News & Insights

“No Fault Divorce”: Where are we now?

Recent figures published by the Ministry of Justice show that 33,566 divorce applications were made between April and June 2022, a spike of 22% from the same period last year.

Recent figures published by the Ministry of Justice show that 33,566 divorce applications were made between April and June 2022, a spike of 22% from the same period last year. The number of applications mark a decade high as the most applications made since the first quarter of 2012.

For the weeks leading up to the implementation of what is known as “no fault” divorce on 6 April 2022, many legal professionals suggested that they anticipated a boom in applications once a divorce could be undertaken without assigning blame. This was heavily reported at the time and the issue continues to be discussed in major news outlets. It was widely accepted that there were many who had already decided to seek a divorce but were uncomfortable with the more confrontational approach of the previous system, where one party was obliged to assign blame for the breakdown of the marriage, with the additional risk of the divorce being contested.

Equally, there were those who were concerned that the new system diminished marriage as an ideal, by making divorce too easy and discouraging those facing difficulties from attempting to try and resolve their issues.

The above figures could easily be interpreted to support both positions, so what have we learnt six months on?

What has the impact been?

To understand the significance of the above spike in applications, it is important to understand where we are with divorces as a whole.

As a general starting point, the number of divorces in England and Wales has dropped in recent decades. In 2020, the number of divorces totalled 102,438, compared to 141,135 in 2000, a difference of 38,697. By comparison, in 1980, the total number of divorces was 148,301 (indeed, the number of divorces rose for a period until they began to reduce consistently from 2003).

There are many reasons as to why this trend exists, but one of the most significant causes is something everyone is now likely aware of: fewer people are getting married. According to the Office of National Statistics (ONS), in 2019, the rate of marriages per 100 unmarried men and women dropped to the lowest levels since records began in 1862.

Divorce rates per 1000, which arguably as a statistic provides greater insight into marriage stability, has also shown a downward trend, albeit seemingly a less dramatic one (down from an average of 12.8% to 8.4% in the same period).

Does the recent spike in applications show a reversal of this trend and provide indications that divorce has been made too easy?

It is important to note, that whilst the spike has an increase in divorce applications made, this only represents a decade high from 2012. Additionally, whilst it is a significant increase on the same quarter the year prior (a total of 5,987 more applications), it is only a 1,359 increase in applications on the same quarter in 2018.

In 2012, the total number of completed divorces was 118,140, a moderate increase of 582 from the previous year. Given the applications in question were submitted in the first quarter of 2012, it is reasonable to assume the majority will have been finalised within the following three years and would therefore show up as a finalised divorce in the statistics for those years. However, divorce rates continued to fall consistently during these years.

It does, therefore, seem clear that whilst clearly the legislation has had a small impact in increasing applications on a one off basis, the sheer weight of evidence showing that the number of divorces will continue to decrease is hard to challenge. It is possible that the more reliable indicator as to the impact of “no fault” divorce is the divorce rate per 1000, and we are unlikely to have sufficient information on this for a year or two.

Another point worth noting is the question of timing, which is a point many practitioners referred to when discussing the future impact on divorce applications post-6 April 2022. The argument was that there are many individuals contemplating getting a divorce, but they had been put off due to the nature of their circumstances or and the nature of the legal system, which obliged one party to assign blame. The theory was that once these barriers are removed, these individuals who have already made their mind to get a divorce but had held off would proceed to make an application.

It is difficult to assess this beyond listening to the experience of practitioners within the profession and their anecdotal evidence. However, you could make an argument that this is borne out to a certain extent statistically in the past, where brief spikes in the number of divorces occur around periods of economic strife. This could possibly indicate that those individuals referred to above, when faced with even more adversity, felt empowered to move forward. You could therefore argue that the current cost of living crisis, which began in earnest around April 2022, with the energy price increases, may have played a role.

Where are the possible issues?

 Length of time

Perhaps concerned that a move to legislation which makes divorce less acrimonious, therefore making divorce appear ‘easier’, the Government chose to adjust the timescales involved in obtaining your Final Order (or Decree Absolute as it was previously known), which formally dissolves a marriage.

Under the new legislation, once a divorce application is made, couples must wait 20 weeks from the date the divorce application is issued by the court, before obtaining the conditional order. This was by design, to essentially create a cooling off period where the couple can reconsider whether they wish to proceed. This, coupled with the timescales provided for acknowledging the application, (possibly two weeks) and applying for the final order (six weeks and one day), means that divorces will now take around 6 months to complete at their quickest.

This is admittedly less stark than it otherwise could have been, given that the majority of divorces under the previous system from application to dissolution would likely take a similar amount of time simply due to backlogs with the court, however it is an element of the law that does appear, on its face, to presume that someone applying for a divorce may have done so rashly or without proper thought.

It is not a commonly held view within the legal profession that those who actually seek our advice for a divorce do so without significant thought and self-reflection. As the downward trend of divorce rates per 1000 show, divorce does not appear to be a decision that the vast majority take lightly, and the cooling off period, essentially forcing parties to remain married for an extended period of months, could possibly serve to trap parties in the same way the legislation was specifically designed to avoid; by making the act of getting divorced more fraught and unpleasant.

This may also, in turn, be undermining other parts of the legislation, such as joint applications, which I address below.

The first “no fault” divorces should be completing in the coming weeks, and hopefully, we will begin to see what impact this additional cooling off period has had on the number of completed divorces and the timescales involved.

Joint applications

It had been hoped that by introducing joint divorce applications, parties would be encouraged to move matters forward together, setting a constructive tone for subsequent discussions around finances and children matters. However, so far, joint applications have formed a very small number of the total divorce applications made since April 2022.

It is difficult to assess the reason for this. Arguments have been made that it seems to be much quicker and more cost effective to submit a sole application (particularly with the new timescales outlined above), a position that is likely to be shared by many lawyers. Given the boom in applications we saw between April and June 2022, it is entirely possible that those who were waiting to make their application were seeking to do so on the basis they did not need to specify a reason and wanted the divorce to move forward as quickly and in as straightforward a manner as possible.

It is also perhaps a factor that the legal profession, which has for decades approached applications as an individual pursuit, have been slow to explain the value in joint applications, preferring for their client to remain in relative control of the process.

Looking forward

It is certainly the case that the new legislation has had an impact, however there is little evidence to suggest that we have seen a significant shift in attitudes towards divorce to date. For practitioners, the removal of an additional acrimonious process remains a welcome change and we hope to continue to see matrimonial proceedings as a whole continue to move towards a more constructive approach, with the emphasis placed on keeping matters amicable.

If you are contemplating a divorce, the first step should be to seek advice from a specialist family solicitor. Our Family and Matrimonial team would be happy to discuss the options available to you.