Family Law

A landmark report published today by the Nuffield Foundation calls for an end to fault-based divorce law in England and Wales.

Finding Fault? Divorce Law and Practice in England and Wales is the first empirical study since the 1980s of how the divorce law in England and Wales is operating. Led by Professor Liz Trinder at the University of Essex, the study used a mixed methods approach, drawing on interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process and analysis of divorce court files, coupled with a national opinion poll and comparative legal analysis.

The research demonstrates that the current fault-based divorce law in England and Wales increases conflict and suffering for separating couples and their children, encourages dishonesty, and undermines the aims of the family justice system. It highlights that divorce law in England and Wales is out of step with Scotland, most other countries in Europe, and North America.

The summary and full reports can be found here.

Professor Liz Trinder said:

‘This study shows that we already have something tantamount to immediate unilateral divorce “on demand”, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.”

There is no evidence from this study that the current law protects marriage, and there is strong support for divorce law reform amongst the senior judiciary and the legal profession. We recommend removal of fault so that divorce is based solely on the notification, and later confirmation, by one or both spouses that the marriage has broken down. This should be a purely administrative process with no requirement for judicial scrutiny – in the 21st century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.’

Teresa Williams, Director of Justice and Welfare at the Nuffield Foundation said:

‘It is essential – perhaps now more than at any time – that public trust in institutions is maintained. The law is at serious risk of being brought into disrepute by the mismatch between the divorce law in theory and what is actually happening in practice. In addition, there is a discrepancy between the law and the realities of people’s experiences. Relationship breakdown and separation can be complex and messy. It cannot be readily categorised or date stamped, and the perspectives of those involved can differ legitimately.

The dominance of “fault” within divorce law is at odds with the thrust of wider reforms in the family justice system, which have focused on reducing conflict and promoting resolution, both of which play a role in improving the outcomes for the parties, including any children involved.’

Resolution, which has campaigned for the introduction of no-fault divorce for decades, welcomed the publication of the report and hailed the research as ‘a wake-up call for politicians’.

Resolution’s Chair, Nigel Shepherd, said:

‘This authoritative, academic research should eliminate any doubt from Government that the law needs to change. Fault-based divorces don’t reflect the reality of relationship breakdown for the majority of couples and do nothing to help them deal constructively with the consequences – indeed they often have the adverse effect of inciting additional conflict between separating partners. It’s time to make no-fault the default.

The current system, which is unchanged since the beginning of the 1970s, encourages a charade at best, and at worst actively drives a wedge between couples who might otherwise be able to remain on good terms during a divorce. This is bad for them and bad for their children. It is also wholly at odds both with government rhetoric, and with the approach Resolution members take under our Code of Practice.

At present, many divorcing couples are forced to play the “blame game” – citing examples of unreasonable behaviour or adultery, long after the relationship has broken down, simply to satisfy an archaic requirement on the divorce petition which has its roots in laws drawn up more than a generation ago. As the report rightly says, this is an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.’