With the Supreme Court due to hear the case of Owens v Owens in a couple of days' time, the Nuffield Foundation has produced a report on why defended divorces occur, how such cases are dealt with by the Courts and whether there is need for reform.
What does it mean to defend a divorce?
When one or both parties decide that the marriage has come to an end, it is open to either party to start divorce proceedings. To start the process a petition must be filed at Court. The person who does this is called the Petitioner. This document gives brief details about the parties, their solicitor, details of the marriage etc. On receipt of the divorce petition, the Respondent (the person receiving the petition) has the option of indicating whether they intend to defend the divorce. This may occur because the Respondent does not think the marriage has broken down irretrievably or because they do not accept the fact upon which the Petitioner has relied.
Contested divorce proceedings are rare, in fact, less than 1% of all divorces are defended each year. This is because it can be costly, complicated and is seen by many as unproductive.
The research conducted by the Nuffield Foundation found that in 90% of defended cases, people did not object to the divorce to try and "save" the marriage but instead to dispute the allegations of "fault" made against them.
The law governing divorce in England and Wales is heavily reliant upon the concept of "fault" if you wish to obtain a divorce immediately. If you are in the first 2 years of separation the only facts that you can rely upon are the other persons "unreasonable behaviour" or their adultery. You are required to give details of these in the divorce petition which can be difficult for the Petitioner to write and also difficult for the Respondent to read. This inevitably increases tensions between the parties at what is an incredibly emotional time. This is when the Respondent may decide to defend the divorce in order to dispute the allegations of "fault" made against them and put their reasons forward as to why the marriage has broken down.
The research found that legal mechanism enabling a Respondent to defend the divorce is inadequate. This is because few who want to dispute the allegations are able to do so because of the financial and emotional cost of defending a divorce and the discouragement from the family justice system meaning it is inaccessible to many. On average it is estimated that it costs £6,000.00 to defend a divorce but it could be well in excess of this. Just look at Mr and Mrs Owens who are just days away from their third hearing for a final decision to be made on whether Mrs Owens can obtain a divorce!
Even where cases do make it to a hearing and the allegations are examined, the research showed that in reality, the cases are settled rather than a Judge making a decision. Where a decision was required, there were no cases where the Court refused a divorce - Mrs Owens is obviously an exception to this! In practice this means that the outcome is the same – the marriage is dissolved but both parties will have been through a lengthy, costly and stressful process to get there.
There have been calls to reform the current law which would remove the concept of fault and would focus on reducing conflict and create practical solutions for families. This is supported by the research as it concludes that the law isn't working for the majority of undefended divorces and definitely isn't working for the small percentage of defended divorces.
The researchers recommend removing the concept of "fault" from the legislation and instead have a notification system. The idea being that divorce would be available for either or both parties where the marriage has broken down irretrievably and that this can confirmed by either or both parties after a minimum period of 6 months. As a result, there would be no need to have a legal mechanism to defend the proceedings.
The full report produced by the Nuffield Foundation can be found using this link - click here
Interestingly, other countries such as America, Australia and the Netherlands allow couples to divorce without apportioning blame. Slightly closer to home we have Scotland who have a simplified divorce or what is dubbed a "quickie" divorce where parties can rely upon the fact of one year's separation.
We will eagerly await the decision by the Supreme Court in the Mr and Mrs Owens case on Thursday. Whatever the result, many will say that reform is needed as the current legislation is not working for those in society today.
To find out more or discuss your individual requirements in further detail, our specialist Family Law Solicitors can help. Our advice is bespoke, confidential and totally designed around you, helping you come to the best conclusion for both you and your family.
*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.