I have worked in Family Law for over 10 years and over the years I have advised thousands of clients and been asked a million questions, but all too often the same urban legends and myths rear their heads. I have often joked that their other half must have been to visit the "pub solicitor", that mythical creature who hangs out in the local pub advising the weary on family law and how they should sort out their separation. So once and for all I should set the record straight on what and what isn't true in the realms of family law. My top ten are;
- If I wait 2 years then I am automatically divorced - False! There is no means of obtaining an automatic divorce. It does not matter whether you wait 20 years, if you are married, you are married and you will have to divorce before you are free to remarry. This is a cautionary tale for anyone who is a bigamist.
- If I wait 2 years it's quicker and cheaper to get a divorce - No sorry! It takes just the same amount of time to get divorced no matter what reason you rely on to issue the divorce petition. Also, by waiting 2 years to issue proceedings you have already waited 2 years before you even commence proceedings. If you wish to get divorced straight away then you will have to issue proceedings on the fact of either adultery or behaviour. Also the costs of issuing the court proceedings will be the same cost no matter what fact you choose to issue proceedings on. If you issued on the fact of adultery then you have a greater chance of claiming the costs from the other spouse, but this is not always certain, you cannot get blood from a stone. Also, the longer you wait, the more chance the government has of increasing the court fee.
- I have "common law wife" rights because I have lived with my partner for more than 6 months, 12 months or 2 years! It doesn't matter how long you have lived together this is incorrect. There is no such thing as a common law wife or husband, or at least there hasn't been since 1753 when King George II abolished the doctrine. The law relating to cohabitee's is complicated and very much based on individual's personal circumstances.
- I want a divorce on the grounds of "irreconcilable differences" - the fact that the relationship has broken down irretrievably is the only ground for a divorce. This is then coupled with one of five facts, adultery, unreasonable behaviour, desertion, or 2 years separation with the others persons consent or 5 years separation without the other persons consent. The main reason a relationship breaks down is because you do not get along anymore and having differences which you cannot reconcile, but this would be included within the statement of case behaviour petition.
- My husband and I are separated and so it's not adultery! Wrong, even though you and your husband have separated, until you obtain a Decree Absolute, in the eyes of the law you are technically still married. Therefore if you have sexual intercourse with another man you are committing adultery. However, even if proceedings are issued on the fact of your adultery it will have no impact on your financial settlement. The court does not unless in very extreme cases, take into consideration the reasons for the breakdown of a relationship when considering the couples financial settlement.
- My wife says the children will live with her after we separate because that's just how things are! This is not always the case, the court take into consideration a wide range of factors when considering with which parent a child should live. Every case is different and the law should not make any assumptions based on the gender of a parent. The court has to consider what is in the best interests of the child.
- I contributed to my pensions while I was working so it isn't part of the matrimonial assets! When the court considers pensions on the breakdown of a marriage, the try to equalise the pension contributions. Often the Husband will have the larger pension because usually the wife will either have not worked during the course of the marriage to care for the children or will have worked part-time, so the wife's pension will not have been as big as the husband. The court considers that the wife's contribution to the family and children of the relationship is equal to the financial contributions traditionally made by the husband.
- I was the main bread winner, why shouldn't I get the lion's share of the marital assets I earned them! The courts position on financial contributions to the marital pot during the course of the marriage is that the Wife's contribution to the family and children, is equal to the Husband's financial contribution to the family. Therefore, any assets which were built up during the course of the marriage whether in one parties name or the other should form part of the marital estate and be taken into consideration during financial settlement on divorce.
- Pre-nuptial agreements are not worth the paper they are written on! It is true that pre-nuptial agreement in England and Wales are not legally binding. They are however persuasive to the court should the parties separate. A well drafted, thought out agreement, can carry great weight with the court especially in a short marriage or where there are no children of the relationship and can save time and money in the long run. Pre-nuptial agreements are also very important for those couples who are entering into second or third marriages and they wish to protect pre-acquired assets of the marriage for inheritance for their children.
- Unmarried fathers have no rights - This is completely untrue, mother and fathers have the same rights as one another as long as the fathers name is on the child's birth certificate. This then gives the father what is known as Parental Responsibility which is a legal expression used to outline the rights, duties and responsibilities which a parent has in relation to his or her child.
