10 Common Myths about Separation and Divorce

Insights - 26/02/2016

1. Divorce always ends up being fought out in court leaving spouses feeling angry and hostile towards each other.
Court is only necessary if the other person objects to the divorce, in which case there has to be a hearing to prove the marriage has irretrievably broken down. This is very rare. It is more common for people to go to court to settle disputes over finances. However this is still a last resort and before going to court the couple will have had to have tried to resolve things by other means such as mediation.

2. Divorce is always costly.
Spouses can decide to handle the divorce proceedings themselves to avoid incurring legal fees in relation to the divorce. If they do not wish to undertake the divorce themselves many solicitors offer a fixed fee to act in divorce proceedings. When it comes to resolving financial claims costs can escalate quickly, especially if spouses cannot agree and they have to go court.

3. Celebrities get ‘quickie’ divorces.
The court processes divorces in the order in which they are received. No divorces are singled out to be rushed through on the basis of someone’s status or fame.

4. Finances are always divided equally on divorce.
The starting point for dividing assets is equality, a 50/50 split. However it is not fair to share the assets equally in every case. The court has a list of factors it must consider and give weight to arrive at a fair split. There is no set formula which the court uses to arrive at the right outcome in each case. The factors the court considers are; welfare of any minor child, the income, earning capacity, and property each of the spouses has or is likely to have in the foreseeable future, the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future, the standard of living enjoyed by the family, the age of each spouse and the duration of the marriage, any physical or mental disability of either spouse, the contributions which each of the spouses has made or is likely to make in the foreseeable future to the welfare of the family, including contributions in looking after the home or family, the conduct of each spouse , if that conduct is so bad that it would be unfair to disregard it, and finally the value of any benefit which a spouse will lose by reason of the divorce e.g. a death in service benefit.

5. If you have an affair you will get less than your fair share of the assets.
Adultery would not normally be taken into account when deciding a split of the assets. It is only in very exceptional situations the court will look at someone’s behaviour and decide that it should be taken into account. Examples of behaviour that have include; a husband abducting the children, a wife shooting her husband with a shot gun, and a serious attack on the wife by her husband which meant she was no longer able to work. More often than not it is financial misconduct and not physical misconduct which is raised by husbands and wives during the course of a divorce.

6. Once you receive a Decree Absolute you have no more links to your ex-spouse.
Having a Decree Absolute does not end the financial claims husbands and wives have as a result of their marriage. There must be an approved court order dealing with these claims. If there is not either spouse could make a future claim against the other’s assets, no matter how much time has passed since they divorced.

7. It is automatic that the mother will have the children to live with her upon separation.
There is no ‘standard’ arrangement for parents to follow when agreeing how much time children will spend with their father or mother once a relationship has broken down. The arrangements may differ during holidays and term time and evolve over time and as the children get older.  As society changes parenting roles are evolving from traditional norms and in more and more cases fathers are taking a greater role in the care of their children. 50/50 shared care is becoming a more common and it is no longer unheard of for children to live with their father following separation. A court will not become involved in making a decision on the arrangements for the children unless the parents cannot agree and they ask it to. If a court does become involved its decision is based upon what it thinks is in the best interests of the child, and it has a checklist of factors to measure this against.

8. Whoever has ‘custody’ of a child has more rights than the other parent.
If both parents have parental responsibility they both have the same say in all the significant decisions in the child’s life, for example in relation to education, medical treatment, religion and property. The mother automatically has parental responsibility for the child. The father will have parental responsibility if he was married to the mother at the time of the birth, if he is named on the child’s birth certificate (births from 01.12.03), if he has a Parental Responsibility Agreement with the mother, or has a Parental Responsibility Order from the court. Provided the parent who the child does not live with has parental responsibility, the fact the child lives with someone else has no impact on their role in being party to the big decisions in the child’s life, or playing their part in caring for the child.

9. If they stop receiving child maintenance the parent the child is living can stop contact.
If child maintenance is stopped the parent receiving it should contact the Child Maintenance Service for a calculation and help in collecting the money if needed. There is no legal basis to stop the parent who must pay child maintenance from seeing their child if they stop paying.

10. There is such a thing as a Common Law Wife and Common Law Marriage.
There is no such thing as common law marriage in the UK, and so there is no automatic right to share assets between unmarried couples upon relationship breakdown. If a couple is going to cohabit or buy a property together it is important for them to obtain legal advice on what shares they will each have in that property and how this will be recorded.

If you require any advice or assistance on any of the issues raised in this blog please contact a member of our family team

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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