The key factors impacting divorce rates in England & Wales

The ONS statistics on divorces in England and Wales in 2021 have been released today. It was anticipated that there may be a downturn in the number of applications for divorce in 2021, prior to the long-awaited and much publicised introduction of the new “no fault” divorce regime which was introduced in April 2022. Certainly my experience as a family lawyer during that period was that many clients who were in a position to wait to start divorce proceedings were doing so, and using the period prior to the implementation of the Divorce, Dissolution and Separation Act 2020 to sort out practical arrangements for finances and children.

The 2021 statistics in fact show an increase of nearly 10% in the number of divorces when compared with 2020 although this does not necessarily reflect the wider picture. Several factors may have impacted divorce rates in recent years, including the closure of family courts for periods during the pandemic in 2020 and people holding off making life-altering decisions during that time. The pressures of the pandemic led families to focus on immediate concerns like home-schooling, health and their elderly relatives rather than the difficulties in their marriage. Delays in processing applications using the new online HMCTS portal are another factor which continues to have an impact on the statistics. On a daily basis, we are seeing the family court system continue to grapple with resourcing issues and this has a hugely detrimental impact on the separating families who need it . We are facing waiting times which are simply far too long for families experiencing the painful process of separation. Wider reform of the family justice system is long overdue, as highlighted by the recent Justice report, “Improving Access to Justice for Separating Families”.

It is expected that there will be an even greater surge in the number of divorces when the 2022 figures are released next year. HM Courts and Tribunals Service released its data from April to July 2022 recently; the figures show the highest number of divorce applications in a decade. This is likely due to people waiting to be able to proceed under the new no fault divorce law that came into force in April this year. This, together will the looming recession, is likely to continue to push up the divorce rates in the coming year.

Unreasonable behaviour remains the most common ground for divorce in 2021 although with the introduction of “no fault” divorce in April 2022, this will be the final (full) year in which we will see any breakdown of the reason for divorce. The requirement to provide a ground for divorce has been removed and applications can now be made solely or jointly, with divorcing couples no longer having to assign blame to one another for the breakdown of their marriage. With difficult times expected, this shift away from the blame game is welcomed by everyone involved in supporting separating families, and it has allowed us to better focus on the issues that matter such as the arrangements for children and finances. We are also on the verge of more positive change with Resolution championing a new model of working known as the “one lawyer, two clients” approach which will enable couples separate amicably with just one lawyer.

It remains a concern that there is evidence to suggest that not all couples who are divorcing obtain a court order formalising financial arrangements. In 2021 there were 113,505 divorces but only 48,946 financial remedy applications (Family Court Statistics Quarterly October – December 2021). While 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), the figures are worrying. It would appear that less than half of all couples who divorce are finalising their financial agreement in a court order. This leaves the majority of the divorcing population without a formal financial order on divorce 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.

It is worth noting that the ONS marriage statistics for 2020 have not yet been released, but the trend in recent years has been that marriage rates continue to steadily decline. Increasing numbers are choosing to get married later or live together rather than marry at all. The entrenched misconceptions about common law marriage are not being appropriately dealt with at government level. Urgent reform is needed to extend protections to cohabiting families. Many family lawyers were incredibly disappointed by the government’s response to The Women and Equalities Committee’s report on the rights of cohabiting partners which was published yesterday and which failed to bring the reform which is so urgently needed to protect cohabiting couples and families on separation. Some protections are available, for example by entering into a cohabitation contract or declarations of trust during the relationship, but law reform to extend protections to cohabiting families is long overdue and there is very real frustration on the part of family lawyers at the lack of progress on this front.

Hannah Minty, Partner in the family team at law firm Russell-Cooke.