Recently the Nuffield Foundation has explored why defended divorce occurs and examines how cases are dealt with by the courts. The great majority of couples who defend a divorce base their argument over who is ‘at fault ‘and there is great argument over the need for reform.
The report led by Professor Liz Trinder concludes that there is need for reform of the divorce law to remove the concept of fault entirely. She states “The divorce law is now nearly 50 years old and reform is long overdue.”
This report has appeared given the imminent Supreme Court hearing in the case of Owens v Owens, the only successfully defended divorce case in recent years and the researchers found three major problems.
- The financial, legal and emotional barriers to defence mean that the majority of respondents do not get the chance to put their side of the story to the court.
- The law itself is causing disputes that result in a defence. The majority of those who do formally defend the divorce are not trying to stop the divorce from happening. Instead they want to give their reason for why the marriage broke down.
- Even defended cases rarely end up in a court hearing. Almost all cases are strongly encouraged to reach a compromise before a trial before a judge, meaning the ‘truth’ is never established by the court.
The researchers recommend removing fault entirely and replacing it with a notification system where divorce would be 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 at least six months.
Overall it seems the generic view is that defending a divorce is expensive, complicated and unlikely to succeed.
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