No fault divorce proposal is consistent with international trends

By Nuffield Foundation

New research published today by the Nuffield Foundation argues that the Ministry of Justice’s (MOJ) proposal for no fault divorce is fully consistent with international trends. Indeed, the report finds there is an international trend away from requiring any ground at all.

The report authors, Dr Jens M. Scherpe and Professor Liz Trinder examine what lessons can be drawn from the experience of divorce law reform in eight jurisdictions: Australia, California, Colorado, Finland, Germany, New Zealand, Spain and Sweden. They find there is an international trend towards recognition that a divorce must be granted where one of both parties insists that the marriage is over.

The MoJ is consulting on proposals to reform the grounds for divorce. In broad outline, the government proposes to retain the sole ground of irretrievable breakdown. A new notification system, or waiting period, would replace the existing method of evidencing irretrievable breakdown by reference to one of five facts. The consultation also proposes to remove the ability to defend a divorce, other than in relation to lack of jurisdiction, validity of the marriage, fraud and procedural compliance.

There remain, however, important technical questions about precisely how a notification procedure would operate in practice. The aim of the report is therefore to explore how the notification procedures (or functionally comparable procedures) work in practice in other jurisdictions to inform the policy process as it unfolds.

This is the fourth report in a series produced as part of the Finding Fault study on divorce law in practice in England and Wales.

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