Rising divorce rates should be treated with caution

Hannah Minty, Partner in the Russell-Cooke Solicitors, family and children team. Imogen Runacres, Trainee in the Russell-Cooke Solicitors, employment law team.
Multiple Authors
4 min Read
Hannah Minty, Imogen Runacres

The ONS statistics on divorces in England and Wales in 2021 have been released. It was anticipated that there may be a downturn in the number of applications for divorce in 2021, prior to the long-awaited and much publicised introduction of the new ‘no fault’ divorce regime which was introduced in April 2022.

Certainly, many couples who were in a position to wait to start divorce proceedings were doing so and appeared to be using the period prior to the implementation of the Divorce, Dissolution and Separation Act 2020 to sort out practical arrangements for finances and children.

Divorce rates increased by 10% in 2021

The 2021 statistics in fact show an increase of nearly 10% in the number of divorces when compared with 2020 although this does not necessarily reflect the wider picture. Several factors may have impacted divorce rates in recent years, including the closure of family courts for periods during the pandemic in 2020 and people holding off making life-altering decisions during that time.

The pressures of the pandemic led families to focus on immediate concerns like home-schooling, health and their elderly relatives rather than the difficulties in their marriage. Delays in processing applications using the new online HMCTS portal are another factor which continues to have an impact on the statistics.

On a daily basis, the family court system continues to grapple with resourcing issues, and this has a hugely detrimental impact on the separating families who need it. Waiting times are simply far too long for families experiencing the painful process of separation.

Wider reform of the family justice system is long overdue, as highlighted by the recent Justice report, ‘Improving Access to Justice for Separating Families’ which James Sandiford from our children team contributed to.

Divorce rates are expected to continue to rise as couples make use of no-fault divorce

It is expected that there will be an even greater surge in the number of divorces when the 2022 figures are released next year. HM Courts and Tribunals Service released its data from April to July 2022 recently; the figures show the highest number of divorce applications in a decade.

This is likely due to people waiting to be able to proceed under the new no fault divorce law. This, together will the looming recession, is likely to continue to push up the divorce rates in the coming year.

Unreasonable behaviour remains the most common ground for divorce in 2021 although with the introduction of ‘no fault’ divorce in April 2022, this will be the final (full) year in which any breakdown of the reason for divorce will be given.

The requirement to provide a ground for divorce has been removed and applications can now be made solely or jointly, with divorcing couples no longer having to assign blame to one another for the breakdown of their marriage.

With difficult times expected this shift away from the blame game is welcomed by everyone involved in supporting separating families, and it has allowed better focus on the issues that matter such as the arrangements for children and finances.

We are also on the verge of more positive change with Resolution championing a new model of working known as the ‘one lawyer, two clients’ approach which will enable couples to separate amicably with just one lawyer.

Formalising financial arrangements remains a key concern

It remains a concern that there is evidence to suggest that not all couples who are divorcing obtain a court order formalising financial arrangements.

In 2021 there were 113,505 divorces but only 48,946 financial remedy applications. While the two processes often do not coincide completely in terms of timing (many couples apply for divorce, and then only make a financial remedy application many months later, when they have reached a financial settlement by agreement), the figures are worrying.

It would appear that less than half of all couples who divorce are finalising their financial agreement in a court order. This leaves the majority of the divorcing population without a formal financial order on divorce potentially financially vulnerable.

Finalising a divorce does not close down financial claims, which can potentially be brought many years later when a couple’s circumstances may be very different.

There is also no way to deal with claims against a spouse’s pension without a financial order on divorce and this may mean that many divorcing couples are missing out on sharing in what can often be one of the most valuable assets in a marriage, leaving them financially vulnerable in later life.

As marriage rates decline, more protection is needed for cohabiting families

It is worth noting that the ONS marriage statistics for 2020 have not yet been released, but the trend in recent years has been that marriage rates continue to steadily decline.

Increasing numbers are choosing to get married later or live together rather than marry at all. The entrenched misconceptions about common law marriage are not being appropriately dealt with at government level.

Urgent reform is needed to extend protections to cohabiting families. The Government’s response to The Women and Equalities Committee’s report on the rights of cohabiting partners which was published yesterday was disappointing and failed to bring the reform which is so urgently needed to protect cohabiting couples and families on separation.

Some protections are available, for example by entering into a cohabitation contract or declarations of trust during the relationship, but law reform to extend protections to cohabiting families is long overdue and there is very real frustration at the lack of progress on this front.

Our experienced team of family solicitors are on hand to advise on all aspects of relationship breakdown.

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