Oh dear.

Headline in last week’s Independent : Fathers4Justice launches bizarre ‘Ditch The Witch’ campaign outside Johnny Depp court case

The standfirst below said : Johnny Depp-Amber Heard story is ‘best advert for divorce in the world’, fathers’ rights group says.

Oh deary me.

Firstly, whatever your views are about Johnny Depp and Amber Heard, this trial has not yet concluded – it remains to be seen what the judge concludes about whether or not it was libellous for a newspaper headline to call Johnny Depp a ‘wife beater’ and go on to state that there was ‘overwhelming evidence’ that he was. The case isn’t a divorce case at all; it’s about whether Depp’s reputation has suffered serious harm at the hands of the Sun.

The campaign Fathers 4 Justice have launched appears to be based on a series of mis-statements or misunderstandings about the law. It also seems to be seriously confused about whether divorce is a good thing or a bad thing – as far as we can tell its a bad thing where a woman witch wants to end an unhappy relationship, but a good thing where a man wants to ditch his woman witch (#divorce4men #ditchthewitch), except if it leads to her being awarded a share of the matrimonial assets. We admit, we’re confused.

Anyway, according to the Independent, ‘the divorce, dissolution and separation bill, which adds a sixth reason for divorce – “no fault” – is expected to become law by Autumn 2021.’ The main claim made by F4J is apparently that :

the new ‘“no-fault divorce” law will make it easier for fathers to be removed from families and drive warring parents into the family courts.

Ever fond of a slogan, especially if it rhymes or involves a pun, Matt O’Connor, the founder of F4J, said his group wants to end the “fraud of the rings” and establish “divorce equality” between husbands and wives after separation. He is reported as saying that :

“The new divorce laws are a gold diggers’ charter and a licence to bill giving lifetime pay-outs to greedy bridezillas. Women don’t marry men for their money, they divorce them for it.”

[Aside : That’s an impressive hat trick of macho movie allusions: Lord of the Rings, Bond and Godzilla all in one sentence. Heroes, warriors and monsters…]

The article goes on to tell us that F4J want :

to see an end to spousal maintenance, a legal presumption of 50/50 automatic shared parenting and a 50/50 division of assets, and a six-month “cooling-off” period with mandatory mediation and counselling before either party can file for divorce.

and that ‘Mr O’Connor said the “sexist” no-fault divorce bill is “good for business” for lawyers, but “bad for dads and terrible for children”.’

So, here is what is wrong with all of that :

