Recent family court statistics covering April – June 2022 show 1 in 5 divorce applications were joint applications. The decision to go down this route was probably made to take advantage of the new ‘no fault divorce’ laws but could the underlying numbers behind this statistic suggest people don’t fully understand these laws?
No fault divorce was introduced on the 6th of April 2022. The intention was to give divorcing couples a more amicable way to divorce by removing the need for blame and allowing them to make a joint application.
However, while the stats show more couples are choosing to take this more amicable route, the statistics also reveal there was a 31% drop in financial remedy applications during this period compared to the same period last year.
This is one of the underlying numbers that concerns us as family lawyers. Could it indicate that many couples are entering into a no fault divorce without taking professional advice on how best to protect their financial position? If so, it could be because they are primarily concerned with keeping things amicable.
Honourable as this is, couples simply cannot afford to leave their finances and other assets at risk by proceeding without also putting the necessary financial orders in place.
A divorce order alone does not address the financial aspects arising from divorce.
During a divorce both parties can apply for a financial order. This is a court approved document which confirms the financial agreement between the divorcing parties, to provide a clear basis on which they can move forward with their lives.
If a financial order is not in place, both parties face a very real risk of a dispute over aspects of their matrimonial assets and finances blowing up or suddenly having to deal with a request for financial support from their former spouse, even years later.
A financial order can also, depending on your circumstances, include the reassurance of a ‘clean break clause’. A ‘clean break clause’ prevents either spouse from raising a financial claim against the other at any point in the future.
Couples seeking to divorce amicably should be encouraged to do so, particularly as it will make what will always be a difficult time for them and their families a little more comfortable. However, it can’t be at the expense of the fair and proper division of the marital pot.
You should not choose no fault divorce under the misapprehension the process will protect your finances. You must still apply for a financial order (in many cases this will be a financial consent order, but this is something you should talk through with our highly experienced family team) to legally set out who is entitled to what share of your savings, property, pensions, investments and other assets and whether there are any income needs to take into account.
There is no doubt that no fault divorce has given many couples a more amicable route to divorce, but it has not been as beneficial for others. It is also essential remember that there is no easy mechanism whereby one party can put a break on the divorce process once it’s been started by the other party.
Where domestic abuse has been a factor, it may be hard for the abused partner to accept their marriage broke through ‘no fault’ of either party. This is made even harder given all you need to trigger the divorce is a statement saying the marriage has broken down.
Similarly, under the former regime if one party was accused of unreasonable behaviour, it was clear where blame lay, and the other party could then apply for an order for costs. This no longer applies.
But taking us full circle, the major concern is as so much of the divorce process can now be completed online without the need for lawyers, anyone can progress to the final order stage without actually taking the legal advice they need. This supports the assumption that the latest statistics could well suggest people don’t fully understand the new ‘no fault’ divorce laws.
If you are considering separating or divorcing and would like to ensure you know exactly what is involved so you can progress with the proper protection, please contact Bernadette Hoy or Aisling Collins today.