On the 22nd of February the Office for National Statistics (‘ONS’) published its latest annual figures for divorce rate in England and Wales, for the year 2022.
The statistics showed that the number of divorces granted in England and Wales plummeted to the lowest number since 1971.
In 2022, there were 80,057 divorces granted in England and Wales. (There were 74,437 in 1971, which was when the divorce laws in England and Wales were liberalised, resulting in a significant subsequent increase in the number of divorces).
The 2022 divorce rates were a 29.5% decrease compared with 2021, when there were 113,505 divorces, although the ONS point out that the higher divorce rates in 2021 may partially reflect delays in the number and timing of divorces granted during 2020 because of disruption in family court activity during the COVID-19 pandemic.
In 2022, divorce rates were 6.7 for men and 6.6 for women per 1,000 married individuals. These are the lowest rates since 1971, when the rates for both men and women were 5.9 per 1,000 of the married population
So what is behind the plummeting divorce rate?
The first thing to point out is that it is not due to fewer people being married, despite the fact that in December the ONS published figures that showed that the proportion of people aged 16 or older in England and Wales who are married or in a civil partnership had fallen below 50% for the first time.
Whilst that is true, and whilst there are certainly more people who have never married, the same figures showed that the actual number of people in England and Wales who are married has remained about the same for the last twenty years.
Clearly, more married people are choosing not to divorce, or at least delaying getting divorced.
Some speculate that the cost of living crisis is causing many to delay divorce proceedings.
Indeed, even before the divorce rate figures were published the financial services business Legal & General published research indicating that financial pressures had delayed some 19% of divorces
The cost of living crisis exacerbates the serious economic consequences of divorce.
Higher interest rates, for example, will have made it more difficult for divorcing couples to purchase new homes.
Higher inflation makes sharing expenses in one household more appealing than maintaining two separate households for couples.
Indeed, we’ll ascertain the impact of the cost of living crisis if divorce rates increase when the economic situation improves.
There was, of course, a very important change in the divorce laws in England and Wales in 2022.
On the 6th of April 2022 a new system of no-fault divorce was introduced.
The ONS notes that the number of divorces in 2022 may be influenced by the introduction of a new system, including mandatory waiting periods.
Those changes meant that a divorce under the new system would take a minimum of six months, whereas it was possible that a divorce under the old system could have been completed in less than that.
Obviously, no new divorces under the new system could have been completed until October 2022, at the very earliest.
Setting aside reasons for the decline, early figures suggest concerns about a significant increase in divorces due to no-fault divorce may be unfounded.
Back in 2017, for example, the Coalition for Marriage warned that the introduction of no-fault divorce would trivialise marriage and “cause the loss of 10,000 marriages a year by making the divorce process an administrative formality”.
As mentioned above no-fault divorce was only introduced in April 2022 and we will clearly have to wait for the 2023 figures to give a fuller picture, but the 2022 figures obviously show no sign that no-fault divorce has led to an immediate increase in the number of divorces.
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It goes without saying that family law-related issues should be resolved by agreement if possible, rather than through the courts. But often the parties need help to reach agreement. This is where family mediation comes in. Family mediation is a voluntary process of assisted negotiation, where an independent, professionally trained, mediator helps couples resolve issues. Family mediation typically involves a number of meetings between the couple and the mediator. So what happens at a mediation meeting?
Before we answer that we should briefly mention another type of meeting related to mediation: the Mediation Information and Assessment Meeting, or MIAM for short.
Before making an application to the court all applicants must first attend a MIAM, unless they are exempt.
The MIAM is a first meeting with a mediator, to explain how mediation works, and to assess whether the case is suitable for mediation. If the case is assessed as being suitable then the couple can decide whether they want it to be referred to mediation.
Essentially, the MIAM aims to inform those considering court action about mediation’s existence and assess its suitability for their case.
Mediation meetings can involve the couple and the mediator meeting face to face in the same room. They can also take place as an online meeting. It is even possible for the couple to be in separate rooms, if that is preferred.
