Divorce law update: two years on
2 years on from the biggest shake up in divorce law in 50 years, Trainee Solicitor Megan Clarke looks at the impact this is having in the family law world.
Changes in the law
On 6th April 2022 the Divorce, Dissolution and Separation Act 2020 came into force, which removed fault-based divorce. Previously, the applicant in their application for divorce would have to rely on one of five ‘grounds’ to prove the marriage had irretrievably broken down. Namely:
- Adultery
- Unreasonable behaviour
- Desertion
- Two years separation with consent
- Five years separation without consent
Simplifying divorce: Legislative goals and intentions
The new statute replaces the five grounds with only one ground. That the marriage has broken down irretrievably. The changes were brought about as divorce legislation in the UK had not been updated since the 1970’s prior to this Act.
The intended effect of this legislation was to reduce conflict and acrimony in the hope of preserving family relationships for the sake of children and allow for more important issues to be focused on, such as finances on divorce. The new system also increases the waiting time for the Conditional Order (previously Decree Nisi) to twenty weeks ‘the cooling off period’ and six weeks for the final order (previously Decree Absolute). This allows more time for reflection and for Alternative Dispute Resolution to be tried, such as mediation.
No contest divorce provisions.
The Act also removes the opportunity for a party to contest the divorce. A problem which was brought to public attention in the 2018 Supreme Court Case of Owens v Owens, where the wife petitioned for divorce using the ground of unreasonable behaviour, which required her to prove that the ‘respondent has behaved in such a way that the petitioner can no longer be reasonably expected to live with the respondent’. When Mr. Owens contested the divorce, the Supreme Court upheld the decision of the Court of Appeal, and Mrs. Owens had to remain married to him until they reached five years separation, whereby she could apply for divorce without Mr. Owens’ consent. This was widely viewed as an unfair and disappointing result and was a catalyst for the introduction of the no-fault process.
Impact of the changes – support and criticism
The new system has been said to enhance support for domestic abuse victims, because their abusive spouses can no longer have the opportunity to contest the divorce. Although, the new system has been met with criticism from domestic abuse victims as ‘no-fault’ is now the only way to apply for divorce when in fact it is their partners fault the marriage is ending as a result of such abuse. If they are the applicant, they must also incur the £593 fee to issue the application for divorce.
Rise in divorce applications
Furthermore, the introduction of the no-fault system has led to a spike in divorce applications. In April 2022 there were 12,978 new divorce applications, compared to 6,764 in April 2021. Many couples will have made a conscious choice to wait for the new legislation to come in to apply for their divorce. Because it is now more accessible to lay-clients with the removal of phrases such as Decree Nisi and Decree Absolute. This has understandably led to a rise of lay clients applying for their own divorce.
Between October to December 2023 there were 23,517 divorce applications made. 75% were from sole applicants and 25% from joint applicants.
Annually in 2023 there were 110,770 divorce applications and 103,501 final orders granted. This is down 9% on 2022.
Navigating finances during divorce
In 2023 there were 10,617 financial remedy applications made. This is an application to Court to determine how the matrimonial assets will be split between the parties on divorce.
A benefit of the mandatory 20-week reflection period is that this can be used to try and resolve financial matters.
Many litigants in person do not realise the implications of applying for a final divorce order before dealing with financial matters. This is because parties are still married once the Conditional Order has been received, it is the Final Order that ends the marriage. Leaving clients vulnerable if no settlement has been reached. Unless a financial order is obtained from Court, your ex-spouse may have claims to your property. Likewise you may loose certain claims on remarriage or the death of your former spouse to include the spousal benefit to life insurance and pensions were financial matters have not been resolved.
The Courts try to promote the ‘Clean Break’ principle which ends all obligations between the parties upon divorce, allowing both people to move forward knowing that no further claims can be made on their assets. If you need advice or representation on such matters arising from this article, get in touch with our family team here at MSB Solicitors.
This spike in applications has not surprisingly led to a backlog in the civil law courts, which along with the increased reflection period is leading to divorces taking longer than the minimum period of 26 weeks. The mean average time from application to Final Order in divorce was 69 weeks, up 2 weeks from the equivalent quarter in 2022- this includes the 20-week reflection period.
Sources used
https://www.lawsociety.org.uk/topics/family-and-children/no-fault-divorce
https://www.gov.uk/government/news/blame-game-ends-as-no-fault-divorce-comes-into-force
https://www.lawsociety.org.uk/topics/family-and-children/owens-and-owens
https://todaysfamilylawyer.co.uk/spike-in-no-fault-divorce-applications/
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