It is now a year since no-fault divorce was first introduced in England and Wales, consigning the old fault-based system to history.
Since 6 April 2022, no divorce petitions alleging adultery, behaviour, desertion, two years’ separation with consent or five years’ separation have begun. There are still a great many divorce petitions alleging these things rumbling through the system, in cases where the divorce petition was commenced before the law changed. In the vast majority of those cases, the decree nisi will have been long since pronounced by the court and the parties are waiting until they have resolved financial issues before the marriage is ended by the making of the decree absolute.
The law changed following years of campaigning by Resolution for a more modern, no-fault system. All that a fault-based system did was to give the parties something additional to argue about. It damaged their ability to resolve disputes about their children or finances. It did nothing to save marriages or deter people from divorcing.
The new divorce law now makes it impossible for respondents to defend divorce applications. It is still possible to dispute a divorce application, but only for very limited jurisdictional reasons, such neither party being domiciled or habitually resident in England and Wales, or divorce proceedings already being underway elsewhere, or the parties already being divorced or never actually married in the first place.
One year on, what has been the effect?
It has been reported that divorce applications are apparently up by 11% (or 15%, depending on where you look). There are claims that this is because divorce is now easier. However, this overlooks the fact that it was already easy to get divorced under the old law. You just had to be prepared to point a finger at your ex and make allegations about them. People who are getting divorced find that all too easy. If the respondent wouldn’t admit adultery, you instead sought a divorce by citing behaviour. The respondent almost always denied the allegations, but agreed to not defend and the divorce went ahead.
In fact, research carried out by Professor Liz Trinder of the University of Exeter predicted that there would be a spike in divorces caused by people waiting for the law to change before starting the application. All the evidence from other countries where no-fault divorce had been introduced indicated that there is a spike and that then the divorce rate falls back to normal.
A quick check of my records shows that I began 14 applications for no-fault divorce during the last 12 months, compared to 11 during the 12 months before that, i.e. during the last year of the old divorce law. During the year April 2020 to March 2021, I started 20 divorces; whether that figure was higher than normal due to COVID is debateable. I only began one divorce during the first quarter of 2022, i.e. during the run up to the new law’s introduction. All of this seems in line with the national trend and Liz Trinder’s research, so it seems unlikely to me that the new law is resulting in an increased divorce rate.
The divorce process is now almost entirely conducted online. Paper applications have become very rare. Solicitors who commence divorce applications are no longer allowed to start them using a paper application. People who represent themselves can still divorce using paper, but my advice is that they avoid this wherever possible. The paper process is glacially slow.
Joint applications for divorces are now possible for the first time. HM Courts & Tribunals claim that 1 in 4 applications are now made jointly. I am surprised that it is that high. Only two or three of the divorces I have advised on in the past year were commenced jointly (and all were commenced by litigants in person, not solicitors).
Perhaps people who jointly apply are less likely to seek legal advice for some reason. I can understand the desire to avoid incurring the cost, but this can be a massive false economy. The divorce application is only actually a very small part of getting divorced. Financial issues need to be sorted out as well. Even where the parties have reached a financial agreement, they should independently seek legal advice on the proposed deal. If they want to go ahead, they then need to get a financial consent order from the court reflecting the terms of the deal. If there is no order, then it may not be binding, it cannot be enforced and there is a danger of further financial claims, due to the lack of a clean break ordered by the court. Not many non-lawyers could draft the order properly and they need to use a solicitor to do it for them. There is also the growing concern that many wives do not receive a fair share of the husbands’ pensions, often agreeing to keep the house in return for the husband keeping a vastly more valuable pension. Pension sharing can only be implemented following the making of a pension sharing order made by the court.
One thing predicted by many solicitors and barristers does not seem to have come about. As part of the new law, section 10 (2) Matrimonial Causes Act 1973 now applies to all no-fault divorces, whereas under the old system it only applied to two and five years’ separation cases. This section permits a party to a divorce to apply to the Family Court for it to consider his or her financial position after the divorce (this is different to an application to the court for a financial remedy order, which is the normal way in which financial disputes are resolved in divorces). The purpose of the section is to bar the making of the final order (the Decree Absolute under the old system) until financial issues have been resolved.
In my experience, such applications were very rare under the old divorce law. However, it was predicted that they would be commonplace now that they were possible in all divorces, mostly because of greater awareness of the terrible problems that can result in cases where a divorce applicant with a pension dies after the final order is made, but before any pension sharing order has been made by the court and before it has come into force. In these circumstances, it is likely to be impossible to implement the pension sharing order. However, in the past 12 months, while I have seen a number of requests for confirmation that the applicant will not apply for the final order until at least 28 days after a pension sharing order is made, I have not encountered a single application made under section 10 (2).
On balance the new system is a vast improvement on the old system. It is not perfect; it still seems to be impossible to use the online portal if you are a solicitor acting for the respondent. (If you can make that work, you are doing better than me). It is certainly faster than the paper system. I am aware of at least one case where it took the court over 6 months to actually issue the paper application.
There are other irritations. For example, the portal insists on producing draft applications already showing the court seal which should not appear on it until it has actually been issued by the court; when this was pointed out over a year ago at a training webinar given by HMCTS, the trainer said it must be a glitch and would be sorted out. It still hasn’t been.
However, these are fairly minor quibbles. The new system is a vast improvement on what went before.
8 April 2023
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