I started my career at Stowe Family Law as a trainee solicitor this time last year. Having now been at the firm for a full 12 months, I have been able to gain a wealth of experience by working closely with my colleagues on their cases and meeting with clients on a daily basis.
Christmas has always been one of my favourite times of the year and not only because of the presents or overindulgence on sweet things. Christmas is a time where even the most serious-natured people become captivated by the magic and spirit of Christmas festivities and it is an especially joyful time for kids. Of course those very same youngsters one day discover that Santa Claus does not in fact deliver the presents we find placed under the tree on Christmas morning, nor do his little elves wrap them up so perfectly and in military fashion. Many of us can remember where we were when that mystical myth was first debunked and we learned that those presents were out from our parents all along.
One thing I have learned is that there a few ‘Santas’ in family and divorce law too – beguiling myths and half-truths that return again and again. Let’s take a look at a few.
- Myth 1
“ But he/she is the one that cheated.. doesn’t that mean I should get more?!”
When distributing the matrimonial finances, the Court looks to the factors contained within section 25 of the Matrimonial Causes Act, but nowhere in that list of factors will you find reference to adultery or affairs. Section 25 refers only to “conduct”. However, the Courts will rarely seek to punish such behaviour financially. The only relevance of an affair as far as the law is concerned is the possibility that the spouse may decide to live with the other person involved as a cohabiting couple. If they do, their financial needs and obligations will be assessed differently by the courts.
- Myth 2
Being divorced means that we are free of one another financially too.
100 per cent false. Many clients are shocked to find out that the financial claims that arise out of a marriage outlive the decree absolute which dissolves the marriage. Indeed the recent case of Wyatt v Vince illustrated why it is so very important to ensure that the financial matters are dealt with at the same time as the divorce. The parties were divorced in 1992, having separated some years before, then some years later, after the husband had made a significant amount of money and built a business valued at £90 million, the Supreme Court ruled that the ex- wife should be allowed to bring a financial claim against him. This therefore, can be one of the most harmful family law myths. Always seek advice about the financial consequences of divorce.
- Myth 3
“It’s not adultery if we were separated at the time”
Although the adulterer may have convinced themselves that this is the case, the law does not agree. So long as the parties are still married when the adultery was committed, in the eyes of the law the cheating spouse has indeed committed adultery and the act/acts of intercourse can form the basis of a divorce petition.
- Myth 4
The court favours women over men.
This is a myth that I can appreciate why many believe. It stems from the fact that there have been a number of substantial divorce settlements reported in the media over recent years in favour of the wife. Women in the past have tended to take on the traditional role of homemaker as opposed to breadwinner. Despite that fact that this trend has changed as society has developed and it has become acceptable for women to work and raise a family, many still believe that the Court system favours the female sex.
The starting point for determining the financial matters is equality. A departure from equality can then be justified in one party’s favour, particularly if their financial needs so dictate. Therefore, it is not that the Court favours women, but that the Court seeks to ensure that the more financially vulnerable spouse receives a settlement that is fair and enables them to receive their fair share of the marital assets and in some instances, especially if their financial needs dictate, they may receive more than half the value of the assets to enable them to house themselves. Men generally still earn more than women and children still tend to stay with their mothers and as such, women have a greater need for a bigger share of the assets and/or maintenance. However, even in my short career, I have seen many female clients that are making an equal and sometimes greater financial contribution to the household.
- Myth 5
“I don’t want to mediate as I don’t want to reconcile!”
Mediation must be distinguished from counselling. Mediators help to facilitate an amicable separation, whereas counsellors will try to assist the parties to resolve the issues in their marriage. It is now a requirement that most parties attend a ‘mediation information meeting’ (MIAM) before beginning financial proceedings. Mediation provides a neutral environment with an experienced mediator to talk through issues surrounding your financial arrangements or your children and to try to reach an agreement without the stress and cost of going to court.
- Myth 6
“It’s just half of everything isn’t it?”
I often hear this question from new clients. They believe that all that needs to be done is divide the assets down the middle and that’s it. The usual approach to the division of assets does indeed begin with the “yardstick of equality” but in fact, this is usually quickly followed by a look at whether or not there are any reasons to depart from equality.
The most common reason to do so is when one party is thought to have a greater need for capital to meet their financial needs (see Myth number 4 above). In addition, in cases where there are substantial assets, some of those might have been created outside the marriage by a third party and only received into the marriage through gift or inheritance. Or perhaps one or other party to the marriage held large assets before the marriage. Such assets might be ring-fenced and kept out of the calculations used to fix the financial settlement. However it is vitally important that you know what there is during the divorce process and this means that each party’s financial disclosure must be thorough and accurate.
- Myth 7
“We have lived together for ages, we are common law man and wife”
This is possibly the biggest and widespread family law myth of all. Many people believe that if they have lived with a partner for a certain period of time they become ‘common law man and wife’ and this will give them the rights and entitlements of a married couple. Sadly, this is not the case.
The rights of married couples in relation to income, capital and pensions are not available to cohabitants. They are normally only able to leave a relationship with the assets held in their sole name and indeed in the absence of any agreement to the contrary, if a couple split and one person owns the home, the other does not have a legal right to remain in that property. The harsh truth is that if unmarried couples separate, the law will not treat them as equal partners and property rights are only acquired if certain formal legal formalities are satisfied.
Inevitably, this can have significant and serious implications insofar as financial settlements are concerned. However, some things can be done by clients to protect themselves. These include written agreements which set out the arrangements for living together. When properties are purchased both parties should receive legal advice so that an informed decision can be made as to how the property is to be owned and who will have what rights. Although cohabitation agreements are not automatically binding on a court, they can be used as evidence of each partner’s understanding of the situation if the matter ever reaches court.
I wish you all a merry Christmas and a happy New Year!
Photo by Michael Coghlan via Flickr