9 of the most common divorce myths debunked
After practising in family law for seven years, it occurs to me that a number of questions I am asked when I first meet with a new client are strikingly similar. In a generation of celebrity and social media, it comes as no surprise that divorces are an almost weekly occurrence in the news and with these stories comes a sensationalised law that is not necessarily reported accurately.
Everyone knows someone who has been divorced and so to a large extent, it is a topic that many think they know about. It is important to remember though that no two divorce cases are the same; every marriage has its difference, be it the length of the marriage, the number and ages of the children, the household income or the value of the assets and liabilities. It therefore follows that no two divorce settlements will be the same because each case turns on its own very unique set of facts.
1. Can I get a ‘Quickie Divorce’?
This is a favourite term used by the media when reporting on a high profile separation. Most recently was Nigella Lawson who famously got divorced in “less than one minute.” The reality however is that all divorces, for celebrities and the general public, take around four to six months to conclude and the sixty seconds often spoken about, simply refers to the time it takes for the Judge to pronounce the Decree Nisi which entitles the parties to a divorce. Nigella wasn’t in fact divorced at this point, as she would still have to wait six weeks and one day before she could apply for the Decree Absolute which legally dissolves the marriage.
2. Can I divorce my spouse based on irreconcilable differences?
The short answer here is no you can’t. There is only one ground for divorce in England and Wales which is that the marriage has irretrievably broken down; this must be evidenced to the Court by reliance upon one of five available facts:adultery; unreasonable behaviour; two years continuous separation (with the consent of the other party); five years continuous separation (where no consent is required); and desertion. It is also worth bearing in mind that in England you have to be married for at least one year before you can bring a Petition for divorce.
3. Does she have any rights as my common law wife?
The doctrine of Common Law spouses was abolished by King George II in 1753 though this term has continued to linger around and is now often used to describe a cohabiting couple who have not married.
Unfortunately, the law has been slow to catch up with the growing number of couples living together and no matter how long you live with someone you do not gain the status of their spouse unless you are legally wed. The law relating to cohabitees is extremely complex and it is therefore advisable to take legal advice before you move in with your partner, in order to ensure your interests will be protected in the long term.
4. All divorces end up in Court don’t they?
No, in fact the majority of cases are resolved without the need for a Court application through the use of solicitor negotiation, mediation, arbitration or collaborative law. If cases are referred to Court, 95% settle before they reach a final hearing and it is therefore a very small percentage which are determined by the Judiciary.
5. Is it true that the children always live with their mother?
The law in relation to children has recently undergone a large overhaul. The terms ‘residence’ and ‘contact’ (which replaced the more colloquial term ‘custody’ in 1989) have been replaced by ‘child arrangement orders.’ In making this change, a greater emphasis is now being placed on keeping both parents in children’s lives and in trying to achieve shared parenting, depending of course upon the circumstances of the family concerned.
6. How will you find my husband’s hidden assets?
In determining a financial settlement, it is usual practice for both parties to provide to their respective solicitors full disclosure of their financial affairs, such as bank statements, payslips, pension valuations, property interests and other financial documents. This is then exchanged with your spouse’s disclosure to enable the lawyers to have a full picture of who has what and where. Your solicitor will then conduct a thorough investigation of the finances and request such further information as may be necessary; they may also refer some of the papers to a forensic accountant to ensure that all assets have been identified. Only once everything has been accounted for will your solicitor be in a position advise you as to settlement proposals.
7. Will we have to sell the house?
The answer to this question very much depends upon the other assets available and whether there are any children. It is the Court’s overriding concern to ensure the welfare of any child and it is therefore by no means a given that the house will be sold and you should consult a divorce solicitor before making any decision about whether to put the property on the market.
8. He committed adultery so will he get less?
Apart from very rare and extreme cases, the reasons for the marriage breaking down have very little impact on determining the financial settlement each party receives. The Court is primarily concerned with meeting the parties’ needs and is less concerned about punishing the party at fault. However, if there are serious allegations about the other party’s financial misconduct, then these should be reviewed on their merit by your solicitor at an early stage.
9. Aren’t Pre-Nups a waste of the paper they are written on?
It appears there are two schools of thought about pre-nuptial agreements which tend to be either that they are not worth the time and the money spent, or that they are fully and legally binding. The reality is that they are somewhere in the middle of these two theories. Whilst you cannot exclude the powers of the Court in determining a fair and reasonable settlement, if the agreement has been executed correctly then the Court will look to uphold it so it is imperative that you take legal advice on the drafting of the Agreement.