The “overly complex” divorce system in England and Wales needs reforming, says the Nuffield Foundation.
The foundation’s new report, based on analysis of a national sample of both undefended and defended divorce cases and entitled Taking Notice, found that the current system can fuel conflict and disadvantages people who represent themselves and those alleging abuse as grounds for divorce.
Responding to the government’s proposal to reform the legal requirements for divorce, Taking Notice made the following recommendations:
- The proposed notification period of six months should begin before decree nisi to avoid people facing unpredictable variations in processing times. If this period ran alongside the administrative processing people would not be subject to unfair delays caused by an indeterminate and variable period to decree nisi, meaning people would be less likely to be penalised in cases where it is delayed because of obstructive behaviour.
- The ability to defend a divorce should be removed. It has been suggested that the use of the five years ‘Fact’ in some divorce cases indicates a lack of consent from the respondent to the principle of divorce, but the new analysis found this not to be the case. In cases where divorce proceedings are started but not completed, this is largely due to procedural or legal difficulties or protracted negotiations over finances, rather than reconciliation.
- Finally, the minority (14 percent) of cases in which one party does not respond to the divorce petition needs to be addressed, which is more likely to occur in cases featuring allegations of domestic abuse or coercive control. Nearly half of these cases fail to reach decree nisi and those that did took 7.5 months. The foundation believes this furthers the argument for the notification period to begin before decree nisi, and highlights the need for the divorce process to be digitalised.
The analysis presented in Taking Notice was undertaken by Professor Liz Trinder at the University of Exeter and funded by the Nuffield Foundation. It addresses the questions raised by the Ministry of Justice consultation (MoJ) on reform of the legal requirements for divorce, which acknowledges recommendations from two earlier Nuffield Foundation reports by Professor Trinder, Finding Fault, and No Contest.
Tim Gardam, Nuffield Foundation chief executive: “The Nuffield Foundation welcomes the Ministry of Justice’s consultation on reforming the divorce law in England and Wales, which draws heavily on Nuffield-funded research on how the current system increases conflict for separating couples and their children.”
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