Five of the most common misconceptions around getting divorced
Newspapers, now more than ever, are full of news of celebrity divorces and everyone will have read horror stories about somebody “being taken to the cleaners” or conversely “getting off scot-free”. There is so much misinformation out there that you can find yourself in a bewildering situation, not knowing what is true and what to expect when your own relationship is breaking down
Here are five of the most common misconceptions that I have come across in my 30 years of practice as family solicitor:
1. “We are common-law man and wife”
In reality this is not the case. There is no such thing in law, and your rights as a cohabitee are very different to those of a married couple.
A mother who is not married to the father of her children, for example, will have no rights to financial support for herself and may have no right to a share of the home in which she and the children live if she and her partner cohabited rather than married.
Claims may be brought by her on behalf of the children but they will not be dealt with in the same way as a divorcing mother’s property claims. The law relating to cohabitees’ rights in relation to property can be complex and very expensive to resolve.
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It is important if you are thinking of cohabiting to take legal advice to help you make an informed decision about your future and take steps to protect yourself in the event of a future breakup.
2. “Pre-nuptial agreements aren’t worth the paper they are written on”
Provided the pre-nuptial agreement has been properly drawn up, is fair, entered into with both parties knowing about the other’s financial and other relevant circumstances, has been signed willingly by both parties in good time before the marriage, with each party having taken independent legal advice, they are generally taken into account in any financial orders in later divorce proceedings. In such cases, the parties may be held to the terms set out in the agreement.
Pre-nuptial agreements can save significant costs and heartache during a divorce and can be particularly helpful where, for example, if one party’s family has provided a significant amount of financial assistance to their child and they want that money to be safe-guarded on any future divorce.
3. “I don’t need a lawyer; everything is divided 50:50”
Not necessarily! An equal division of capital is a starting position only and it may not be appropriate in your case. The court will take many factors into consideration including the length of marriage; how the capital was brought into the marriage (for example, by an inheritance); whether the assets were held before the marriage, and each party’s needs. Every case is decided entirely on its own facts. Sometimes the division of capital departs significantly from a 50:50 division.
It is essential that advice is taken at an early stage to ensure that the agreement reached is fair and reasonable.
4. “It’s not my fault, therefore I should be compensated”
Conduct is very rarely taken into consideration. For example, the fact that one spouse has had an affair will not affect the finances. Generally the only relevance of one party’s adultery is the possibility that the spouse may decide to cohabit or remarry and this may have an impact upon the financial settlement.
5. “We have reached agreement between ourselves so there’s no point going to the expense of having a financial settlement”
Not so. Financial claims outlive the divorce and it is open to either of you to go the court later and ask for financial orders. An agreement reached between you, without legal advice, is unlikely to have any legal standing. In one recent case a wife was able to bring a financial claim against her husband 20 years after their divorce by which time her ex-husband, who owned nothing at the time of the divorce, had become very wealthy indeed.
Accredited as a specialist family lawyer, Veronica Gilmourn has been at the forefront of the development of non-adversarial alternatives in family law matters for a number of years, if you require her assistance please contact: Veronica Gilmourn at email@example.com or on 01483 411481 for further information | www.penningtons.co.uk