“This historic change will mean the end of the blame game for divorcing couples, removing the outdated and unnecessary need for them to find fault with their ex on the divorce petition.”
No fault divorce came into effect on 6 April 2022. It ended the need for separating couples to give reasons in support of their divorce petition. For the uninitiated, such reasons used to include adultery, unreasonable behaviour, desertion, or separation for periods of two years (with the other party’s consent to a divorce taking place) / separation for five years (without needing the other party’s consent).
Subject to having been married for at least one year, couples can now apply solely or jointly on the premise that the marriage has irretrievably broken down. The language has been simplified and the whole process can now be conducted by the parties online.
The statistics make for interesting reading:
For the past 10 years, issued divorces (those processed by the Court) were in the region of 110,000 – 120,000 annually. This number also applies for the year in which the legislation came into effect. Cases reaching the final stage – now called a ‘final order’ (previously ‘decree absolute’), have diminished dramatically. In 2013 they were c 109,000 and they remained at over 100,000 until 2020 when they dropped to c 94,000. There was a further reduction to c 81,000 in 2021, but the figure dropped yet further (to c 34,000) up to the second quarter of 2022. Applying a linear equation to that figure would mean c 68,000 by the end of the period. This represents a significant difference, and it is unclear why. Quite possibly, there are several explanations (including COVID) but the most obvious is that more people are initiating a divorce themselves without following the process to its conclusion, meaning they are not making their divorces final.
Similarly, the making of financial remedy applications to the court over the same period, has dropped, such that in 2013 they totalled c 41,000; in 2020 c 38,000; in 2021 c 29,000; and for the first two quarters of 2022, c 6,000. Applying the same linear equation would mean c 12,000 for the whole of 2022. Again, it begs the question, why? Again, one cannot ignore the possibility that having represented themselves in their divorce, those same people are ‘doing a deal’ on finances outside of the confines of the court. Of course, a consensual outcome is to be applauded, but where a case never reaches court because a party has not applied (to the court) on either a contested basis or for their settlement to be approved, it is difficult to know definitively.
If there is less formality and cases are not being legally finalised, it follows that there are countless numbers who will remain married by virtue of the fact they have not finalised their divorce or had their financial deal incorporated in a legally binding consent order.
Why is this significant?
If the divorce has not been concluded by way of a final order, then an application may be made for financial orders at any point (even decades) in the future – although the longer the delay, the weaker those financial claims may become.
If no final order has been made in the divorce and one party dies, the parties are still married at the date of death – even though they may have been physically separated for years. In this case, the ‘normal’ inheritance claims remain a possibility meaning that non spousal family members may lose some or all of their legacy.
If the divorce has been concluded and the parties are legally divorced but have not formally recorded their financial agreement, the surviving former partner can no longer make financial claims to the Family Court. They may have a limited claim under the Inheritance Act, but it is not a ‘given’.
If the parties obtain a final order of divorce and one of them remarries without first making an application for financial orders to the Family Court in respect of the first marriage, that party will lose the ability to apply in the future, save in relation to pensions.
The message is therefore clear: whilst it is helpful for parties to be able to make and pursue their own divorce application – particularly in today’s straitened times, they would be well advised to seek advice regarding the financial aspects of that divorce. Otherwise, they may lose out completely in terms of their ability to make financial claims in the future or risk such claims being significantly curtailed.
For further information or advice on any family law matter, please contact Keith Unger on 01732 747900 or [email protected]. Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.