“….17 per cent of those who actually initiated divorce proceedings did not want a divorce, and a further 21 per cent were uncertain.………”
“….It is abundantly clear that even when divorce seems inevitable, it is not the outcome that many of those involved in it actually wanted.
The above report and an earlier study by Gwynn Davis and Mervyn Murch have shown that approximately 50% of people at the outset of divorce proceedings did not actually want a divorce, or were uncertain about getting divorced.
To put this statistic into perspective, the average number of divorce applications over the 10 years between 2006 and 2016 was nearly 140,00 per annum. These are figures from the ONS. That is at least 70,000 couples per year that need to be helped away from the clutches of a destructive divorce system.
Understanding and acknowledging this should surely be our starting position?
In contrast it is said that 98% of divorces go through on an unopposed basis.
Sir James Munby, President of the Family Division in Owens v Owens [2017]
“98. In the year to January 2017, there were 113,996 petitions for divorce. They are not published, but I understand that, over the same period, notice of intention to defend was given in some 2,600 acknowledgements of service (some 2.28% of all petitions) while actual answers filed were about 760 (some 0.67% of all petitions).”
Why is this?
What has gone wrong for the 70,000 or so couples harbouring doubts about divorce?
The following quote from No Contest: Defended Divorce in England & Wales – 2018 gives us a glimpse behind the curtain.
Authors: Professor Liz Trinder
In 1985, the Booth Committee, appointed by the Lord Chancellor to consider divorce procedure, set out very clear reasons for the limited number of defences. They noted that the cost of litigation was a significant barrier to defence at that time. They also concluded that the court itself discouraged defence. The Law Commission, The Ground for Divorce (Law Com 1990) reported similar barriers to defence, noting how difficult it was for respondents to challenge behaviour allegations, which require “time, money and emotional energy far beyond the resources of most respondents”.
“The judge started giving me a hard time about the contents of the petition and my statement wasn’t going to support it …. He gave me a bit of a telling off. And then he said, ‘But there’s just enough there to get the divorce if that’s all I had’. And then he spent the rest of the time bashing the husband for ‘Why, why do you need this [defence], you’re not going to [save the] marriage?’ And then, by some miracle, he persuaded the husband. And the judge dictated in front of the husband what he said should be in that petition that was acceptable to the husband. And so, by the end of about an hour’s worth of effort, the judge had managed to amend the petition, husband had agreed to the divorce based on that petition as amended, and we didn’t have to have a final hearing. I have to say, ‘Fair play to Judge X’. (Lawyer interview 6)
Baroness Deech – Divorce (Financial Provision) Bill [HL] (Second Reading 11th May 2018)
“Of course the law is equal, but the attitude of judges is not.”
I address the conundrum of 50% initial reluctance turning into 98% acceptance in detail in the following sections:-
40 Years of Warnings About Divorce Law Failings
Heaven Help Us
The Toll of Misery
Why Oh Why
The Ronseal Question
Divorce Is Frequently Not The Desired Outcome
A Cry For Help
The answers are disturbing from a Rule of Law perspective and also from a Human Rights perspective.
The injustice, inconsistency and bias inherent in the divorce system is difficult to understand or to justify. The bewilderment of those exposed to judicial and legal practise in the Family Courts is well summed up by the following paragraph from the Law Commission report No.170 of 1988.
“3.46 Perhaps most important of all, the fact need bear no relationship to the real reason why the marriage broke down. Petitioners will choose a particular fact for practical reasons or on legal advice. Some cannot even remember which fact was used .213 Thus, it is clear that the law in practice is quite different from the law on the statute book. This is not simply an academic problem because the inconsistency is apparent to and causes confusion to litigants. Davis and Murch refer to:-
"the frustration—and indeed sheer bewilderment—which flows from a law founded on principle being circumvented by procedures based on expediency.”
“This clear divergence between law and practice can only bring the law of divorce and the administration of justice generally into disrepute.”
A selection of quotes illustrating the disquiet felt among legal, academic and political commentators are set out in the following section.