Pressure Drop: Is The Novelty Wearing Off ‘No-Fault’ Divorce 

Published on 30 November, 2023 | Sam Hall

It might sound strange from someone who has spent much of his legal career advising individuals facing up the end of their marriages but I take no particular pleasure in the fact that divorce is very much a regular reality of modern life.

Granted, it is less a feature than it was even a relatively short time ago. The number of divorces for opposite-sex and same-sex couples in 2021 (113,505) was down almost one-third on the record high set three decades ago (165,018) (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2023/family-court-statistics-quarterly-april-to-june-2023#divorce).

There were, of course, fears that the decline since then would be arrested by the introduction of the most significant reform of divorce law in half a century.

It followed many calls for change and was preceded by one Supreme Court ruling in 2018 which seemed to bring matters to a head.

The judgement thwarted the attempts of Worcestershire housewife Tini Owens to exit what was described as a loveless marriage to Hugh, her husband of 40 years (https://www.supremecourt.uk/cases/docs/uksc-2017-0077-judgment.pdf).

Nevertheless, in delivering that verdict, Lord Justice Wilson pointed out that he did so “reluctantly”.

“The family court”, he observed, “takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being”.

Lord Wilson suggested that parliament might wish to review the legislation in place – the Matrimonial Causes Act 1973 – a recommendation wholeheartedly supported by Hall Brown and many other family law firms.

The result was the Divorce, Dissolution and Separation Act 2020, which came into force in April last year (https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted).

The new law promised to allow spouses to demonstrate simply that their relationships had irretrievably broken down, rather than having to apportion blame – something widely regarded as a progressive move and likely to defuse some of the tensions which can arise in such circumstances.

Nevertheless, commentators argued that it would make divorce easier and potentially fuel a rise in the proportion of couples who separate rather than working through the kind of difficulties which occur in marriage.

At first, such forecasts appeared to have been accurate. Ministry of Justice data shows that in the three months following April 2022 – when the new law took effect – there were 33,234 divorce applications, a steep rise of 22 per cent on the equivalent quarter the year before (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-april-to-june-2023/family-court-statistics-quarterly-april-to-june-2023#divorce).

The new law had been postponed from the previous autumn, something which served only to increase expectation, leading some individuals to actually postpone divorce until they could take advantage of ‘no-fault’ procedures.

Yet, while it may have increased the number of divorces that began,  the novelty appears to have already wearing off, something which I have remarked upon in an article for The Times’ (https://www.thetimes.co.uk/article/4eaa852d-8a27-4bb1-8fb8-b5fdf5f8cbfb?shareToken=9c4c1a8e3052f5d6aac018447b66aa37).

One year on from the anticipated surge in marital break-ups, we find that the number of divorces is down by 30 per cent year-on-year.

In part, I believe that is due to publicity about the provisions of the new law prompting those in marriages which were already failing to put their affairs in order.

Instead of divorce being painful and vague, it was now comprehensible. People who had been thinking about it now knew what they needed to do.

We cannot ignore either the fact that a “cooling-off period” of 20 weeks which was built into the new legal framework has meant that the process of formalising the end of a marriage is taking longer than ever before – 66 weeks on average for all divorces concluded in the three months to June this year; up six weeks on the same period in 2022.

Other possible pitfalls remain to be resolved.

As no less an authority than Baroness Shackleton has recognised, a revision of the law governing the financial aspects of divorce is outstanding.

Two-thirds of all divorces, for instance, happen without the spouses involved putting an agreement in place preventing future claims against one another.

The absence of just such a document led the green energy entrepreneur Dale Vince to pay his wife a six-figure sum after a 2016 defeat in the Supreme Court, 30 years after their marriage ended.

A review of the law applied to divorce settlements was consequently launched by the Law Commission and those findings are due to be outlined in a “scoping report” in September next year  (https://www.lawcom.gov.uk/review-to-examine-50-year-old-laws-on-finances-after-divorce-and-the-ending-of-a-civil-partnership/).

More divorce legislation may well result in another rise in marriages ending but if it means raising awareness to the degree that parting couples do not undermine their future prospects, that might not be a bad thing.