Divorce law in England and Wales increases conflict and suffering for separating couples and their children, encourages dishonesty and undermines the aims of the family justice system

By Nuffield Foundation

New research published today by the Nuffield Foundation shows that divorce law in England and Wales is incentivising people to exaggerate claims of ‘behaviour’ or adultery to get a quicker divorce.

In practice, these claims cannot be investigated by the court or easily rebutted by the responding party, leading to unnecessary conflict and a system that is inherently unfair.

Divorce affects more than 100,000 families in England and Wales every year. If separating couples want to get divorced without waiting for two years (or five if the other person does not consent, as with the recent case of Owens vs Owens), one person must submit a petition detailing how the other is at ‘fault’. 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%.

The research, led by Professor Liz Trinder at the University of Exeter and funded by the Nuffield Foundation, is the first empirical study since the 1980s of how the divorce law in England and Wales is operating. The researchers recommend removing fault entirely from the divorce law and replacing it with a notification system where divorce would be available if one or both parties register that the marriage has broken down irretrievably and that intention is confirmed by one or both parties after a minimum period of six months.

The study included interviews with people going through divorce, focus groups with lawyers, observation of the court scrutiny process and analysis of divorce court files, coupled with a national opinion poll and comparative analysis of divorce law in other countries.

Divorce petitions are often not accurate descriptions of why a marriage broke down and the courts make no judgement about whether allegations are true.

In a national opinion survey, 43% of people who had been identified as being at fault by their spouse disagreed with the reasons cited for the marriage breakdown and 37% of respondents in the court file analysis denied or rebutted the allegations made against them by their spouse. In practice these rebuttals are ignored except in the rare cases where the respondent is able to defend the case (as in the recent case of Owens v Owens). The court did not raise questions about the truth of a petition in any of the 592 case files analysed, despite evidence that respondents disagreed with the claims made.

The removal of legal aid for all but a minority of cases (e.g. domestic violence), means that in practice, few people have the financial resources to defend themselves. For these people, getting divorced means accepting that the court’s decision relies on a version of events they do not consider to be true.

Uncertainty about what constitutes unreasonable behaviour undermines the principle for the rule of law to be ‘intelligible, clear and predictable’.

In the 1980s, 64% of behaviour petitions were based on allegations of physical violence, but this has now fallen to 15%, indicating that there has been a large drop in the expectations of the courts as to what is needed to prove ‘behaviour’ in the last 30 years.

Despite this drop in the threshold, many lawyers and members of the public do not know exactly how low it is. This uncertainty means some lawyers are filing stronger and potentially more damaging petitions than necessary, while people who cannot afford a lawyer may think they have to wait out long separation periods because they do not ‘qualify’ for the faster fault-based divorce.

The use of fault may trigger, or exacerbate, parental conflict, which has a negative impact on children.

In the national survey, 62% of petitioners and 78% of respondents said that in their experience using fault had made the process more bitter, 21% of fault-respondents said fault had made it harder to sort out arrangements for children, and 31% of fault-respondents thought fault made sorting out finances harder.

When interviewed, both petitioners and respondents gave examples of how the use of fault, mainly behaviour, had had a negative impact on contact arrangements, including fuelling litigation over children. Some described threats to show the petition to children.

Divorce law in England and Wales is out of step with Scotland, most other countries in Europe, and North America.

The heavy reliance on fault in England and Wales, used for 60% of all petitions, is ten times that of our closest neighbours in Scotland and France. However, the researchers do not advocate adopting incremental reform of the law based on the Scottish system, partly because using fault would still remain the quickest option (which could incentivise continued reliance on it), and partly because of the differences in wider factors that could not be replicated in England and Wales without major reform of other areas of family law.

Fault does not protect marriage or deter divorce

The study found no empirical support for the argument that is sometimes made that fault may protect marriage because having to give a reason makes people think twice about separating. In fact the evidence points the other way: analysis of case files shows fault was associated with shorter marriages and shorter gaps between the break-up of the relationship and filing for divorce.

Professor Liz Trinder said: “This study shows that we already have something tantamount to immediate unilateral divorce ‘on demand’, but masked by an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state. A clearer and more honest approach, that would also be fairer, more child-centred and cost-effective, would be to reform the law to remove fault entirely.”

