Busting some common divorce myths...
Solicitors often encounter clients who believe that they are familiar with an aspect of the Law, but they have in fact believed in a myth.
These legal myths might arise from inaccurate reports in the media or online, or they might be circulated by well-meaning family members, friends and colleagues.
Here, we set out some misconceptions frequently encountered by Family Law Solicitors:
1. The “Common Law Marriage”
However long you might have lived with your partner, simply living together does not automatically give you the same rights as married couples.
Cohabiting couples have very little legal protection if their relationship ends. For example, the financial remedies on separation will differ vastly from those available to married couples. Worse still, if an unmarried person should die without leaving a valid will, their partner is not always automatically entitled to inherit anything from their estate.
2. The “Quickie Divorce”
The media often refer to celebrities obtaining a “quickie divorce”. As great as that might sound, it is not quite the truth.
In reality, the celebrities involved have usually only obtained their Decree Nisi. Their divorce proceedings will not be over, however, as they still have to continue until they have the final agreement or court order, the Decree Absolute. Everyone, celebrity or not, has to follow the same procedure.
It is not possible to apply for your Decree Absolute until six weeks and one day have passed from the granting of the Decree Nisi. So, even where the finances have been agreed, there is always going to be a further delay.
In reality, the best case scenario for a divorce where everyone is in agreement is typically four to six months. Where there is any dispute, expect the divorce to take longer.
3. "Extra-marital affairs impact on the division of finances"
A common divorce myth is that a husband or wife might be entitled to a greater share of the matrimonial assets where their spouse has committed adultery. This is not true.
The finances are dealt with separately to the actual grounds for the divorce.
Finances are generally dealt with reference to the respective “needs” of the parties, and in accordance with the guidance set out in the Matrimonial Causes Act 1973. The Courts want to find a fair solution that meets the needs of the individual family.
It is also not strictly correct to say that the assets will be divided on a 50/50 basis. Whilst this is often the starting point, there is actually no set formula. If a couple cannot agree on a suitable split then the Court makes the final decision.
4. "Legal Aid funding is available for divorce"
From April 2013 onwards, Legal Aid has only been available on divorce for spouses who have been victim to domestic violence or abuse, and it is subject to them also qualifying for it financially.
For the vast majority, the cost of divorce will have to be met personally.
Your Solicitor will try to assist you by setting out an estimate of the overall costs at the outset, updating this estimate as your case progresses and, where appropriate, by rendering legal bills regularly rather than in ‘one fell swoop’.
5. "If my ex-partner does not pay maintenance, I can stop him/her from seeing the children"
This is wrong. The Courts in England and Wales treat child custody and child maintenance as two completely separate issues.
You are not legally entitled to stop your partner seeing the children if maintenance payments stop. And it works both ways, so if you are denied access to your children then you cannot stop paying the maintenance.
The only practical solution is to seek further legal advice from your Solicitor about how to enforce your right to see the children or how to recover the maintenance payments.