Today, the Nuffield Foundation has published a report, Finding Fault, which calls for the introduction of no-fault divorce in England and Wales: there is a summary version here.

Divorce affects more than 100,000 families in England and Wales every year. Under the current law, the sole ground for divorce is that the marriage has irretrievably broken down.  S.1 Matrimonial Causes Act 1973 sets out the position as follows:

“1 Divorce on breakdown of marriage.

(1) Subject to section 3 below, a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.

(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say—

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as “two years’ separation”) and the respondent consents to a decree being granted;

(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).

(3) On a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent.”

In 2015, 60 per cent of English and Welsh divorces were granted on adultery or unreasonable behaviour. In Scotland, where a divorce can be obtained after one year if both parties agree, this figure was 6 per cent. The inflexibility of the current law was highlighted by the case of Owens v Owens [2017] EWCA Civ 182, in which Mrs Tini Owens is seeking a divorce from her husband on the grounds that their marriage has irretrievably broken down because of his unreasonable behaviour. He successfully disputed this at first instance and the Court of Appeal dismissed Mrs Owens’ appeal with, in the words of Hallett LJ at [99], “no enthusiasm whatsoever” – and the case is now going to the Supreme Court.

The research was led by Professor Liz Trinder, of the University of Exeter, and funded by the Nuffield Foundation. The report argues that the current system is basically unfair:

“Academic research and Law Commission reviews from the 1970s onwards reported serious problems with the divorce law, including the lack of honesty of the system, with the parties exaggerating behaviour allegations to get a quick divorce, while the court could do little more than ‘pretend’ to inquire into allegations. This study found that those problems continue and have worsened in some respects.

Fault, especially behaviour, continues to be relied on to secure a faster divorce. The consequence is that parties often feel under pressure to exaggerate allegations or retro-fit the reasons for their separation into one of the legal Facts, even though the court’s expectations of what is required to make out each Fact is now actually very low, particularly for behaviour. The court has a duty to inquire into allegations but in practice in undefended cases only has the capacity to take the petitioner’s allegations at face value. That is procedurally unfair for the great majority of respondents who cannot defend themselves against the allegations.”

Professor Trinder and her colleagues recommend removing fault entirely from divorce law and replacing it with a notification system, under which divorce would be available if one or both parties register a claim that  the marriage has broken down irretrievably and the intention to divorce is confirmed by one or both parties after a minimum period of six months.