Divorce in decline – marital bliss or a harsher reality?

Earlier this year it emerged that divorces have hit their lowest level since 1971, when the Divorce Reform Act came into being. Latest figures from the Office for National Statistics (ONS) show there were 80,057 divorces granted in England and Wales in 2022, marking a decrease of almost 30 per cent on 2021.

The implementation of no-fault divorce legislation has undoubtedly been one of the key reasons for fewer divorces taking place. Whereas it was initially speculated that a no-fault divorce option might cause more people to legally separate (without now having to assert blame – adultery and unreasonable behaviour), what has actually happened appears to be the exact opposite.

One of the most important changes the legislation brought into being was to introduce a mandatory waiting period for couples intending to formalise their separation in the courts. This means that since its introduction there is an automatic 20-week waiting period before applying for a conditional order.

Prior to April 2022, it was not uncommon for some divorces to be finalised in as short a period as four months, from initiation to completion, especially with the move to the online court portal for divorce cases. Now that the no-fault process is fully operational, however, it can take at least eight months for the whole procedure to go through.

So, rather than encouraging more people to apply for a divorce, the declining divorce figures can be interpreted as indicating that the lengthy cooling-off period might either prompt many couples to think again or more likely shows that the ONS figures for 2022 reflect the reality over the 20 week holding period being imposed, because even if you wanted a divorce sooner you couldn’t get it in 2022 with the new changes coming into force from 6th April 2022.

Another significant recent change has been the introduction of the transparency pilot scheme in the family courts. Through this initiative, reporters are now able to attend hearings relating to financial claims arising on divorce. They are also permitted to access limited case documents and report on the proceedings on a largely  anonymised basis. This represents a vital shift in the openness of family law, one which has changed the landscape not only for the media, but also for the parties involved.

A consequence of the pilot that was perhaps not anticipated is that it has raised questions regarding whether judgments will become blander, to avoid sensationalist headlines and parties must think more carefully over the content of their position statements which can be shared with the media. Additionally, there are even concerns over dubious litigation tactics where, for example, the press is tipped off in an attempt to win the court of public opinion during a contested divorce.

Some have also expressed concerns regarding their confidentiality being compromised because of the easing of reporting restrictions in family courts. Interesting or rare details about particular individuals that are listed in the judgment, along with the identification of the specific local authority in children cases, could potentially lead to sensitive information getting out into the wider public domain and or it being obvious who the parties may be. Clearly, the publication of extremely private personal information that couples do not want others to be aware of might act as a substantial deterrent against divorce.

It is anticipated that the divorce statistics will remain lower than they have been. To say that this is a result of increasing levels of blissful contentment in married couples in England and Wales would be nice, but sadly is unlikely to reflect the somewhat harsher reality. Rather, the trend has far more to do with the practicalities involved with a no-fault divorce, as well as the comparatively recent introduction of the transparency pilot in courts.

Furthermore, the wider social trend is that the number of cohabitations, in which couples decide not to enter the formality of marriage, continues to rise.

The cost-of-living crisis remains a major issue for many couples, and the costs of going through with a divorce remain significant – the court fee alone is £593. It might be the case that some couples are holding off divorce owing to the financial challenges of legal separation – if they struggle to fund their one household, how will they fund two households on the same level of income? This is not thought of to be the most significant current influence, however.

Based on the author’s observations as a practicing family lawyer over the last 12 months, divorce figures can be expected to plateau, and perhaps to plummet still further in the years to come. On the increase is the number of enquiries about pre-nuptial agreements and cohabitation agreements, which might help to keep matters further out of court in the future.

Jessica Reid is a partner at Dawson Cornwell LLP

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