Following the Court of Appeal judgment in Owens v Owens, in which a wife’s appeal from a refusal to grant a decree nisi of divorce was dismissed, the research highlights the requirement for change of divorce law in England and Wales.
The project, Finding Fault, is led by Professor Liz Trinder of Exeter University and is funded by the Nuffield Foundation. The aim of the research is to understand how the current law on the ground for divorce and civil partnership dissolution operates in practice, whilst also exploring whether and how the law might be reformed. The research looks at three central questions:
- How does the current law work in practice during the appeals process?
- What does the 'duty of the court to enquire, so far as it reasonably can, into the facts alleged' mean in practice?
- Is there a desire and requirement for law reform, and if so, how?
KEY INTERIM FINDINGS
- The majority of divorces are based on ‘fault’, i.e. blaming one spouse for the marriage breakdown.
- Using fault (adultery or unreasonable behaviour) means the divorce can take as little as three months, instead of the usual 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, designed to minimise conflict and upset.
- The court cannot examine whether allegations are true or false and petitions are taken at face value. ‘Rebuttals’ written on the form by respondents are ignored unless the respondent files a formal ‘Answer’ to defend said petition.
- Very few petitions appear to be rejected on fundamental legal grounds, whether ‘true’ or not.
- Fault can create or aggravate conflict. This can, in turn, affect discussions about children or joint finances where the law expects both parties to work collaboratively.
- Currently, there is no evidence from this research that the current law does indeed protect the law of marriage.
- Modification of the divorce law is long overdue. A single system of notification of intent to divorce would be clearer, more authentic and unbiased 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.'