One Year On, Has No-Fault Divorce Ended the Blame Game?
After years of campaigning by lawyers, no-fault divorces became legal in England and Wales in April 2022.
Previously to get divorced, one spouse had to prove ‘fault’ and blame their ex for the breakdown of the relationship, or be forced to wait at least two years of separation before they could officially end the marriage (and only if the other spouse agreed otherwise it was five years). The new laws took away the blame game. Instead of proving a reason for the divorce, all couples must declare that their marriage has irretrievably broken down without citing any other reason.
So what has been the impact of no-fault divorce? A year on, have they made divorces friendlier in the way we hoped, with minimal battles and animosity between divorcing couples? Here’s what’s been happening.
#1: Divorce numbers are on the rise
There has been a big jump in divorce applications since the new laws came into force. In the nine months from April to December 2022, there were 89,123 divorce applications, a rise of 15% compared to the same period the year before.
While many warned that a simplified, no-fault divorce process could lead to more couples splitting up, it's too early to point the finger at the new regulations – there are many reasons why divorce applications could have spiked.
The big one is the ‘wait and see’ effect, where couples who would have divorced in 2021 opted to wait for the law change before taking the plunge. In the weeks following the introduction of no-fault laws, around 1,000 more divorce requests were made each week than the year before's average, which suggests that people were sitting on the divorce fence, waiting to see what happened.
There's also the pandemic effect. Family solicitors reported a large uptick in the volume of enquiries for divorce during the COVID-19 crisis, enquiries which were coming to fruition last year. These divorces almost certainly would have happened anyway, regardless of no-fault divorce.
#2: Couples are collaborating
Previously, couples had to identify the reason why the marriage had broken down and even drafting a divorce petition meant they had to blame the other spouse. Now, the legal process to end a marriage can be started by one spouse or by both spouses acting together in a joint application, and no reason has to be given.
Joint applications have created a significant shift in the way that couples think about divorce. Lawyers notice that the process is less emotionally charged when people feel that they are on an equal footing from the start.
In the period from April to December 2022, 78% of divorce applications were from sole applicants and 22% from joint applicants, including those for the dissolution of civil partnerships. This tells us that divorcing couples are embracing the new law, and we expect to see the number of joint applicants rise in the future.
#3: Divorces are taking longer
The downside of the new regime has to be the timescales involved. The average time for divorce proceedings to be completed increased to 38 weeks in 2022, up 13 weeks from the same period in 2021.
There's no getting around the fact that no-fault divorce is a relatively long process. All divorcing couples now have to wait a minimum of 20 weeks from the divorce application to the Conditional Order (the new name for the Decree Nisi), and another 6 weeks until the Final Order (the new name for the Decree Absolute) albeit this is the same as the old regime. These waiting periods provide an opportunity for reflection, to consider whether you truly want to separate and to finalise children and financial arrangements.
Even if everything goes smoothly, it will still take between 6 and 8 months to conclude a no-fault divorce.
#4: The process has moved online
The public has had the option of digital divorce since 2018 but the uptake was initially very slow – just 10% of divorces were made using the digital system in 2019. However, this was predominantly due to issues within the system.
In 2022, that all changed. Nearly all divorce applications (94%) are now made digitally using the online court portal, and it's much easier now for separating couples to complete the divorce application by themselves. This has drastically increased the speed with which divorces are processed and means that couples do not have to wait for the courts to clear their backlogs before getting their Final Order.
What's the verdict?
One year into no-fault divorces and the verdict is so far, so good. The most positive change that solicitors are seeing is the reduction in conflict between divorcing couples, which pays dividends when it comes to negotiating amicable agreements on important issues such as money, property and children.
Bear in mind that a divorce does not directly impact your financial or children arrangements. In any divorce involving children, the welfare of the child is paramount. But eliminating the fault requirement, with all its finger-pointing and revenge-seeking, means that everyone can focus on the practical decisions that must be made. It's easier to have productive conversations when you’re coming at them with a collaborative mindset with the intention of setting the children up for a positive co-parenting future instead of a tug-of-love.
Going forward, we expect the rules about money and maintenance payments to get a similar update. The guidelines for how assets are divided in a divorce are complicated, and the Law Commission has started some early work to see if they can be simplified. There's no point in having a conflict-free divorce if the parties are battling it out over money, especially if the children are caught in the conflict. Taking the heat away from these conversations is the next necessary step to achieving a harmonious divorce.
Sarah Norman-Scott is an Associate Solicitor & Resolution Accredited Specialist with Osbornes Law. Sarah specialises in all aspects of family law. She has a broad caseload consisting of divorce, financial matters for married and unmarried couples and private law children matters including where one parent wishes to relocate with children. Sarah is sympathetic to the ethos of Resolution and believes that dealing with matters constructively is the best course of action for everyone involved.