The Divorce, Dissolution and Separation Act, which came into force in April 2022, was broadly heralded as one of the best things to happen to family law in the past decade.
Finally, like many of our European counterparts, we would have a no-fault divorce system, meaning divorcing couples no longer have to assign blame to one another for the breakdown of their marriage.
Amongst the new changes, divorcing couples could now make joint applications for a divorce if they wished to (meaning both couples review the application prior to submission and issue by the court), as opposed to making a sole application (where one person, ‘the applicant’ applies for a divorce and the other, ‘the respondent’ acknowledges the issued application and indicates their consent for it to proceed).
It was widely anticipated that the option to submit a joint application to the court would empower thousands of divorcing spouses across the nation to begin their divorce collaboratively and amicably as ‘joint applicants’.
This, it was hoped, would have a beneficial knock-on effect for divorcing couples trying to sort out their family finances and arrangements for children by removing the unnecessary polarisation associated with the old divorce system.
It is perhaps surprising then, that since its introduction; take up for joint divorce applications has been consistently much lower than those making sole applications.
Data collected by HMCTS from April to July 2022 shows that joint applications make up only 23% of the total divorce applications across that period on average. This begs the question why such a comparatively small number of divorcing couples are choosing to make joint applications.
Why have there been relatively fewer joint divorce applications?
A key reason may be that the traditional narrative of one spouse divorcing the other has not yet been eroded from the collective consciousness around divorce.
Many of the clients I see are eager to take the reins as the sole applicant, whilst some others express a preference to be the more passive respondent in the proceedings. It also seems likely that, unless they have taken legal advice, a great deal of applicants learn of the option to apply jointly only when they begin their online application, by which time it seems more efficient to progress with a sole application.
There are also practical barriers to joint applications in some cases, for example, where communication has broken down between two unrepresented spouses, or when the spouse application does not know the whereabouts or up to date contact details of the other spouse
Another factor may be the experience of many family practitioners of the sole applicant route being simpler and more time-efficient. Joint applications entail more liaising between spouses or their solicitors before the application can be issued, which can cause delay and in turn increase costs for clients.
It doesn’t help that the HMCTS online portal for applications is rather clunky and a change in Applicant 2’s circumstances (e.g. newly appointing solicitors) or a lack of engagement after the draft application has been sent to them by Applicant 1 for review can often mean that the joint application has to be abandoned and a sole application started from scratch. Many solicitors inevitably wish to swerve this potential speedbump by doing a sole application from the outset.
It remains to be seen whether over time, a greater proportion of divorcing couples will opt to take advantage of the new law and apply jointly for a divorce.
For now, the public’s general perception of the sole application route as the default and the practical concerns associated submitting joint applications seem to signal that any shift in the figures will be slow.
Regardless of how divorcing couples choose to apply, there is no denying that the change to no fault divorce has been a seismic shift which has brought about the end to contested proceedings and contentious discussions about the basis for the divorce.
For separating families, this shift has encouraged better focus on the issues that matter such as arrangements for children and finances