New research published today by the Nuffield Foundation shows that divorce law in England and Wales is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce. In practice, says the report, 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.
Divorce affects more than 100,000 families in England and Wales every year. If separating couples want to get divorced without waiting for two years (or five if the other person does not consent, as with the recent case of Owens vs Owens), one person must submit a petition detailing how the other is at ‘fault’. In 2015, 60% of English and Welsh divorces were granted on adultery or behaviour. In Scotland, where a divorce can be obtained after one year if both parties agree, this figure was 6%.
The research, led by Professor Liz Trinder at the University of Exeter and funded by the Nuffield Foundation, is the first empirical study since the 1980s of how the divorce law in England and Wales is operating. The researchers recommend removing fault entirely from the divorce law 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 six months.
Commenting upon the report Nigel Shepherd, Chair of the family justice campaign group Resolution, said:
“This authoritative, academic research should eliminate any doubt from government that the law needs to change. Fault-based divorces don’t reflect the reality of relationship breakdown for the majority of couples and do nothing to help them deal constructively with the consequences – indeed they often have the adverse effect of inciting additional conflict between separating partners.
“It’s time to make no-fault the default.”
Family Law Cafe agrees wholeheartedly.
The report is here, and a summary can be found here.
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