Last week the Nuffield Foundation published its research into why defended divorce occurs, and how cases are dealt with by the courts. It is the companion to the Foundation’s earlier report on undefended divorce, published last October.
My first thought when I saw the report was echoed in the first sentence of the foreword to the report, written by Tim Gardam, Chief Executive of the Foundation. He said:
“Defended divorce cases are rare, accounting for fewer than one per cent of divorces each year in England and Wales.”
Why, if there are so few defended divorces, go to the trouble and expense of preparing a report on undefended divorce? Surely, defended divorce is not the real problem – the problem is the lack of no-fault divorce. That is what causes so much unnecessary unpleasantness and antagonism between spouses, engaging in the futile exercise of blaming one party for the breakdown of the marriage, and jeopardising the possibility of sorting out arrangements for children and finances by agreement (with the inevitable knock-on damage to the children).
And in any event a system of no fault divorce logically gives you no opportunity to defend, as Mr Gardam acknowledges. In such a system the petitioner simply files with the court a statement that the marriage has irretrievably broken down, or something similar. How can the respondent argue that the marriage hasn’t irretrievably broken down if the petitioner has not given any reasons for the breakdown? There’s simply nothing to argue about – the divorce will go through automatically, usually after a set time period. In other words, bring in a system of no-fault divorce, and you do away with the (small) problem of defended divorces.
Anyway, to the report.
I’m not going to go through all of its 88 pages, which cover every conceivable aspect of the subject of defended divorce in great detail (if you want to do so, you can read the full report at the link below) as, with the greatest respect to the authors, I think it is mainly of academic interest only, for the reasons stated above. The important research was published last October!
But there are a couple of points of interest to practitioners. In particular, and it will come as no surprise to any lawyer who has done divorce work, the research found that in nine out of ten cases, respondents didn’t defend the divorce petition in an attempt to try to ‘save’ the marriage, but rather to dispute the allegations of ‘fault’ made against them. Again, that futile exercise of deciding who was to blame for the breakdown of the marriage – the only important thing (for the purpose of divorce) is that the marriage has irretrievably broken down, not why. Many of the proponents of defended divorce would say that a respondent should have the chance in the legal process to save the marriage, but the figures indicate that that opportunity is only in fact taken up in something like 0.1% of all divorces. The legal process is simply not the place to attempt to save the marriage – that is something only the parties themselves can attempt, perhaps with the aid of counselling.
The other practical point, which will again come as no surprise to practitioners, is that, with the exception of the Owens case, those wishing to stop a divorce by defending it are almost certainly going to fail. As the report says:
“The approach of the court in those cases [i.e. defended divorces that went to trial] appeared to be an extension of the pragmatic approach to divorce found in non-adjudicated cases, where there was an assumption by the court that divorce was inevitable, and defence was unhelpful, even stupid.”
Quite. And this is a message that really needs to be understood by anyone wishing to prevent a divorce by defending it: don’t waste your time and money! This is why, as the report points out, lawyers will deploy a wide range of arguments to persuade clients against defending.
And so to the report’s conclusions, which are definitely worth repeating in full (for the sake of simplicity, I use the conclusions in the executive summary, rather than the conclusions to the report itself, which use terms I have not referred to here):
“Our conclusions are emphatic. The analysis of defended cases has only strengthened the case for law reform. It is clear that the majority of disputes and defences are caused and/or at least facilitated by the law itself. Without allegations of behaviour, it is likely that most defences would not occur. And having created a problem, it is clear that the deeply imperfect solution offered by defence is inaccessible to most respondents.
“Our recommendation is to reform the law to remove fault and establish a straightforward notification process. A divorce (or civil partnership dissolution) would be granted if one, or both, parties registered that the marriage had broken down irretrievably and that that intention was confirmed by one, or both, parties after a minimum period of at least six months. Judicial separation would be retained as an option, available on the same no-fault notification basis. The advantage of such a process, for divorce, dissolution and judicial separation is that it would be clear, fair and transparent. It would also be considerably cheaper for the parties and for HM Courts and Tribunal Service and Ministry of Justice.”
Let us hope that the Government is listening.
You can read the full report here.