Divorce is now so commonplace in modern society that many people believe it to be simple and uncomplicated, actually for a divorce lawyer like myself it is, but for the lay-person matrimonial law is not always easy to understand which has caused many popular misconceptions and myths. Whilst you might think these myths are harmless and misunderstandings have no consequence that isn’t always the case.
10 common divorce misunderstandings and myths
“We can get a quickie divorce”
This phrase seems to be used whenever a celebrity couple are getting divorced. BUT – there is no such thing as a “quickie divorce”, for celebrities or anyone else. In reality proceedings for divorce usually take around 4 to 6 months once the petition has been issued at court. The divorce does not actually become final until decree absolute is obtained and the couple are still married until then, so ignore what you read in the papers or see on TV it can’t be done quicker than this.
The “common law spouse”
King George II abolished the doctrine of common law wives in 1753. Therefore, however long you may live with your partner you will not gain any status as their spouse, and have not been able to do so for 260 years. The law relating to cohabitants is complex and very different to the law that relates to division of assets for spouses upon divorce, so don’t think when you split from a long term partner you’ll have the same rights as a divorcing friend.
“It’s not adultery if we’re separated”
Actually, it is. If you are still married and have sexual intercourse with a person of the opposite sex whether you are separated from your spouse or not, it is adultery in the eyes of the law. However, for adultery to be used as a ground for divorce you have to show your spouse has committed adultery and you find it intolerable to continue living with them. If you are already separated when the adultery takes place the second part of the ground may not be applicable.
“You have to obtain your spouse’s agreement to proceed with a divorce”
This is not true. If you apply for divorce on the basis of adultery, then you do need evidence of that adultery which is usually supplied by your spouse answering “yes” to a question on a court form; or if you base your divorce on 2 years separation your spouse needs to give their consent. However, an application on the basis of unreasonable behaviour does not need to be agreed and there are also ways to move matters forward if your spouse refuses to respond or co-operate.
“We want to divorce based on irreconcilable differences”
It is common for people to want to divorce on the basis of their irreconcilable differences. It is possible to do this in other countries where no-fault divorces are available, but not currently in England and Wales. To get a divorce you have to show that your marriage has irretrievably broken down as a result of adultery, unreasonable behaviour, desertion, 2 years’ separation (with your spouse’s consent) or 5 years’ separation.
“Fault affects the financial settlement”
Apart from in extreme cases, the reasons for the relationship ending are usually irrelevant when deciding what share of the family assets each spouse receives. The court is not usually interested in punishing the person allegedly at fault or having caused the marriage to breakdown; instead it is concerned with finding a fair solution that meets the family’s needs.
“I will lose the rights over my family home if I move out”
No, you will not be penalized if you chose to move out of the family home. Lots of people assume that they will give up any legal rights to the property or equity in the property by moving out but that is simply not the case.
“I can keep any money, property or business that’s in my sole name”
Sorry, not true. Even if you have been careful with money during the marriage building up savings in your sole name, keeping all money separate from your spouse, by virtue of marriage all assets become joint assets, regardless of whose name they are held and claims for a share of those savings can be made by your spouse within divorce and financial proceedings.
“Children always live with their mother after divorce”
That is not the automatic position. However, in most marriages or relationships the mother tends to be the children’s main carer and there is an assumption that this arrangement will continue post-separation. If both parents have had an equal role in looking after the children on a day to day basis, then no presumption would exist in favour of the mother.
“Lawyers want to get you into court”
This is not generally the case. Family lawyers, like all those at Woolley & Co, who are members of Resolution, sign up to a code of conduct that ensures a non-confrontational approach is taken wherever possible. Whilst there are cases where court may be the best, or the only option, many cases can be resolved through mediation, arbitration, negotiations or a collaborative approach.
“You need a solicitor to get divorced”
Not always. You can represent yourself, and we are seeing more people doing this. Whether it is wise for you to do so is another matter. If you have any questions about representation or the divorce procedure, do get in touch.
Divorce & family lawyer St Neots