CHANGE AND CHILL: DOES COOLING OFF PERIOD DETER OR JUST DELAY DIVORCE? 

Published on 23 February, 2024 | Claire Reid

No matter how eagerly anticipated a change in the law may be, it can take some time after it comes into force to discern whether it has had the desired effect – or any effect at all.

That is why the latest divorce figures released by the Office for National Statistics (ONS) could be said to prompt more questions than they actually answer (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2022).

The headline points for what transpired during 2022 certainly do make for illuminating reading yet, as with much of the material published by the ONS, I don’t think that people should be distracted by what they read at first glance.

There were, says the ONS, 80,057 divorces granted in England and Wales that year – a near 30 per cent decrease on the previous year and the lowest number of divorces since 1971.

That may come as a surprise to some because, of course, 2022 saw the biggest shake-up of divorce in England and Wales in half a century.

The Divorce, Dissolution and Separation Act came into force in April that year and was chiefly heralded for enabling spouses to end a marriage either singularly or together without having to blame each other for its demise (https://www.legislation.gov.uk/ukpga/2020/11).

There were some commentators who believed that the law would lead to a “flood” of divorces – so many, in fact, that a family court system already strained by a large volume of casework would struggle to cope (https://www.thetimes.co.uk/article/ccac4206-b022-11ec-8b8c-0207c0fd6104?shareToken=5a76081e4ed62cd7f06b71fac0899e79).

Whilst it is undoubtedly true that there was a rush in applications in the weeks after the new law was introduced, it is also true that any such surge was not necessarily sustained.

Indeed, as my colleague Sam Hall wrote on this ‘blog and in The Times, the novelty seems to have worn off (https://hallbrown.co.uk/pressure-drop-is-the-novelty-wearing-off-no-fault-divorce/).

The latest ONS’ data, however, is solely from 2022 and doesn’t allow us a longer-term reading of patterns in how couples who are married or in civil partnerships split.

It is still possible, though, to glean a sense of why the figures are as they are.

I believe that suggestions they could be due to a rise in living costs are rather speculative as it is simply impossible to establish how many individuals postponed plans to separate because of a squeeze on household finances.

As I’ve been telling The Times (https://www.thetimes.co.uk/article/b06ac336-8ba4-4c94-9f40-f88d45eb6d3d?shareToken=f165bba24dc6dfe63bb867b4d8467940), what is more certain than cash-induced cold feet is that the start of 2022 saw many couples deliberately delaying their divorces so that they could eventually do so under the terms of the new law.

That was compounded by that legislation’s inclusion of a 20-week ‘cooling-off period’ intended to give couples who might perhaps have impetuously applied for divorce a chance to reconsider whether they really wanted to end their marriages.

Instead of being able to instantly move towards obtaining the first of two decrees, as they were able to do under the old law, they could now only do so after a five-month pause.

Obtaining that first, conditional decree takes at least four weeks. It’s not possible to apply for the second – the final decree – for six weeks and one day after that.

Furthermore, we often advise client to only apply for a final decree once the division of joint marital assets has been agreed and, given how important that is, it may also extend the length of time before a divorce is concluded.

In other words, even if individuals applied for divorce under the new law, any hitch may have only seen a completion of the process once 2022 was over – and, therefore, discounted them from the new ONS’ figures.

If the reason for such a notable drop in divorce was purely economic, we might see some not proceed at all because couples overcome their differences and move on with their marriages – something which has happened during previous downturns.

Instead, I think that because of the impact which the Divorce, Dissolution and Separation Act has had on how long the administration of divorce takes, it is reasonable to expect that the next set of ONS’ data to show that 2023 saw more divorces than the year before.

Even if it does, we will still not necessarily know if any or many husbands or wives decided after the mandatory 20-week pause to give their marriages another go or the proportion of those who felt that marital relations had already deteriorated past the point of no return.