Finding Fault? Divorce Law in practice in England and Wales

This project aims to explore how the current law regarding divorce and civil partnership dissolution operates in practice and to inform debate about whether and how the law might be reformed.

The problem with fault-based divorce

A majority of divorce petitions in England and Wales still rely on allegations of fault. In 1990 a Law Commission report set out six problems with fault-based divorce, including that the law was confusing and misleading, discriminatory and unjust, distorted bargaining positions, provoked unnecessary hostility, made things worse for children by exacerbating parental conflict whilst at the same time doing nothing to save marriages.

Consequently Parliament went on to enact a no-fault divorce regime with the Family Law Act 1996, but logistical challenges meant that this was never implemented.

There is now a renewed appetite to address what many see as an increasingly anachronistic divorce law, with calls for no-fault or even consideration of administrative divorce coming from various quarters, including the President of the Family Division and Resolution.

In addition, there have been significant changes in how the courts scrutinise the 98% of divorce petitions that are undefended. To save judicial time undefended petitions are now scrutinised by legal advisers rather than judges. It is not yet clear how this is operating in practice, but there appears to be an increasing gap between the potentially painful requirement on parties to produce evidence of fault and the reality of rather limited inquiries by the court.

Methodology

There is therefore a pressing need for robust research on how the current law is working and whether and how the problems with the fault-based system previously identified in the 1990s have lessened or increased over time.

This research will update the existing evidence through three related studies:

  1. A qualitative sample of divorce clients recruited pre-petition and tracked over a year to explore how petitions are produced and with what effect on the parties. 
  2. Analysis of how the courts investigate petitions alleging adultery or unreasonable behaviour. The court scrutiny study is designed to explore what the “duty of the court to enquire, so far as it reasonably can, into the facts alleged” means in practice. It will consist of (a) case file analysis of 300 completed cases (b) case file analysis of 100 contested petitions (c) and observation and interviews with legal advisers and judges in four or five divorce centres.
  3. A public attitudes survey designed to explore attitudes to the ground for divorce and views on law reform of a nationally representative sample of 2,000 adults and 1,000 recently divorced adults.