fault

Academic review of divorce law urges change to a no fault procedure

Interim findings from research exploring how the current divorce law works in practice have been published this month, with final findings anticipated later in the year. The researching is conducted by Exeter University’s Prof Liz Trinder and follows the Court of Appeal’s recent judgment in Owens v Owens [2017] EWCA Civ 182, highlighting the need for major reform of  the law and process around divorce in this country, proposing a no fault sytem.

The project, entitled “Finding Fault”, seeks to explore how the law relating to divorce and civil partnership dissolution currently operates and to influence debate on how the law might be reformed. The study addresses three main topics:

  1. exploring how divorce petitions are produced and with what effect this process has on the parties
  2. exploring the content of divorce petitions, case progression and a scrutiny of the divorce process
  3. exploring attitudes to the current law on divorce and civil partnership dissolution and views on law reform

The key interim findings are as follows:

  • The majority of divorces are based on ‘fault’, blaming one spouse for the irretrievable breakdown of the marriage
  • Using fault based facts (i.e. adultery or unreasonable behaviour) means the divorce can take as little as three months, instead of a wait of at least two years wait, if alternate fact can be relied on (i.e. two years separation with consent of both parties).
  • Divorce petitions are not necessarily accurate records of who or what caused the irretrievable breakdown of the marriage. Petitions can utilise statements designed to minimise conflict and upset, or can be just one spouse’s view of what went wrong with the marriage.
  • The court cannot test whether allegations made by a petitioner are true or not and petitions are taken at face value. Rebuttals written on the Acknowledgement of Service by a respondent are widely ignored, unless the respondent defends the petition (paying the £245 fee too).
  • Anecdotally, the threshold for unreasonable behaviour petitions appears to be lower than 30 years ago. Very few petitions appear to be rejected on substantive legal grounds.
  • Fault can potentially create or exacerbate conflict. This can affect negotiations about children or finances where the law expects parties to work together, whether privately, through mediation or the court system.
  • Meaningful review and reform of the divorce law is 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.’

Serving London, Bedford and the surrounding villages, our lawyers can help you with your divorce and family law matters. If you would like to speak to one of our solicitors to discuss your case, contact us today on 0207 177 9777 or 01234 889777.

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