No Contest: Defended Divorce in England & Wales

Abstract

This report explores the relatively rare phenomenon of the ‘contested’ or ‘defended’ divorce in England & Wales. Contested divorce refers to cases where the respondent objects to the divorce on the basis that the marriage has not broken down and/or objects to the reasons given for the divorce. In about 600 cases each year - fewer than 1% of all divorces – the respondent will file an Answer to formally defend the divorce. The report is the first study of defended divorce since the 1980s. It sets out to explore why people do (and do not) defend divorce proceedings, how the court responds to these cases, and who appears to win what, if anything, as a result. The report also addresses two policy questions: whether the substantive law on divorce should be reformed to remove fault and, if reform were to occur, whether defence should still be possible or whether divorce could be safely and appropriately a purely administrative process. The report is based on court file analysis of 100 intend to defend (ITD) cases, a sample of 71 cases with Answers (including 29 of the ITD cases) and a comparison group of 300 undefended cases. This is supplemented by interviews and focus groups with petitioners and respondents, family lawyers and judges. No Contest? is a companion study to the previously published Finding Fault? report that examined undefended divorce cases. The Finding Fault report highlighted the gap between how the law works in theory and the pragmatic way it works in practice in undefended divorce cases. In the absence of law reform, the family justice system has developed something tantamount to immediate unilateral divorce ‘on demand’. Divorce is, in effect, already an administrative process that is masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. The Finding Fault? report recommended reforming the law to remove fault entirely.