Divorce law in England and Wales encourages dishonesty and conflict, and is out of step with the law in Scotland and most countries in Europe and North America.
That’s the conclusion of a major report commissioned by the Nuffield Foundation and led by Professor Liz Trinder, University of Essex, Finding Fault? Divorce Law and Practice in England and Wales. The reason is the ‘fault’ aspect of divorce, where a person wishing to divorce within two years (or five years if their spouse doesn’t consent) must claim unreasonable behaviour on the part of their partner. In practice, these claims cannot be investigated by the court or easily rebutted by the responding party—the court did not raise questions about the truth of a petition in any of the 592 case files analysed, despite evidence that respondents disagreed with the claims.
In England and Wales in 2015, 60% of divorces were granted on the basis of adultery or behaviour, compared to only 6% in Scotland, where couples can obtain a divorce after one year if both parties agree.
Moreover, the use of ‘fault’ fuels conflict and bitterness, which can have a detrimental knock-on effect on children. Some 62% of petitioners and 78% of respondents said using ‘fault’ had made the process more bitter, and 21% said it made it harder to sort out arrangements for children.
Prof Trinder’s report recommends removing fault entirely from divorce law and replacing it with a notification system where one or both parties register irretrievable breakdown of their marriage, and then confirm their decision after a minimum period of six months.
‘This study shows that we already have something tantamount to immediate unilateral divorce “on demand”, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state,’ she said.
‘A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.’
Resolution’s Chair Nigel Shepherd, chair of family lawyers group Resolution, which has campaigned for no-fault divorce for years, said: ‘This authoritative, academic research should eliminate any doubt from government that the law needs to change.’
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