The Family Impact Test - Reducing family conflict: Reform of the legal requirements for divorce

The Family Impact Test

Reducing family conflict: Reform of the legal requirements for divorce

Introduction

1. The Family Impact Test ensures that the impact on families is considered when the Government

develops policies. This includes all types of family relationship and structure, including extended

families, with a particular focus on children and their parents who may be living together or living

apart.

2. This paper considers the impact on families of the proposed policy to reform the legal requirements

for divorce, civil partnership dissolution and (judicial) separation.

3. The Government believes in the importance of strong family relationships. Sadly, relationships do

come to an end. When that happens, hostility and ongoing conflict can only be detrimental to the

welfare of individual family members, particularly any children. We want the law governing the legal

process of divorce to better support couples, and in particular parents with children, in the extremely

trying circumstances of divorce. The legal process for divorce should seek to reduce acrimony and

conflict, thereby helping couples and parents to look to the future rather than providing a mechanism

that facilitates and encourages the attribution of blame for past events. We want to create conditions

for couples and parents to reconcile if they can – and to move on as constructively as possible in the

event that this is not possible.

4. Overall, the policy aims to assist families in which the legal process of divorce has started by reducing

conflict within divorce proceedings. We intend to remove elements of the current law which create or

exacerbate conflict, and which have been shown not to contribute positively either to reconciliation or

to helping people reach agreement about arrangements for the future. At the same time, we are

retaining and strengthening elements of the process to support couples to reflect on the decision to

divorce, reinforcing opportunities to turn back, or where divorce is inevitable to support the making of

arrangements for the future in an orderly and constructive way.

5. The revised legal process is expected to have a particularly beneficial impact for children, by better

supporting parents to maintain a positive ongoing parenting relationship. We are clear that when

parents have taken the difficult decision to divorce, children’s best interests are served by minimising

conflict during and after the legal process, to support co-operative parenting.

6. The proposals considered in this document are concerned specifically with changes to the legal

process for obtaining a divorce. The Government is separately taking forward other non-legislative

measures designed to better support families. The online service for divorce, which provides guidance

to people completing court applications, is an opportunity to prompt couples on the issues they could

helpfully consider when reflecting on the decision to divorce. We are exploring through the digitisation

of wider court processes opportunities to tailor information based on filter questions so that users are

guided through information about mediation and its benefits. By checking that they have understood

what mediation is, and that it remains an option at every stage of the process, we will help users to

make informed choices.

7. We are also working with the Family Mediation Council to look at ways to help promote greater

understanding of family mediation and its benefits, and signposting separating or divorcing couples

and parents to mediation services at the earliest possible stage. As part of that work we are exploring

why some cases come to court and others do not, and how to incentivise family-led solutions as an

alternative to court imposed ones, where that is safe and in the interests of children and victims of

domestic abuse.

References in this document to marriage and divorce are to be read as applying, where appropriate, to civil partnerships and

to civil partnership dissolution.

8. We are supportive of problem-solving techniques to resolve public law cases as an alternative to

traditional court proceedings, and we are evaluating a pilot of Settlement Conferences. We have also

developed proposals, in close collaboration with the family justice sector, to address rising volumes of

children entering the family justice system and local variation in that system. These proposals focus

on better preparation of cases before court and diversion of cases from court where appropriate,

making better use of the wider family network and promoting consistent and appropriate decisions in

court.

9. On domestic abuse, we have committed to legislate to improve the protections available to victims

and to prevent abusers from exploiting the court process to perpetuate further abuse and coercive

control. The package of measures and draft Domestic Abuse Bill published on 21 January includes

proposals for a new domestic abuse protection notice and a new domestic abuse protection order,

which draw together the strongest elements of existing orders. The domestic abuse protection notice

can be given by the police and the domestic abuse protection order can be applied for by victims,

police or any other person with leave of the court. In addition, the court of its own motion may make a

domestic abuse protection order. This may be in family proceedings, criminal proceedings or civil

proceedings. The package also includes a wide range of supportive measures intended to sit

alongside the legislation that will help further support victims in this position of domestic abuse.

