The right to divorce, but at what cost?

Birmingham Uni law student Maya Brar explores why Asian women are being left behind as divorce law evolves

The Divorce, Dissolution and Separation Act 2020 made the legal route out of marriage in England and Wales substantially simpler than the fault-based regime it replaced. Yet a legal right to divorce is not the same as a practical freedom to leave. For many women, particularly within some South Asian communities, divorce may still carry consequences no court order can resolve: family pressure, community stigma, financial insecurity and risks to mental health.

The shift to no-fault divorce

Before 6 April 2022, divorce generally required reliance on one of five “facts” under the Matrimonial Causes Act 1973, including adultery, unreasonable behaviour or periods of separation. Unless spouses had been separated for years, this often meant making allegations that could intensify conflict.

The 2020 Act changed that. Either or both spouses may now apply for divorce by stating that the marriage has broken down irretrievably. The reform removes fault-based requirements and introduces conditional and final orders, separated by at least six weeks.

This is a significant access-to-justice reform. Individuals no longer need to assign blame or wait years to end a marriage. But the statute answers only one question: can a marriage be legally dissolved? It does not answer the harder question faced by many women: what will happen to me if I do?

Cultural expectations and the stigma of divorce

Legal rights operate within social contexts. A woman may understand the divorce process yet feel unable to pursue it because of the consequences she anticipates outside the courtroom.

For some South Asian women, marriage is not merely a private relationship between two adults. It may be understood as an alliance between families, a source of honour and reputation, and a matter of concern for extended relatives and wider community networks. Divorce can therefore be perceived not simply as a personal decision, but as a failure reflecting on parents, siblings, children and the family’s standing.

This is not true of every South Asian person or community. South Asian communities in England and Wales are religiously, linguistically, generationally and socially diverse. Many women divorce with family support, and many families reject stigma. The experiences of women leaving abusive marriages also differ from those ending unhappy but non-abusive relationships, even where both involve family pressure.

Research on British South Asian women who experienced domestic violence illustrates the particular difficulties some face when leaving abusive marriages. Participants feared divorce-related stigma, family isolation and consequences for their children’s and siblings’ futures. A UK systematic review similarly identified community pressure, blame and ostracism as barriers to disclosure and help-seeking among ethnic-minority women experiencing domestic violence.

That matters legally because it affects autonomy. A right exercised under coercion, fear of ostracism or economic dependence is not enjoyed in the same meaningful sense as one exercised from a position of safety and independence.

Family pressure and social consequences

Pressure may begin before any divorce application is issued. A woman may be encouraged to “try harder,” tolerate unhappiness or prioritise family unity over her own wellbeing. Relatives may frame divorce as shameful or damaging to children, even where the marriage is abusive or unsafe.

After separation, the consequences can continue. Women may face exclusion from family events, community gossip, criticism of their parenting or pressure to reconcile. Some may fear that their children will be affected socially, or that younger siblings will find it harder to marry.

UK evidence on minoritised ethnic women experiencing domestic abuse identifies honour and shame, restricted social networks, dependence on extended-family households and concerns about family reputation as barriers to seeking help or leaving. Although the Scottish Government evidence review is not specific to England and Wales, it illustrates how family and community relationships can shape decisions about separation.

Where social life is organised around family, faith or community networks, divorce may threaten not only a marriage but the social world that structures daily life.

The law cannot compel relatives to respond with compassion. But it should recognise that the absence of legal fault does not mean the absence of social blame. A no-fault system may reduce conflict between spouses, yet it cannot protect a woman from being treated as the person who “caused” the divorce.

The mental health costs of staying and leaving

The psychological consequences of remaining in an unhappy marriage can be profound. Chronic conflict, emotional neglect, controlling behaviour or domestic abuse can contribute to anxiety, depression, loss of confidence and isolation.

In a qualitative study of South Asian-origin women in Toronto, participants identified domestic abuse, marital problems and family difficulties as perceived contributors to depression. Although conducted in Canada, the study provides comparative rather than direct evidence of experiences in England and Wales.

Leaving can also carry mental-health costs. A woman may experience grief, guilt, loneliness and uncertainty while navigating pressure from a spouse, in-laws, parents and community members. She may simultaneously be trying to maintain stability for her children. Separation can therefore be a period of acute vulnerability.

This has implications for family justice. A divorce application may be straightforward, but the person making it may need far more than procedural information: safe, confidential advice, specialist domestic-abuse support, culturally competent counselling and reassurance that seeking help will not expose them to further harm.

Family law should not medicalise divorce, but it should acknowledge that separation is not merely a legal status change. It is a major life event with potential mental-health consequences, particularly where someone has limited support or fears social rejection.

Financial dependence and barriers to legal support

The most immediate practical barrier is often financial. A woman who has not worked outside the home, has limited access to household money or whose immigration status is tied to her spouse may be especially vulnerable. Even where she wants to leave, she may not know how she would afford housing, legal advice, childcare or everyday living costs.

Financial remedy proceedings enable courts to determine financial provision following divorce. Under section 25 of the Matrimonial Causes Act 1973, courts consider statutory factors, giving first consideration to the welfare of minor children. Fairness is assessed through those criteria and the circumstances of each case.

Securing a fair outcome, however, may require legal advice, time and litigation. Legal aid is unavailable for most private family cases, including financial disputes, although exceptions exist for qualifying domestic-abuse cases. Legal aid may also be available for mediation, subject to eligibility.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed most private family-law matters from legal-aid scope, subject to limited exceptions. Many individuals must therefore represent themselves or proceed without advice when the stakes—housing, children, income and safety—are highest.

For a woman facing family pressure, this creates a layered problem. She may lack independent money, confidential communication or safe access to a solicitor. A spouse who controls finances need not explicitly forbid divorce; making it financially impossible can achieve a similar result.

The law recognises some of these dynamics. Section 1(4) of the Domestic Abuse Act 2021 defines economic abuse as behaviour substantially affecting someone’s ability to acquire, use or maintain money or property, or obtain goods or services. Controlling bank accounts, preventing employment or accumulating debt in someone’s name may fall within that definition where the Act’s conditions are met.

Recognition matters because domestic abuse can provide a route to legal aid and specialist support, although eligibility remains subject to evidential and other requirements.

Beyond legal reform: Making divorce accessible

No-fault divorce was an important correction to an outdated system. It removed blame from the application process and made the legal route out of marriage less adversarial. Those gains should not be minimised.

But procedural simplification is not substantive empowerment. A woman has meaningful access to divorce only if she can obtain confidential legal information, afford independent advice or qualify for legal aid, secure housing and financial protection, and make decisions without fear of violence or ostracism.

The question for policymakers is therefore not simply whether divorce is easier to obtain, but whether the surrounding system enables people to exercise that right freely.

That requires properly funded legal advice, effective financial remedies, accessible domestic-abuse support and services that understand the pressures some South Asian women face. Research highlights the importance of specialist “by and for” services in addressing linguistic, practical, faith-based and community-related needs. Lowe et al

The right to divorce is now substantially more accessible than before the 2020 reforms. But rights are not self-executing. They depend on whether the person holding them has the safety, money, information and social freedom to use them.

For some women in South Asian communities, the greatest barriers to leaving an unhappy marriage are not found in the Divorce, Dissolution and Separation Act 2020. They are found in the family home, the community’s response, the bank account, and the fear of what comes after the final order. A meaningful right to divorce must be measured not by the ease of filing an application, but by whether a person can leave a marriage without sacrificing their safety, financial security, or mental health.

Maya Brar is a Canadian law student at the University of Birmingham and mental health advocate, with interests in family law, human rights and access to justice.