Is fault based divorce the cause of greater animosity between parties?
A recent report, prepared on research conducted by the University of Essex, confirms the notion that a change to divorce law is crucial.
A recent report, prepared on research conducted by Professor Liz Trinder of the University of Essex, confirms the notion that a change to divorce law is crucial. Members of the legal profession and the senior judiciary have advocated for some time now, that there needs to be a change in the fault based divorce system and this report confirms that those going through the divorce process agree that this would be beneficial. Placing the blame on one party so that you can get divorced without waiting, does not seem to be the best way to kick start an already difficult and acrimonious process for married couples/families.
The current law allows for parties to divorce on the sole ground of irretrievable breakdown of the marriage. However, one of the five 'facts' also need to be proven; these include separation, adultery and unreasonable behaviour. The report confirms that 60% of divorces filed within England and Wales are based on adultery or unreasonable behaviour. The reason for this seems to be linked directly with the fact that a divorce can be obtained quicker by using fault, rather than waiting for the necessary time to lapse in order to use separation as a ground for the divorce.
Using fault as the fact for the divorce may be quicker however, the unreasonable behaviour of one party needs to be clearly set out within the petition, which often causes increased conflict between the parties. But what constitutes unreasonable behaviour? Parties often exaggerate behaviour, citing historical matters due to the belief that the court needs to 'accept' these facts of behaviour. In reality the court take the petitioner's facts at face value and these are almost always believed and rarely challenged, save as to when the divorce is defended. Due to the recent case of Owens v Owens 2017, parties are increasingly becoming more anxious that the court may not accept their facts of behaviour as unreasonable, and attempt to include numerous incidents in the hope that the court may allow the same. Within the National Survey conducted by Liz Trinder and her team, both petitioner and respondents stated that using fault made the process bitter and respondents stated that using fault made it harder to sort out arrangements for children and sorting out finances.
The report advocates the removal of fault based divorce in its entirety and reforming the law to ensure fair resolution in line with the wider reforms within the family justice system. Removing 'fault' from the process and allowing parties to divorce amicably is surely beneficial and the move to the online divorce system, currently being promoted by the Ministry of Justice, seems to be the perfect opportunity to put this in place.
Whilst a move to no fault based divorce is being advocated, the current divorce law remains in place. It is strongly recommended that anyone seeking a divorce seeks specialist legal advice.