10. More broadly, the Government is investing up to £39m in the Reducing Parental Conflict programme

to grow face-to-face support for parents via local authorities in England. When it comes to the critical

issue of improving children’s outcomes, we know that exposure to frequent, intense and poorly

resolved parental conflict can be damaging. The programme will build the evidence base for what

works by providing face-to-face interventions which address parental conflict in 31 local authorities

across England. It will help local authorities integrate help to reduce parental conflict into local support

for families, to help ensure that these services are more widely available for parents who need them,

and that local workforces are trained appropriately in the issue of parental conflict. The Troubled

Families programme is also working with families with complex needs.

11. In terms of the parents and families of tomorrow, the introduction of relationships education in schools

will help all children and young people learn about the importance of healthy relationships, including

marriage.

The policy aim and objectives

12. The aim of the policy is to reduce conflict between couples and parents involved in divorce, civil

partnership dissolution and (judicial) separation. The policy objectives are in line with wider strategic

objectives to deliver a modern courts and justice system, including to provide a fair and effective

justice system which supports better outcomes for children and families. The objectives are:

• To ensure that the decision to divorce continues to be a considered one

• To minimise the adversarial nature of the legal process, to reduce conflict and to support

better outcomes by maximising the opportunity for the parties to agree arrangements for the

future

• To make the legal process fair, transparent, and easier to navigate

• To reduce the opportunities for an abuser to misuse the legal process for divorce as a way to

perpetrate further abuse

13. The current law requires a party to a marriage who seeks a divorce or dissolution

to provide one or

more of five

facts to demonstrate that the sole ground for divorce or dissolution, irretrievable

breakdown, is met. Three of these facts are based on the conduct of the other spouse (adultery,

behaviour and desertion), and two are based instead on a period of prior separation (two years if

both spouses consent, five years otherwise).

14. Divorce and dissolution applications can be initiated by one spouse (“the petitioner”), and must be

acknowledged by the other spouse (“the respondent”) who has the option to contest (“defend”) the

proceedings. Only 2% of divorce cases are contested,

and this can be a result of dispute over the

choice of fact relied upon by the petitioning spouse or other disputes (88% of sampled defended

cases), rather than disagreeing that their relationship is over (12% of sampled defended cases).

15. The current legal process is often misunderstood.

There is no provision for the court to investigate

disputed facts except in the few cases that are formally defended. The law does not require the fact

relied upon by the petitioner to be the real reason for the breakdown of the legal relationship: it

requires the relationship to have broken down irretrievably, and for at least one of the five facts to be

proved, but as confirmed by the Supreme Court, “the Act does not require that there be a causal

connection between them.”

This creates a divergence between the law, practice, and public

expectation.

16. Making allegations about a spouse’s conduct within divorce, civil partnership dissolution and judicial

separation proceedings (‘matrimonial proceedings’) has been shown to create or exacerbate conflict

during an already difficult time.

However, this option is incentivised if a couple is unwilling or unable

to wait for a separation period of minimum two years to elapse, often for practical or financial

reasons. This can have a detrimental impact on making arrangements for the future, including

financial arrangements and, for parents, child arrangements for which they need to continue to

communicate and cooperate for their children.

We have also heard from groups representing victims

of domestic abuse of difficulties caused by the current law, including by the fact requirement – feeling

that they must choose between risk of further harm by citing conduct or remaining in a legal

relationship with their abuser for a lengthy separation period – and by the ability to contest a divorce,

which can be used as a malicious controlling tactic to perpetrate abuse.

17. To achieve the aim and objectives, the following changes to the law are recommended (from Option

1 in the Impact Assessment):

• To replace the requirement to evidence one of five facts about conduct or separation with the

provision of a statement of irretrievable breakdown (or a statement that a legal separation is

sought)

The same facts are used where a legal separation is sought as an alternative to divorce or dissolution.

Four facts are available for dissolution cases: behaviour, desertion, two-year separation, five-year separation

Unpublished data from HMCTS reported in Owens v Owens [2017] EWCA Civ 182 para 98. This sets out that in the year to

January 2017, notice of an intention to defend was given in 2,600 of the 113,996 petitions in England and Wales (about

2.28%), and of these only 760 had an Answer filed (0.67%).

Trinder and Sefton (2018) No Contest: Defended Divorce in England and Wales, London: Nuffield Foundation, p.40.

Liz Trinder et al. (2017), Finding Fault?: Divorce Law and Practice in England and Wales, London: Nuffield Foundation, pp.110

and 145.

