Finding Fault? Divorce Law in Practice in England and Wales
A majority of divorce petitions in England and Wales still rely on allegations of fault, mainly behaviour and adultery. Research in the 1970s and 1980s suggested that the use of fault had the potential to cause or exacerbate hostility between the parties, whilst not saving marriages. Meanwhile, to save judicial time, the 98% of petitions that are undefended are now scrutinised by legal advisers rather than judges. It was not clear how this was operating in practice, but there appeared to be an increasing gap between the potentially painful requirement on parties to produce evidence of fault and the reality of rather limited inquiries by the court. The President of the Family Division, Baroness Hale and Resolution, amongst other, have called recently for divorce law reform. There was therefore a pressing need for robust research on how the current law on divorce and civil partnership dissolution was working, hence the Finding Fault study.
Aims and Research Questions
The aim of the research was to explore how the current law on the ground for divorce and civil partnership dissolution operates in practice and to inform debate about whether and how the law might be reformed. The study addressed three main questions:
- How does the current law work in practice during the process of petitioning? Fundamentally, is the production of the petition, particularly fault-based petitions, reflective of the real reasons for the breakdown of the relationship and what impact does the process have on relationships?
- What does the “duty of the court to enquire, so far as it reasonably can, into the facts alleged” mean in practice? How rigorous is the process and has the scrutiny of petitions already become to all intents and purposes an administrative rather than an inquisitorial process?
- Is there a desire and need for law reform, and if so, how?
The research incorporated five linked studies:
|Study element||Method||Sample size||Sample source|
|1. Petition journey study: exploring how petitions are produced and with what effect on the parties||Qualitative interviews with petitioners and respondents||110 interviews with 81 people (57 petitioners, 22 respondents, 2 other)||Wikivorce; Splitting Up? Putting Kids First and Resolution|
|Focus groups with lawyers||4 regional focus groups with 5-8 participants in each||Volunteers recruited via Resolution|
|2. Court scrutiny study: exploring the content of petitions, case progress and scrutiny process||Main court file analysis||300 divorce cases issued Q4 2014 to Q4 2015 (75 from 4 Regional Divorce Centres (RDCs))||Samples identified by Ministry of Justice (MoJ) Analytical Services|
|Observation of scrutiny process||17 observation sessions from 4 RDCs scrutinising a total of 292 cases||Negotiated locally with approval from HMCTS and the Judicial Office|
|Interviews with legal advisers and judges||16 from 4 RDCs||Approval from HMCTS and the Judicial Office|
|3. Contested cases study: the nature of contested cases and the court’s approach||Contested cases court file analysis||100 files (25 from each of 4 RDCs) where there was an intention to defend||Samples identified by MoJ Analytical Services|
|Contested cases court file analysis – Answers booster sample||50 files (from 3 receiving courts) where an Answer was filed||Samples identified by HMCTS|
|Interviews with family lawyers discussing 2-4 high conflict cases||Interviews from four areas||Volunteers recruited via Resolution|
|4. National opinion study: attitudes to the current law and views on law reform||Public opinion survey||2,845 individuals 16+ in England & Wales, including 1,336 divorcees, ran Nov 2015 to Jan 2016||Kantar Public face-to-face quota omnibus survey|
|5. Comparative law reform study||Workshop papers on law and law reform from different jurisdictions||Nine papers on 13 jurisdictions from Europe and North America|
A technical appendix describing the methodology is available here.
The project runs from autumn 2015 to spring 2018. The main report of the study, and a summary version were published in October 2017. A second report, presenting the findings from the Contested Cases study (about cases where there was an intention to defend or an actual defence), will be published in spring 2018 and will be available for download here.
The project is led by Professor Liz Trinder (Exeter University). The research team includes Bryson Purdon Social Research, OnePlusOne, Julia Pearce and Mark Sefton. The team will be working closely with Resolution and Wikivorce for the Petition Journey study. The research is funded by the Nuffield Foundation.