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New research project looks at fault in divorce

A new study aims to understand how the law on divorce and the dissolution of civil partnerships works in practice in England and Wales.
 
The study, undertaken by Liz Trinder at Exeter University, and funded by the Nuffield Trust, explores the reality that the majority of divorces still rest on fault – generally either adultery or grounds of behaviour.
 
Earlier research suggests that the requirement to establish fault does little to save struggling marriages, but does lead to increased hostility between the parties. Current divorce law has repeatedly been branded as not fit for practice, with calls to introduce “no fault” divorce, to streamline the process where a couple wants to part ways with mutual consent. In practice, some 98 per cent of divorce cases are uncontested.
 
Key to the research are several outstanding questions. One of these regards the reasons given for divorce in a fault-based petition, and whether these are really reflective of the reasons the marriage broke down. The implication is that the limited number of grounds for divorce are simply used as a pretext to jump through the required legal hoops, but that this process can be further damaging to the relationship in question.
 
The research also looks at the idea that it is the “duty of the court to enquire, so far as it reasonably can, into the facts alleged”. However, in practice this is a formality and involves very little inquiry beyond the petition itself; it is no more than an administrative process.

Lastly, the report will explore whether there is a need and/or desire for reform, and what form this might take if so. The report will also look at the differences, where applicable, between the ways divorce and the dissolution of civil partnerships are treated.

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