The first anniversary of no fault divorce

6 April 2023 marks the first anniversary of the introduction of no-fault divorce. So what impact has this new divorce law had in England and Wales?

Has no fault divorce resulted in more divorces?

According to a Law Society press release in June 2022,* there were 12,978 new divorce applications in April 2022, compared to 6,764 digital divorce applications in April 2021: an increase of 93%! 

Does this mean that separating couples almost doubled in number this time last year? Almost certainly not. It is unusual for a couple to separate and then immediately divorce. Most couples sensibly take their time to decide whether the marriage is over and, if so, agree when would be the best time to divorce. 

Another factor that may have depressed the number of divorces in April 2021 was the pandemic. The level of uncertainty we were facing at that time likely resulted in fewer couples divorcing.

No fault divorce was on the legislative agenda long before it came into force. Some couples who were contemplating divorce during the lead up to its introduction, actively decided to wait until they could end the marriage without having to apportion blame. 

I imagine it was a combination of all these factors that resulted in this surge in the divorce rate last April.

The most up to date statistics from HM Courts & Tribunals Service were released on 30 March 2023** and cover the period up to December 2022. These show that in the whole of 2021, 104,991 divorce applications were made. And in 2022, there were 116,582 divorce applications, an increase of 11% - still an increase, but not the 93% spike we saw from April to June 2022. 

What impact has no fault divorce had on financial claims?

The rather more concerning issue from a family solicitor’s perspective, is not so much that divorces have increased in number since the new law was introduced, but rather that there has been a corresponding decline in financial applications to the court.

Whilst it is true that not all couples apply to the court to sort out their finances at the same time as they start divorce proceedings, the statistics from HMCTS show that in 2021, 45,934 financial applications were made - which equates to 43.7% of divorcing couples.  By contrast, in 2022 only 39,416 applications were made to resolve finances. 

This means that in 2022 alone, 77,166 couples in England and Wales are either divorced or are part way through divorcing, but have yet to resolve financial claims against one another for property, lump sums, maintenance and pensions.

Why are financial applications decreasing when divorces are increasing?

Many couples now deal with their divorces themselves rather than through solicitors. Whilst there is no reason why they cannot or should not do so, the ease with which couples can now initiate a divorce online can mean that they do not speak to a solicitor and therefore do not realise the potential risks they face.

For instance, an unwary divorce applicant may apply to the court for the Final Order (previously known as the Decree Absolute) as soon as the court emails them to say they can. There could be a number of important legal reasons why they shouldn’t. For instance:

1. Their spouse may have a pension from which they would benefit on their death. On pronouncement of the Final Order that widow(er)s pension would be lost.
2. They may stand to inherit from their spouse in the event of their death. If they apply for the Final Order, that could result in them inheriting nothing.
3. They could lose rights of occupation if the family home is not owned in their name.
4. If they remarry and have not preserved their financial claims against their spouse, then those claims will be lost; however, their ex-spouse’s claims will remain open.
5. The more time that passes between the separation or divorce and the finances being dealt with, the more complex and difficult they are to resolve.

For all these reasons it is crucial that those contemplating a divorce secure specialist legal advice, even if they are happy to deal with the online divorce process themselves.

Are there myths surrounding divorce that put divorcing couples at risk?

• Many assume a divorce resolves the financial claims they have against one another – it doesn’t.
• Many assume that a verbal or a DIY written agreement will be legally binding – it most likely isn’t.
• Many assume that once you have been divorced for some time the financial claims automatically fall away – they don’t.
• Many assume that money they earn or receive after the divorce is safe from any claim by their ex-spouse – it may not be.

At Birkett Long our family solicitors are specialists in helping divorcing couples resolve the financial claims that arise between them. As members of Resolution we are committed to doing so as amicably, sensibly and cost effectively as possible. 

Why not call us for a free 15 minute telephone consultation to discuss how we can help you?

Mel Loxley

01206 217384

* https://www.lawsociety.org.uk/contact-or-visit-us/press-office/press-releases/spike-in-no-fault-divorce-applications

** https://www.gov.uk/government/statistics/family-court-statistics-quarterly-october-to-december-2022