Myths about Divorce
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Myths about Divorce
Popular myths around divorce and relationship breakdowns
As divorce solicitors we hear many stereotypes when dealing with divorce proceedings or relationship breakdown. Below are some of the most common assumptions with clarification.
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1. You can divorce within the first year of marriage
2. All divorces are acrimonious
3. Divorce can be based on 'irreconcilable differences'
4. Adultery cannot take place after separation
5. It’s better to divorce for the children’s sake
6. Children always live with the mother after divorce
7. Custody and access
8. I deserve more as I was the breadwinner
9. If I transfer my assets to my brother, my wife will have no claim
10. Woman's income falls after divorce
11. Following a short marriage parties positions return to beforehand
12. Maintenance orders are final
13. Common law marriage
14. Civil partnership is not the same as marriage
15. Pre-nuptial agreements are not worth the paper they are written on
This is incorrect. Parties are unable to petition for divorce within the first 12 months of marriage. This bar is absolute and means that no matter how difficult the circumstances, the petitioner must sit tight for at least one year before they may petition for a divorce.
This is not the case. Most people want a civilised amicable divorce and manage to achieve that. Aggressive and acrimonious divorces are relatively few and far between. Most divorce settlements are agreed outside of the court process. Mediation and collaborative law often provide more constructive routes to a settlement.
A common reason put forward by parties is "we wish to divorce as we simply don't get on". Unfortunately this is not sufficient. Unless a couple have lived apart for two years or more, any divorce proceedings have to be based on either unreasonable behaviour or adultery.
This is not true. Even if a couple have been separated for many years, if one starts a physical relationship with another person before decree absolute has been pronounced, then technically they are committing adultery. Adultery will have little relevance to financial matters as this is only usually relevant as a ground for divorce.
Following a divorce, the children involved may not be better off in a step family or in a single parent family. Once parents separate, the family dynamic changes and this can impact upon the parent - child relationship. Therefore it is not always in the children's best interests for their parents to divorce even if their parents do not get on.
This is not always the position. In most marriages or relationships the mother tends to be the children's main carer. There is therefore an assumption that this arrangement will continue post-separation. If however 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.
Custody is not a concept recognised by the English courts. Lawyers talk in terms of 'residence'. Likewise 'access' is known as 'contact'.
Just because one spouse has earned all the money in the marriage, that does not entitle them to a larger share of the assets on divorce. The contribution of the home-maker is viewed as the same as that of the breadwinner. Equal contributions often lead to an equal division of assets. Equality is the usual outcome where the assets have built up during the course of the marriage and there is sufficient to meet the housing needs of the husband and the wife. However, where the assets are limited and where one parent has the care of the children, it is usually the case that they will receive the majority of the assets on divorce to meet the housing needs of any young children.
Just because assets are in someone else's name, for example in a family trust, they can still be subject to attack on divorce. The nature of the trust and its beneficiaries can have crucial importance when considering the relevance of a settlement upon divorce. The courts have very wide powers and can still treat assets transferred to others as matrimonial and bring assets back in to the matrimonial pot. Certain transactions can also be set aside.
It is no longer always the case that following a divorce, a woman's standard of living plummets whilst a man's improves. The traditional roles for males and females have changed. There are many marriages where the woman earns more than the man.
11. Following a short marriage parties' positions return to beforehand
When looking at the length of a marriage, courts are now tending to add on any periods of pre-marriage cohabitation when calculating the length of the marriage. In the event that a marriage ends in divorce, it can make a difference whether the parties lived together before marriage.
Again this is a common misconception. Not only can maintenance orders be varied, but the court has the power to capitalise them, therefore giving former wives the potential for a second bite at the cherry.
Contrary to popular belief, there is no such thing as a common law spouse. No automatic rights arise when an un-married couple live together. The Law Commission has recently recommended that the law be changed, but it is not known when or if those changes will be implemented by the Government.
Civil Partnerships were recently introduced by the Government for same-sex couples. Although in practical terms it is viewed as "gay marriage", the Government chose not to give it the label of marriage.
It is true that pre-nuptial agreements are not binding under English law. However, if properly prepared, they are a factor which can be taken into account by the courts. Pre-nuptial agreements are beginning to carry a great deal of weight, particularly after a short marriage. The costs of preparing a pre-nuptial agreement can be modest compared to the substantial costs of a fully contested divorce.