“Very few divorce petitions rejected on substantive legal grounds, whether ‘true’ or not”

Interim findings of research into fault-based divorce published

Following the Court of Appeal judgment in Owens v Owens, Professor Liz Trinder of University of Exeter has published interim findings from Finding Fault?, research into the need for reform of divorce law in England and Wales. It represents the first major research study on divorce law since the 1980s.

The key interim findings are as follows:

The majority of divorces are based on 'fault' i.e. blaming one spouse for the marriage breakdown.
Using fault (adultery or behaviour) means the divorce can take as little as three months, instead of a wait of at least two years.
Divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. Petitions can be based on compromise statements (a 'fudge') designed to minimise conflict and upset, or can be just one person's view of what went wrong with the marriage.
The court cannot test whether allegations are true or not and petitions are taken at face value. 'Rebuttals' written on the form by respondents are ignored unless the respondent files a formal 'Answer' (with £245 fee) to defend the petition.
The threshold for behaviour petitions appears to be lower than 30 years ago. Very few petitions appear to be rejected on substantive legal grounds, whether 'true' or not.
Fault can create or exacerbate conflict. This can affect negotiations about children or finances where the law expects parties to work together.
In reality, there is already divorce by consent or 'on demand', but masked by an often painful and sometimes destructive legal ritual.
So far, there is no evidence from this study that the current law does protect marriage.
Reform of the divorce law is long overdue. A single system of notification of intent to divorce would be clearer, more honest and neutral between petitioner and respondent.

Professor Trinder said:

"The interim findings reinforce the points made by the President in paras 92-4 of the Owens judgment about how the law operates in practice in undefended cases. However mild, we found almost all (undefended) behaviour petitions will get through as the court can only take petitions on face value. It remains to be seen whether the Owens judgment will have any impact on how behaviour petitions are framed by lawyers or on the threshold operated within the regional divorce centres."

Finding Fault? is funded by the Nuffield Foundation. It is led by Professor Liz Trinder (Exeter University) with Mark Sefton, Bryson Purdon Social Research, OnePlusOne and Kantar Public UK. The study includes:

a national opinion survey on divorce law, including a sample of divorcees
interviews with people going through divorce
interviews and focus groups with family lawyers
observations and interviews with legal advisers and judges scrutinising divorce cases
analysis of court files.

A final report will be published in Autumn 2017.

For the interim report, click here. For more details of the study, click here.

26/3/17

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