Interim findings from research exploring how the current divorce law works in practice have been published today (24 March 2017).
Following the Court of Appeal judgment in
Owens v Owens [2017] EWCA Civ 182, this research highlights the need for reform of divorce law in England and Wales.
The project,
Finding Fault, is led by Professor Liz Trinder of Exeter University and is funded by the Nuffield Foundation. The aim of the research is 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. The study addresses three main questions:
- How does the current law work in practice during the process of petitioning? Fundamentally, is the production of the petition, particularly fault-based petitions, reflective of the real reasons for the breakdown of the relationship and what impact does the process have on relationships?
- What does the 'duty of the court to enquire, so far as it reasonably can, into the facts alleged' mean in practice? How rigorous is the process and has the scrutiny of petitions already become to all intents and purposes an administrative rather than an inquisitorial process?
- Is there a desire and need for law reform, and if so, how?
The key interim findings are as follows:- The majority of divorces are based on ‘fault’, ie 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.
The interim report concludes:
'In reality, we already have divorce by consent or ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. There is no evidence so far from this study that the current law does anything to protect marriage. The divorce process is currently being digitised. This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.'
For further details see
http://findingfault.org.uk and contact
e.j.trinder@exeter.ac.uk.
The interim findings can be downloaded
here. The final report is expected in late 2017.
