Taking The Heat Out Of ‘Divorce Day’ 

Published on 09 January, 2023 | Alison Fernandes

For many people, today will be the first full day of work back in their offices since the start of 2023.

In recent years, though, it has become known as ‘Divorce Day’: the time when husbands and wives who have reached the limit of their patience with their spouses contact family lawyers like myself and start the process of ending their marriages.

Now, I should say that there is a grain of truth in that.

There are some seasonal elements in family law which have occurred for many years without any hype whatsoever.

It is a fact that when separated parents have to make decisions about arrangements for their children during the summer and Christmas holidays, there can be disagreements which lead to our becoming involved.

That normally happens in the months – but, more usually, the weeks – before schools break up or decorations are put up.

Likewise, spouses who spend an extended period together in what can be – let’s face it – rather stressful situations sometimes come to the conclusion that they’re really not meant to be together any longer.

Despite all that, however, suggestions that a majority of New Year divorces begin on the same day is far from the truth.

We do see an increase in workload but they tend to arise over a longer period of time of the first 3 months of the new year.

In addition, they tend to be as a result of individuals coming to rather more of a joint decision that their relationship has irretrievably broken down than some people might think.

Marital breakdown in January is not necessarily due to a single festive flashpoint over who burnt the sprouts or bought the wrong gift.

Nevertheless, it’s relatively easy to see how things could be misinterpreted or exaggerated – and that’s why I think this year will see a real departure from anything which I’ve certainly seen before.

Last April saw the first major reform of divorce law in half a century take effect. One of the key components of the Divorce, Dissolution and Separation Act 2020 was the introduction of ‘no-fault’ divorce (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).

Until that point, spouses were often forced to attribute the collapse of their marriages to their other halves.

That is because allegations of misconduct – adultery or unreasonable behaviour – were the only ways to divorce if someone didn’t want to wait until they had been separated at least two years.

Few people want to put their lives on hold for that long and so behaviour petitions previously amounted to the most common grounds for divorce. The most recently published figures show that conduct allegations were the principal reasons for 57,780 (51 per cent) of divorces in 2021 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2021).

What the ‘no-fault’ provisions have done is remove the need to point the finger.

It is more than merely an inconsequential detail. Although it was an administrative necessity under the old law, behaviour allegations had the potential to cause friction. Those tensions might not necessarily manifest themselves during the process of obtaining divorce decrees but could lead to heated discussions about how to divide joint marital assets or arrangements for children.

Under the ‘no-fault’ regime, couples can instead either petition as individuals or jointly.

Data released by the Ministry of Justice last month show that almost one-quarter (23 per cent) of applications between July and September were joint with the rest being single petitions (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-july-to-september-2022/family-court-statistics-quarterly-july-to-september-2022#divorce).

December’s batch of statistics shows something more than the type of petitions made.

In my opinion, it shows that the initial rush to divorce using the new, relatively friction-free method may have passed.

Towards the end of 2021, there was a reduction in the number of couples divorcing. I think that can be put down to the ‘no-fault’ law being delayed by Government because the infrastructure intended to handle applications wasn’t ready by its first deadline of autumn that year.

Those lower levels of divorce continued into the start of 2022 as couples awaited the legislative change.

In the three months following the law coming into force, however, petitions increased by 22 per cent.

I don’t think that the surge was due to a lot of newly unhappy spouses suddenly deciding to end their marriages. Most individuals only do so after lengthy consideration and, even then, they may take time to act on their conclusions.

Between July and September, the number of petitions was still up on the same quarter in the previous year but the increase was less pronounced – eight per cent.

It could just be that the initial novelty of ‘no-fault’, such as it was, had worn off and that divorce had fallen back to more normal levels.

Even so, whilst the new provisions may not prompt more divorce, there is little doubt that reducing the possibility for acrimony in the process is to everyone’s benefit.

Negotiations about financial matters and arrangements for their children are more likely, one would hope, to also be dealt with in a calm and level-headed way.

In addition, fewer such disputes mean less of a need to take up the time of a family court system which is already under severe strain.

Accusations of bad behaviour – especially when they may be something of a construct simply to achieve a divorce under the old system – help no-one and can have lasting consequences.

With ‘no-fault’ divorce, we can at least hope that a process which is already very unfortunate becomes less stressful and that spouses can part on good terms.