Owens (Appellant) v Owens (Respondent) [2018] UKSC 41, para 49.

Anne Barlow et al. (2014) Mapping paths to family justice, ESCR: “We saw the capacity for this [fault-based] legal requirement

to upset and antagonise parties and to disturb the equilibrium of the dispute resolution process”.

Resolution (2018) survey of family justice professionals found that 90% say current law makes it harder to reduce conflict

between ex-partners, and 67% say the current law makes it harder for separated parents to reach agreements

http://www.resolution.org.uk/news-list.asp?page_id=228&page=1&n_id=373

Rights of Women (2018), Briefing on divorce law reform, http://rightsofwomen.org.uk/wp-content/uploads/2018/07/Briefing-on-

divorce-law-reform-260718.pdf; Jenny Birchall & Shazia Choudhry (2018) “What about my right not to be abused?” Domestic

abuse, human rights and the family courts, Women’s Aid and QMUL; Trinder and Sefton (2018) No Contest: Defended

Divorce in England and Wales, London: Nuffield Foundation; Corbett, N.E. and Summerfield, A. (2017) Alleged perpetrators of

abuse as litigants in person in private family law: the cross-examination of vulnerable and intimidated witnesses.

• To introduce a minimum timeframe of six months (26 weeks) for the divorce process

between the start of the legal process and final decree stage

• To remove the ability to contest a divorce

• To provide an option for the parties to start and progress the legal process jointly, reflecting a

shared decision to divorce

18. We will retain many underlying aspects of the current law, including:

• Irretrievable breakdown of the marriage as the sole ground for divorce

• A two-stage decree process (interim and final)

• The requirement on legal practitioners to certify whether they have discussed the possibility

of reconciliation

• A bar on divorce within the first year of marriage

The Family Impact Test questions

Question 1 What kinds of impact might the policy have on family formation?

19. We do not expect that this policy will have an impact on family formation, including in particular

whether to legally formalise a relationship through marriage or a civil partnership. The decision to get

married is one that is made at a time of high optimism and hope for the future. The process for

obtaining a divorce is something that one or both parties to a marriage will only contemplate when

serious difficulties have arisen in their legal relationship. The changes recognise that marriage only

works where each party consents to remain in that legal relationship.

20. The retention of the bar on divorce within the first year of marriage underlines the importance of

marriage and, where a marriage has been formed, will continue to support couples to work through

any early difficulties in the legal relationship.

Question 2 What kind of impact will the policy have on families going through key transitions?

21. The policy will affect couples and parents going through a key transition of divorce or legal

separation, by changing aspects of the legal process for this.

22. The introduction of a minimum period for the divorce process between the start to final stages will

protect against rushed decisions to divorce: it will allow time for the couple to reflect on the

implications of the decision to bring a legal end to their relationship, to consider reconciliation or to

agree arrangements for the future. The current law works against reconciliation by incentivising (in

order to get a divorce more quickly) a spouse to make allegations about the other spouse’s conduct

which can create conflict. The alternative option which requires the couple to live apart for a

substantial period of time can disincentivise efforts at reconciliation because the separation period

can be affected if the couple try living together again. The current law also offers little opportunity for

reflection and conciliation, as the initial decree of divorce can come only a matter of weeks after the

divorce proceedings have started.

23. The retention of the ground for divorce demonstrates that marriage is a solemn commitment and

should not be ended lightly, and the retention of the two-stage process requires a deliberate

application at each of three stages: at the original petition stage and at each of the subsequent two

stages of divorce. This offers additional checks on the decision to divorce, allowing couples to

reconsider.

24. The potential harm and conflict caused by one or both parties setting out hurtful particulars to prove a

conduct-based fact will be removed. The alternative requirement to live apart for a certain period of

time will also be removed. Considerable time, effort and cost is associated with assembling

particulars to establish to the satisfaction of the court that the marriage or civil partnership has

irretrievably broken down. The ability to contest the granting of a divorce will be also be removed.

While rarely used, it can cause conflict due to its misuse as a controlling tactic or means to leverage

concessions.

