular, the unmarried fathers.

It was later admitted by the Child Support Agency chief that the real target, however, was the middle class married father with means. In other words, once again there as a hidden agenda.

The pension issue.
One other development in recent years has been the successive Acts of Parliament, first providing for maintenance out of pension provision, and then (1996 Act) providing for the pension to be treated as an asset and divided, so that a wife who has remarried will many years later be collecting a chunk of her ex husband's pension.

There is a false logic in the whole pension issue. Pensions are being treated as a capital asset when they are not. a pension is a contingent income dependent on many factors. Splitting it could lead to the absurd and unjust situation where, on retirement, the ex husband has a proportion of his pension and his ex wife, by now married to somebody else, has the rest of his pension as well as her own and her new husband's. Previously, the principle had been that pensions are really only relevant if maintenance liability continued beyond retirement age.

The solution.
II wrote in 1988, and still hold, that the logical consequence of any situation which sought justice was that there should be three classes of divorce. The first would be where the parties reach agreement both to have a divorce and on financial and related matters. The second would be where one party only wanted a divorce for a good and substantial reason, such as grave misconduct by the other party, e.g., adultery, desertion, or serious (in the pre 1970 sense) behaviour, objectively assessed as justifying termination of the marriage. The third, and perhaps the great majority of cases, would be where one party only wants a divorce and could not show such misconduct by the other party. In the first case, no dispute would arise. In the second, the payment of maintenance to the innocent party would be appropriate in some cases, particularly where the petitioner was a middle aged or elderly lady. In the third case the party wanting the divorce should effectively be put to their election. Either they continue with the marriage and its obligations or they repudiate the marriage and its obligations and thereby forego the right to receive any financial benefit from the marriage which they had unjustifiably broken up. "I do not want him, but I want his money" is a morally unacceptable position (even prostitutes provide services for their reward) and one which has led to Europe's highest divorce rate.

I have no doubt that if this approach were adopted there would be a radical reduction in the  number of divorces. The "principle" invented by the Courts, that both parties are at fault in the termination of a marriage, results from a mixture of blind prejudice and deliberate intellectual muddle, and has led to Courts' effectively defining marriage as a state in which the wife should have no obligations of any kind yet should have financial rights far greater than those of a widow, regardless of her terminating the marriage for no good reason. The justifiability of the termination of the marriage should be the key issue. There is no reason why someone should expect to break a contract and still benefit from it.

The future.
It is clear from the content of the debates in Parliament that a substantial number of MP's are beginning to understand what has happened. The change of Government and the influx into Parliament of a mass of feminists and pro-feminists strongly suggest, however, that only slow progress will be made in this Parliament.

However the first floodgate likely to collapse is the Child Support Agency, Its ever increasing cost, and decreasing recovery rate, plus the reported billion plus bill to replace its computers, will make it increasingly insupportable. It is also likely that litigation over pensions will greatly increase the volume and bitterness of litigants in the courts, and bring home the scale of the disaster to more members of the public.

Getting the truth to MP's.
The only way forward is to get home to MP's the message in this article, which clearly sets out the true case of the divorce disaster, the way the Courts have overridden the intentions of Parliament, and the way in which the divorce lobby have conned Parliament and the media.

Laws to override judicial prejudice.
An essential aspect of any ultimate reform must be to have laws drafted in sufficient detail that the Courts, in their decisions, are unable to fly in the face of the intentions of Parliament. Courts who are prepared to order a man to maintain a wife who is living with somebody else and see nothing wrong with this (7), or to maintain an ex-wife from a short, childless marriage who cannot work because she has become pregnant by another man subsequent to a divorce (8),  cannot be entrusted with wide discretions.  

(7) Atkinson