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Finding Fault? Divorce Law and Practice in England and Wales Full Report

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Finding Fault? Divorce Law and Practice in England and Wales Full Report Finding Fault? Divorce Law and Practice in England and Wales Full report Liz Trinder, Debbie Braybrook, Caroline Bryson, Lester Coleman, Catherine Houlston, and Mark Sefton www.nuffieldfoundation.org About the authors • Liz Trinder is Professor of Socio-legal Studies at the University of Exeter Law School. • Debbie Braybrook is a Senior Research Officer at One Plus One. • Caroline Bryson is a partner at Bryson Purdon Social Research. • Lester Coleman is Head of Research at One Plus One. • Catherine Houlston is a Senior Research Officer at One Plus One. • Mark Sefton is an independent researcher. About this report This report presents the findings from the Nuffield-funded project to explore how the current law regarding divorce and civil partnership dissolution in England and Wales operates in practice and to inform debate about whether and how the law might be reformed. The report is available to download from www.nuffieldfoundation.org/finding-fault About the Nuffield Foundation The Nuffield Foundation funds research, analysis, and student programmes that advance educational opportunity and social well-being across the United Kingdom. We want to improve people’s lives, and their ability to participate in society, by understanding the social and economic factors that affect their chances in life. The research we fund aims to improve the design and operation of social policy, particularly in Education, Welfare, and Justice. Our student programmes - Nuffield Research Placements and Q-Step - provide opportunities for individual students, particularly those from disadvantaged backgrounds, to develop their skills and confidence in quantitative and scientific methods. We are an independent charitable trust established in 1943 by William Morris, Lord Nuffield, the founder of Morris Motors. www.nuffieldfoundation.org | @NuffieldFound Extracts from this document may be reproduced for non-commercial purposes on condition that the source is acknowledged. Copyright © Nuffield Foundation 2017 28 Bedford Square, London WC1B 3JS T: 020 7631 0566 Registered charity 206601 1 Contents Foreword from the Nuffield Foundation ................................................................................ 3 Acknowledgements ............................................................................................................... 4 Glossary................................................................................................................................ 5 Summary .............................................................................................................................. 9 Introduction ......................................................................................................................... 20 PART A. CONTEXT ............................................................................................................ 25 1. What is the current law and how did we get here? .......................................................... 25 PART B. DIVORCE LAW IN THEORY AND IN PRACTICE ................................................ 33 2. Literalism and pragmatism .............................................................................................. 33 3. Finding a Fact to fit: how ‘true’ are petitions? .................................................................. 38 4. The court’s inquiries: just administrative rubber-stamping? ............................................. 55 5. Finding the floor: what is a ‘Fact’ in practice? .................................................................. 73 PART C. CONSEQUENCES ............................................................................................... 90 6. The Great Pretender: is the law intelligible, clear and predictable? ................................. 90 7. Fanning the flames: does fault increase conflict? .......................................................... 103 8. Sucking it up: how fair is the process between petitioner and respondent? ................... 119 9. Does fault protect the institution of marriage/deter divorce? .......................................... 129 PART D. FAULT AND DIVORCE LAW REFORM ............................................................. 137 10. Doing the right thing? Fault, morality and responsibility ............................................... 137 11. Divorce law and divorce law reform internationally ...................................................... 149 12. Options for law reform for England & Wales ................................................................ 156 Conclusion ........................................................................................................................ 168 2 Foreword from the Nuffield Foundation The failure to implement the Family Law Act 1996 has left the divorce law in England and Wales untouched since 1973, and out of step with similar jurisdictions in Europe and North America in its heavy reliance on ‘fault’ as a basis for divorce. This report summarises findings from an empirical study – funded by the Nuffield Foundation in 2015 – that explored how the current law regarding divorce and civil partnership dissolution operates in practice. The researchers conclude that there is a mismatch between the law in the books and in practice, potentially bringing the law into disrepute. They also identify ways in which the divorce law is failing to meet the principle of being ‘intelligible, clear and predictable’. Moreover, there is a discrepancy between the law (whether in books or in practice) and the realities of people’s experiences. Relationship breakdown and separation can be complex and messy. It cannot be readily ‘categorised’ or ‘date stamped’, and the perspectives of those involved can differ legitimately. These issues have been brought into sharp relief by the recent defended case of Owens vs Owens. While defended cases account for only two per cent of divorce petitions, this study shows that the current divorce law is also problematic for the majority of ‘routine,’ undefended divorces. Many of these problems were first highlighted in the 1990 Law Commission report that led to the attempt to reform the law over twenty years ago. Nuffield- funded research from the 1980s featured in that Law Commission Report, and this new study shows for the first time how the problematic nature of divorce law has been exacerbated by more recent changes in the system. These include the way courts scrutinise undefended petitions, with the role now being undertaken by legal advisers rather than judges, and the removal of legal aid for most divorce cases. In addition, the dominance of ‘fault’ within divorce law is at odds with the thrust of wider reforms in the family justice system, which have focussed on reducing conflict and promoting resolution. Despite the efforts of all those involved in the process to reduce harm, the evidence from this study shows that the reliance on fault still has the potential to cause distress and escalate conflict. We would like to thank Liz and her research team for undertaking this important study and bringing together the findings in this accessible and engaging report. We would also like to thank everyone whose participation made this study possible. Teresa Williams Director of Justice and Welfare 3 Acknowledgements A wide range of people made this research possible. The research team would like to extend their sincere thanks to each of them for their contribution to the project. At the Nuffield Foundation, we would like to thank Fran Bright, Tracey Budd, Molly Imrie, Alison Rees and Teresa Williams for their advice and support for the study. We would like to extend our sincere thanks and gratitude to our advisory group, all of whom offered invaluable support and guidance throughout the project. The members of the group were Professor Masha Antokolskaia (Vrije Universiteit Amsterdam), Alexy Buck (Ministry of Justice Analytical Services), Professor Gillian Douglas (Kings College London), Joanna Miles (University of Cambridge) Shahnaz Khanam (HMCTS), Adam Lennon (HMCTS), Ian Rispin (Wikivorce), Rachel Rodgers (Resolution) and Nigel Shepherd (Resolution). We are particularly grateful to Professor Antokolskaia for her invaluable role in organising the international workshop in Amsterdam and to Jo Miles who was an extraordinarily helpful critical reader of the draft report. The project involved a considerable amount of fieldwork, all of which was possible due only to the help and assistance of our colleagues within the family justice system and to members of the public. We are grateful to Ben Collins and his team at Kantar Public for their work on the national opinion survey. We would like to thank Resolution nationally and locally for supporting the project and the Resolution members who gave up their time for the focus groups and contested cases interviews. MoJ Analytical Services were very helpful in producing sample lists for the file studies. Adam Lennon and Shahnaz Khanam from HMCTS were invaluable members of the Advisory Group as well as facilitating access to field sites. We are also extremely grateful to the HMCTS managers and staff, legal advisers and judges in the four Regional Divorce Centres and local hearing centres for their time and patience in supporting the observations, case file reviews and interviews. We are grateful to the Judicial Office and the President of the Family Division for giving permission for the study. We would like to thank the members of the public who contributed to the national
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