& Wales – 2018 Authors: Liz Trinder is Professor of Socio-legal Studies at the University of Exeter Law School. Mark Sefton is an independent researcher. Research funded by the Nuffield Foundation
The number of formal defences significantly understates the number of respondents who might wish to defend or to challenge the contents of a petition. About a third of respondents in behaviour cases rebut (or deny) the allegations, but do not formally defend the divorce.
Family lawyers have a strong professional orientation against defence and typically advise clients against defending. The courts adopt a reactive approach to assisting respondents, amounting to reactive or constructive discouragement.
… the barriers to defence may well appear to be procedurally unfair to respondents who are subject to allegations that they cannot challenge and that the court will otherwise take at face value.
There has been limited previous research on defended divorce, and none since the 1980s. However, the messages from those previous investigations have been clear and consistent, particularly in relation to understanding why there have been so few defended cases.
In 1985, the Booth Committee, appointed by the Lord Chancellor to consider divorceprocedure, set out very clear reasons for the limited number of defences. They also concluded that the court itself discouraged defence. The report did not set out how respondents were discouraged,
Law Commission in The Ground for Divorce 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”.
It also repeated the conclusion of the Booth Committee that attempting to defend was futile, in any case. The most comprehensive analysis, and the only previous empirical research on defended cases, is Davis & Murch’s study published in 1988. Davis & Murch identified similar barriers to defence as set out by the Booth Committee and the Law Commission. They noted that significantly more respondents would have liked to defend than actually managed to do so, largely due to systemic barriers operating at all stages of the process. These included the early advice from lawyers that defence would be contrary to the client’s interests.
Davis & Murch also explored how the parties in defended cases were still encouraged to settle during proceedings, rather than to fight it out to a final hearing. The result was that very few cases with Answers were formally adjudicated as the parties were encouraged or persuaded to settle, typically before or during a ‘first appointment’ (now termed a Case Management Hearing).
….Given the sustained pressure to settle, notably on the respondent, it is not surprising that most Answer cases resulted in a divorce decree.
Extract from “Grounds For Divorce” – Davis and Murch
DEFENDED divorce is a seriously underestimated problem. In A Better Way Out it is claimed that:-
“Where there is conflict between the spouses it is nearly always about money, possession of the matrimonial home and other property, or, less often, children. Proceedings in which there is a dispute about the actual basis for the divorce form a small fraction of the total number—about 2,700 out of 170,000 petitions in 1977, that is, around 1.6%—and even in these it often turns out on closer examination that the dispute is merely tactical, its real cause being one spouse’s fear that the award of the decree to the other may prejudice a financial or custody claim.” (Law Society, 1979, para. 13)
Subsequently, in A Better Way Out Reviewed, the Law Society group came up with even more emphatic figures.
“The vital point which must be borne in mind if our proposal [for ‘breakdown’ to be established on the basis of one year’s separation] is to be seen in its proper light is that opposed
divorce proceedings, in the sense of proceedings in which there is a real dispute about whether a marriage has broken down or not, have virtually disappeared. . . . Of 170,882 divorce petitions filed in 1980 only 1,114 (about 0.65%) were defended at the time of setting down for trial and the majority even of those were later settled on a consent basis—either by granting joint decrees or by one of the two parties withdrawing—usually on reaching agreement about ancillary matters
involving children or property. The President of the Family Division recently estimated that only about 50 cases a year are now actually contested at the final hearing of the petition itself, though extended and often bitter disputes continue to occur over access to and custody of children, and maintenance and property.” (Law Society, 1982, paras. 21, 22)
The interesting thing about these explanations is that they are presented in the context of an argument that defended divorce is no longer a problem, whereas the explanations themselves reflect judicial policy, procedural rationalization, and the denial of funds—none of which need necessarily be welcomed by the parties to divorce proceedings. Indeed, one might present this same information very differently, as indicating an unwillingness or
inability to operate the law as it stands.
The evidence of our research is very clear: opposition to the award of a decree (or to the contents of the divorce petition) still strongly persists. It is just that this resistance is ‘dealt with’ at some preliminary stage.