Divorce, Dissolution and Separation Bill (First sitting)

Robert Courts Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[The Chair]

Q Do you have anything to add?

Mandip Ghai: I agree with that. Lots of research shows that it is harmful for children to live in a family in which there is domestic abuse, so anything that helps survivors of domestic abuse to separate and leave that situation would prevent any further harm to children, caused by witnessing domestic abuse.

[Robert Courts (Witney) (Con)]

Q Professor Trinder, I just want to pick up a point that you mentioned about international research and evidence from countries with similar legal jurisdictions as to whether no-fault divorce leads to an increase in divorce. You mentioned the United States, but what is there in New Zealand, Canada and Australia, in particular? Can you help us with that?

Professor Trinder: Most of the research exploring the relationship between divorce rates and divorce law has been from North America and Europe. I cannot think of anything from Australia and New Zealand, but their approach has been—

[Robert Courts]

Q So is there an absence of research from countries with similar legal jurisdictions? The United States is similar, but it is not that close. The closest are the ones that I have mentioned.

Professor Trinder: In the United States, each state has completely different laws. Australia and New Zealand are different in that they have had separation divorce. In Australia, the only ground is a one-year separation, which has been in place since 1967. We did a comparative study as part of the research and really struggled to find Australian and New Zealand respondents, academics or experts, because there is just no research on the grounds for divorce. It is just not an issue because the reform took place so long ago and that is just how things are.

[Robert Courts]

Q How do their divorce rates compare with ours?

Professor Trinder: They are very similar. It is also worth noting that the divorce rate between England, Wales and Scotland is almost identical, yet we have 60% fault, while Scotland has 6% to 7%. Fault is not influencing the divorce rate at all. That makes sense because divorces are granted in England and Wales and, with the exception of Mrs Owens, fault is not a barrier at all.

[Melanie Onn]

Q Mrs Owens’ case brought this to prominence in recent years. How many other such cases have there been that I may have missed?

Professor Trinder: It is extremely unusual. About 2% of divorces in England and Wales intend to defend. Most of those cannot actually continue with that, and only about a dozen out of 100,000 cases go to a fully contested trial each year. Owens is the only case that we are aware of in the last two decades in which the decree has been refused. We also looked at defended cases and had a sample of 74, and none of those were upheld. It is worth noting that in those defended cases, most of them were not defences of the marriage. It was not somebody saying, “No, I don’t believe that my marriage has broken down.” Mostly, they were triggered by the law itself. People were objecting to the allegations of behaviour made against them, including what appear to be perpetrators who defended allegations of quite serious domestic abuse. Because the court tries to settle cases, rather than go to a fully contested hearing, what happened typically was that the particulars were stripped out, so the line went through references to very serious assaults and they were removed from the particulars.