This week we are highlighting the campaign for ‘no fault’ divorce following the publication of a new report on this issue by Professor Liz Trinder, Finding Fault. Avid followers of this campaign will recall our “No More Fault” blog in October 2016.
Finding Fault was published by the Nuffield Foundation and launched in Parliament at the end of last month and presents research into the current state of divorce law in England and Wales. The research took place over two years and heard from over a thousand divorcees, as well as family lawyers and judges. It highlights the inherent problems in our current fault-based divorce system.
Divorce affects more than 100,000 families in England and Wales every year. Currently, unless both spouses agree to a divorce and are willing to wait two years to achieve it, one spouse has to formulate allegations of the other’s ‘unreasonable behaviour’, or prove that there has been adultery (usually by the other person’s admission).
Our family lawyers’ association, Resolution, has welcomed the recent publication which adds oxygen to the campaign. Resolution’s Chair, Nigel Shepherd 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”.
The report makes a number of interesting findings. Firstly, the report notes that divorce petitions are often not accurate descriptions of why a marriage broke down as couples often invent reasons for the breakdown of their marriage in order to speed up the process. Only 29% of respondents to a ‘fault divorce’ (where fault is cited) said the facts used had very closely matched the reason for the separation. Furthermore, analysis of the 592 court files (petitions for divorce) in the report found that 37% of respondents denied or rebutted the allegations made against them. The court did not assess the truthfulness in any of these cases, often making this a pointless exercise in attaching ‘blame’.
Secondly, the report found there is much uncertainty surrounding what constitutes ‘unreasonable behaviour’, making ‘the rule of law’ unpredictable for divorce petitioners. In the 1980s, 64% of behaviour petitions were based on allegations of physical violence, but this has now fallen to 15%, indicating that there has been a significant lowering in the expectations as to what is needed to prove ‘behaviour’. However, the recent case of Owens v. Owens which we commented on in our blog has thrown the practice of lowering the behaviour threshold into disarray (watch this space for the next instalment of this case which has now been granted permission to appeal to the Supreme Court).
The report found that the need to find ‘fault’ can trigger, or exacerbate, parental conflict, which can have a very negative impact on children. The report also found that fault does not protect marriage or deter divorce. The study found no empirical support for the argument that needing to cite ‘fault’ may protect marriages because this makes people think twice before separating. In fact, the evidence pointed to quite the opposite – ‘fault’ was associated with shorter marriages and shorter gaps between the break-up of the relationship and filing for divorce. Divorce law in England and Wales is now out of step with Scotland, most other countries in Europe, and North America. 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%.
Based on these findings the researchers recommend removing fault entirely from 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. The current system is simply at odds with a modern, transparent, problem-solving family justice system that seeks to minimise the consequences of relationship breakdown for both adults and their children. The study adds further weight to the recent calls for no fault divorce from senior figures such as the new President of the Supreme Court, the President of the Family Division, the Chair of the Marriage Foundation, and the Family Mediation Task Force. Resolution has campaigned for the introduction of no fault divorce for decades, and today hailed the research as “a wake-up call for politicians.”
A head of steam now seems to be building for reform, which is very much welcomed by us at Cambridge Family Law Practice. As Lady Hale has recently reiterated, this change ‘cannot happen through case law’. The Government will need to introduce a new Act of Parliament.
The issue has long been each political party’s disinclination to be associated with the dismantling of family values. The question is: in the face of such overwhelming support, what is the government waiting for?
If you have any questions about what you’ve read here or any family law issue, you can call us on 01223 443333 and make an appointment to speak to Simon, Adam, Tricia, Sue, or Gail.