Covid And The Case For ‘No-Fault’ Divorce 

Published on 09 February, 2022 | Claire Reid

Although it might seem tempting at times, it can be perilous for any one person to make generalisations based on their own experience.

Even campaigns on issues which appear to have broad support can be shaped by the opinions of those leading the push to achieve a specific objective.

We don’t always have the benefit of being able to access a body of data which reinforces a position.

However, the latest figures published by the Office for National Statistics (ONS) on divorce can be interpreted as doing just that.

It has just released material relating to the number of divorces in 2020 (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce/bulletins/divorcesinenglandandwales/2020).

Their publication is timely, coming just two months before the most significant change in divorce law in half a century – the introduction of so-called ‘no-fault’ divorce.

As is often the case, the top line – a 4.5 per cent drop in the number of couples who divorced during 2020 when compared to the previous year – is, I would suggest, not where the real interest lies.

After all, during the second quarter of that calendar year in particular, couples were arguably more concerned about the impact of Covid-19 than trying to resolve difficulties in their marriage.

At the end of March 2020, the Government imposed a series of measures designed to limit the spread of coronavirus.

The effect of those restrictions was felt almost immediately by the family courts system.

The Ministry of Justice later detailed how the number of divorce petitions between April and June that year was nearly one-fifth (18 per cent) lower than in the same period in 2019 (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2020/family-court-statistics-quarterly-april-to-june-2020).

As I told Gabriella Swerling, the Daily Telegraph’s Social Affairs Correspondent, coping with the challenges created by the pandemic became the priority, even for spouses whose marriages were in difficulty (https://www.telegraph.co.uk/news/2022/02/01/divorce-numbers-dropped-almost-five-per-cent-pandemic/).

Nevertheless, if we look beneath the headline numbers, we can still see evidence of the kind of domestic shifts which have equally broad and long-lasting consequences for society.

For instance, the ONS’ data shows that almost half of women (47.4 per cent) sought divorces in 2020 because of their spouses’ unreasonable behaviour compared to one-third (33.8 per cent) of men.

Even so, the numbers of men and women who petitioned for divorce on the grounds of their partners’ misconduct in 2020 were 11 and 30 per cent lower respectively than the equivalent figures a decade earlier.

The number of husbands and wives who, meanwhile, decided to petition after two years’ separation – and, therefore, required their spouses’ consent to do so – rose by three per cent over those 10 years.

Even more intriguingly, far more men and women filed for divorce in 2020 having been separated for more than five years than in 2010 – up an astonishing 41 and 50 per cent respectively.

When we take all of that information together, it illustrates that conflict was clearly an issue for a large proportion of couples who divorced during 2020.

Some of those might not have wanted to apportion blame. For nearly 50 years, though, couples have had to find fault with the conduct of their spouse in order to start the divorce process immediately.

Doing so can generate tensions which may not have existed in a relationship before and those tensions can have lasting consequences, including affecting discussions about childcare arrangements and how husbands and wives divide their assets.

The ONS’ data shows a sizeable increase in couples who perhaps chose to separate and wait rather than point the finger and risk undermining their chances of enjoying an amicable relationship into the future – something which is especially important if they have children.

Under the Divorce, Dissolution and Separation Act which comes into force on April the sixth this year (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted), they would be able to end their marriages without having such a significant wait.

The Act only gained Royal Assent midway through 2020 and would, therefore, probably only have had a limited impact on divorce across the whole of the year.

Certainly, some of my clients were aware of it and asked about whether it could apply to them. They were clear about wanting to pursue a conflict-free process.

At that stage, however, our advice was to continue with the law as it stood. Even allowing for the fact that ministers initially intended the law to take effect in 2021, a year is a long time for a couple experiencing difficulties to wait before beginning the process to end their marriages.

We will not know for some time whether the possibility of ‘no-fault’ divorce has translated into an increase in divorce.

Nevertheless, the ONS’ latest figures underline why the pressure to introduce the reform was so great and why it potentially offers the opportunity for those realistic about the challenges facing their marriages to part without rancour.