Exactly what happens at a mediation meeting will vary from one case to another, and will depend upon the type of issue that needs resolution – an issue relating to arrangements for children or an issue relating to finances and property on separation or divorce.
Generally, the mediator assists the couple in identifying agreed matters and resolving issues that require further discussion and resolution.
The meetings are entirely confidential.
Note that even if the mediator is a lawyer they will not provide legal advice, save to indicate in general whether a proposed solution is likely to be approved by the court.
The mediator will however indicate to the parties when they might need independent advice upon a particular matter. (Note that the parties can take legal advice at any time during the mediation process.)
In the course of the meetings the mediator will seek to ensure that both parties have an equal say, and that any proposed solution is fair to both parties and any children involved.
If the meetings lead to an agreement, the mediator documents it and provides each party with a copy. Note that the agreement is not legally binding, but can be incorporated into a binding court order, if appropriate.
And if the mediation is not entirely successful, the mediator will provide the couple with a written summary of the outstanding matters, and what action the couple should take next.
There are no hard and fast rules as to how long the mediation process will take. The duration depends on the specific case, including the issues and their complexity.
In general, however, the process might typically involve three to five meetings, each lasting between one and two hours.
The meetings will usually be spread over a number of weeks, although more complex cases may take several months.
Note that mediation concerning finances and property may take longer, as the couple will need to make full disclosure of their finances before the mediation can proceed, so that both parties and the mediator know exactly what is involved.
For more information about family mediation, and how we can help, visit our family mediation page.
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Whilst divorce lawyers are not marriage counsellors, they are perhaps uniquely qualified to comment upon the causes of marriage breakdown (and the benefits of a marriage preparation course), witnessing thousands of breakdowns over the course of a career.
And if that experience tells us one thing it is that there are many ways in which a marriage can go wrong, often starting with small things, and escalating into something that causes irreparable damage to the marriage.
And the other thing that divorce lawyers can attest to is the pain that can be caused by marriage breakdown, both emotionally and financially.
Anything that can prevent that pain must surely therefore be a good thing. So what are the benefits of a marriage preparation course?
Newly married couples often face challenges due to the unknown, particularly if they haven’t lived together before marriage.
And this is where the benefits of a marriage preparation course come in. A marriage preparation course is designed for couples to attend, aiding them in making optimal preparations for marriage. The courses are often run by the church, but courses are available for couples without a church background.
The course will normally take place over several sessions, and should be run by a trained team.
It is trite to say, but marriage is a huge commitment. It is essential therefore that couples contemplating marriage understand the commitment they are about to enter.
A marriage preparation course can assist the couple in fully understanding and emphasizing the importance of commitment in marriage. Obviously, a marriage entered into without full commitment is a marriage set up to fail.
Otherwise, the contents of a marriage preparation course are likely to cover two particular areas, the first designed to avoid conflict, and the second to know how to deal with conflict when it arises.
Anyone entering into marriage must obviously know the person they are about to marry. But it can be surprising sometimes how little they do know.
A marriage preparation course can help with this.
The course aids couples in recognizing and understanding differences, preventing potential conflicts that may arise from unappreciated distinctions.
And another common area of conflict, as any divorce lawyer can attest, is family. All families are different and the family background of your spouse should be fully understood, to avoid potentially damaging conflict with other family members
Again, a marriage preparation course can help with this.
With the best will in the world, it is almost inevitable that conflict will occur in any marriage. The important thing is to know how to deal with it when it does.
A good marriage preparation course will teach the couple strategies for dealing with conflict.
These may include ensuring proper communication between the couple – issues that are left unaired are only likely to get worse, and couples that don’t properly communicate are not going to be able to resolve conflict.
Obviously, conflicts should be resolved early, before they become more serious. Arming a couple with strategies for resolving conflict can make early resolution more likely.
Obviously, marriage preparation is aimed primarily at ensuring a happy marriage. But ultimately it can help to ensure that the marriage is enduring.