The law cannot fix a broken marriage by compelling one party to remain in a legal

relationship against their will. Of the 2% of divorces that begin as contested proceedings, only a

handful proceed to a full final hearing. The decision to contest a divorce can reflect a profound sense

of injustice at allegations of conduct put forward by the other spouse, because the current legal

process gives no opportunity to rebut these unless the divorce is contested.

25. We believe that these changes will help to minimise conflict and encourage couples to focus on the

key practical decisions needed for the future so that they and their families are able to move on in the

best possible circumstances.

The option of jointly initiating and progressing proceedings could help

divorcing couples demonstrate to their family and children that the decision is mutual, and could set a

consensual tone for continued co-parenting after separation.

26. Sometimes separation or subsequent divorce can be the best option for a family. When a marriage

has irretrievably broken down and there is ongoing conflict, continuing in it can be damaging for the

couple and for any children that they have. A comprehensive review of research evidence indicates

that children’s outcomes are affected by the quality of the relationship between the parents, not the

structure of the family. Specifically, this review highlights that frequent, intense, poorly resolved, and

child-related interparental conflict adversely affects long-term emotional, behavioural, social,

academic development, and future intergenerational/ interpersonal relationship behaviours for

children and young people.

There is good evidence that reducing parental conflict during

separation, and supporting co-operative parenting post-separation, contributes to protecting children

against adverse outcomes from separation.

27. The impact on families going through matrimonial proceedings is therefore considered to be a

positive one. At a difficult time in their lives following relationship breakdown, couples should be

supported to focus on the future, yet the current legal process incentivises them to focus on the

negative events of the past. This is detrimental to prospects of reconciliation and to moving forwards

constructively, and may only increase acrimony and conflict and lead to poorer outcomes for

children.

Trinder and Sefton (2018) No Contest: Defended Divorce in England and Wales, London: Nuffield Foundation; Corbett, N.E.

and Summerfield, A. (2017) Alleged perpetrators of abuse as litigants in person in private family law: the cross-examination

of vulnerable and intimidated witnesses; HHJ Newton, VW v BH (Contested Divorce Proceedings) [2018] EWFC B68: “Mr H's

whole case has indeed been completely futile, a huge waste of money, a tragic destruction of family relationships, and all, in

my opinion, to satisfy Mr H's own vanity and need to be in control and for the other reasons I have suggested earlier. All he

had to do was to not contest the divorce, a divorce he wanted, as virtually everybody else in the country does”; Lord Wilson

(Supreme Court Justice) Owens (Appellant) v Owens (Respondent) [2018] UKSC 41: “The degree of conflict between the

parties which is evident in a fully defended suit will of itself suggest to the family court that in all likelihood their marriage has

broken down.”

Lord Wilson (Supreme Court Justice) Owens (Appellant) v Owens (Respondent) [2018] UKSC 41: “damage [is] caused by

the requirement under the current law that, at the very start of proceedings based on the subsection, one spouse must make

allegations of behaviour against the other. Such allegations often inflame their relationship, to the prejudice of any amicable

resolution of the ensuing financial issues and to the disadvantage of any children.”; The Law Society: “the requirement to

assert one of the five fault based facts can have a destructive impact on families and can promote conflict and acrimony.

Evidence suggests that requiring parties to allocate blame can have a detrimental impact on children”

https://www.lawsociety.org.uk/policy-campaigns/consultation-responses/reforming-the-legal-requirements-for-divorce/

;

Resolution (2018) survey of family justice professionals found that 90% say current law makes it harder to reduce conflict

between ex-partners, and 67% say the current law makes it harder for separated parents to reach agreements

http://www.resolution.org.uk/news-list.asp?page_id=228&page=1&n_id=373

Harold, G., & Sellers, R. (2018). Annual research review: interparental conflict and youth psychopathology: an evidence

review and practice focused update. Journal of Child Psychology and Psychiatry, 59(4), 2018 374-402.

See Cassandra Brown (2009) Ameliorating the Effects of Divorce on Children, 22 Journal of the American Academy of

Academic Lawyers 461, 462; Mooney, A., Oliver, C. and Smith, M. (2009) Impact of Family Breakdown on Children’s Well-

Being: Evidence Review, London: Institute of Education; Harold, G., et al. (2016) What works to enhance inter-parental

relationships and improve outcomes for children. Early Intervention Foundation

28. The policy should not be viewed as a change to make divorce easier. Divorce will always be one of

the hardest decisions anyone has to take. Its primary focus is to avoid unnecessary stresses on

family relationships which have already broken down, to facilitate reconciliation where that is

possible, or to allow for an orderly legal ending to the relationship where there is no prospect of

reconciliation.

