PENNY DROP: REDUCING DIVORCE CONFLICT AND ‘FINANCIAL FULL-STOPS’ 

Published on 02 April, 2024 | James Brown

It is perfectly reasonable to find that the end of a marriage creates a sense of disappointment.

After all, even though spouses or civil partners in England and Wales who go their separate ways do so after legal relationships lasting 12 years on average, there are many individuals who spend far longer together.

Over the years, a significant proportion have managed to part without any rancour. However, until 2022, they still needed to apportion blame for the breakdown of their marriage or civil partnership, regardless of any agreement to break up.

As things stood, the alternative was waiting for at least two years to begin divorce proceedings.

Pinning the demise of a relationship on someone’s conduct risked pitching a hand grenade into the process before the most contentious element of divorce – the division of joint marital assets – had even begun.

In 2021, more than 58,000 spouses or civil partners – just over half of all divorces – were granted either on the grounds of someone’s unreasonable behaviour or adultery. 

It introduced a wholly unnecessary tension which could complicate negotiations about the nature of their financial settlement between two individuals who might otherwise have seen eye-to-eye.

The passing of the Divorce, Dissolution and Separation Act in 2020, therefore, was warmly welcomed by family law practitioners like myself because its provisions removed the need for separating spouses to point the finger in order to move on with their lives: in fact, allowing both spouses or civil partners to jointly petition to end their relationships (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).

Whilst no family lawyer would want to say “we told you so”, it is heartening to see that the primary purpose of the Act – removing conflict from the divorce process – is borne out by new data published by the Ministry of Justice (MoJ).

One-quarter of all divorce petitions issued during the final three months of 2023 were joint, up two per cent on the same period during the previous year (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2023/family-court-statistics-quarterly-october-to-december-2023#mental-capacity-act—court-of-protection).

Even so, I would say that there is still progress to be made. That is because the figures also reveal that sole petitions are taking five weeks longer to obtain final orders than their joint equivalents.

There is a danger that, if left unaddressed, it could undermine the secondary purpose of the ‘no-fault’ Act; namely, avoiding the potential for someone who might object to divorce exerting control by digging in their heels.

Just such a scenario had arguably been instrumental in leading to the latest divorce reform.

Despite considering the attempt by Tini Owens to end her 40-year marriage to her husband, Hugh, ” a very troubling case”, the Supreme Court denied her request, proclaiming that “our role is only to interpret and apply the law that Parliament has given us”

(https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf).

Any difference in the speed with which joint or single petitions are now processed might easily be regarded by critics as punishing those men or women who cannot agree that their marriages are over.

There is one other notable piece of positive news in the MoJ statistics. It would seem that the penny is quite literally dropping when it comes to separating couples putting a so-called ‘financial full-stop’ to their relationships.

As a firm, we have done our best to highlight our concerns about the high proportion of couples – as many as two-thirds in some years – who divorce without obtaining a financial remedy order.

These orders represent a clean break. Without them, former spouses or civil partners can return many years after divorce to claim a share of their exes’ lottery wins, business, inheritance or the fruits of their career progression.

That is far from a hypothetical situation. Hall Brown has handled a number of demands made, in some instances, decades after a marriage ended.

They echo a case in which the Ecotricity entrepreneur Dale Vince was ordered to pay his ex-wife a substantial sum 22 years after they divorced (https://www.bbc.co.uk/news/uk-england-gloucestershire-36499818).

The MoJ data shows that the number of financial remedy applications during 2023 was 11 per cent higher than in 2022. The number of orders actually made was up by a similar figure (12 per cent).

Together with a rise in joint, conflict-free petitions, it provides some relief for those of us who have spent our careers endeavouring to help couples who have to part do so in the most stressful way possible.

As the difference in how processing petitions shows, however, no-one within Government or the justice system can afford to rest on their laurels if the objective of making divorce truly fair is to be achieved.