“There is no evidence from this study that the current law protects marriage, and there is strong support for divorce law reform amongst the senior judiciary and the legal profession. We recommend removal of fault so that divorce is based solely on the notification, and later confirmation, by one or both spouses that the marriage has broken down. This should be a purely administrative process with no requirement for judicial scrutiny – in the twenty-first century, the state cannot, and should not, seek to decide whether someone’s marriage has broken down.”

Teresa Williams, Director of Justice and Welfare at the Nuffield Foundation said: “It is essential – perhaps now more than at any time – that public trust in institutions is maintained. The law is at serious risk of being brought into disrepute by the mismatch between the divorce law in theory and what is actually happening in practice. In addition, there is a discrepancy between the law and the realities of people’s experiences. Relationship breakdown and separation can be complex and messy. It cannot be readily categorised or date stamped, and the perspectives of those involved can differ legitimately.

“The dominance of ‘fault’ within divorce law is at odds with the thrust of wider reforms in the family justice system, which have focussed on reducing conflict and promoting resolution, both of which play a role in improving the outcomes for the parties, including any children involved.”

ENDS

1. Parliament previously attempted to introduce no fault divorce in the Family Law Act 1996. However this was never implemented because of perceived problems with adding complex procedures to the existing legal system. This means that the Matrimonial Causes Act 1973 remains in force.

2. The Nuffield Foundation funds research and student programmes that advance educational opportunity and social well-being across the United Kingdom. We want to improve people’s lives, and their ability to participate in society, by understanding the social and economic factors that affect their chances in life. The research we fund aims to improve the design and operation of social policy, particularly in Education, Welfare, and Justice. Our student programmes enable young people to develop their skills and confidence in quantitative and scientific methods. www.nuffieldfoundation.org.

Related


By Nuffield Foundation

Explore our projects

A front view of a father and his two children. He is carrying his young son in his arms and his daughter is riding her scooter along the footpath as he pushes his son's scooter along the way.
New

Justice | Welfare | 2024 - 2026

Challenging justice inequalities with children in conflict with the law 

View project
A young child splashing in a puddle next to his guardian and sister.
New

Justice | 2024 - 2026

Special guardianship families: experiences and support needs

View project
New

Justice | 2024 - 2026

Breaking networks of youth serious violence

View project
New

Justice | 2024 - 2024

Crossing Boundaries: Co-designing support for vulnerable young people

View project
Man getting professional advice

Justice | 2023 - 2025

Applicants’ experience of the Criminal Cases Review Commission (CCRC)

View project
Little boy at home looking pensive, playing a game on a smartphone

Justice | 2023 - 2025

Linking household benefits, financial precarity and child welfare

View project
Man holds girl's hand as he walks her to primary school

Justice | 2023 - 2025

Improving safeguarding outcomes after adoption or special guardianship

View project
Mother and small child on a bus looking out of the window together and playing a game naming the things they see

Justice | 2023 - 2026

Parental Advocacy in England: a realist evaluation of implementation

View project
Portrait of a teenager in front of a blue shed, looking at the camera

Justice | 2023 - 2025

Children in police custody: piloting a ‘Child First’ approach 

View project
Father and child washing up in the kitchen

Justice | 2023 - 2025

Physical punishment and child outcomes in the UK

View project

Justice | 2023 - 2025

Access to justice through artificial intelligence

View project
Man turns towards the camera, walking in a town, with other walkers in the background

Justice | 2023 - 2023

Creating and using better justice data

View project
A young child splashing in a puddle next to his guardian and sister.
New

Justice | 2024 - 2026

Special guardianship families: experiences and support needs

View project
A front view of a father and his two children. He is carrying his young son in his arms and his daughter is riding her scooter along the footpath as he pushes his son's scooter along the way.
New

Justice | Welfare | 2024 - 2026

Challenging justice inequalities with children in conflict with the law 

View project
New

Justice | 2024 - 2024

Crossing Boundaries: Co-designing support for vulnerable young people

View project
New

Justice | 2024 - 2026

Breaking networks of youth serious violence

View project
Man getting professional advice

Justice | 2023 - 2025

Applicants’ experience of the Criminal Cases Review Commission (CCRC)

View project
Portrait of a teenager in front of a blue shed, looking at the camera

Justice | 2023 - 2025

Children in police custody: piloting a ‘Child First’ approach 

View project
Man holds girl's hand as he walks her to primary school

Justice | 2023 - 2025

Improving safeguarding outcomes after adoption or special guardianship

View project
Mother and small child on a bus looking out of the window together and playing a game naming the things they see

