Family law: causes of rising divorces

Data released by the ONS saw a significant rise in divorce of almost 10 per cent between 2020 and 2021.

This article summarises the findings and data and explores some of the possible explanations for the significant changes in divorce statistics from 2020-2021 and over the last 60 years.

In 2021, 113,505 divorces were granted across the jurisdiction compared with 103,592 in 2020 – an increase of 9.6 per cent. It should also be noted that there were 108,254 divorces in 2019. There are various reasons for this stark increase, but two primary reasons stand out.

Impact of covid-19

Firstly, the pandemic had many ramifications which will have impacted the divorce rate, some obvious, others more subtle. The disruption within the family courts in 2020, with delays and difficulties being experienced across all areas of family law, is an obvious explanation for the decrease in divorce in 2020 of 4.5 per cent from the previous year and the rise of 10 per cent in 2021 when the pandemic subsided.

It is possible that timescales for processing divorce petitions and applications for decree nisi and decree absolute were significantly slower due to court staff shortages, which may explain why the divorce rate fell in the same year at the start of the pandemic. In addition, Royal Mail disruptions may have also contributed to the reduction in divorce rates because it led to delays in sealed petitions being received by respondents and acknowledgements of service being returned. Consequently, the divorce backlog from 2020 was picked up in 2021, when life begun to return to normal.

The pandemic also changed the ways in which many of us worked with family lawyers; meeting clients remotely on digital mediums such as Microsoft Teams and Zoom, but this did not work for everyone.

For example, those with disabilities, such as hearing and visual impairments and those not confident using a computer/electronic device, may have struggled with the technology. Others may have decided to wait until they were able to have a face-to-face meeting with a lawyer. Lockdowns also meant some people considering a divorce will have had little opportunity to have an in-depth and private conversation with a lawyer. This would have been particularly the case for spouses in relationships where coercive control was a feature.

Along with the practicalities of arranging meetings with legal professionals, the prolonged lockdowns had a significant impact on family life and inevitably on relationships. For some, the prolonged time together strengthened relationships and marriages. For others, cracks began to appear which may have led to a decision to divorce. Decisions over when to divorce may have been delayed until 2021 because of the turmoil experienced in the housing market which made it difficult to find alternative accommodation, so maintaining the status quo until lockdowns ended will have been the best option for some couples.

As a final point is the significant economic disruption caused by covid-19, with many people furloughed, some earning substantially less income, while others lost their jobs and livelihoods. It may be that private paying clients held off paying for legal advice on their divorce until 2021, when there was greater certainty about their job security post-pandemic.

No-fault divorce

2021 was the final year petitioners could apportion blame to their divorce before the introduction of the no-fault divorce legislation in April 2022.

While some couples delayed applying for divorce until the new no-fault divorce law came into effect, many have felt it was important to apportion blame and to explain to the court why the marriage had irretrievably broken down. Like many family practitioners, we expect many petitioners may found this cathartic and an opportunity to set out their story, so while no-fault divorce has many advantages, the inability to apportion blame may be a disadvantage for some.

In 2021, the most common cited ground for divorce was unreasonable behaviour which accounted for 43.2 per cent of opposite-sex divorces and 54.5 per cent of same-sex divorces.

Previously, when preparing divorce petitions on the ground of unreasonable behaviour, it was common practice to set out circa five examples of the respondent’s unreasonable behaviour. Common examples often cited included:

·        Domestic abuse.

·        A lack of affection and intimacy.

·        A lack of support (with reference to child-care responsibilities and household labour).

·        Infidelity (perhaps where the petitioner was out of time to rely on the ground of adultery).

·        Discovery of secret actions (gambling, criminal activity, etc.)

Lawyers committed to helping their clients have an amicable divorce may have encouraged their clients, if at all possible, to wait until April 2022 because citing blame can increase the temperature of a case and cause acrimony and upset. But, as discussed above, others may have rushed their petition through to ensure they could ‘set the record straight’ and cite blame.

Others may have submitted their petition before the change in law to avoid them having to instruct their solicitors to redraft the petition which would have incurred extra costs. Depending on when they issued and the speed at which it took to resolve their finances, it is possible that applications for decree absolutes were processed in the same year, which may explain why the divorce rates increased for 2021.

Trends in the last 60 years

The recent ONS report has also provided data for trends over a longer period of time and confirmed the following:

·        For couples who married in 1963, 23 per cent were divorced by their 25^th anniversary.

·        For couples who married in 1965, 10 per cent were divorced by their 10^th anniversary (1975).

·        For couples who married in 1995, 25 per cent were divorced by their 10^th anniversary (2005).

·        For couples who married in 1996, 41 per cent were divorced by their 25^th anniversary (i.e., 2021 and therefore the most recent data available).

·        For couples who married in 2011, 20 per cent were divorced by their 10^th anniversary (i.e., 2021 and therefore the most recent data available).

Notably, there has been a stark increase in marriages ending in divorce over the last 45 years which will be due to changes in attitudes towards divorce, as well as sociological, political and economic developments.

Throughout the 60s, 70s and 80s, there was a negative attitude and stigma towards divorce and divorcees. Today, we see a far more accepting attitude towards divorce.

Domestic abuse is also less of a taboo topic than it was, and it may be that individuals previously stayed in abusive marriages due to the lack of support available (such as refuges, emergency accommodation, injunctions, etc.) Fortunately, there are more services now available for victims of domestic abuse which can support those wishing to end an abusive marriage.

If an individual is not working and is entirely dependent on their spouse, there will likely be real worries about financial stability, should the marriage come to an end, which may be a factor in deciding whether to stay in the marriage or get a divorce. Trends around employment and working have changed significantly over the last 60 years, especially for women. With employment comes an element of financial independence and security, and it may be the case that women feel more confident ending marriage if they know they have an income of their own and the ability to some extent to support themselves.

The change in divorce rates between 2020 and 2021 was most certainly due to the unprecedented times we found ourselves in as a nation, coupled with the fact that there was a significant change in the law. As many people are still recovering from the aftermath of the pandemic financially, it is likely we will continue to see a surge in divorce rates.

With the new ‘No Fault’ divorces, it is much easier for people to commence proceedings themselves and those who have waited for the new legislation are likely to now be submitting their applications. Whether this wave of applications eventually plateaus, only time will tell.

Annabel Andreou and Nirali Adhia are solicitors in the family team at Debenhams Ottaway debenhamsottaway.co.uk