The negative attitudes of family lawyers towards defending divorce cases and financial disincentives such as the high level of legal costs are no substitute for changing the law to a system of no-fault notifications, according to a major report.
It also put paid to the notion that family lawyers push clients towards litigation for their own financial benefit.
The 87-page Nuffield Foundation-backed report, No contest: defended divorce in England & Wales, found court fees and the strategies of family lawyers were strong barriers to defending a divorce.
But the authors, Professor Liz Trinder of University of Exeter Law School and independent researcher Mark Sefton, were emphatic that the case for law reform to remove fault was essential.
Overwhelmingly, lawyers were found to be pragmatic and viewed the process simply as “achieving the termination of a legal relationship in the easiest way possible, rather than an attempt to establish the ‘truth’ of why the marriage broke down”.
In drafting documents, lawyers would most often downplay those aspects of alleged fault so as to reduce conflict and stress in what was “in effect, a paper exercise”.
“The professional ethic of pragmatism is so strong that none of our lawyer interviewees would consider themselves litigious.”
In other cases, where clients wanted the divorce to reflect what they perceived to be the cause of marriage breakdown, “pragmatic family lawyers worked hard to persuade [them] to take a wider, and longer-term, view of the family situation, rather than to focus on blame and short-term victories”.
One lawyer told the authors: “[Where I have clients saying] ‘I need the court to know what a shit he is’, I’d be quite frank. ‘I’m not sure the court is that interested in that. I’m sorry. The court is much more interested in are you going to be able to keep your house, is there going to be sufficient money, are the children going to continue to go to their schools?
“I absolutely get that’s how you feel, I absolutely get that, but the judge is really looking for something else.”
In taking this pragmatic attitude, lawyers were helping clients to avoid heavy cost penalties for defending a divorce built into the system.
“The cost of legal advice and representation, and possible liability for the petitioner’s costs, were… significant barriers”, the report said. Contesting a petition in one case cited would have incurred legal costs of £6-8,000.
It noted that currently the application fee for filing an answer to a divorce petition is £245 plus £550 for any cross-petition. This was “clearly out of reach for some respondents”.
Another lawyer recalled one case where, rather than advising their petitioner client to back down in response to a threat to defend, they had relied on the prohibitive nature of the likely legal costs for the respondent, predicting correctly that the respondent would be unable to carry out their threat.
Describing it as a “game of chicken”, the lawyer added: “I didn’t enjoy that experience. But, I think we got the right outcome for our client.”
The authors called for “a straightforward notification process [under which] a divorce or dissolution would be granted if one, or both, parties register that the marriage has broken down irretrievably and that intention is confirmed by one, or both, parties after a minimum period of at least six months”.
The report ended: “Divorce law and procedure in the twenty first century should be encouraging and enabling… moral sensibility, rather than a morality of punishment and blame.”