New research adds to calls for no fault divorce

New research recently published by the Nuffield Foundation explores why defended divorce occurs and examines how cases are dealt with by the courts. The research was led by Professor Liz Trinder at the University of Exeter and focused on the 2% of divorce cases where one spouse is accused of being ‘at fault’ and that spouse decided to formally defend allegations that they see as untrue or unfair. Although defended divorces are very rare in England and Wales they do give the court an opportunity to test what the two parties say, rather than simply being able to rubber stamp applications.

The research found three major problems.

  • The financial, legal and emotional barriers to defence mean that the majority of respondents do not get the chance to put their side of the story to the court. A third of respondents formally record their disagreement with allegations made against them, but only 2% say they intend to defend and less than 1% actually do. Defending a divorce is technically and emotionally demanding and few can afford the legal fees, typically about £6,000 – £8,000.
  • The law itself is causing most disputes that result in a defence. The majority of those who do formally defend the divorce are not trying to stop the divorce from happening. Instead they want to give their reason for why the marriage broke down. None of those defences would be necessary if the law did not include fault. Only 18% of people defending were denying that the marriage had broken down. Their motivations varied, but defence could also be misused by those wanting to avoid a financial settlement or trying to retain control over their spouse. In some cases, the spouse appeared to be ‘in denial’ about the breakdown of the marriage.
  • Even defended cases rarely end up in a court hearing. Although those defending are trying to persuade the court to accept the ‘truth’ or justice of their case, the court is focused on compromise, trying to avoid further expense and acrimony for the parties. Almost all cases are strongly encouraged to reach a compromise before a trial before a judge, meaning the ‘truth’ is never established by the court. Only two cases in the report reached a fully contested final hearing, and the court allowed the divorce to proceed in both.

This research is timely given the imminent Supreme Court hearing in the case of Owens v Owens, the only successfully defended divorce case in recent years. We wait with anticipation to see what the Supreme Court will do with this case and whether there will ever be an end of fault based divorces in England and Wales.

Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors.

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