Key lessons for family lawyers as relationship landscapes change and rise of ‘no-fault divorces’

The latest divorce statistics for England and Wales provide several key takeaways for family lawyers, as the landscape of contemporary relationships has shifted in recent years. 

After the introduction of the ‘no-fault’ divorce regime in 2022 there were predictions in the industry that divorce applications would increase. However, headline stats have shown that there was an apparent decrease in the amount of divorces.

The latest ONS figures are based on the number of divorces finalised in this period, rather than the number of divorces applied for.

Law firm Russell-Cooke LLP claim that the numbers might not be ‘giving the full picture’. They say that there ‘might be a genuine downturn in divorce’ but the minimum waiting period requirement with the ‘no-fault’ divorce could have an effect on the data. If couples opt to go with a ‘no-fault’ divorce then the bill states that both parties must have a minimum wait of 20 weeks between their application and conditional divorce, and then a further six week wait until the final divorce order. This means that application delays may play a part in the data optics.

The Family Law team at Russell-Cooke LLP commented: 

“We often see clients taking initial advice on separation to understand their position, and then subsequently delaying making life-altering decisions – particularly during times of uncertainty. Concerns such as job insecurity, the prospect of economic downturn and inflation, interest rates and house price instability can all be relevant factors for separating couples in deciding whether or when to separate.”

If a divorce was applied for under the new system, it would not have been possible to apply for the first stage of divorce – the Conditional Order (previously the Decree Nisi) – until August 24 2022. The earliest that any application for the Final Order (previously Decree Absolute) could have been submitted would have been 6 October 2022. The firm suggests that ‘many couples delay making this application until they have reached a financial settlement’. As a result, there were very few divorces applied for under the new system in the 2022 calendar year.

Figures from the Family Court Statistics Quarterly, show there were 115,000 divorce applications made during 2022 which is an increase from 113,000 in the previous year.

The firm has raised concerns that the actual divorce numbers is the evidence suggesting that not all couples who are divorcing obtain a court order formalising their financial arrangements, based on figures that show 39,000 financial remedy applications were complete – a decrease of 19% from the previous year.

Russell-Cooke said:

“Looking at the bigger picture, we may well see a surge in reported divorces in later editions of the statistics. The data suggests that couples are continuing to file applications for divorce, but those divorces may not yet have been finalised.”

“Admittedly, the two processes often do not coincide completely in terms of timing – many couples apply for divorce and then only make a financial remedy application many months later when they have reached a financial settlement by agreement.

“Nevertheless, the figures are worrying. It would suggest that less than half of all couples who divorce are finalising their financial agreement in a court order. This leaves the majority of divorcing couples potentially financially vulnerable.

“Finalising a divorce does not close down financial claims, which can potentially be brought many years later when a couple’s circumstances may be very different. There is also no way to deal with claims against a spouse’s pension without a financial order on divorce and this may mean that many divorcing couples are missing out on sharing in what can often be one of the most valuable assets in a marriage, leaving them financially vulnerable in later life.”

A number of factors may ‘continue to affect the landscape for divorce, and the volume and complexity of cases in the years ahead’.

Under the old legislation, unreasonable behaviour was one of the main grounds for divorce in England and Wales. Applications for divorce on fault-based grounds are no longer allowed under the new system.

Russell-Cooke commented:

“So we will likely see a sharp decrease in this ground in future official statistics. This has brought an important further change – that applications can now be made solely or jointly.

“This change has been welcomed by everyone involved in supporting separating families, as it has allowed couples to better focus on the issues that matter such as the arrangements for children and finances, and to move away from the ‘blame game’. We are also now seeing more couples wishing to separate using a new model of working known as the ‘one lawyer, two clients’ approach which enables couples to separate amicably with just one lawyer.

“But while there have been progressive changes to the law in some areas, others are still lagging behind the evolving nature of modern family structures.”

ONS marriage statistics for 2020 recorded the lowest number of marriages on record since 1838.  

Recent data revealed that for the first time the percentage of over-16s in England and Wales who are married or in a civil partnership has fallen below 50%.

This is consistent with the trend that has seen marriage rates continue to steadily decline. Increasing numbers are choosing to get married later or live together, or to not marry at all. Cohabitation is popular among millennials and Generation Z.

Firms have warned of the ‘dangers of cohabitation’ as it offer less legal protection than marriage. This has led to calls for cohabitation law reforms which are set to change. Family lawyers have renewed their calls for cohabitation reform in response to these statistics. The Cohabitation Rights Bill entered Parliament in 2019 and aims to give cohabiting couples the same rights as married couples if they have lived together for at least three years or have a child together.

Many couples choose to live together without getting married first, but legal experts have cautioned co-habiting couples about the ‘dangers of not having agreements in place’ prior to moving in to a shared property.

Thornberry claims she wants to make ‘significant changes’ to laws around cohabitation this year. The reforms have gained momentum over recent years, prompting the UK parliament’s Women and Equalities Committee to advocate for changes that align with the evolving nature of modern relationships.

Russell-Cooke say that the ‘consequences aren’t being dealt with at a legislative level’:

“The consequences of this are not being appropriately dealt with at the legislative level, with entrenched misconceptions about common law marriage prevailing. For instance, reform is needed to extend protections to cohabiting families on separation. Some protections are available, such as entering into a cohabitation contract or declarations of trust during the relationship, but legal reform to extend protections to cohabiting families is long overdue.

“Even while divorce rates may, in the long run, decline overall therefore, this does not necessarily reflect the changes to relationship norms and familial arrangements, and the challenges faced by couples, of whatever variety, when they are going through a separation.”

Co Authored by Hannah Minty, Partner, and Kate MacDonald, Associate, in the Family law team at Russell-Cooke LLP’