Having to go through a divorce is hard enough emotionally, without the law fighting against you. However, it seems that many couples are facing a battle against the legal system when they decide to get divorced thanks to an outdated fault-based law.
According to a study by the Nuffield Foundation, current divorce law is forcing separating couples into futile courtroom battles because of the need to establish who is at fault in causing the marriage to break down. The research found that in the UK, many ‘defended cases are triggered by the law itself’, unlike jurisdictions in the rest of Europe and North America.
The only grounds for divorce at present are irretrievable breakdown of a marriage, for which there are five specific types and three of those require allegations of fault (adultery, behaviour and desertion). As such, where an allegation of fault is necessary there are bound to be greater disputes.
According to Jo Edwards, head of family law at Forsters, ‘it is even harder for the growing number of litigants in person in the system who, without legal advice, feel cornered when served with a petition blaming them for the marriage breakdown and conclude (wrongly) that they must defend a petition because they think that they will get a worse outcome with the children or money aspects if they don’t defend. It is time to end the blame game.’
With defending a divorce amassing average legal fees of £6,000 and being generally futile, lawyers from various firms have come out in support of the Foundation’s study, with Edwards continuing ‘[the report] brings into sharp focus what most practitioners have long known – that fault-based divorce is futile, pitting couples against each other in a way which is wholly unnecessary.’
The research comes before a supreme court hearing next month into the only successfully defended divorce case in recent years. Owens v Owens left Tini Owens trapped in a ‘loveless and desperately unhappy’ marriage after judges refused her divorce to her husband of 40 years.
Professor Liz Trinder, of Exeter University, who led the study, stated, ‘while the supreme court may find a way to grant Mrs. Owens her divorce, [it] can only interpret the law. It requires parliament to change it. Reforming the divorce law to remove the requirement for ‘fault’ and replacing it with a notification system would be a clearer and more honest approach, that would also be fairer, more child-centered and cost-effective.’
Since divorce law hasn’t been changed in the 50 years since it’s ratification, the calls for reformation are long overdue. However, with Mrs. Owens case causing parliament to address its outdated divorce law we can only hope there is further investigation into changing the unnecessary fault clause.