Interim findings from the first major research study on divorce law since the 1980s have been published. The research project, Finding Fault, which is led by Professor Liz Trinder of Exeter University, aims to explore how the current law on the ground for divorce and civil partnership dissolution operates in practice and to inform debate about whether and how the law might be reformed. Following the Court of Appeal judgment in the Owens case, the research highlights the need for reform of divorce law in England and Wales.
The key interim findings of the research were as follows:
• The majority of divorces are based on ‘fault’, i.e. blaming one spouse for the marriage breakdown.
• Using fault (adultery or behaviour) means the divorce can take as little as 3 months, instead of a wait of at least 2 years.
• Divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. Petitions can be based on compromise statements (a ‘fudge’) designed to minimise conflict and upset, or can be just one person’s view of what went wrong with the marriage.
• The court cannot test whether allegations are true or not and petitions are taken at face value. ‘Rebuttals’ written on the form by respondents are ignored unless the respondent files a formal ‘Answer’ (with £245 fee) to defend the petition.
• The threshold for behaviour petitions appears to be lower than 30 years ago. Very few petitions appear to be rejected on substantive legal grounds, whether ‘true’ or not.
• Fault can create or exacerbate conflict. This can affect negotiations about children or finances where the law expects parties to work together.
• In reality, there is already divorce by consent or ‘on demand’, but masked by an often painful and sometimes destructive legal ritual.
• So far, there is no evidence from this study that the current law does protect marriage.
• Reform of the divorce law is long overdue. A single system of notification of intent to divorce would be clearer, more honest and neutral between petitioner and respondent.
Family Law Cafe agrees that reform of divorce law is long overdue. We hope that this research, along with the Owens case, will encourage the government to take action to bring in a system of divorce that does not require the attribution of fault in any cases.
Image: Exeter University campus, by Barry W., licensed under CC BY 2.0.