OpinionApr 24 2023

'No-fault divorce hasn't taken out the emotions behind filing'

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'No-fault divorce hasn't taken out the emotions behind filing'
No-fault divorce has not made divorce any less acrimonious in cases where there was always going to be a degree of rancour. (Envato Elements)

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.