Finding fault? Divorce law in practice in England and Wales
About the project
‘Finding Fault? Divorce Law in practice in England and Wales’, 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 report highlighted that divorce law in England and Wales is out of step with many jurisdictions. It also raised concerns with the divorce process. Firstly, divorce petitions are often not accurate descriptions of why a marriage broke down and the courts make no judgement about whether allegations are true, save in the rare cases where the respondent defends the case.
Uncertainty about what constitutes unreasonable behaviour undermines the principle that the law should be ‘intelligible, clear and predictable’. The uncertainty leads to some lawyers and members of the public filing stronger petitions than necessary, while others who cannot afford a lawyer may think they must wait out long separation periods because they do not ‘qualify’ for fault-based divorce.
Using fault was found to have triggered or exacerbated parental conflict, which has a negative impact on children. Far from protecting marriage or deterring divorce, fault was associated with shorter marriages and shorter gaps between the break-up of the relationship and filing for divorce.
Based on these findings, the researchers recommended removing fault from the divorce law and replacing it with a notification system with divorce 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. These proposals have been accepted and ‘no-fault’ divorce will be available from April 2022 (Divorce, Dissolution and Separation Act 2020).
Liz Trinder (University of Exeter) (PI) in partnership with Mark Sefton, Jens Scherpe (University of Cambridge), One Plus One, Bryson Purdon Social Research, Resolution and Wikivorce.
Nuffield Foundation (2015-2019) (£385,669)