Interim findings of research into fault-based divorce published
Last month we reported how there has been a growing consensus amongst professionals involved in the breakdown of family relationships that couples who wish to divorce should be able to do so without having to place blame.
Further evidence has been published this month which suggests there is a growing need for reform of the divorce law in England and Wales. Professor Liz Trinder of University of Exeter is currently leading a study entitled Finding Fault?, which is funded by the Nuffield Foundation. The study represents the first major research study on divorce law since the 1980s and includes a national opinion survey on divorce law, interviews with people going through divorce and analysis of court files.
The full report of the study is due in Autumn 2017 but an interim report published today (27 March) suggests that the majority of divorces issued are based on ‘fault’ i.e. blaming one spouse for the marriage breakdown. However these types of petitions are not necessarily accurate records of who or what caused the breakdown of the marriage. The study also shows that fault can create or exacerbate conflict between the parties. The interim report suggests that reform of the divorce law in England and Wales is long overdue and having a single system of notification of intent to divorce introduced into law would be clearer, more honest and neutral between petitioner and respondent.
These findings are coupled with the Court of Appeal judgment in Owens vs Owens, which has also just been published. In February the Court of Appeal heard an appeal by Tini Owens against the refusal of HHJ Tolson QC to grant her a divorce from her husband, Hugh Owens, on the grounds that the marriage had irretrievably broken down by reason of the husband’s unreasonable behaviour. The couple have been married for 39 years. Mr Owens denied that the marriage has broken down despite Mrs Owens listing 27 allegations of unreasonable behaviour within her petition. The Court of Appeal have published their judgment today and dismissed Mrs Owens’ appeal, meaning she has to effectively stay married to her husband. Mrs Owens now intends to seek permission to appeal to the Supreme Court. If the divorce law in England and Wales had a single system of notification of intent to divorce, this could have avoided the time, cost and emotional turmoil that both Mr and Mrs Owens are likely to be experiencing with these proceedings hanging over them.
Family law practitioners all over the country will continue to watch closely to see if this case and the current studies lead to any change in the law. In the meantime, if you are looking to divorce and are unsure of your rights or the process, Barker Gotelee can in most circumstances offer a free initial consultation to discuss your situation in confidence.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors.