These are terms often used by
the lay person when dealing with or referring to divorce, relationship
breakdown and children disputes. Why? TV
series, soaps and the media tend to use this language, however the lay person
doesn’t realise that the terminology is out of date and often incorrect!
I have addressed below some
of the myths in family law, and questions I often get asked by my clients, which I hope you will find helpful.
Can I obtain a quickie divorce?
The media often uses this term when
reporting about celebrity divorces. The law is the same for everyone. The law
states that you need to be married for at least one year before you can submit
a divorce petition to the family court. A divorce takes between 4 and 6 months,
sometimes longer particularly if there are unresolved financial issues.
Can I divorce on the basis of 'irreconcilable differences'?
A couple divorcing often believe they can
cite ‘irreconcilable differences’, ‘simply not getting on’ or ‘drifting apart’
as a reason. This is incorrect. In England and Wales, there is only a ‘no
fault’ divorce if you have been separated for more than 2 years and the other
party consents. If it has been less than 2 years, then you will need to rely on
the other party’s ‘unreasonable behaviour’.
If I cite ‘adultery’ or ‘unreasonable
behaviour’ for the breakdown of the marriage, will I receive a larger share of
reason for the breakdown of the marriage is not relevant to the distribution of
the assets. It is only in exceptional circumstances where the court finds that
your spouse has shown gross misconduct, which could have an impact on the division of the assets. This is rare.
Getting divorced means that I am protected from
any future financial claims from my ex-spouse?
Obtaining your decree absolute, which dissolves
the marriage does not mean that you are protected from a financial application
from your ex-spouse or prevent you from making a claim yourself. The financial
claims arising by virtue of the marriage include property transfer, lump sum,
spousal maintenance, pension share, and claims against each other’s estate;
these claims are not automatically dismissed upon decree absolute. You will
need to make a separate application to the court, even if you are seeking a
financial clean break in life and death and you have reached an amicable
agreement with your ex-spouse.
If I leave the matrimonial home, am I giving up
The short answer is no. You
acquire rights whether you live there or not. There are disadvantages to
leaving the marital home if you intend to sell the property, such as being in
control of the sale and viewings as well as other reasons.
Does the breadwinner receive more of the
Not necessarily. The family
court considers contributions such as a bringing up the children, emotional
support to the family including your spouse’s career, and looking after the
home as equal and just as important. The
first consideration of the court when considering the division of the assets of
the marriage is the children’s needs.
Will I get custody or access to my kids?
The terms ‘custody’ and ‘access’ were
abolished a long time ago. The family court now refers to ‘children arrangement
orders’ which set out where the children live and the division of time spent
with each parent’.
Am I in a common law marriage?
Often couples will believe that they are in
a common law marriage if they have been together a long time. This is not the
case. Living together and having children does not give you the same rights as
a married couple. If you purchase a property with your partner then make sure
you record the contributions made by each of you in a document known as a
‘declaration of trust’ and also future contributions whether it’s payment of
the mortgage or an extension so that there is no ambiguity later on.
If you have any questions
about the law, or are unsure of your rights, then speak to a solicitor in our
Kate is an Associate in the
family team and a recommended lawyer in The Legal 500. You can telephone Kate direct on
01892 506205 or 01732 224 025 or email Kate at firstname.lastname@example.org.