As we indicated above, divorce can take an enormous toll, both emotionally and financially, leaving scars that can last a lifetime.
And an awful lot of people are suffering that toll. About four in ten marriages end in divorce, and in 2021, the latest year for which figures are available, there were 113,505 divorces granted in England and Wales.
Marriage preparation courses may not be for everyone, but attending one could just help prevent your marriage becoming one of those statistics.
ADVA 2013 Cyberstalking cyberstalking word cloud – ADVA version It is not unusual for a person contemplating marriage to be concerned about what may happen to their financial assets in the event that the marriage should fail.
The most common reason for this is that they enter into the marriage with substantially more assets than the other party. Not unnaturally, they want to protect those assets, not just for themselves, but often also for others, such as their children from a previous relationship.
And it doesn’t help that we have a discretionary system to sort out finances on divorce, meaning that it can be very difficult to predict what settlement the divorce court would order.
The answer in such a situation is to enter into a prenuptial agreement, although as we will see an agreement does not absolutely guarantee that assets will be protected.
It should also be pointed out that there are many other reasons for entering into a prenuptial agreement, including reducing the cost of a divorce settlement, protecting one party against the other’s debts, and simply keeping each party’s financial arrangements separate.
Before we look at how to get a prenuptial agreement we first need to consider exactly what it is.
In simple terms a prenuptial agreement is a written agreement entered into by a couple prior to getting married, setting out how their assets should be divided in the event of a divorce.
The agreement can cover what should happen in relation to all of the parties’ assets and debts, including in particular assets owned prior to the marriage, inheritances and business assets.
But a prenuptial agreement cannot deal with everything that may happen on a divorce. In particular, it cannot cover what arrangements should be made for any children of the marriage.
A prenuptial agreement is a complex document that should really be drafted by an expert family lawyer for one of the parties. And the other party should also take legal advice upon the contents of the agreement, before signing it.
There are two other important points to note.
Firstly, there should be a gap between the signing of the agreement and the marriage, to reduce the chance of one party being pressured to sign it. There is no set period for this ‘gap’, but when it reported on prenuptial agreements in 2014 the Law Commission recommended a period of 28 days. Certainly, as the Commission pointed out, the courts have expressed a reluctance to uphold agreements concluded on the eve of the wedding day.
The second important point is that before the agreement is signed each party must make full disclosure of their financial situation to the other. Without such disclosure it is of course impossible to know whether the terms of the proposed agreement are reasonable.
Of course, a prenuptial agreement would be of little value if the divorce court does not recognise it, and simply imposes its own settlement anyway.
Prenuptial agreements are not in fact binding upon the courts of England and Wales. However, that most certainly does not mean that the courts will ignore them.
In a famous case in 2010 the Supreme Court set out the legal status of prenuptial agreements in England and Wales:
“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
There are three things to note here.
Firstly, the agreement must be freely entered into. In other words there must be no pressure placed upon one party to sign the agreement – hence the 28 day period mentioned above.
Secondly, both parties must fully appreciate the implications of the agreement. This is why it is so important that both parties take legal advice, as indicated above. If they do not do so, then there is a much greater chance that the court will not uphold the agreement.
Thirdly, and perhaps most importantly, the terms of the agreement must be fair. What is fair is of course up to the court to decide. If the court does not consider that the terms are fair it will not uphold them, and will replace the unfair terms with orders of its own.
Generally speaking, it is very probable that the courts will uphold prenuptial agreements. As a High Court judge said in a recent case: “It is highly likely [the parties] will be held to these agreements in the absence of something pretty fundamental that vitiates the agreement. These agreements are intended to give certainty. Those signing them need to know that the law in this country will provide that certainty. Litigants cannot expect to be released from the terms that they signed up to just because they don’t now like what they agreed.”
For more information regarding prenuptial agreements, see this page.
Ian Walker Family Law & Mediation Solicitors are award-winning family solicitors and are recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce, child law, and arbitration. For expert advice, please contact the team.