Lawyers are expecting a surge in applications from separating couples when no-fault divorce is introduced in England and Wales on Wednesday.
In what has been described as the biggest reform of divorce laws for 50 years, couples will not have to either separate for at least two years – increasing to five if one party does not consent – or allocate blame to legally end their marriage.
Last Thursday was the final day for couples to divorce under the existing system and solicitors said, even before then, many delayed in anticipation of the new law.
Jo Edwards, the head of family law at Forsters, said: “My experience and the experience of loads of practitioners I’ve spoken to is that once we’ve said to people, certainly over the last three or four months and in some instances earlier than that, that there was this new law coming in – because we’ve known for a few months it will be 6 April – generally the preference has been to wait for the no-fault based system.
“The experience of other countries where they’ve moved to a no-fault system, is that there is a spike when the new law comes in – in Scotland, for example, when they changed the law in 2006.”
Ed Floyd, a specialist family lawyer and partner at Farrer & Co, said: “There is a lot of pent-up demand. We’ve been seeing clients for a number of months that although they’ve agreed to separate, can’t face the blame game. It [no-fault divorce] is something that’s got a lot of public cut-through”.
The latest divorce statistics, published on Thursday, showed that the number of divorce petitions in the last quarter of 2021 was down 26% on the same period in 2020.
There are fears that an initial surge in cases coupled with the new technology necessary to implement no-fault divorce will put added pressure on courts that Floyd said “have never been under greater strain because of because of Covid and budget cuts”.
However, Edwards said that in the medium to longer term the reform would be likely to reduce the burden on courts because they would require less judicial oversight as there would be no grounds for a spouse to contest the divorce.
Stowe Family Law is also anticipating a spike in the number of couples seeking divorce, although Amanda Phillips-Wylds, a managing partner at the firm, said others had been rushing to push through a divorce under the existing fault-based system.
She suggested couples were motivated by “catharsis”, but also because some “wrongly believe that being able to prove the other party was at fault for the marital breakdown would favourably impact their financial settlement and arrangements for any children … In reality, behaviour very rarely impacts financial outcomes or arrangements for children.”
Lawyers were at pains to point out that the new law would not affect the financial settlement process – which is separate – nor necessarily speed up the divorce. For the first time there will be a new minimum overall timeframe of six months for the divorce.
Edwards said she supported this in principle to allow time for reflection, but added: “I do have some concerns about that because in a coercive controlling relationship there’ll be nothing to stop a joint applicant from withdrawing partway through the process, and then you start all over again.”
The government has said it would look at the financial settlement process, in which judges currently have broad discretion, and it is also being urged by bodies including Family Solutions group to look at ways of taking divorcing couples away from the courts altogether to put the welfare of children centre stage.
“Now that no-fault divorce is coming in I think it’s recognised in government that this can’t be the end of it,” said Edwards. “There needs to be other things that should be looked at.”
