Popular myths around divorce and relationship breakdowns

In daily practice, family lawyers are often confronted by many assumptions made by clients when dealing with divorce proceedings or relationship breakdown. We have outlined below some of the more common ones and clarify the position.

Q. You can Divorce within the first year of Marriage

A. 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.

Q. All Divorces are Acrimonious

A. 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.

Q. A Divorce can be based on "Irreconcilable Differences"

A. 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.

Q. Adultery cannot take place after Separation

A. 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.

Q. It is better to Divorce for the sake of the Children

A. 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.

Q. Children always live with the Mother after Divorce

A. 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.

Q. "Custody" and "Access"

A. Custody is not a concept recognised by the English courts. Lawyers talk in terms of "residence". Likewise "access" is known as "contact".

Q. I deserve more as I was the breadwinner

A. 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.

Q. If I transfer my assets to my Brother, then my Wife will not have a claim on them

A. 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.

Q. A women's income falls after a divorce

A. 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.

Q. Following a Short Marriage parties will be returned to the position they were in beforehand

A. 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.

Q. Maintenance Orders are final

A. 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.

Q. Common Law Marriage

A. 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.

Q. Civil Partnership is not the same as Marriage

A. 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.

Q. Pre-Nuptial Agreements are not worth the paper they are written on

A. 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.

For a consultation with a Family Law Solicitor or a Divorce Lawyer call 0844 980 1428 or send us an email. We are available to take your call twenty four hours a day, seven days a week.