Justice | 2023 - 2026

Parental Advocacy in England: a realist evaluation of implementation

View project
Little boy at home looking pensive, playing a game on a smartphone

Justice | 2023 - 2025

Linking household benefits, financial precarity and child welfare

View project

Justice | 2023 - 2025

Access to justice through artificial intelligence

View project
Reported

Justice | 2019 - 2023

Born into care: best practice guidelines

View project
Man leading a focus group listening to the participants speaking

Justice | 2023 - 2026

Lived experience of the law: a research and policy project

View project
Group of teenage boys at school in uniform
In progress

Justice | 2022 - 2025

Exploring racial disparity in diversion from the youth justice system

View project
Dad holding baby walking with two kids
In progress

Justice | 2022 - 2024

Administrative fairness in the digital welfare state

View project
In progress

Justice | 2022 - 2024

Transparency and judicial review: a study of the duty of candour

View project
A teenage boy outdoors
In progress

Justice | 2022 - 2024

Child First: examining children’s collaboration in the Youth Justice System

View project
Young men looking puzzled as they look to another man for advice
In progress

Justice | 2022 - 2024

The role of communities and connections in social welfare legal advice

View project
Two children walk ahead of two adults, one pushing a pram
In progress

Justice | 2022 - 2024

Voluntary care plans for children in Scotland: using Section 25 orders

View project
Rethinking domestic abuse in child protection: responding differently
In progress

Justice | 2022 - 2024

Rethinking domestic abuse in child protection: responding differently

View project
An older couple using a tablet to make a video call: Understanding local legal needs and supporting early intervention
In progress

Justice | 2022 - 2024

Understanding local legal needs and supporting early intervention

View project
A woman helping a little girl get ready for school
In progress

Justice | Welfare | 2022 - 2024

Race, religion and representation among care-experienced children

View project
A parent or carer holds a small child
In progress

Justice | 2020 - 2023

Discharge of care orders: a national study

View project
A little girl smiles at her father
In progress

Justice | 2021 - 2024

Substituted parenting: what does this mean in the family court?

View project
Two sisters, 9 and 14, play on a swing together: Data and voice to improve children's lives
In progress

Justice | 2021 - 2026

Children’s information: improving lives through better listening and better data

View project
A young child splashing in a puddle next to his guardian and sister.
New

Justice | 2024 - 2026

Special guardianship families: experiences and support needs

View project
New

Justice | 2024 - 2024

Crossing Boundaries: Co-designing support for vulnerable young people

View project
New

Justice | 2024 - 2026

Breaking networks of youth serious violence

View project
Reported

Justice | 2019 - 2023

Born into care: best practice guidelines

View project
Reported

Justice | 2021 - 2023

Delivering administrative justice after the pandemic

View project
Siblings play ball in a playground - Siblings Contact and the Law
Reported

Justice | 2020 - 2021

Guidance to judges on the anonymisation of children judgements

View project
Lawyer taking witness statement from male witness
Reported

Justice | 2019 - 2021

The production of witness statements by lawyers and litigants in person

View project
Reported

Justice | 2020 - 2022

When is a wedding not a marriage? Exploring non-legally binding ceremonies

View project
Reported

Justice | 2019 - 2022

The Edinburgh Study: causes and impacts of criminal justice pathways

View project
Reported

Justice | Welfare | 2015 - 2018

Bridging the Evidence Gap in Family Proceedings

View project
Reported

Justice | 2016 - 2018

The impact of Litigants in Person on the Northern Ireland court system

View project
Reported

Justice | 2016 - 2017

Transparency and privacy in family courts

View project
Reported

Justice | 2016 - 2019

Implementation of recommendations of the Carlile report

View project
Reported

Justice | 2017 - 2020

Enhancing problem-solving practice in youth court

View project
Reported

Justice | 2013 - 2019

Timely disclosures mean timely interventions for young offenders and victims

View project
Search projects

We improve people’s lives by funding research that informs social policy, primarily in Education, Welfare and Justice. We also fund student programmes that give young people skills and confidence in science and research.

We offer our grant-holders the freedom to frame questions and enable new thinking. Our research must stand up to rigorous academic scrutiny, but we understand that to be successful in effecting change, it also needs to be relevant to people’s experience.

Profile