Following the decision in Owens v Owens interim research findings have been published exploring how current divorce law works in practice. The research highlights the need for reform of divorce law in England and Wales.
The project, Finding Fault, explores how the current law on the ground for divorce and civil partnership dissolution operates in practice and to inform debate about whether the law should be reformed and if so, how. The study addresses three main areas:
- How the current law works in practice during the process of filing a petition. In particular, what impact fault based petitions have and do they accurately reflect the real reasons for breakdown of the marriage.
- Consideration of the 'duty of the court to enquire, so far as it reasonably can, into the facts alleged' has this simply become an administrative process?
- Is there a desire and need for law reform, and if so, how?
The key interim findings of the research are:
- The majority of divorces are based on ‘fault’, ie blaming one spouse for the marriage breakdown.
- Using fault (adultery or behaviour) means the divorce can take as little as 3 months, instead of a wait of at least 2 years through the two years separation.
- Divorce petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. Petitions can be watered down so as to stop unnecessary upset and confrontation or alternatively can simply represent one parties view as to why the divorce has broken down.
- The court cannot test whether allegations are true or not and petitions are taken at face value.
- The threshold for unreasonable behaviour petitions appears to be lower than thirty 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’
- So far, there is no evidence from the 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.
The interim report concludes: 'This is a timely opportunity for law reform so that divorce is based solely on irretrievable breakdown after notification by one or both spouses.'
It is clear from this report that there will be further scrutiny and consideration of the case for No Fault divorce over the coming months which we will follow with great interest.
At Ramsdens we are accredited members of Resolution, expert family law specialists. If you feel you need our help and advice then please do not hesitate to contact one of our expert family lawyers at any of our 12 offices. You can call us free on 08000 147720 to book your free 30 minute consultation.