Current divorce laws in England and Wales lead to exaggerated claims of bad behaviour by divorcing couples who are keen to get a quicker divorce.
This is the finding of research published by the Nuffield Foundation, which also concluded that this incentive to exaggerate behaviour can create unnecessary bitterness and conflict amongst divorcing couples.
Grounds for Divorce
Divorce is currently only possible in England and Wales on the following grounds:
- Unreasonable behaviour
- Living apart for more than two years, if both parties agree to the divorce
- Living apart for at least five years, even if one party objects to the divorce
Under this system, couples who want to get divorced without waiting for two years (or five years if one party objects) need to claim that one party is at fault. Around 60% of divorces in England and Wales in 2015 were apparently granted on the grounds of either adultery of behaviour.
Removing Fault from Divorce
Researchers have therefore recommended that fault should be completely removed from divorce law and replaced by a notification system where couples could divorce if one or both of them register that the marriage has broken down irretrievably and confirm the intention to divorce after a period of at least six months.
“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,” explained Professor Liz Trinder from the University of Exeter, who led the research. “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,” she added. “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.”
Fault-Based Divorces Incite Conflict
The research has been welcomed by family law body Resolution, which has long been campaigning for the introduction of a no fault divorce system.
“This authoritative, academic research should eliminate any doubt from government that the law needs to change,” commented Resolution’s Chair Nigel Shepherd. “Fault-based divorces don’t reflect the reality of relationship breakdown for the majority of couples and do nothing to help them deal constructively with the consequences – indeed they often have the adverse effect of inciting additional conflict between separating partners.”
“At present, many divorcing couples are forced to play the ‘blame game’ – citing examples of unreasonable behaviour or adultery, long after the relationship has broken down, simply to satisfy an archaic requirement on the divorce petition which has its roots in laws drawn up more than a generation ago,” he added. “As the report rightly says, this is an often painful, and sometimes destructive, legal ritual with no obvious benefits for the parties or the state.”
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