K J Smith Solicitors

New 'no fault divorce' study due to start in October 2015

Published: 8 September 2015

A new study, funded by the Nuffield Foundation, is due to commence in October 2015 and will explore the concept of fault in the divorce system and whether a 'no fault' divorce system could work in England and Wales.

The study, which will be led by Professor Liz Tinder from Exeter University and her research team including Bryson Purdon Social Research and One Plus One will run from October 2015 to September 2017, with the first phase of research being made available to the public in Spring 2016. The next phase will be available from late 2016, with the final report following by Summer 2017.

The aim of the research is to understand how the current law on divorce and civil partnership dissolution operates and to identify ways in which the law can be reformed to improve the current divorce system. The research will also take into account any differences or similarities in the petitions from heterosexual couples and same sex couples and to see if the law still applies equally to both divorces and civil partnership dissolutions.

The study will address three key questions:

  • How does the current law work in practice during the process of petitioning? Fundamentally, is the production of the petition, particularly fault-based petitions, reflective of the real reasons for the breakdown of the relationship and what impact does the process have on relationships?
  • What does the "duty of the court to enquire, so far as it reasonably can, into the facts alleged" mean in practice? How rigorous is the process and has the scrutiny of petitions already become to all intents and purposes an administrative rather than an inquisitorial process?
  • Is there a desire and need for law reform, and if so, how?

The research will include three separate studies:

  • Producing a Petition Study (Due late 2016)-This study will explore how petitions are produced and with what effect on the parties. Consisting of qualitative samples of 75 cases tracked over the course of a year from the pre-petition stage. There will also be focus groups with family lawyers in five different areas, consisting of interviews with 25 lawyers focusing on disputed cases.
  • Court Scrutiny Study(Due Summer 2017)- This will explore the content of petitions, case progress and the scrutiny process. The case files of over 300 completed cases will be analysed, as well as the case files of 100 contested petitions and observations and interviews will take place with legal advisers and judges about the scrutiny process.
  • Public Attitudes Survey (Due Spring 2016)- This study will explore attitudes to the current law on divorce and civil partnership dissolution and views on law reform from a sample of 2,000 adults in England and Wales and 1,000 divorce adults.

The study has been backed by national family law organisation Resolution, who have been campaigning for 'divorce without blame' since the issue was raised in their Manifesto.

Resolution say that the divorce system is still too overly reliant on fault, with more than 72,000 petitions in 2012 granted on the basis of behaviour or adultery. One of their concerns is that divorces on the grounds of fault are at risk of becoming confrontational, which undermines their approach to dealing with family matters without conflict and giving people the opportunity to resolve their disputes away from the court room.

They also say that their concerns are nothing new. A report produced in 1990 by the Law Commission highlights six problems with a fault-based divorce system, stating that the law was discriminatory and unjust whilst provoking unnecessary hostility and made the lives of the children involved worse by encouraging parental conflict. The report also said that it found the law confusing and misleading whilst doing nothing to actually help to save the marriage.

Resolution are currently seeking volunteers to aid in the study and have asked any Resolution members working in one of the areas or any members of the public currently going through a divorce with a Resolution member as their lawyer to come forward if they wish to take part in the study.

The full summary proposal for the new study can be viewed here.

If your relationship is on the verge of a breakdown and you are thinking about divorce then K J Smith Solicitors are here to help. For more information or to arrange a free 45 minute consultation, please contact K J Smith Solicitors today on 01491 630000 (Henley on Thames), 020 7070 0330 (London), 0118 418 1000 (Reading), 01753 325000 (Windsor), 01256 584000(Basingstoke) or 01483 370100 (Guildford) or email info@kjsmith.co.uk.

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