Question 3 What impacts will the policy have on all family members’ ability to play a full role in

family life, including with respect to parenting and other caring responsibilities?

29. Divorce law provides protection for families following a decision to end a marriage and, where

appropriate, enables the court to order financial provision for the future for a spouse or children of the

marriage or both. When it does so, the court has a statutory duty to consider all the circumstances of

the case including the financial needs, obligations and responsibilities of each party. It must consider

the needs of any children as a priority.

30. The revised divorce process will be more conciliatory than the current one, thereby enabling parents

in particular to better focus on future child arrangements which are in their children’s best interests.

Findings from a range of research studies find that children experience parental separation as a

process, with a number of risk and protective factors that can increase or limit any adverse

outcomes. Parental conflict can increase the adverse outcomes of divorce; when children are drawn

into their parents’ conflict both during and after separation, this can lead to emotional and

behavioural difficulties. If parental separation is handled well, any negative outcomes can be

reduced. Low conflict during separation, and a good quality relationship between children and their

parents after separation are key protective factors that facilitate a child’s adjustment following

divorce.

This policy is designed to increase the ability of parents to focus on their child

arrangements with less chance for conflict during divorce.

Question 4 How does the policy impact families before, during and after couple separation?

31. The policy impacts families during and after the decision to initiate the legal process of divorce or

legal separation, as set out in response to Question 2. It will minimise the potential for couples to

entrench positions against each other, and will allow for proper consideration of their decision after

an application has been made, providing an opportunity for reconciliation where possible.

32. Removing the separation facts (two years if the other spouse agrees to the divorce, or five years

otherwise) will assist the couple and their family, including in particular any children. The requirement

can be a strain on household finances if the couple live in separate homes yet capital assets that

could be shared are tied up in the family home. If the couple cannot afford to live in separate

households, and therefore need to remain under the same roof, case law has established what will

meet the definition of separation for this purpose (for example, not sharing meals or exhibiting other

communal aspects of family life). Neither situation is optimal for good parenting (or practical, for that

matter). As set out above, the requirement to live apart for a specified period can work against the

interests of attempting reconciliation.

Harold, G., et al. (2016) What works to enhance inter-parental relationships and improve outcomes for children. Early

Intervention Foundation; Mooney, A., Oliver, C. and Smith, M. (2009) Impact of Family Breakdown on Children’s Well-Being:

Evidence Review. London: Institute of Education; Cafcass (2018) Cafcass response - Reform of the legal requirements for

divorce 2018.

See Buchanan, A., Hunt, J. Bretherton, H. & Bream, V. (2001) Families in Conflict: perspectives of children and parents on

the Family Court Welfare Service. Bristol: Policy Press; Kelly, J.B. (2006) Children’s living arrangements following separation

and divorce: insights from clinical and empirical and clinical research. Family Process, 46, 35-42; Mooney, A., Oliver, C. and

Smith, M. (2009) Impact of Family Breakdown on Children’s Well-Being: Evidence Review. London: Institute of Education;

Peacey, V. and Hunt, J. (2008) Problematic contact after separation and divorce? A national survey of parents. London:

Gingerbread; Fortin, J., Hunt, J. and Scanlan, L. (2012) Taking a longer view of contact: The perspectives of young adults

who experienced parental separation in their youth.

33. Removing the conduct-based facts (alleging the other spouse’s adultery, behaviour or desertion) will

also assist the couple by removing the potential for blame for the divorce which can be played out

between the couple and/or members of the wider family. Interdisciplinary academic research has

shown that the need to make such allegations can introduce or aggravate conflict during the legal

process, particularly in relation to arrangements about children and finances.

Despite popular

misconception, the ability to make these allegations does not establish who, if anyone, is to blame for

the marital breakdown. The court does not adjudicate on morally who is to blame or who is at fault,

only on whether irretrievable breakdown is established to a legal threshold; the opportunity to contest

a divorce is rarely taken up and rarely successful, but it can increase conflict and, at worst, can be

used to continue one party’s coercive and controlling behaviour during the marriage.

