10 Family Law Myths
“Armchair lawyers”: we all know them. In the area of family law in particular, everyone has advice to give or a tale to tell. It can however do more harm than good to listen to well-meaning friends and family who rely on stereotypes, drawing on their own circumstances or others’ experiences. The fact is that family law in this country is complex: no two cases are exactly the same and usually some expert legal advice goes a long way.
So what are the common myths and what’s the reality?
1. Myth: I’m a “common law” wife and I have my rights.
Reality: There is no such thing, even if you have lived together for 50 years. To acquire legal rights to your partners’ possessions, without relying on vague and arcane Trust law, you must marry or enter into a civil partnership.
2. Myth: I am divorced so my Decree Absolute protects me from financial claims.
Reality: Your Decree Absolute will simply end your marriage. It will not prevent a court from dealing subsequently with your former spouse’s financial claims. Even if you entirely agree about what should happen and you have implemented that agreement, for example by selling the family home and dividing the proceeds between you, you should still have that agreement recorded in a final and binding court order, known as a Consent Order.
3. Myth: We’re married so I’m entitled to half of everything he’s got.
Reality: There is no such law in England and Wales. We look at achieving fairness by reference to a raft of factors such as each party’s needs and those of any children, the length of the marriage, the resources available to each party and the assets each of them had prior to the marriage. Sometimes, fairness and equality are the same thing but more often than not, one spouse will end up with more than the other for a variety of reasons.
4. Myth: We can divorce on the basis of “irreconcilable differences”.
Reality: Whilst that is the case in the US, it is not the law here where you either have to be separated for at least two years or divorce on the basis of the other spouse’s adultery or unreasonable behaviour.
5. Myth: I can prevent my wife from claiming a share in my assets by transferring them to someone else.
Reality: If the courts believe that an asset has been transferred in order to thwart a spouse’s claim, that transfer may be set aside or the asset still treated as part of the matrimonial pot. Even if assets are placed in a family Trust, or Limited Company, they can still form the subject of a claim on divorce.
6. Myth: I am not married, but I am on my child’s birth certificate so I have parental responsibility.
Reality: That is only the case for children born after 1st December 2003. If your child was born before then, and you never married the mother, you will not automatically have parental responsibility even if you were named on the birth certificate. You can only acquire that legal status by making an application to the court or entering into a Parental Responsibility Agreement with the mother.
7. Myth: It’s not adultery because we are separated.
Reality: As long as you are still married, a sexual relationship with a new partner of the opposite sex is adultery in the eyes of the law. However, to explode another myth, the ground for divorce is usually irrelevant to issues such as the distribution of assets.
8. Myth: I can get a “quickie” divorce.
Reality: You cannot under any circumstances divorce within the first year of marriage. After that, the procedure for all divorces is much the same. The media report celebrity quickie divorces at their Decree Nisi stage, but usually ignore the fact that they have to wait another six weeks before obtaining Decree Absolute.
9. Myth: It’s going to cost me a fortune to get divorced.
Reality: Most cases in local courts such as Bath cost nothing like the headline cases that come out of London. Most lawyers will encourage settlement out of court and you can represent yourself if you want to. If you choose that option however, you may end up with an unfair settlement, or without the necessary legal paperwork to ensure that your agreement is final and enforceable.
10. Myth: Pre-Nuptial Agreements are not worth the paper they are written on.
Reality: Although they are not strictly binding in England and Wales, they are a compelling factor for a court to consider on divorce as long as they are properly prepared. They can save a lot of money in the long run, but don’t be tempted to download one from the internet: they require expert advice and input if they are going to be given full weight by the court.
Some of these realities may surprise you. There are plenty of others too, so if you are likely to be involved in a divorce, do talk things through with a solicitor. Your friends are there for emotional support: take your legal advice from your lawyer.