Driving Radical Reform

Driving Radical Reform

Policy Support Fund (PSF)

Background

Professor Liz Trinder’s landmark Finding Fault study was the first research that looked at the grounds for divorce since a failed attempt at law reform nearly 30 years ago. It found that the current ‘fault-based’ divorce law in England & Wales is archaic, unfair, and damaging to families and the rule of law. Divorce petitioners must currently fit their circumstances into one of five legal facts: adultery, behaviour, desertion, two years separation with consent, or five years separation. The system is widely manipulated. Spouses often use one of the three ‘fault-based’ facts to avoid long waits associated with separation, frequently resorting to inaccurate accounts of the ‘irretrievable breakdown’ in order to meet the legal requirements. This invites parental conflict, with both direct and indirect negative impacts on children of divorce.

Professor Trinder was directly involved in the drafting of a Private Members Divorce, Dissolution and Separation Bill, which cleared the final stages of parliamentary scrutiny in the House of Commons in June 2020.

Key findings

‘In reality, we already have divorce by consent or ‘on demand’. However, achieving that divorce without a long wait requires one party to throw mud at the other in what can be a needlessly painful and sometimes destructive legal ritual.’ (Prof Liz Trinder)

• In cases of undefended divorces, the truth of petitions goes unquestioned, despite 43% of those surveyed disagreeing with the allegations made against them. In the rare defended cases, most were not principled defences of the marriage, but rather objections to fault allegations or a mechanism for coercive control.
• In nearly half of all divorces, couples cite ‘unreasonable’ behaviour. Uncertainty about what this constitutes or what the threshold is, undermines the principle for the rule of law to be ‘intelligible, clear and predictable’. As a result, lawyers and petitioners often file stronger petitions than necessary.
• The use of fault may trigger or exacerbate parental conflict, to the detriment of children’s wellbeing. Both petitioners and respondents gave examples of how the use of fault, mainly behaviour, had negatively impacted on future contact arrangements, including fuelling litigation over children.
• Divorce law in England and Wales is 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%.

Policy recommendations and outcomes

‘This authoritative, academic research should eliminate any doubt from government that the law needs to change…it adds oxygen to the campaign.’ (Nigel Shepherd, immediate past chair of Resolution)

Professor Trinder’s research has led directly to the government’s recent acceptance that law reform is needed; of the principles that underpin proposed reform, and to specific details of the no-fault replacement scheme.

Accepted recommendations include the removal of fault entirely from the divorce law, and its replacement with a notification system where divorce would be available if one or both parties register the irretrievable breakdown of the marriage, and that intention is confirmed by one or both parties after a minimum period of six months. As such, any notification period would precede, not follow, decree nisi (to show cause). The ability to defend will likewise be removed, barring evidence of fraud or coercion, lack of jurisdiction or capacity.

When the Bill becomes law, this will represent an historic and radical legal reform, as fault has been central to divorce law since 1660. Adults and children from more than 100,000 families each year, and a million over the next decade, will be the beneficiaries of a clearer, fairer and less harmful divorce process.