The stated objective of no-fault divorce legislation, introduced in April 2022, was to reduce conflict between separating couples, however, in large part it has failed.
The new legislation ensured the conversation around divorce – why, how, who – was in effect truncated.
It is an inescapable fact that some applicants do indeed want to hold the other party responsible, and filing under no-fault divorce does not change that desire. Conflict in divorce is often centred on uncertainty, and that uncertainty can make people behave out of character – often driven by anxiety or anger.
There has been so much hyperbole and rose-tinted rhetoric around no-fault divorce, with a single focus on the mechanism for the divorce itself.
The fact that the majority of divorce applications were not joint but sole applications only goes to support the fact that little has changed.Doing so ignores the fact that while the law no longer allows one party to blame the other for the breakdown of the marriage, one or sometimes both parties have already gone through enormous upheaval and there is almost always a very challenging backdrop to the filing for divorce, and that backdrop does not disappear just because one party cannot blame, at least legally, the other.
In the vast majority of divorces we handle, if emotions are running high then invariably they continue to do so, regardless of whether or not the divorce application details why one party says the marriage has irretrievably broken down.
No-fault divorce legislation focuses on one, and in the scheme of things relatively superficial, element of the process: the reason for no longer wishing to be married.
Divorce is straightforward: it is the ending of a contract. It is everything else – child arrangements, finances such as splitting assets, maintenance and pensions, perhaps the loss of the family home – that causes the conflict and materially that has very little, if anything, to do with apportioning fault in the divorce application
MoJ figures misleading
According to figures released by the Ministry of Justice in September of 2022, there were 33,566 divorce applications in April to June, with the majority (33,234) under the new no-fault divorce legislation. These figures are misleading.
The new legislation came into force in April 2022, so naturally the majority of divorce applications would be under it, but the fact that the majority were not joint but sole applications only goes to support the fact that little has changed.
Whether the divorce rate goes up or down, the stats do not confirm the success or otherwise of the legislation’s objective – to take rancour out of divorce.
Delays caused by the pandemic
We should also bear in mind that many of these applications were likely delayed because of the pandemic.
The many lockdowns and continuing restrictions meant there were temporary reconciliations, challenges getting to see a solicitor, as well as an ever-increasing backlog of cases waiting to be heard in the Family Court.
I would suggest that the pandemic is at the heart of why the government says divorce applications reached their highest level for a decade after no-fault legislation was introduced.
After the new legislation came into force, only a handful of our clients were interested in filing jointly – about the same number who were prepared to wait two years (under the previous "five facts" process), so as to say, effectively, their divorce was neither party’s ‘fault’.
It used to be a small minority of clients that did not want to give several instances of unreasonable behaviour, had not had an affair and had not been separated for two years, and hence felt trapped and frustrated by the legal process because they were unable to start divorce proceedings.
The breakdown of a marriage can be traumatic and there is a grieving process to go through, irrespective of the legal mechanism by which they get divorced. Now, everybody can get divorced after one year of marriage without justification, but those who feel they have been subjected to appalling behaviour or an affair often are unhappy to learn they can not vent about their experiences within their divorce application.
No-fault divorce might take the initial heat out of starting proceedings but in my experience it certainly has not made divorce any less acrimonious in cases where there was always going to be a degree of acrimony anyway.
The breakdown of a marriage can be traumatic and there is a grieving process to go through, which every individual experiences in their own way and at their own pace, irrespective of the legal mechanism by which they get divorced.
Yes, you can and indeed we have changed the legal process, but you cannot change those fundamental and basic human emotions of grief, anger and sadness that naturally flow from the end of a marriage.
Elspeth Kinder is a partner and joint head of family law at JMW Solicitors
