No-fault divorce: three years in practice

There was a high level of anticipation for the introduction of ‘no fault’ divorce in April 2022. Coined as ‘ending the blame game’, it was considered by many as not only an obvious and necessary reform, but also substantially overdue given the ‘no fault’ divorce landscape of other jurisdictions. 

For many practicing in this area, the drafting of ‘unreasonable behaviour’ particulars for the basis of a divorce petition feels like a distant memory.  

So, what have we seen in practice? How has the removal of assigning fault played out and what are the noticeable implications three years on? Considering statistics following a change in the law can often reflect how the new legislation has brought about change in our society. We can consider what, if any, influence the new status of the law has had by considering the patterns in marriages and civil partnerships, and the end of those relationships. Given the no-fault divorce legislation is still in its infancy in terms of data, the statistics have revealed change of note.

Statistics and shifting relationship patterns

2023 is the first full year following the Divorce, Dissolution and Separation Act 2020 (which came into effect on 6^th April 2022). The recent ONS figures confirm that there were 102,678 divorces and 1,138 civil partnership dissolutions in 2023, the majority of which were granted under the new legislation. Whilst this is another increase from the previous year, the rate of divorce is still falling since its peak in 1993. Inevitably this will be linked to the increase in cohabiting couples. The end of a cohabiting relationship (where the parties are not married but own property and/or have children) is often legally and procedurally complex, and many couples are not aware of the extent to which the law does not provide adequate protection for them on separation. Preparation for cohabitation is important because despite repeated efforts to provide cohabitees a measure of the same property rights on the collapse of their relationships as are enjoyed by those in marriages or civil partnerships, a Private Members’ Bill introduced by the Liberal Democrat peer Lord Marks does still not appear in the Statute Book (https://bills.parliament.uk/bills/2639).

One decision to be made at the outset is whether to initiate divorce proceedings on a sole or joint basis. 73.1% of final orders in divorce granted under the new legislation were sole applications which is relatively high given the hope was that no-fault divorce would encourage more joint applications. Applications made on a joint basis can often help increase the level of goodwill between the parties from the outset which can help navigate the more difficult issues to be resolved later in the process (i.e. financial settlement and arrangements in respect of the children). 

The percentage of sole applications may be a reflection that parties are feeling aggrieved by the no-fault divorce system, which has, in effect, removed their inability to assert blame. It could be that individuals proceeding with a sole application are using this as a way to initiate the process ‘on their terms’ and infer fault by the backdoor. 

Efficiency, delay and unresolved disputes

The new no-fault divorce system, with all its advantages, brings with it additional time and often delay. It now takes much longer to reach the final stage in divorce. There is a minimum 20 week ‘cooling off’ period from the start of divorce proceedings until the conditional order (the first stage in the divorce process) can be applied for. The intention was to allow parties time to get their affairs in order. No financial agreement between parties is final and binding until it is set out in the terms of a court order and approved by a judge. This cannot happen until the conditional order has been granted by the court which makes the conditional order stage of the divorce process one of crucial importance. What can sometimes happen is that an agreement is now reached significantly prior to the conditional order being granted by the court, leaving the parties in a situation where they have agreed the financial outcome, and yet are unable to seek approval from the court. This can result in parties feeling as though they are in some sort of holding period (because effectively, they are), eager to progress but unable to do so. In these scenarios, it can seem rather unfair for individuals who have made every effort to resolve their differences efficiently and sensibly to be told that they must now wait. It does beg the question: Have we replaced the ‘blame game’ with the ‘wait game’?

In these scenarios, it is best practice to prepare a separation agreement or a consent order, recording the financial agreement between the parties so as to ensure clarity whilst the cooling off period elapses. The element of timing will also undoubtedly be having an impact on the statistics released earlier this year, as overall the process takes much longer so some separations will be tipping over into the following year of data.

What is not surprising, is that whilst divorce is still on the rise, the duration of marriage is increasing with the average being 12.7 years for opposite sex couples. This is described by the ONS as “among the longest median duration recorded”. My view is that it would be a stretch to suggest that this has anything to do with the no-fault divorce regime, and is likely to be a statistic that just ‘is’ as opposed to having some sort of reason behind it. 

Whilst the change in how this difficult process is started should be welcomed, in reality it was rarely the case that the ground for divorce became the focal point of a dispute of divorcing spouses. The divorce itself was simply the administrative process which rumbled along in the background and in my experience, cases of defended divorce were few and far between. Further, jurisdictional disputes have not been eradicated because of the introduction of no-fault divorce, nor was that ever the intention. 

The financial outcome upon a divorce or arrangements in respect of the children are clearly more pressing issues and they have continued under the new regime. Whilst the goal was to make the process of a divorce less acrimonious, ultimately certain core issues remain that can generate contention. 

The question then becomes whether administratively the process is more streamlined, and whether the intended goals have been fulfilled. Given the issues which may arise as a result of the delay, that is debatable. Perhaps a cooling off period of 20 weeks is unnecessarily long, particularly in the context on the emphasis on resolving divorce-related matters efficiently and constructively through non-court dispute resolution (NCDR). 

Navigating NCDR under the new regime

One of the main advantages to NCDR is that it can be arranged quickly, and avoids the unfortunate but inevitable delays of court proceedings. Is the no-fault divorce legislation complimentary to or at odds with the expectation to engage in appropriate NCDR given that no consideration of any financial agreement can take place until the 20 week cooling off period has elapsed? 

It could be that we start to see more applications for ‘Notice to Show Cause’, where one party has reneged on an agreement during the cooling off period, having had too much opportunity to change their position as to what the outcome should be. Whilst I can’t say this is a pattern I have seen emerge all of these are considerations that family law practitioners ought to keep in mind when navigating this shifting landscape. 

To conclude, the impact of no-fault divorce is evolving, but in my view, the early trends reported on by the ONS call into question whether the regime is fulfilling its intended goals in terms of efficiency.

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