It is almost two years since “no-fault divorce” was introduced, which gives a good opportunity to reflect on the impact this has had. January also tends to be a time when divorce statistics feature in the news, often due to the so-called ‘Divorce Day’ on 8 January, when it is reported that lawyers see a surge in new divorce enquiries.

A huge step forward

The impact of no-fault divorce has been overwhelmingly positive. It has taken away the need to attribute blame (or to have been separated for at least two years). Previously, unless parties had been separated for at least two years, it was necessary for the person seeking a divorce to either allege adultery or provide a list of examples of their spouse’s unreasonable behaviour and justify why their relationship had broken down. This was always an unnecessarily antagonistic way to start an already difficult and often emotive process.

The introduction of no-fault divorce has coincided with the digitisation of divorce applications on the Government’s digital platform, with 95 percent of all divorce applications now being made online. This has undoubtedly made divorce applications more accessible for individuals, bringing some modernity to the often opaque and old-fashioned court processes. The language has also been modernised; parties now “apply” for a divorce, rather than “petitioning” the court, and the terms “conditional order” and “final order” have replaced “decree nisi” and “decree absolute”.

There are other positives. With no-fault divorce has come the option for joint applications, offering a more collaborative approach; an option which has been increasingly adopted by separating spouses – recent figures show that a quarter of applications were made jointly. This allows separating spouses to feel that their divorce is a joint decision and one of which they are both in control.

There have been a number of divorces recently involving high profile individuals which have been conspicuous from their absence in the press. Spouses are increasingly taking up the options of alternative dispute resolution outside court, including arbitration, enabling them to resolve their family matters discretely and privately. This is particularly the case given the ongoing relaxation of the restrictions on the reporting of divorce cases.

Mediation is another alternative option to court, and judges are increasingly encouraging separating couples to explore this option before making a court application. Indeed, last year the Government indicated that it would like mediation to be made compulsory in many types of family law cases. Family Mediation Week is taking place from 22-26 January 2024, and is aiming to raise awareness of the benefits of family mediation.

No-fault divorce has had a helping hand in this. There is no need for an acrimonious start to the process of separating spouses formalising their separation. The new approach can assist spouses in remaining relatively amicable as they go through the process of agreeing arrangements for their children and how their finances should be divided.

Potential pitfalls

However, increased accessibility brings with it some risks. A recent study found that around 12 percent of recent divorcees had sought no advice or information at all about their divorce, with fewer than half getting any advice or support from a lawyer.

With limited information, understanding or advice, many couples are not completing the steps they need to finalise their divorce and financial separation.

Only a third of divorcing couples obtained a court order setting out the terms of their financial separation. This leaves them at risk of being subject to further financial claims in the future, as there is no guarantee that such agreements will be treated as binding or upheld by the court. It also means they are missing out on the protection offered by a legal system which is designed to ensure a fair outcome for both parties. This is particularly relevant to women, who a recent study found are more likely to be left financially vulnerable post-divorce.

The need for further law reform for divorcing couples

While no-fault divorce has been a significant step forward, divorce proceedings are only a minor part of the process when a couple is separating. The dissolution of the marriage is a largely administrative process. Resolving the financial issues that arise on divorce – and agreeing care arrangements for children – can be much more complicated. Many couples still have lengthy and expensive court battles over such issues; and for high profile individuals, there is an increasing risk that their disputes are reported in the press.

 

In 2023, the Law Commission commenced a comprehensive review of how financial issues between divorcing couples are resolved. At present, such issues are still governed by a 50-year-old statute, the Matrimonial Causes Act 1973. There have been huge shifts in society and social norms and values since the 1970s and it is important that family law reflects society today. The analysis and recommendations in the Law Commission’s report – expected in the autumn of 2024 – may pave the way for further reform in family law.