Divorce applications have surged since the no-fault divorce laws came into force on 6 April 2022, but what does this mean in practice and how can it affect divorcing couples?
The National Statistics of the Family Court published on 29 September 2022 show that between April and June 2022 there were 33,234 applications made under the new law, an increase of 22% from the same quarter in 2021. This represented the highest number of applications in a decade.
Why have divorce rates increased?
The reforms under the Divorce, Dissolution and Separation Act 2020 were long awaited, but although the Act was passed in 2020, it did not come into effect until 6 April 2022. It is likely that many couples anticipating divorce chose to wait until they could apply for their divorce under the new system on a no fault basis, which resulted in the unprecedented increase in applications.
The new legislation eradicated the requirement for one party to show that the other party had been at fault or committed some form of wrongdoing. This was particularly attractive for those in marriages that did not involve bad behaviour and was a welcomed shift for many.
The change in the law provided a means for couples to genuinely take a joint decision to divorce, which was only previously possible where there had been long periods of separation. Further, it is only in very limited and narrowly defined circumstances that a party can defend a divorce and so in most cases there is no longer the worry of lengthy and costly contested divorce proceedings.
What are the common misconceptions?
Although the online system is designed to be accessible to those making an application for divorce, it is important that couples contemplating divorce understand the complete process, and in particular how to deal with their financial arrangements. Whilst the Final Order (previously referred to as the Decree Absolute) legally finalises the end of the marriage, it does not represent the end of the financial relationship between former spouses.
Whilst couples can reach agreement by themselves, regarding their finances and how their assets will be divided, any agreement is only legally binding once approved by the Court and is referred to as a Consent Order. In the absence of a Consent Order approved by the Family Court, further claims relating to finances can be made long after the divorce has been finalised. It is vital that couples understand the pitfalls of submitting their own application for divorce and advice prior to starting an application will ensure that the correct boxes are ticked to protect the person making the application in the long run.
What can go wrong when people apply for their own divorce online?
The new online service is designed to be quicker and more user-friendly than before, but it deals with the finalisation of the marriage only, without consideration for one of the most important factors when dealing with a divorce – finances. The actual divorce is only one part of the picture, and if finances are not properly considered and dealt with, claims can be made by one party against the other party even after the divorce has been finalised.
Online divorce – Is it risk free?
The risk with people being able to deal with divorce themselves online is that if proceedings are finalised by the parties without settling the financial position in a legally binding document, this can cause problems in the future as the possibility of financial claims will remain open.
Over time, circumstances can change and this could mean that years after separation, one party could significantly improve their financial position and the other party may make a claim over their assets, which may seem unfair especially if this was not the intention of the parties on divorce. There is no time limit for a financial claim to be made and it is therefore vital that financial arrangements are approved in a Consent Order.
A Consent Order that has been approved by the Court or a Court Order within financial proceedings are the only legally enforceable documents that can record the financial agreement reached between a divorcing couple, and therefore the terms are extremely important and must be drafted correctly. The Consent Order will need to be considered and approved by a Judge before the terms are enforceable. Our experienced and specialist family solicitors can advise on financial settlements as well as preparing the order and submitting it to the court with the relevant accompanying documents at the correct stage of the divorce proceedings.
What is the importance of a legally binding financial agreement?
Some couples may feel that a Consent Order is not necessary, particularly if they have little or no assets, or if they have only been married for a very short period. However, it is still advisable that an Order is prepared by a solicitor even if all that is intended is for there to be a clean break. Otherwise, if there were to be an unexpected career progression, inheritance received, or even a lottery win after a divorce, the other party could potentially make a claim for a share of assets. A Consent Order incorporating a correctly drafted clean break clause would prevent a former spouse from making a claim.
A Consent Order provides clarity and avoids any misunderstanding about exactly what agreement has been reached. Consent Orders are technical legal documents and play a large role in the divorce process, so it’s crucial you fully understand what they mean.
Our family solicitors can advise on financial settlements, draft the order, advise on these documents, and deal with submission to the court for approval.