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Tuesday, June 28, 2022

Oxford research points to the need for divorce law reform

The majority of divorces were found to be granted on grounds of 'unreasonable behaviour'

New Oxford University research has shown “unreasonable behaviour” to be the most common ground for divorce.

In response, the study’s leading academic John Haskey has deemed current divorce law interpretation “problematic.”

The research comes only days after the UK Supreme Court’s dismissal of Tini Owens’ divorce case sparked national outcry.

Studying data from 1971, when the 1969 Divorce Reform Act came into use, Haskey found “unreasonable behaviour” to be the most common ‘fact’ which couples cite as evidence for their marriage breakdown.

Haskey, of the Department of Social Policy and Intervention, revealed that the proportion of divorces granted due to ‘unreasonable behaviour’ had increased dramatically. For those granted to wives, the proportion of divorces trebled from 17% in 1971 to 51% in 2016. For those to husbands, the uptick was even more significant – from 2 to 36%.

Currently, any petitioner must select at least one ‘fact’ to justify their divorce. These include three ‘fault’ facts, which imply blame: desertion, unreasonable behaviour, and adultery. The 1969 Act also added two ‘no-fault’ facts. A couple can divorce if they both agree and have been separated for two years, or five years if the respondent does not wish to divorce.

Haskey also found that, despite couples being able to divorce without assigning blame following the Act, the proportion of divorces being granted because of ‘fault’ facts today is still similar to the proportion in 1973.

Reformers calling for a no-fault divorce system, however, should be not necessarily be disheartened.

Speaking to Cherwell, Haskey said: “To obtain a quick divorce, petitioners can be tempted to petition on a ‘fault’ fact – e.g. adultery, or unreasonable behaviour – and, in the latter case, they may exaggerate the behaviour to be more certain of winning their case.

“The respondent cannot really rebut the allegation, as it is impractical to defend a divorce – which leads to conflict and acrimony.”

In his report, Haskey also pointed out that ‘unreasonable behaviour’ may be popular because it could be conceived as the “least offensive” of the fault facts.

He told Cherwell: “In recent years ‘unreasonable behaviour’ has been interpreted much more liberally than before, undoubtedly influenced by society’s changing values and norms as to how husbands and wives should treat each other.

“It is problematic in how to interpret the law in the light of changing views on what constitutes ‘unreasonable’ and in practice it has become a “catch-all” ‘fact’ for those wanting divorce.”

Furthermore, a Nuffield report into family law indicated that only 65% of petitioners believed that the fact cited tallied ‘very closely’ with the reality of the marriage breakdown. For respondents, this fell to 29%.

Resolution is a family justice organisation that campaigns for improvements to the justice system. They propose an alternative divorce procedure which would allow either partner to give notice that the marriage has broken down irretrievably. The divorce can then proceed. After a period of six months, if the couple still think they are making the right decision, the divorce can be finalised.

Their spokesperson, Lisa Dorstek, told Cherwell: “At the crux of the issue is the needless conflict created by the divorce process at an already difficult time for a separating couple.

“We know that conflict can also have a disproportionate impact on any children and can make reaching a mutually acceptable agreement on children or finances more difficult.

“Actively encouraging blame has no place in a system where we aim to reduce negative impact on all those involved and flies in the face of government efforts to support people to reach agreements out of court.

“Divorce without blame was provided for in the Family Law Act 1996 but never enacted. The Government’s own Family Mediation Taskforce recently recommended that divorce without blame be introduced.”

According to the Nuffield report, divorce legislation in England and Wales is “out of step” with other countries. In Scotland, if couples have not lived together for just a year, they can be granted a divorce if both parties consent.


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