Myths within family proceedings

Napthens - August 22nd 2017

Thanks in no small part to television shows and celebrity gossip magazines, there are a range of common myths about the divorce process which many people assume are true.

Certainly one of the most common myths is that divorces can be quick.  In actual fact whilst the media sometimes portrays them in this light, it usually takes between 4 to 6 months if things run smoothly.

Many people refer to their partner as a “common-law husband/wife". This is the most popular myth.  There is no such thing as a common law marriage.  If the couple are living together and are unmarried then there are no automatic right to claim either capital or income if a relationship breaks down unless the couple jointly own assets between them.  By contrast a married couple upon divorce, can make financial claims against the other's assets even if they are in the other party’s sole name.  Therefore, if you do not intend to get married, it is important to have a cohabitation agreement in place.  Such an agreement governs what will happen to each party's assets when the relationship breaks down as well as covering  matters such as how the bills will be paid during the relationship.  It is a very useful document as it gives clarity to each party.

On a similar subject we often hear from parties to a divorce that they assume because they are married that they are entitled to half of all assets and property. In fact whilst courts start on the basis of a 50-50 split, the court looks at the needs of each party and can adjust the percentages accordingly.  This is particularly the case if there are young children involved.

There is a further myth that children will automatically live with their mother following a divorce.  This is not true, but historically if the mother has been the primary carer for the children, then this arrangement will often continue after a relationship ends.  However, the court will always look at what is in the best interests of the child and ensure that their day-to-day needs are met.  It is extremely important that a child maintains their relationship with both parents.

We often meet couples who want to get divorced on the ground of “irreconcilable differences” unfortunately there is no such ground for divorce.  In order for a couple to get divorced, the marriage must have irretrievably broken down and this needs to be proved by one or more of 5 facts specified in the Matrimonial Causes Act 1973.  The law is therefore quite old and needs to be updated.  Despite many calls for “no fault” divorce, as yet, no reform has taken place.

Another common myth is that “fault” in divorce affects the financial settlement.  The court is not interested in the reasons for the marriage breakdown when deciding how the finances are to be divided.   Both parties are often at fault in the breakdown of the marriage and the ground relied upon within the divorce proceedings may be the symptom rather than the main cause of the relationship breakdown.  Conduct by one party is only taken into account in exceptional circumstances.

There is a common perception  in England and Wales that Pre Nuptial Agreements  are not worthwhile.  However Pre Nuptial Agreements are becoming increasingly common and are now more persuasive to a court.  These documents can save time and money should things go wrong in a marriage.  Pre Nuptial Agreements are often made by parties to a 2nd marriage who each have assets in their own name which they are bringing into the relationship.  In those circumstances a Pre Nuptial Agreement is advisable to ensure that if the marriage does break down that each party's assets are protected.

Finally, there is an assumption that divorces are expensive, but Napthens offer fixed fee services for divorce and financial matters.  You can therefore rest assured that the cost element of the difficult and emotional journey is taken care of.

For further information, please get in touch with a member of the family & divorce team.

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