Finding Fault? Divorce Law and Practice in England and Wales
Trinder, EJ; Braybrook, D; Bryson, C; et al.Coleman, L; Houlston, C; Sefton, M
Date: 30 October 2017
1. Key messages The law of divorce in England and Wales has been subject to criticism for decades, most recently following the rare defended case of Owens v Owens. This major research study aimed to explore how the law is working in practice. The current law and use of fault The sole ground for divorce in England and Wales is the ...
1. Key messages The law of divorce in England and Wales has been subject to criticism for decades, most recently following the rare defended case of Owens v Owens. This major research study aimed to explore how the law is working in practice. The current law and use of fault The sole ground for divorce in England and Wales is the irretrievable breakdown of the marriage. But a divorce may be granted only if one of five ‘Facts’ is proved. Whilst many people might assume this is required, it is not necessary to prove that that ‘Fact’ was a cause of the breakdown. Three Facts are fault-based: adultery, behaviour, and desertion. Two Facts are based on separation: two years if the other spouse consents to divorce, five years if they do not. In 2015, 60% of English and Welsh divorces were granted on adultery or behaviour. In Scotland, where different procedural and related legal rules create different incentive structures, it was just 6%. Elsewhere, fault has been abolished or is just one option, and often a practically insignificant one, among several divorce grounds. The continuing problems of fault Academic research and Law Commission reviews from the 1970s onwards reported serious problems with the divorce law, including the lack of honesty of the system with the parties exaggerating behaviour allegations to get a quick divorce, while the court could do little more than ‘pretend’ to inquire into allegations. This study found that those problems continue and have worsened in some respects. Fault, especially behaviour, continues to be relied on to secure a faster divorce. The consequence is that parties often feel under pressure to exaggerate allegations or retro-fit the reasons for their separation into one of the legal Facts, even though the court’s expectations of what is required to make out each Fact is now actually very low, particularly for behaviour. The court has a duty to inquire into allegations but in practice in undefended cases only has the capacity to take the petitioner’s allegations at face value. That is procedurally unfair for the great majority of respondents who cannot defend themselves against the allegations. Parties embarking on the process might reasonably assume that the law is underpinned by a fault-based logic: that petitions should reflect who and what was to blame for the relationship breakdown. Yet whilst the law invites parties to rely on fault-based Facts, it does not require the court to adjudicate on responsibility in that way – not least because it will very often be impossible to allocate blame accurately in this context. Yet respondents on the receiving end of fault-based petitions inevitably feel cast as the ‘guilty’ party. The study found no evidence that fault prevents or slows down the decision to divorce and some evidence that it may shorten the time from break up to filing. We also found, as previously, that producing evidence of fault can create or exacerbate unnecessary conflict with damaging consequences for children and contrary to the thrust of family law policy. 10 The current divorce law is now nearly 50 years old. Its apparent rationale and operation are at odds with a modern, transparent, problem-solving family justice system that seeks to minimise the consequences of relationship breakdown for both adults and children. The need for law reform to finally remove fault The 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. We propose a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months.
College of Social Sciences and International Studies
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