On 22 February, the ONS released the latest annual statistics for divorces in England and Wales in 2022.
It was widely anticipated that there might be an increase in the number of applications for divorce in 2022, following the long-awaited and much publicised introduction of the new ‘no fault’ divorce regime in April 2022.
Certainly, our experience as a family law team during that period was that many clients who were in a position to wait to start divorce proceedings did so.
So, the headline statistics released on the 22nd showing a decrease in the number of divorces in 2022 are surprising in that context.
Declining divorce rates
What the figures do show is the lowest divorce rate since 1971. There were 33,448 fewer divorces granted in 2022, a total of 80,057, compared with 113,505 in 2021. The figures also indicate that people are staying married for longer. The median duration of marriage at divorce recorded for 2022 is the longest on record. The question however is whether these statistics give the full picture.
The ONS statistics are based on the number of divorces finalised in this period, rather than the number of divorces applied for. The introduction of no-fault divorce legislation on 6 April 2022, which introduced a requirement for minimum waiting periods as part of the process, may be a significant factor in the apparent decrease in divorce rates.
If a divorce was applied for under the new system when it was introduced on 6 April 2022, it would not have been possible to apply for the first stage of divorce – the Conditional Order (previously the Decree Nisi) – until 24 August 2022. The earliest that any application for the Final Order (previously Decree Absolute) could have been submitted would have been 6 October 2022, although many couples delay making this application until they have reached a financial settlement.
Consequently, very few divorces applied for under the new system would appear in the 2022 statistics and the headline figures showing a decrease in divorce rates may not properly reflect the number of divorces which may have been applied for during this period.
No-fault divorce
Of divorce cases under the old legislation, unreasonable behaviour remained the main ground for divorce. It’s no longer possible to apply for divorce on fault-based ground under the new system so we will see a sharp tailing off of this ground in future stats. The requirement to provide a ground for divorce has been removed and applications can now be made solely or jointly, with divorcing couples no longer having to assign blame to one another for the breakdown of their marriage.
This shift away from the blame game is welcomed by everyone involved in supporting separating families, and it has allowed couples to better focus on the issues that matter such as the arrangements for children and finances. We are also now seeing more couples wishing to separate using a new model of working known as the ‘one lawyer, two clients’ approach which enables couples to separate amicably with just one lawyer.
The importance of financial agreements
It remains a concern that there is evidence to suggest that not all couples who are divorcing obtain a court order formalising financial arrangements. In 2022 there were around 115,000 divorces but only around 39,000 financial remedy applications, which was down by 19 percent from 2021.
The two processes often do not coincide completely in terms of timing – many couples apply for divorce and then only make a financial remedy application many months later when they have reached a financial settlement by agreement.
Nevertheless, the figures are worrying. It would suggest that less than half of all couples who divorce are finalising their financial agreement in a court order. This leaves the majority of the divorcing population without a formal financial order on divorce potentially financially vulnerable. Finalising a divorce does not close down financial claims, which can potentially be brought many years later when a couple’s circumstances may be very different.
There is also no way to deal with claims against a spouse’s pension without a financial order on divorce and this may mean that many divorcing couples are missing out on sharing in what can often be one of the most valuable assets in a marriage, leaving them financially vulnerable in later life.
Looking ahead
The Family Court Statistics Quarterly show there were about 115,000 divorce applications made during 2022, which is an increase from about 113,000 in 2021. This suggests that couples are continuing to file applications for divorce, but those divorces may not yet have been finalised. Based on these numbers, it appears likely that we will see an increase in the number of divorces in 2023.
It is of course possible that there may be a genuine downturn in divorce. We often see clients taking initial advice on separation to understand their position and then subsequently delaying making life-altering decisions during times of uncertainty. Concerns over job insecurity, the prospect of economic downturn and the impact on house prices can all be relevant factors for separating couples in deciding whether or when to separate.
It is worth noting that the ONS marriage statistics for 2020 recorded the lowest number of marriages on record since 1838. This is consistent with the trend in recent years which has been that marriage rates continue to steadily decline. Increasing numbers are choosing to get married later or live together rather than marry at all. The entrenched misconceptions about common law marriage are not being appropriately dealt with at government level.
Urgent reform is needed to extend protections to cohabiting families on separation. Some protections are available, for example by entering into a cohabitation contract or declarations of trust during the relationship, but law reform to extend protections to cohabiting families is long overdue and there is very real frustration on the part of families and family lawyers at the lack of progress on this front.