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Divorce  |  Family law

No-Fault Divorce: 2 Years On

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Walker Family Law
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On the 6th of April 2022 divorce law in England and Wales changed forever. Gone was the necessity to attribute blame for the breakdown of the marriage, and in came a modern no-fault divorce system.

It was the most radical change to divorce law in England and Wales since the civil courts were first able to grant divorces in 1858.

Two years on, we look at the effect of the change.

In particular, we ask four questions: Has no-fault divorce led to more couples getting divorced? How has the new possibility of couples jointly applying for the divorce worked out? Has the removal of fault from divorce led to more couples settling matters relating to children and finances by agreement? And: Has it led to fewer couples getting married?

Opening the floodgates?

A major objection to the introduction of no-fault divorce was that it would make divorce easier and therefore lead to a flood of couples getting divorced rather than trying to save their marriages, and a permanent increase in the divorce rate.

During the legislation process in the Lords, the Bishop of Carlisle voiced a typical concern, stating:

“Reducing divorce to a statement made by one party that the marriage has broken down undermines the seriousness with which marriage and divorce are regarded … What is more, studies suggest that making divorce quicker and easier will significantly increase the already high divorce rate, with all the implications that has both for human misery and financial cost.”

So have these fears materialised?

To answer this we will look at the latest available statistics for the Family Court (the latest divorce statistics are for 2022, and therefore do not cover a full year under the new regime). The statistics cover the quarter October to December 2023, but also include earlier figures.

The statistics show that there were 23,517 divorce and civil partnership dissolution applications in that quarter, which was actually down from the same quarter in the previous year, when the figure was 25,636.

And the figures for 2021, the last full year under the old divorce regime, were actually pretty similar to the figures for 2023.

In short, there seems to be no evidence yet that no-fault divorce has led to more couples getting divorced.

Has joint divorce been a success?

The new system of no-fault divorce introduced for the first time the possibility of a couple jointly applying for the divorce.

It was hoped that a large proportion of divorcing couples would make joint applications, thereby making divorce more amicable.

So how many couples have chosen this route?

The latest Family Court statistics show that in the quarter October to December 2023 25% of divorce applications were made jointly.

This may be rather lower than some had hoped, but it is not an unreasonable ‘return’, and it may yet be that more applications will be made jointly in future, as the possibility becomes more widely known.

Are more couples settling matters by agreement?

One of the biggest arguments in favour of no-fault divorce was that it would reduce animosity between divorcing couples, by removing the need for one party to blame the other for the breakdown of the marriage. This, it was hoped, would lead to more couples settling arrangements for children and finances by agreement, rather than having to go through contested court proceedings.

Has this hope been realised?

Once again we will look to the Family Court statistics for the answer.

As to court applications relating to children, 54,652 were made in 2021, the last full year of the old divorce regime, whereas in 2023 this dropped to 50,789.

But as to financial remedies, there were 12,446 contested applications in 2021, compared to 12,910 in 2023.

So the answer thus far is somewhat inconclusive.

Has no-fault divorce undermined marriage?

Another fear of the opponents of no-fault divorce was that it would undermine the institution of marriage, thereby leading to fewer couples getting married, and more couples choosing simply to cohabit, which it is feared is a less secure form of relationship, particularly for any children.

This comment of Fiona Bruce MP when the new legislation was debated in the House of Commons is typical. She said:

“People will marry less due to the low expectation of permanence in marriage, and they will cohabit more as the distinction between the two is eroded and what marriage really means becomes confused: no longer “till death us do part”, but “until I give you six months’ notice to quit, with no reason given.””

Unfortunately, we will have to wait to see whether Mrs Bruce’s fears will be borne out, as statistics for marriages in England and Wales since April 2022 are not yet available.

The latest published marriage statistics are for 2020, and they showed that the number of marriages that year was the lowest on record since 1838. Marriage appears to already be in decline, and whether no-fault divorce has hastened the decline, only time will tell.

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