There are many common myths surrounding marital rights and divorce:
Here are some more common assumptions:
You can get divorced whenever you like
No, this is not true. No matter how difficult the circumstances you must have been married for a minimum of 12 months before being able to petition for a divorce.
All divorces are acrimonious
Aggressive and acrimonious divorces are relatively few and far between. Most are agreed outside of the courts, with mediation and collaborative law providing constructive routes to a settlement.
A divorce can be based on irreconcilable differences
Simply ‘not getting on’ is not sufficient grounds for a divorce. Unless you have lived apart for more than two years, divorce proceedings have to be based on either unreasonable behaviour or adultery.
Adultery cannot take place if you are separated
Even if you have been separated for many years, any physical relationship outside of the marriage will be considered adulterous until the decree absolute has been pronounced. However, this has little relevance to the financial matters.
Getting divorced is better for the children
Once parents separate, the family dynamic changes and this can impact on your relationship with them. You have to consider what will be best in your situation.
Children always live with their mother after divorce
This is not always true, although the mother tends to be the primary carer. Every situation is different and the outcome will be decided by what is considered best for the child or children.
When divorce involves children, courts will refer to custody and access
Custody and access are not recognised terms in the UK – solicitors and lawyers will use the terms ‘residence’ and ‘contact’.
I earnt the money, so I deserve more
This does not entitle you to a larger share of the assets. The contributions of the home-maker are viewed the same as any financial contribution and equal contribution will lead to an equal distribution of assets. When the assets are limited, it is usually the case that the parent with care of the children will receive the majority of the assets.
If I transfer the money to a friend or relative, my spouse will have no claim
All assets will be considered in the matrimonial pot, regardless of where they have been transferred. It may also harm your case if you are found to have moved
A woman’s income will fall after divorce
The traditional roles for men and women have changed. It is no longer the case that following a divorce a woman’s standard of living plummets whilst a man’s improves.
It doesn’t matter how long you lived together before the marriage
When looking at the length of the marriage, a court is likely to include any periods of cohabitation. This is important as the length of marriage is a factor which can affect the financial settlement.
Maintenance orders are final
This is a common misconception. Maintenance orders can be varied and the payer or recipient can apply to court to vary the terms at any time. This can cover the amount paid, or the timeframe for which it is paid. The court also has the power to capitalise the maintenance order, meaning a lump sum must be paid to the recipient instead of monthly instalments.
Common law marriage
There is no such thing as a common law spouse. Un-married couples that live together have no automatic rights, despite most people presuming so.
Pre-nuptial agreements are a waste of time
Whilst it is true that pre-nups are not legally binding under English law, they are usually taken into account by the courts. They can carry a great deal of weight, particularly after a short marriage and can cost a lot less that a fully contested divorce would.
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If you’re considering getting divorced but need more advice, contact us today on 0800 840 4929
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