  1. Firstly – and possibly with a tiny bit of lawyer’s pedantry – it’s not a bill it’s an Act. The full title is the Divorce, Dissolution and Separation Act 2020 (although it will not come fully into force until (probably) Autumn 2021). You can read it here. Though in fairness, that does seem to be a mistake on the part of the Independent not F4J (we wonder though if it might have been picked up from a F4J press release and gone unchecked).
  2. The Act has no bearing upon child contact or upon financial matters upon divorce. At all. It simply doesn’t go there. It does amend the divorce part of the Matrimonial Causes Act 1973, which is the Act which deals with financial remedies on divorce, but it doesn’t change those sections at all or touch on matters concerning children (Which are contained in an entirely separate piece of law). It simply deals with how you can end a marriage – in essence you don’t need to accuse your wife of being a witch or your husband of being a lycra clad sexist in order to secure a divorce when your marriage is over. This Act simply ensures that people who have fallen out of love can legally end their marriage without being gratuitously unpleasant to one another. They still have to go on and sort out children and money, but at least they won’t embark on that process having had to accuse one another of blameworthy behaviour just to get the ball rolling.
  3. The Act won’t easier to get divorced as claimed – the truth is that if a relationship is over couples will jump through the necessary hoops to achieve it. At present those hoops require them to say inflammatory things about their ex – but that aside it is pretty straightforward to achieve a divorce already if someone really wants one – these reforms will just make it a kinder process. The Act may not have much impact on those couple determined to have a bust up – they will find another forum to fight in anyway – and of course there will always be some families who have genuine reasons for needing a court decision on something that they can’t sort out without help – but the reforms are likely to help some couples navigate a separation without having to resort to the Family Court at all (save perhaps through submitting a consent order). The Act certainly can’t be sensibly interpreted as driving more couples to court.
  4. Even if you agree with F4J and many others that the current law is bad for dads and children in some way – this law makes not one jot of difference to it. It doesn’t make it worse and it doesn’t make it better (save that it attempts to avoid unnecessary acrimony, which is generally agreed to be good for children whose parents are splitting).
  5. Thus the suggestion that the act is a ‘gold diggers’ charter’ or that it will give lifetime pay-outs to ‘greedy bridezillas’ is just utter rubbish. Either F4J are mistaken or they don’t care about the facts. It is difficult to understand why they think that criticising a law that doesn’t deal with financial remedies rather than the one which does (Matrimonial Causes Act 1973) is going to advance their cause.
  6. As for the generalised assertions about the malign motivation of women, these are not only offensive but also neglect the reality that very often a woman is the financially weaker party to a marriage and is the one with the main childcare responsibility, which may impact on her earning capacity after the marriage too. This is not always the case however, and the Matrimonial Causes Act 1973 – just like the Children Act 1989 which deals with child arrangements (contact etc) does not distinguish between spouses or parents on grounds of sex, merely on the basis of their differing financial resources and needs. Where a husband is the financially weaker party he will be given the same protections by the same law that protects a financially weaker wife (though it is possible to argue that the application of that sex neutral law by judges is biased in favour of women that is not the argument that seems to be made here).
  7. As for the Act being ‘good for lawyers’ – it’s right to say that the reforms have come about as a result of campaigning by many lawyers – but it isn’t going to generate more work for them, if anything it will marginally reduce the legal costs of parties because the divorce process will be more streamlined and hopefully less acrimonious, at least in some cases. Lawyers don’t make a great deal of money out of the actual divorce part of a case anyway – they draft a petition, exchange a few letters and apply for the decrees. It is quite likely that even more people will feel confident enough to do this part of things themselves online in future without incurring any legal costs at all (apart from court fees).
  8. On the proposals that the campaign apparently seeks to achieve :
    1. the question of spousal maintenance is one on which there are a range of different views. Baroness Deech for example has previously proposed some significant curtailment of spousal maintenance. However, a complete end to spousal maintenance would disadvantage many men (though undoubtedly far fewer men than women). This would require a major amendment to the Matrimonial Causes Act 1973.
    2. A legal presumption of 50/50 automatic shared parenting would require the abolition of the principle that the welfare of the individual child is the paramount consideration – and would very likely run into some difficulties from a human rights point of view. Moreover this is essentially a rehash of F4J’s longstanding position, and it is one which was extensively considered in 2011 when David Norgrove conducted the family justice review – it was rejected in favour of a much weaker presumption of parental involvement – a presumption which has recently come under significant attack in the Spotlight Review report for encouraging unsafe decisions on contact in cases of domestic abuse (see here for example). This would require a major amendment to the Children Act 1989.
    3. A 50/50 division of assets would potentially disadvantage many men and women and leave many homeless or unable to rehouse in suitable accommodation – even if they are caring for the children. It is also fair to say that in some cases it might be right and fair for a husband (or wife) to retain more than 50% of the assets, which this proposal does not seem to allow for. This would require a major amendment to the Matrimonial Causes Act 1973.
    4. The last proposal is a six-month “cooling-off” period with mandatory mediation and counselling before either party can file for divorce. The existing law provides for a cooling off period already (currently six weeks). The new Act retains that. There IS a cooling off period under the existing law. There is already a system in place that requires divorcing couples to consider mediation before issuing financial remedy or children applications (with certain exceptions where that is not safe or appropriate). Going beyond that and requiring parties to mediate or engage in counselling would raise significant ethical problems for mediators and counsellors and would risk the process being manipulated by abusive or financially stronger partners.

In fairness to the Independent, they devote a good few column inches to a spokesperson from the Women’s Equality Party explaining why F4J are misguided in their demands and offensive in their language by this campaign, concluding with a quote from their Manu Reid that :

Fathers4Justice has accused the no-fault divorce law of sexism, which is exactly what their own campaign is guilty of.

Although F4J seem to be brim full of witty slogans incorporating assorted popular culture references and insulting descriptions of women as a class, their campaign seems currently to involve little more than a few beer mats in pubs and posters in mens loos and a big bill board outside the Royal Courts of Justice in London. The website that is shown on the billboard says nothing more than the overwhelmingly underwhelming :

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We aren’t in the business of giving strategic advice, but you might have thought that F4J would have checked out the law they are complaining about and maybe run their banner through a libel check before the big splash and fanfare. Depending on the outcome of the libel trial Amber Heard might not be very happy about being called a witch.

Feature Pic by Brickset on Flickr – creative commons licence – thanks!

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