34. The research outlined in this document shows the unintended effects of the existing legal process,

particularly that it can introduce or aggravate conflict. Changing the law to remove from the current

legal process elements which can exacerbate conflict will, we believe, support couples to focus on

making arrangements for the future, including in particular for any children. This would then help to

mitigate the risk of negative impacts and outcomes on children and families. A minimum period of six

months which covers the entire legal process will give spouses greater clarity and predictability (the

current minimum period does not cover a variable period between petition and interim decree

stages). This will also allow time for reflection and enable space for informed decision-making about

arrangements for the future where divorce is inevitable. This can be particularly important for making

financial arrangements before a divorce is finalised.

35. While these proposals do not extend to the legal framework governing finances and child

arrangements, we anticipate that any reduction of conflict, where possible, within the process of

seeking a divorce is likely to assist in setting a more constructive and collaborative environment in

which to have those discussions.

Question 5 How does the policy impact those families most at risk of deterioration of relationship

quality and breakdown?

36. The policy impacts families after relationship breakdown and at the point that the legal process of

divorce or legal separation has begun. It is not expected to affect risk of relationship breakdown.

Family breakdown is when constituent parts of the family unit no longer work. Family breakdown can

have negative consequences for children if they are exposed to conflict between their parents, as

well as negative impacts on the wider family. Divorce is a process by which a legal end can be

brought to a legal relationship between two people who may be part of a broader family unit. Whilst

divorce is widely associated with negative outcomes for children and the wider family, it is family

breakdown that is the cause of both divorce and these outcomes. Evidence indicates that long term

trends in divorce rates will not be affected by removing ‘fault’ from divorce.

Recent research has

also found no evidence that the current law, in providing for the use of ‘fault’, protects marriage: in-

depth interviews found a strong commitment to marriage and that seeking advice about ending the

marriage was not a decision taken lightly.

37. The Government has also considered whether the existing law remains appropriate in the context of

our work to tackle domestic abuse. Victims of domestic abuse, in particular, may find it unsafe to

make allegations about the conduct of their spouse. If they do make allegations, there may be a risk

of continued abuse either outside the legal process or within it. Some victims feel trapped, therefore,

to remain in the legal relationship until a separation period has elapsed. Research suggests that

perpetrators may contest evidence in divorce applications so that they can continue coercive and

Liz Trinder et al. (2017), Finding Fault?: Divorce Law and Practice in England and Wales, London: Nuffield Foundation,

Trinder and Sefton (2018) No Contest: Defended Divorce in England and Wales, London: Nuffield Foundation.

Justin Wolfers ‘Did unilateral divorce laws raise divorce rates? A reconciliation and new results’ (2006) 96 American

Economic Review, 1802; Betsey Stevenson and Justin Wolfers, ‘Marriage and divorce: Changes and their driving forces’

(2007) 21 Journal of Economic Perspectives 2; Liz Trinder et al. (2017), Finding Fault?: Divorce Law and Practice in England

and Wales, London: Nuffield Foundation

Liz Trinder et al. (2017), Finding Fault?: Divorce Law and Practice in England and Wales, London: Nuffield Foundation

controlling behaviour through a protracted legal process.

The changes to the legal process for

obtaining a divorce of removing the need to evidence facts and the ability to contest a divorce would

therefore assist victims of domestic abuse to end their legal relationships with their abusers.

Are the impacts appropriate and justified?

38. Yes. The current law on obtaining a divorce is out of step with the constructive forward-looking

approach in other areas of family law. The changes will help create opportunity for reconciliation

within families where possible. When divorce is inevitable, the changes will impact families positively

by removing requirements that make acrimony and recrimination more likely. Critically, the impact will

be positive for the relationship between two former spouses who have ongoing parenting roles, as

the process will be less adversarial and therefore can support a constructive path to agreeing

arrangements for the future.

Ministry of Justice

April 2019

Jenny Birchall & Shazia Choudhry (2018) “What about my right not to be abused?” Domestic abuse, human rights and the

family courts, Women’s Aid and QMUL;

Corbett, N.E. and Summerfield, A. (2017) Alleged perpetrators of abuse as litigants

in person in private family law: the cross-examination of vulnerable and intimidated witnesses, Ministry of Justice.