We have put together a quick-fire list of the most common misconceptions and myths surrounding divorce. For more information about divorce/dissolution, separation, issues surrounding children or division of the family home following a split from your unmarried partner, contact us to speak to one of our experts.
“My husband/wife committed adultery, so I deserve more of the assets”
The reason for the marriage breakdown is usually irrelevant when it comes to dividing financial assets. The court will not look to punish the respondent for their behaviour and will instead focus on finding a fair financial settlement that meets both parties’ needs. Often however, what is fair in the eyes of the court and what is fair in the eyes of the parties can be different.
“Pre-Nups are not worth the paper they are written on”
Pre-Nuptial agreements are notoriously associated with celebrities. However, anyone can enter into a Pre-Nuptial agreement in an attempt to protect their asses and income in the event of divorce. Although Pre-Nuptial Agreements are not strictly binding in England and Wales, they are a compelling factor for a court to consider in divorce as long as they are properly prepared. Do not be tempted to download a Pre-Nuptial Agreement from the internet! In order for the court to uphold an agreement you will require expert advice and assistance.
“If I wait 2 years then I am automatically divorced anyway”
It does not matter whether you have been separated 12 months, 2 years or 20 years, if you are married there is no way of obtaining an automatic divorce. A divorce must be applied for and granted by a court before you are free to remarry.
“It is not adultery because we have separated”
If you are married, (separated or not) a sexual relationship with someone of the opposite sex other than your spouse is adultery. This means that until your Decree Absolute is granted in divorce proceedings, even if you and your spouse have been separated for many years, you are still married and therefore committing adultery if you enter into a sexual relationship with a new partner.
“If I transfer my assets to someone else, my husband/wife cannot claim against them”
If a Judge believes an asset has been transferred to someone purposefully to avoid the other spouse from having a claim against it in divorce, then the transfer can be set aside. This means that the asset will be treated as though it still remains part of the matrimonial pot and is available for division. The court is likely to take a very dim view of any attempt to transfer or dissipate assets and in serious cases; the court could require the wrongdoer to compensate the other party as a result of this.
“I want a divorce on the grounds of irreconcilable differences”
This is a term commonly heard in the press when a celebrity couple get divorced. Although this may be available for American couples such as Tom Cruise and Katie Homes, Kris and Bruce Jenner and of course, Bradgelina this is not a ground for divorce in England. In England you must satisfy the court that a marriage has irretrievably broken down by relying upon the facts of adultery, unreasonable behaviour, desertion, 2 years’ separation (with consent) or 5 years’ separation (without consent).
“My spouse left me; can I rely on desertion as the reason for my divorce?”
Relying upon desertion as a fact to satisfy the court a marriage has irretrievably broken down is rarely used. This is because abandonment must be intended at the time of separation for this to be successful and this is often very difficult to prove. Also, a 2 year period must pass following the abandonment for this to be relied upon. Accordingly, it is most common if one person to the marriage leaves the other to rely upon unreasonable behaviour if they do not want to wait 2 years before petitioning for divorce. Alternatively, if they are content to wait 2 years, they can simply petition with the consent of the other on 2 years’ separation to avoid the need to prove intention to abandon.
“My Decree Absolute has been issued so I am divorced and don’t need to sort out the finances”
This is perhaps the most worrying myth of them all. Your Decree Absolute brings to an end your marriage but it does not prevent a court from subsequently dealing with any financial claims issued by your spouse or ex-spouse in the future. Even if you and your spouse are in agreement about financial settlement it is still vitally important that you record that agreement in an Order, known as a Consent Order, and have that Order stamped and approved by the court to make your agreement legally binding. Without this, if you were to go on after divorce to win the lottery or develop a multi-million pound business your ex-spouse could issue a financial claim against you despite having been separated from you for several years. Even worse if one of you dies, the survivor will still be able to bring a claim against the deceased’s estate for financial provision. – see 7 Reasons you ought make a will for more information on making a will
“We weren’t married but I am named on my child’s birth certificate so I have parental responsibility”
This is not the case for every child, only those born after 1st December 2003. If your child was born before 1st December 2003, you do not automatically have parental responsibility even if you are named on the birth certificate. You can only secure the legal status of parental responsibility by entering into a Parental Responsibility Agreement with the Mother or applying to the court for an Order.
AND FINALLY, THE BIGGEST MYTH OF THEM ALL:
“We were ‘common law husband and wife’, so I have rights”
There is no such thing as a common-law marriage. No matter how long you are together, no matter if you live together, no matter if you have children together, if you are not married you will not automatically acquire any rights to make a claim against your partner’s possessions. To have a legal right to make any claim against your partner’s assets you must establish an interest by relying upon Trust Law or enter into a marriage or civil partnership.