Column: Changes in divorce and the rise of the prenup

In recent years, we have seen a number of changes in the way we ‘do’ divorce in the UK. Below, Joanna Farrrands, Partner and Family Solicitor at Moore Barlow explores some of the major trends that have emerged over the last three years or so, and what we can reasonably conclude from them.

Lies, damned lies and statistics

One key trend is that fewer people are getting divorced. The most recently available nation-wide divorce figures from the Office for National Statistics show that there were 80,057 divorces granted in England and Wales in 2022, which represents a 29.5% decrease compared with 2021 (113,505 divorces) and is the lowest number of divorces since 1971.

A report published by the Marriage Foundation think tank in November last year claimed to show that this decline was largely due to women being more satisfied in their relationships, which is in turn the result of men being more committed to their marriage.

While it is certainly true that the divorce figures are down, I am not entirely convinced that this is the good news story that the Marriage Foundation and others think it is: the decline is probably largely due to the surge of pent-up, post-Covid demand finally slowing down.

And the larger macro-trend of shrinking divorce figures reflects the fact that the number of marriages has gone down – fewer marriages ultimately means fewer divorces. So it remains questionable as to whether married couples have suddenly become happier in their relationships.

Focusing on conduct: a hiding to nothing

Since the introduction of ‘no fault’ divorce in 2022, there has been a rise in the number of spouses wanting to press forward on allegations of poor financial conduct against the other party in the divorce. This desire often results from spouses no longer being able to set out all the hurt they feel at the outset in their divorce application.

It is incumbent on practitioners to counsel their clients against proceeding down this path, which only prolongs the process, leads to increased costs and creates more upset and distress. And, ultimately, it is also very unlikely to result in a better financial settlement, as it is extremely difficult to succeed on a conduct argument in family law.

Words matter

On a more positive note, we are seeing that the ‘no fault’ changes are leading to a shift in the language commonly used during divorce, in order to move away from a blame mindset and place the onus on making practical progress.

Thus, for example, we avoid talking about “the other side”, and are instead adopting last-name or first-name terms to make the tone more amicable, or at least more neutral. This also includes not making overly emotional or dramatic statements, and keeping the focus on the facts and finding a way forwards towards a mutually satisfactory outcome wherever possible.

Thinking holistically

The ‘no fault’ changes have also encouraged people to take a holistic approach to divorce. This is reflected not least in the steep rise in the number of people engaging with divorce coaches, something that only five or ten years ago would have been widely regarded as a somewhat alien and new-age fad imported from America.

This is proving to be highly beneficial, as it gives people an outlet for their emotions rather than using their lawyer – who charges them more and isn’t qualified to deal with the psychological distress caused by divorce – so that they can take a more factual and focused approach to the divorce proceedings, which in turn moves things forward faster, resulting in a more cost-effective outcome.

Combating paternalism with prenups

It is no great surprise that people entering into their second marriage are showing a keen interest in putting a prenuptial agreement in place with their soon-to-be-spouse: once bitten, twice shy, as the saying goes. This is not least due to the fact that the courts are increasingly holding divorcing couples to their prenuptial agreements, even in circumstances which 5 years ago might have been considered slightly unfair.

Of course, there is an inherent risk if couples don’t regularly review and update their prenuptial agreement when their circumstances change significantly. This is because such a change may lead the courts to depart from a prenuptial agreement in circumstances where it would be considered unfair to hold the parties to it and a significant change that impacts financially potentially falls into this category. That said, it is also important to remember that even in circumstances where one party successfully challenges a prenuptial agreement as unfair the court is likely to interpret less generously the needs of the financially weaker party than they would in the absence of a prenup, as the courts can see that the overall intention going into the marriage was to keep assets and finances largely separate.  The pre-nup still remains one of the circumstances of the case that the court must take into account

Of course, there is an inherent risk if couples don’t regularly review and update their prenuptial agreement when their circumstances change significantly. This is because such a change may lead the courts to depart from a prenuptial agreement in circumstances where it would be considered unfair to hold the parties to it and a significant change that impacts financially potentially falls into this category. That said, it is also important to remember that even in circumstances where one party successfully challenges a prenuptial agreement as unfair the court is likely to interpret less generously the needs of the financially weaker party than they would in the absence of a prenup, as the courts can see that the overall intention going into the marriage was to keep assets and finances largely separate.  The pre-nup still remains one of the circumstances of the case that the court must take into account.

The rise in popularity of prenuptial agreement can also be interpreted as a counter-reaction to the inherent paternalism of our system, where the courts retain ultimate jurisdiction and discretion to do what they deem appropriate for divorcing couples and their marriage.

This is very different to the USA and many European countries, where the couple can agree to  determine absolutely how they want things to be if the marriage breaks down. We are slowly moving closer towards this approach here in the UK, but we still have a long way to go.