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The Nuffield Foundation has published a new briefing note, authored by Professor Liz Trinder, ahead of the second reading of the Divorce, Dissolution and Separation Bill which is scheduled in the House of Lords on Wednesday 5 February.
The Divorce, Dissolution and Separation Bill proposes to retain irretrievable breakdown as the sole ground for divorce but to remove the requirement to establish a ‘fact’ such as adultery or behaviour. Instead, one or both parties would be required to file a statement of irretrievable breakdown which would be confirmed after a minimum waiting period of six months. The Bill progressed unamended in the House of Commons.
Why does the research tell us?
This change is consistent with evidence from a wide-ranging empirical study of how the divorce law in England and Wales is currently operating. The Finding Fault study was led by Professor Liz Trinder (Professor of Socio-legal Studies at the University of Exeter) and funded by the Nuffield Foundation.
The study highlighted many problems with the current divorce law, including conflict, gaming of the system and unfairness:
- The requirement for ‘fault’ is little more than an empty legal ritual where petitioners assemble a suitable petition which the court can only rubber stamp. In the Finding Fault survey, 43% of respondents to a fault divorce reported that the fact used was not closely related to the ‘real’ reason for the separation. Although the court has a duty to inquire into facts alleged, in practice, the court has only an average 3-4 minutes to scrutinise each file.
- The requirement for ‘fault’ creates or fuels conflict which can have a negative impact on children and undermines a modern, problem-solving family justice policy that seeks to minimise the consequences of family breakdown for adults and children. In the Finding Fault national survey, 62% of petitioners and 78% of respondents said that in their experience using fault had made the process more bitter,
- The court’s inability to test allegations can seem procedurally unfair to respondents who dispute the allegations but cannot afford to defend them. The only option for a respondent is to record that they do not accept the allegations, but the court will still grant the decree.
The Bill represents a pragmatic reform that reflects evidence from the Finding Fault study. The reform will remove the problematic elements of an archaic law and introduce a more transparent, fairer and less harmful process for families undergoing a difficult transition.