Divorce Bill entirely consistent with research

Divorce|Family Law|June 25th 2019

Today the Divorce, Dissolution and Separation Bill has its second reading in the House of Commons (it did not have its second reading on the day after it was introduced, as I was previously led to believe). Ahead of the second reading the Nuffield Foundation, which “funds research, analysis, and student programmes that advance educational opportunity and social well-being across the United Kingdom”, has published a briefing note entitled Divorce, Dissolution and Separation Bill: What does research tell us?.

The note begins with an overview, which I will not go through here (as that is the purpose of this post!). However, the first paragraph of the overview is interesting. It says:

“The Bill represents a pragmatic reform that reflects evidence from the Finding Fault study. The reform will remove the problematic elements of an archaic law and introduce a more transparent, fairer and less harmful process for families undergoing a difficult transition.”

The Finding Fault study was a previous study by the Foundation back in 2017 that looked in great detail at how the divorce law in this country is operating (you can find it here). The study’s findings played a significant role in promoting the reform that the Bill now envisages. What I like about this paragraph is how it very succinctly summarises the Bill and its aims. Yes, it is a pragmatic reform, dealing with the reality of what is actually happening on the ground. And yes, the current law, mired in its ideas of fault, is utterly archaic, and should really have been consigned to history long ago. And lastly, the aims of the Bill could not be better put: to introduce a more transparent, fairer and less harmful process for families undergoing a difficult transition.

The note then looks at what is being proposed in the Bill, and why reform is needed. As to the latter, three problems are identified: what the note calls ‘gaming of the system’, i.e. ‘stretching the truth’ in an adultery or behaviour petition, in order to get the divorce without having to wait for the requisite separation period; creating and exacerbating conflict, which we all know about as the big issue with having to attribute blame for the marriage breakdown; and unfairness to the respondent, who has allegations made against him/her which are not tested by the court, unless they take the expensive (and usually futile) step of defending the divorce.

Then the note gets to surely its main point: what research tells us about the impact of the reform proposed in the Bill. It looks at seven concerns that have been raised about the Bill, and says that the research evidence does provide some clear answers to those concerns, for example, the evidence does not suggest that a change in the law will increase the rate of family breakdown. I was also pleased to note something I have said here many times (including just yesterday): in response to concerns that the proposed six-month period is too short to allow parties to reconcile, the note says: “The evidence shows that most people have thought long and hard before proceeding with a divorce and so reconciliation is uncommon.” Exactly.

The note concludes by playing down what the Bill does. I think many opponents of the Bill will consider that it does something completely radical. However, the note says that it merely “proposes a modest technical change in how irretrievable breakdown is evidenced.” It goes on:

“That change will ensure the law reflects the reality of what happens in practice, where divorce is already available at the request of the parties. The current process involves an often painful, and sometimes destructive, legal ritual involving fault that has no obvious benefits for the parties or for society.”

Well said again. And finally, two important points. Firstly:

“The proposals are entirely consistent with the messages from research and have widespread support from those who know how the system works in practice: including judges and lawyers, and relationship support organisations such as Relate, Marriage Foundation and One Plus One.”

And secondly:

“Importantly, echoing the findings of the Finding Fault research, recent polling by YouGov (9 April 2019) shows that the reforms have the weight of support from the general public as well as those with direct experience of fault divorce.”

Let us hope that these points are borne in mind by all concerned as the Bill progresses through Parliament.

You can find the briefing note here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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Comments(3)

  1. David BURROWS says:

    But, a though?…

    My neighbour says our party wall has irretrievably broken down. He accuses me of being the cause. He sues me for damages so it can be restored to its previous effective state. It defines our boundary and keeping his dog off my land. I do not agree that the break-up of the wall was caused by me; or even that its disrepair is much worse than it was before (it has not irretrievably broken down, in my opinion). I can tell all this to the judge who considers our case.

    If my wife, husband or partner (A) tells a court that our marriage has irretrievably broken down the intention of the new divorce bill is that a statement of that perceived fact by one party is an end of any dispute on the point. I cannot disagree with the assertion of what she perceives to be the fact of irretrievable breakdown of our marriage by A. The court dealing with divorce, dissolution or separation ‘must’ – says the bill – ‘(a) take the statement [by A] to be conclusive evidence that the marriage has broken down irretrievably, and (b) make a divorce order’. That is an end of the matter.

    I can understand why this may be desirable. The state of my wall is a matter of fact. The state of my marriage is a matter of opinion – mine against my wife’s. But if a court is involved, or an opinion is asserted, should I not have the right to a fair trial (European Convention 1950 Art 6.1) of that assertion?

  2. Spiro Ozer says:

    “Importantly, echoing the findings of the Finding Fault research, recent polling by YouGov (9 April 2019) shows that the reforms have the weight of support from the general public as well as those with direct experience of fault divorce.”

    That’s not what the MoJ’s public consultation found. A large majority of the responses were against the proposed bill.

    • JamesB says:

      Thank you Spiro. I appreciate attempts at less bias media as over half the public are feeling isolated with their views being ‘non politically correct’ whatever that means. I think and feel the lunatics are running the asylum.

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