Launch of ‘no fault’ divorces prompts a spike in cases

New divorce laws caused a ‘bulge’ in cases this spring as couples sought to navigate the rule changes, new figures reveal.

Nearly 13,000 applications were filed in April, and just over a fifth were made jointly – an innovation now permitted under the ‘no fault’ law.

A similar number also filed for divorce in March, which lawyers put down to a rush of couples already near agreement trying to get cases sorted and financial settlements under way ahead of the rule change on 6 April. 

Official efforts to reduce the family court backlog might have played a part too, they explain.

Couples can now get divorced within six months of first applying even if one partner is opposed, and the process will be largely online – including the serving of divorce papers by email.

Financial settlements will still be dealt with in a separate and parallel process which can continue after the divorce is final.

>>>How do new no-fault divorce rules work, and what is the impact on dividing assets? Click here – and see below

The high rate of applications around the launch of the no-fault law compares with the nearly 9,400 cases filed in February this year, and around 8,700 in April 2021, according to figures announced by HM Courts & Tribunals Service.

‘These figures reflect the “bulge” we expected as the new law came into effect,’ says Law Society vice president Lubna Shuja.

‘By not having to prove a fault-based fact against their ex-partner, separating couples and their children will not have to suffer unnecessary conflict and anxiety.’

HMCTS has now started publishing numbers broken down between sole and joint applications, rather than digital and paper ones. 

Meanwhile, the Law Society warns that the civil law courts are facing delays and backlogs, with 22,776 public family law cases outstanding, and care and supervision cases typically taking 50.4 weeks to conclude.

‘We have persistently voiced our concern about the significant backlogs in the family courts – which pre-date the pandemic,’ says Shuja. ‘Delays can cause significant harm as well as uncertainty for the parties involved.

‘The Government must ensure, so far as possible, that there are sufficient fee-paid and full-time judges to deal with existing and new caseloads. All courts in England and Wales are now operating at full physical capacity – yet the backlogs are still very high.’

Shuja reiterated the Law Society’s call for a reversal of cuts to legal aid in the early stages of family law cases, so that fewer of them end up in court.

A Ministry of Justice spokesperson says: ‘We want to reduce the conflict in the family courts at every step, which is why we introduced the biggest change to divorce law in half a century.

‘Our £324million investment to provide swifter access to justice in civil and family courts is working – with waiting times stable and the number of hearings now close to pre-pandemic levels.’ Read more below.

How have divorces changed?

Under the old law, divorces were only granted if there was an ‘irretrievable breakdown’ of a marriage.

Either one spouse had to allege ‘fault’ by the other – like adultery, unreasonable behaviour or desertion – or provided both parties agreed, the couple had to separate for at least two years to show sufficient evidence the split was serious.

 A five-year separation was needed to divorce with no consent by one partner.

Couples can now get a no-fault divorce within six months. Joint applications are allowed, or one spouse can file then has 28 days to notify their partner, by email by default plus via a printed confirmation of the email by post.

A conditional order for divorce, previously the ‘decree nisi’, can be applied for 20 weeks after the first filing, and a final order, previously the ‘decree absolute’, can be applied for after 26 weeks.

Divorces will proceed even if one partner is against, provided the right procedures have been followed.

Financial settlements will continue to be dealt with separately, and the Government is still looking at ways to reform this aspect of divorce.

However, experts have warned speedy ‘no fault’ divorces could make splitting financial assets like pensions fairly more challenging.

The new emphasis on haste could undermine the effective sharing of pension wealth at divorce, according to former Pensions Minister Steve Webb and family law barrister Rhys Taylor, who earlier this year published a joint paper warning of the pitfalls.

They say financial orders are only made in around one in three divorces, and not all of these orders cover pensions.

They add that research indicates divorced women in particular often end up with very low pensions in retirement, and are concerned the new process could make matters worse.

There are three main options when dealing with pensions in a divorce – sharing them on a clean break basis, one partner earmarking some of the income to be paid to an ex-spouse after retirement, and offsetting their value against other assets.

We looked here at why you might need financial advice as well as a lawyer even in an amicable divorce.

What does the Government say?

The Ministry of Justice says under the latest spending review it received a further £324million to improve timeliness in civil and family courts and tribunals. 

It is undergoing a £1.3billion court reform programme to take advantage of technology and move more processes online. 

The Ministry says significantly more hearings and cases are progressing compared to the beginning of the pandemic putting levels close to those of 2019, and meanwhile it is making greater use of the civil fee-paid judiciary to maximise capacity and hear more cases.

It is also recruiting more judges so more cases can be heard and encouraging ng increased use of mediation to try to divert cases away from the courtroom where appropriate.