New research on no fault divorce: lawyers and clients needed to take part

Feature

25 Aug 2015

Why this research is important

Earlier this year ‘divorce without blame’ was one of six key issues raised in the Resolution Manifesto. We are therefore delighted that the Nuffield Foundation has agreed to fund a major two-year study exploring how the current law on the ground for divorce and civil partnership dissolution operates in practice and to inform debate about whether and how the law might be reformed.

Although legislators in the late 1960s/early 1970s had expected the ‘fault’ facts of adultery, behaviour and desertion to be replaced by the ‘no-fault’ facts of two and five years separation, in practice that has not happened. The long delays associated with the separation facts means there is still heavy reliance upon fault. In 2012, 48% of divorces were granted on the basis of behaviour and 14% on adultery. That represents more than 72,000 petitions involving around 125,000 minor children.

We are concerned that petitions that rely on apportioning some blame risk creating or inflaming conflict and thus undermining the opportunity for people to resolve disputes outside of court. These concerns are not new. The Law Commission report The Ground for Divorce’ in 1990 set out six problems with fault-based divorce, including that the law was confusing and misleading, discriminatory and unjust, distorted bargaining positions, provoked unnecessary hostility, made things worse for children by exacerbating parental conflict whilst at the same time doing nothing to save marriages.

Investigating no fault divorce – the three stages of research

The new study includes three main elements.

The first is a Public attitudes survey designed to explore attitudes to the ground for divorce and views on law reform of a nationally representative sample of 2,000 adults and 1,000 recently divorced adults. We know that divorce law reform is a politically sensitive issue and so this element is designed to get a sense of the public’s appetite for reform to inform policy-makers. The results from this part of the study will be available in early 2016.

The second stage will look at how the courts investigate petitions alleging adultery or unreasonable behaviour. The Court Scrutiny Study is designed to explore what the “duty of the court to enquire, so far as it reasonably can, into the facts alleged” means in practice. It will consist of (a) case file analysis of 300 completed cases (b) case file analysis of 100 contested petitions (c) and observation and interviews with legal advisers and judges in four or five divorce centres about the scrutiny process.

The third stage, the Producing a petition study will explore how petitions are produced and with what effect on the parties. It is designed to provide an in-depth understanding of the petitioning process from the perspective of the parties and any lawyers who may advise them.

How the research will be conducted

The Producing a Petition part of the study will need participation from Resolution members and their clients. This element of the study includes a qualitative sample of more than 75 cases (the ‘journey sample’) tracked over the course of a year.

The research team needs to recruit 50 cases via Resolution solicitors in four or five target areas. The researchers will also run lawyer focus groups in the journey sample areas to get a wider perspective on the experience of advising divorce clients and possible options for reform. They will also seek to recruit 25 lawyers in the Court Scrutiny areas to talk through the approach to cases where there is conflict but the divorce is not officially contested (and which will be explored in the contested file sample).

The fieldwork for the Court Scrutiny and Producing a Petition studies will start in autumn 2015 with results due in late 2016/17. The research team has the full support of Resolution, both in developing the original funding proposal and now in planning in detail how to ensure that the research is carried out effectively and ethically.

The research team will be conducting the study in four or five areas and so if you live in one of these areas and are

a) a Resolution member working in one of these areas, or;

b)are going through a divorce with a Resolution member as your lawyer

you may be asked if you would like to take part.

Over the next few months we will be going out to the fieldwork sites and asking Resolution members in those areas to volunteer to take part in the study. We really look forward to working with you on what should be a very interesting and potentially very influential study.

Interested? Find out more

If you would like more information about the research, or would like to be added to the mailing list for information please contact Professor Liz Trinder by email e.j.trinder@exeter.ac.uk, phone 01392 723375 or by post at Exeter Law School, Exeter University, Rennes Drive, Exeter, EX4 4RJ.

The project is led by Professor Liz Trinder (Exeter University). The research team includes Bryson Purdon Social Research, One Plus One, Julia Pearce, Janet Reibstein and Mark Sefton. The research is funded by the Nuffield Foundation.