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‘Defending a divorce is expensive, complicated and unlikely to succeed’

New research adds to calls for no fault divorce

New research published today by the Nuffield Foundation explores why defended divorce occurs and examines how cases are dealt with by the courts. No Contest finds that the great majority of defences arise from quarrels about who is 'at fault', but in practice this is not something that can be determined by the courts, and most cases are settled, rather than decided by a judge.

In addition, the financial and emotional costs, and discouragement from the family justice system, mean that defending a divorce is not an accessible option for most people. The report concludes that the law is generating disputes and then failing to remedy them, and calls for reform of the divorce law to remove the concept of fault entirely.

The research was led by Professor Liz Trinder at the University of Exeter and is timely given the imminent Supreme Court hearing in the case of Owens v Owens, the only successfully defended divorce case in recent years. The No Contest report is a follow-up to last year's Finding Fault report, and together, the two reports present findings from the first empirical study since the 1980s of how the divorce law in England and Wales is operating. Finding Fault reported that the law is incentivising people to exaggerate claims of 'behaviour' or adultery to get a quicker divorce. These claims cannot be investigated by the court or easily rebutted by the responding party, leading to unnecessary conflict and a system that is inherently unfair.

No Contest focuses on the two per cent of divorces in which the spouse accused as being 'at fault' (the respondent) tries to take advantage of their legal right to formally defend allegations that they see as untrue or unfair. Contested cases are important because the court has an opportunity to test what the two parties say, rather than simply being able to rubber stamp applications. The researchers found three major problems.

The analysis of the 1% of divorce cases that are defended strengthens further the need for law reform identified in the Finding Fault report. The current law does not work well for the great majority of undefended divorces or for the tiny minority of defended cases. The researchers recommend removing fault entirely and replacing it with 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 at least six months. There would be no need for a further procedure for defence under such a system.

Professor Liz Trinder said:

"The divorce law is now nearly 50 years old and reform is long overdue. Our interviewees told us how difficult marriage breakdown is, yet the law makes the legal divorce even more difficult than it needs to be. Having to blame one person to get a divorce does not help and in most cases is unfair. And the court is not able to investigate why a marriage has broken down and recognises anyway that it is a fool's errand. The problem is that there is now a big gap between what the law is in theory and how it works in practice. That is not good for families or for the law.

"While the Supreme Court may find a way to grant Mrs Owens her divorce, the Supreme Court can only interpret the law, it requires Parliament to change it. Reforming the divorce law to remove the requirement for 'fault' and replacing it with a notification system would be a clearer and more honest approach, that would also be fairer, more child-centred and cost-effective. In the twenty-first century, the state cannot, and should not, rule on whether someone's marriage has broken down and who is to blame."

For the No Contest report, click here. For Finding Fault, click here.

26/4/18