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BRITAIN: Divorced from Justice

BRITAIN: Divorced from Justice
by Stephen Baskerville
April 18, 2019

The divorce industry is out in force in Britain: proposing reforms that no one is demanding to a problem about which no one is complaining. Justice Secretary David Gauke is dusting off all the old cliches from the 1970s to rationalize, not divorce by mutual consent, as he misleadingly suggests (and which is readily available now), but what amounts to involuntary and unilateral divorce. This dishonest sleight-of-hand will further debase the justice system, spread both legal and social chaos, and undermine the civil liberties of innocent citizens.

Mr Gauke claims that "divorce laws, as they stand, serve as an encouragement for some separating couples to grossly exaggerate their behaviour-based claims...by the troubling requirement for couples to make allegations about conduct."

This is nonsense. This most certainly is not the problem with divorce law, and no responsible parties today are saying that it is. (When was the last time anyone heard or read about willing couples having to fabricate faults to obtain a divorce?) Only divorce practitioners invoke this red herring when they want to deceive us into measures that will increase their earnings by further weakening the marriage contract and offering opportunities to loot the innocent. The law is not "encouraging mud-slinging through the legal requirement to identify a 'guilty' party." It creates acrimony -- and will continue to do so -- by allowing a guilty spouse to steal the children and everything else from the other, even when the other is culpable of nothing.

The real problem with current divorce law is that already does precisely what Mr Gauke will allow it to do more: excises justice from the legal system and turns the law into an instrument of plunder. One spouse can unilaterally abrogate the marriage contract without having to show any legally recognized transgression by the other, and without having to incur the consequences, and then collude with divorce practitioners against an innocent spouse, confiscate his children, loot everything he has, and even threaten him with jail if he fails to cooperate.

The very concept of "no-fault" justice is an oxymoron. It is no justice at all, and when the judiciary stops dispensing justice it starts dispensing injustice. There is no third alternative.

Unilateral and involuntary divorce is already the most radical legal innovation ever undertaken in the English-speaking democracies. It overturns the most basic principles of the Common Law, limited government, bills of rights, and more. Yet no public debate was ever held, either before it was first implemented in the 1970s or since.

It abrogates the ancient Common Law principle that a legally unimpeachable citizen has the right to be left in peace by the state. In no other area of the law (so far) can a citizen accused of no legal infraction -- criminal or civil -- be summoned to court and issued with directives controlling his life, for which he may then be punished.

Further, these directives control the most private and intimate corners of his life: his right to be with his own children and his relationship with them; his right to reside in his own home; his right to his own property; his private conversations; his external movements. Failure to observe these directives can and does result in incarceration without trial.

Divorce proceedings are the only legal proceeding (again, so far) with a predetermined outcome: A divorce must be and always is granted. Further, it elevates the will of a plaintiff to the force of law itself. If all that is required for a court to act against a "defendant" is a finding that a marriage has "broken down irretrievably," the plaintiff's complaint is true by virtue of being stated.

So divorce courts are not real courts at all; they are administrative agencies that implement a predetermined procedure. Principles of justice, violations of law, rules of evidence -- none of these will or can have any impact on the outcome.

Thus unlike true courts, the principal concern of divorce courts is not to weigh or administer justice, since it is not possible to dispense justice without recognition of fault. If the marriage contract has been breached (if only by the proceeding itself, when initiated without legal grounds), someone has breached it.

If children are involved, the courts immediately seize control of them, and they then routinely deprive one or both parents of authority over, and contact with, their own children, even if one parent has not committed any infraction and is legally blameless. No burden of proof requires the state to justify why. The burden of proof (and the financial burden) falls on an innocent parent to demonstrate why his children should be returned. This is directly contrary to centuries of Common Law precedent stipulating the parents have an inviolable and even "sacred" and "inherent, natural right" to the care and custody of their children and to speak for their welfare, unless they have committed some legal transgression that warrants losing this right. "For centuries it has been a canon of law that parents speak for their minor children," wrote US Supreme Court Justice Potter Stewart. This is all overturned by the "best interest of the child", a formula that transfers control over children -- all children, including those not involved in divorce procedures at all -- from parents to state functionaries. After that, a legally unimpeachable parent can be arrested for seeing his own children without government authorization.

The child support system then requires legally innocent parents not only to part with their children but to pay for their removal, directly violating the Common Law principle that a financial obligation must be based on some positive act by which the citizen incurs it. As attorney Jed Abraham writes, it forces a parent to "finance the filching of his own children".

After 50 years of divorce chaos, it might be nice if the government were to address a real problem instead of a fake one and honestly endeavour to make things better rather than worse.

Stephen Baskerville is Professor of Government at Patrick Henry College and author of Taken Into Custody: The War Against Fathers, Marriage, and the Family (Cumberland House, 2007), and The New Politics of Sex: The Sexual Revolution, Civil Liberties, and the Growth of Governmental Power (Angelico, 2017). He will address these issues later this month at the Ruth Institute's Summit for Survivors of the Sexual Revolution.

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