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 assets 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.
“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.
“My Final Order in divorce 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 Final Order in divorce 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 the case for every child born after 1st December 2003. If you are not 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 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.
Should you require any advice regarding the contents of this article or any other related issue, please do not hesitate to get in touch with a member of our experienced family team on 0333 305 7777. We have offices across Ulverston, Barrow-in-Furness, Grange-over-Sands Windermere and Lancaster. Face to face, Microsoft Teams or telephone appointments can be arranged at your convenience.